Liberal Case Against Affirmative Action Looks a Lot Like the Conservative Case

November 17, 2003

CohenAffirmative 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.

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