Posted
November 17, 2003
THE CENTER FOR THE STUDY OF RACE AND LAW INAUGURAL LECTURE
Liberal Case Against
Affirmative Action Looks a Lot Like the Conservative Case
Affirmative action programs corrode minorities' long-term aspirations
and should be abandoned because they violate basic American democratic
values of equality and merit, according to University of Michigan
philosophy professor Carl Cohen. That point of view is not novel,
but it is unusual in an intellectual with solid liberal bona
fides, and that kink was one reason Cohen was asked by law professor
Kim
Forde-Mazrui to deliver the inaugural lecture of the Law
School 's new Center
for the Study of Race and Law. Cohen presented “The
Liberal Case Against Affirmative Action,” Nov. 7 in Caplin Pavilion
to a large but skeptical audience.
Center director Forde-Mazrui, once a student of Cohen's, introduced
him as a committed man of principle who grew up in Miami under
segregation and rejected its repugnant ways, eventually becoming
chair of Michigan's American Civil Liberties Union chapter and
a contributor to the notoriously left-wing Nation magazine,
and as a moral and political philosopher who has long decried
racial preferences. Cohen is the author of seven books, including
most recently, Affirmative Action and Racial Preferences:
A Debate,
in which he argues the issue against James P. Sterba. His writings
opposing racial preferences date to the 1970s, when he was on
the National Board of Directors of the ACLU.
Before giving the podium to Cohen, Forde-Mazrui thanked law
students who have led in the creation of the Center, especially
graduate Roscoe Jones ‘03, who proposed the Center to Law School
Dean John C. Jeffries Jr. “The Center was created in response
to student initiative,” Forde-Mazrui said. “A complete legal
education requires some focus on race. The Center is not about
advocacy of any one viewpoint. We're open to views that are not
popular.”
Cohen, who was involved in causing the Gratz v. Bollinger and Grutter
v. Bollinger cases over Michigan's undergraduate and
law school admissions procedures, began by saying that “affirmative
action programs are not something that any decent and reasonable
person could object to”—in the sense they were
first conceived of in the early 1960s. “When JFK and LBJ proposed
affirmative action, they never imagined it would imply racial
preferences. They saw it as forbidding preference
by race. The act has been turned on its head,” Cohen said,
urging the audience to review congressional debate on the bill.
“Race and oppression by race has been the greatest running wound
in the American body politic since the founding days,” he said,
mentioning that in his youth many universities (including Virginia)
required pictures of applicants in order to identify possible
black applicants.
Cohen said he was caught in an “intellectual bind” in 1995 after
he decided to follow up on an article in the Journal of Blacks
in Higher Education that reported that the acceptance rate
for blacks at elite schools was better than that for whites.
He asked admissions officials at Michigan for information about
their acceptance rates and was told it was confidential. He tried
again informally and was ignored. Next he filed a Freedom of
Information request, “with well-formulated questions,” he noted.
The University responded by pleading for delays, he said, then
contended that it had “no documents responsive to your request,” but
Cohen was dogged and eventually files started coming.
“The documents were shocking,” he said. “The University was
engaging in blatant racial discrimination!”
The University's admissions process used a rating form “with
a grid system with two sets of instructions for each cell, one
for majority applicants and one for minority applicants. The
top boxes for majorities said ‘reject, reject, reject' and the
bottom boxes for minorities said ‘accept, accept, accept,'” Cohen
said. “They were deliberately treating applicants with same academic
qualifications differently.”
Michigan legislators became angry at the University, he said,
because they felt they had been deceived by it and a call for
people who felt injured by the practice to come forward produced “scores” of
respondents, Gratz and Grutter among them, both of whom Cohen
characterized as “splendid people.”
Cohen said racial preferences are wrong and bad for several
reasons. They are wrong first of all because “they violate the
fundamental moral principle against treating someone differently
because of the color of their skin. Democracy is based on the
principle of the equal standing of citizens. We haven't always
lived up to that principle. I'm not glossing over that. But compensation
for those injuries was not over their skin color but
because of their injury. We Americans are committed
to this.”
Second, he said, preferences are also “wrong because they're
a violation of the Civil Rights Act of 1964, which prohibits
the government from giving preference on the basis of race, color
or national origin. The intention of legislators was to prohibit
just of the kind our universities are practicing.
“Here I'm on thin ice because five justices have found against
me,” Cohen acknowledged, referring to the Supreme Court's 5-4
decision in favor of the University of Michigan in the Gratz and Grutter cases. “The
equal protection clause was designed to remove barriers, not
to be used as a basis for preferences.”
Cohen said he was confident the University would lose the case
because he expected Justice Sandra Day O'Connor to vote against
preferences. “I made bets for a lot of steak dinners; I'm buying
a lot of steak dinners these days.”
Preferences are bad, he contended, because they “do serious,
long-lasting injury to the minorities concerned. Terrible damage,” said
Cohen. “It raises questions about their competency for their
whole lifetimes. It reinforces outrageous racial stereotypes.” If
those admitted with lower academic qualifications turn out to
do less well, “racists will say, ‘We told you so,'” he predicted.
“The link between inferiority and race is reinforced by preferences
in the most disgusting way,” he lamented. Cohen said one could
hardly devise “a more destructive strategy for belittling races
than this.”
Preferences are “bad for society as a whole—very deleterious—because
the tension between the races grows because of these policies.
People can't speak their hostility, but it's there.”
Commenting on the outcomes of the cases, Cohen said, the court “found
that the benefits of diversity amount to a ‘compelling need.'
Oh, come on. No honest judge could support this rationale! The
state of Michigan does not have a compelling need to have a law
school, or an elite one. [Supreme Court Justice Clarence] Thomas
is scathing in his opinion,” he said, next quoting another dissenting
justice, Antonin Scalia: “If this is a compelling interest, then
everything is.”
Cohen was also suspicious of the University's ability to live
up to the terms of the court's ruling, which stresses the need
for individual assessment of applicants' qualifications. “There
are 26,000 applications to the University of Michigan, each
supposedly requiring individual attention. [Justice Ruth Bader]
Ginsburg said we should allow them to continue to use the 20-point
system [that gave greater weight to desired minorities] because
otherwise they'll do the same thing with winks and nods. They'll
find a way to cheat to do it.”
Slamming preferences as “odious” and “reprehensible,” Cohen
summed up the cases' outcome as, “Now we're where you can do
it if you can hide it and you can't do it if you can't hide it.” Commenting
on Justice O'Connor's hopes that the need for affirmative action
programs will disappear in the next 25 years, Cohen said, “What
will be unconstitutional in 25 years is unconstitutional now.”
Asked by law professor Anne
Coughlin if he considered favoritism
for legacies, the children of graduates, also objectionable,
Cohen answered, legacy admits are minor in weight compared to
race, but objectionable in that they retain the same demographic
profile as existed before.
Asked by third-year law student Billy Wynne why Cohen would
say affirmative action is bad for blacks when the black community
overwhelmingly supports it, Cohen said, “Look, I ‘m at liberty
to say what I think. It's perfectly reasonable for minorities
to support preferences since they will get advantages from them,
even if they know that preferences are wrong.”
Cohen did concede that a judiciary and legal profession with
low representation of minorities would be problematic.
• Reported by M. Marshall