On Monday, Inside Higher Ed ran a piece by University of Michigan Law School professor Len Niehoff (who had worked on the pro-preferences team in the U of M cases decided in 2003) in which he claimed that he had evidence of the beneficial effects of “affirmative action” and declared that the Court was right in its 2003 Grutter decision and ought to uphold it in next term’s Fisher case. Today, John Rosenberg puts that piece under his microscope and calls it a “weird” defense for preferences. What is weird about Niehoff’s argument, in Rosenberg’s view, is that the evidence he provides has nothing to do with race or ethnicity at all.
I took Evidence at Duke back in 1975 and recall the professor, Dean Kenneth Pye, saying that sometimes a lawyer has to try salvaging a bad case by getting the jury to think that the outcome should turn on some irrelevant point that he can easily prove — in his example, “whether the butler had silver buttons or not.” Niehoff is trying the same tactic. He wants to prove that sometimes good things happen in class because a student with a unique background makes a telling observation (easily proven) and then declare that the case in favor of preferring some students because of their ancestry is victorious. But that doesn’t follow at all. Students whose background puts them into the “underrepresented minority” category are no more apt to have insights into the law than are other students. More importantly, law-school classes (and college courses generally) are about learning the body of knowledge covered. Student comments may be interesting (just as likely, though, a waste of time), but they are not integral to mastering the subject matter.