American Jewish Congress Panel, May 7, 2003

American Jewish Congress Panel Discussion on Affirmative Action

Statement of Jeffrey S. Lehman

May 7, 2003

I want to say what a privilege it is to be invited by the AJC to be on this panel with Roger to talk about affirmative action.

In 1997 the Center for Individual Rights filed two lawsuits, each challenging the constitutionality of a different admissions policy used at the University of Michigan.  One of those policies is how the University selects undergraduates for admission.  The other policy, the one that I helped to draft, determines how the University selects law students for admission.  The policies are very different from one another. But they do have one thing in common.  They each consciously place a positive value on having a racially integrated student body.

In the five and a half years since the lawsuits were filed, I’ve had the chance to participate in countless discussions about affirmative action, and I have come to appreciate the different forms of criticism of affirmative action, and how they play out in their implications.

To me, affirmative action is a difficult issue because it responds to a genuine conflict between two values that most of us cherish.  During my presentation this morning, I would like to do four things:

First, I would like to talk about the two competing two values. 

Second, I would like to describe four different responses to the conflict that people might have.  Two of those responses are articulated by supporters of affirmative action, and two of them are articulated by critics of affirmative action.

Third, I would like to speculate about where among these four positions a majority of the Supreme Court is likely to land when it decides the case next month.

And fourth, I would like to offer even more speculation about what that will mean for universities next year.

So what are the two competing values?  The first value is what is sometimes called colorblindness and sometimes called race neutrality.  It is a recognition that there is a social cost to be paid whenever anyone allows another person’s race to make a difference in how they are treated. 

The second value is what is sometimes called integration and sometimes called diversity.  It is a belief that universities are better institutions if they enroll meaningful numbers of students from each of the large racial and ethnic groups that have salience in American society – whites, blacks, Latinos, Asians Americans, and Native Americans.  I want to note here that some people hold this value for educational reasons – they believe that integrated universities do a better job of preparing students to be citizens in a multiracial society.  Other people hold this value because they believe it is necessary to respond to a national history in which non-whites were disadvantaged because of their race or ethnicity.  And some hold this value for both pedagogic and compensatory reasons.

Most of us appreciate both these values.  We favor colorblindness.  And we favor integration.  But we experience a conflict because, at least today, at the most selective law schools, it isn’t possible to have both colorblindness and meaningful degrees of integration.

So how might one respond to that conflict?  As I mentioned a minute ago, I believe there are at least four different responses.  It might be helpful to associate each response with a different one of four children.  

What are the four children?

1.  The child who is a purist about colorblindness says the following:  “Colorblindness must prevail.  I don’t care if that means no meaningful integration right now.  It is more important that we respect this value and attempt to purge ourselves of the vice race consciousness.  So do not use racial categories in your admissions decisions.  Don’t use them in your financial aid decisions.  Don’t use them in your recruiting.  Don’t use them in outreach.  ”

2.  The child who is a wishful thinker says the following:  “This is a false conflict.  It’s not so hard to have integration in a colorblind fashion.  All it takes is creativity and hard work.  If university administrators weren’t so lazy, we could get both.”

3.  The child who is a pragmatist says the following:  “I like colorblindness, but a university without meaningful integration is intolerable.  So depart from colorblindness as much as you need to in order to properly prepare your students for a multiracial society.  But don’t go beyond that, and don’t do anything that would meaningfully compromise your overall academic agenda.”

4.  The child who wishes to make up for past injustice says the following:  “If our history had not been so shameful, our universities would be integrated.  Universities should have admissions policies that allow them to resemble the universities they would have been if America had always been the nation we want it to be.”

Which child is the Supreme Court?  Well over the years there have been glimmers of all four children on the Supreme Court.  In Bakke, the center of gravity was the pragmatist child, Louis Powell. 

Under this pragmatist approach, the legal test is not rigid colorblindness.  But it recognizes the value of colorblindness through what is called “strict scrutiny.”  No race-conscious policy is allowed unless it is narrowly tailored to promote a compelling interest.

And under the pragmatist approach, integration of our campuses is a compelling interest.  But only for pedagogic reasons, not for compensatory reasons.

At the Law School, our current admissions policy is a very clear expression of this pragmatist approach.   Modeled on the Harvard College undergraduate admissions policy, our policy notes our aspiration to enroll meaningful numbers of African Americans, Hispanics, and Native Americans in the entering class, but then requires our admissions office to weigh that interest as only one factor in a highly individualized, judgment-laden review of each file. 

For that reason, critics of ours who are more like the child who wishes to make up for past injustice have excoriated us for enrolling numbers of African Americans that fluctuate dramatically each year, from as few as 6% of the class to at most 9% of the class over the ten years the policy has been in effect, even though our nation is 13% African American.  And they have called our policy half hearted because over that period we have rejected a higher percentage of black and Latino applicants than we have of white applicants.

At the Supreme Court’s oral argument, we heard criticism from the other side.  The plaintiffs mostly pressed the position of the child who is a purist.  They urged the view that any consideration of race be simply prohibited.  But at the end of the day I did not see five Justices tempted by that view.

More complicated was the temptation of the view that I have associated with a child who is a wishful thinker – the idea that maybe somehow we could have integration using a colorblind process, if only we tried harder.  The Justices properly probed the question – is that really wishful thinking?  Because if there were some magical colorblind brick road to racial integration, we clearly should take it.

But at the end of the day, the realities of American society mean that such a road does not yet exist.  At least when it comes to the most selective law schools in the country, the pool of most highly qualified applicants continues to show enough racial stratification that we must pay attention to race if we desire meaningful integration.  And if you look beneath the surface of things like the so-called percentage plans of Texas and Florida, you find that either, on the one hand, they are not truly race neutral, or on the other hand, they do not produce meaningful integration at the most highly selective law schools.

And so at the end of the day I do not believe the Court will be temped by wishful thinking.  I do not believe the Court will adopt the position of the colorblind purist, overturning Bakke.  And I do not believe the Court will adopt the position of those who favor affirmative action to remedy past injustice.   I believe that it will continue the pragmatist approach that has been the  basis for our laws for the past 25 years.

Does that mean the Court will uphold our admissions policy at the Law School?  I hope so.  The areas where the Court seemed to have the most concern were twofold.  On the one hand, they wondered whether our policy’s use of the metaphor of a “critical mass,” coupled with the fact that the total number of minority students varied only between 10% and 17% over the ten year period, suggested that our interest in integration was too rigid – too much like a quota.  And on the other hand, they worried about the fact that our policy does not have within it a so-called sunset provision that formally requires reconsideration of our use of affirmative action at stated intervals.  That reconsideration is left to the informal agenda-setting processes of a law school faculty.

I suppose that those concerns might lead the Court to ask us to edit our policy somewhat.  But at the end of the day, I do not think they will.  These do not have the feel of Constitutional defects to me.  In the end, I believe the Court will respect the pragmatic judgment that led us to adopt the policy we did, and that led the American mainstream to step forward and file friend-of-the-Court briefs in support of the University of Michigan.  Because, at the end of the day, living in the times we live, this is quite simply the best we can do if we are to try to accommodate two values that we all hold dear but that we cannot pursue completely and simultaneously – the value of race neutrality and the value of integrated higher education.