Admissions Policy Lawsuit:
Affirmative Action Debate
Letter from Carl Cohen, to Members of the University community 10/22/97
From: Carl CohenDate: 22 October 1997
To: All Members of The University of Michigan
Colleagues, Students and Friends:
President Bollinger cordially invites our reasoned reflections on the sensitive issues that arise in connection with the uses of race in university admissions. Lee Bollinger is a legal scholar of fine repute; his knowledge and understanding of matters pertaining to the critique of racial classification in public institutions is owed great deference. He is also our colleague, and our friend. Mindful of all this, I respond here to his defense of the admissions practices of our University, as presented in his widely distributed e-mail message of 15 October 1997. Partly I do this because that defense may be taken to suggest that persons like myself, who are critical of our preferential admissions practices, make claims that we do not make in fact.
All of us will join President Bollinger in recognizing the importance of intellectual diversity in a university environment. A diverse faculty and student body is an aim we rightly seek, and seek with vigor.
We will join him, too, in recognizing that, in the pursuit of this objective, a substantial variety of factors ought to be weighed in admissions, as indeed they are weighed by our admissions officers. No serious critic contends that race is the only factor other than intellect considered. The list of "admissibility" factors appearing in the President's message is satisfying in its breadth.
No one factor, Pres. Bollinger submits, be it test scores, or race, or grade point averages, or national origin -- is "determinative" in admission; this also is correct in the sense that no applicant is offered admission to the University of Michigan on the basis of test scores alone, or on the basis of race alone, etc.
But these correct assertions obscure the issue that is morally critical and now also in dispute at law. Our admissions policies are wrong -- morally wrong, and legally wrong - - because of the ways in which race is used as a factor in admission. While it may not be "determinative" as Pres. Bollinger uses that term, race most assuredly is for us "dispositive" in that applicants with identical credentials meet with different responses from our admissions offices depending only upon the color of their skin.
Do you doubt that this is so? Documents provided by the University reveal (for example) that, in responding to undergraduate applications on first review, different responses (many to be made "automatically by clerks") to the same sets of credentials are coded on three rows in each statistical cell, with this explicit instruction at the top of the grid: "In General [sic] use the top row in each cell for majority applicants and the middle and bottom rows for underrepresented minorities and other disadvantaged students." And in many cells the top row gives a REJECT code, while the middle and bottom rows give an ADMIT code. Is this, or is it not, proof of the intent to discriminate flatly by race? Weighing many factors is a necessary condition for a fair system, to be sure, but it is not a sufficient condition for fairness. If one of the factors weighed, and that the most suspect among them, is used in this dispositive fashion, the system is not fair.
University spokespersons repeatedly aver that ours is not a dual admissions system, and in this is technically correct in the sense that applicants are placed in a single pool and compete against one another, as the courts have insisted fairness requires. But fairness requires more than that, too. Fairness requires also that in this competition applicants not be judged by standards different for those of different ethnicity. Justice Powell, in Bakke, put this point eloquently: "The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal." [438 U.S. 289-90] Our spokespersons are not candid; there may be but one pool, but within it a double standard, by race alone, is precisely what we employ. Claiming equal treatment by insisting that we have no double pool, while we knowingly employ a double standard, is unseemly sophistry.
Our duplicity is indubitable. Documents provided by the University reveal (for example) that applicants for the Integrated Premedical-Medical Program [INTEFLEX] will be routinely rejected if their grade point average is below 3.6 (3.8 if out-of-state), or if their ACT score is below 30, or if their SAT score total is below 1320 -- but all this applies only "[f]or non-minorities." Change the skin color and the standards change sharply: "For ALL [sic] Underrepresented Minority Students" the grade point cut-off is 3.4, the ACT cut-off score is 26, the SAT cut-off score is 1170. Is this, or is it not, discrimination by race?
The U. S. Supreme Court, in the Bakke decision of 1978, held that race may be considered as one factor in admissions, to advance intellectual diversity. But it also held in that case that to consider race in such a way as give preference flatly on that basis was not constitutionally permissible. Justice Powell, whose opinion became the judgment of the Court in that landmark case, was very clear about this. The special admissions program at the University of California he condemned because it was "undeniably a classification based on race and ethnic background." [438 U.S. 289] Unconstitutional, said he, is any means, overt or covert, "of according racial preference." [438 U.S. 318]
That is what ours is and does, precisely. We prepare separate admissions grids for "Caucasian Americans" and for "African Americans"; we apply different intellectual criteria to different racial groups; under our "Affirmative Action Objectives" "[o]nly underrepresented minority students are considered"; admission counselors are authorized to make discretionary "guideline exceptions" for applicants "from one of the 'special groups'"; and so on and on. In sum, the rules for admission here are very different for persons of different skin colors. We do exactly what, in Bakke, we are plainly told may not be done.
We do this to achieve diversity. But "diversity" pursued as some ideal mix of ethnic groups, Justice Powell explains in Bakke, certainly cannot serve to justify preference by race. He reviews very thoughtfully the justifications offered by the University of California for their preferential program -- of which the very first was "reducing the historic deficit of traditionally disfavored minorities in medical school and in the medical profession." [438 U.S. 306] This same vision of racial balance, as our administrators frequently announce, has been our object also.
But this aim, Powell emphasizes in Bakke, is a totally unacceptable justification for racial classification. He dispenses with it in one crisp paragraph which I reproduce here in full:
"If petitioner's [the University of California's] purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids" [438 U.S. 307]
That race may serve as a "plus factor" in admissions, for the sake of greater diversity, has indeed been held defensible. But that is not the way that race is used in our system. The preferences we give are very much more than mere "pluses." We use race as a major consideration, by which all applicants are systematically sorted on first review, and in the light of which very marked advantages are bestowed upon some racial groups. These are facts, proved beyond doubt by documents the University itself prepares. Admission to a university cannot be reduced to the calculation of test scores and grade point averages, of course; President Bollinger rightly observes that subjective considerations are in this context inescapable, and that the work of admissions officers is, in the end, "an art as well as a science." Wisely said. Many of us will heartily agree that considerations other than scores and grades are often relevant, and that the task of evaluating applicants must sometimes entail a consideration of non-quantitative merits: character and promise, diligence and social conscience, and so on. This does explain, quite reasonably, why persons with inferior academic records may in some cases be admitted while others with outstanding records are not. But individuation cannot explain the marked and sustained patterns of racial discrimination revealed by the records our University maintains.
Consider these two examples (there are many more):
- A) Thousands apply to our
Law School each year, competing for a few hundred seats. The "Admissions
Grid of LSAT & GPA for Caucasian Americans," prepared by the Law School,
shows that last year (for example), of 124 applicants with a GPA between
3.0 and 3.24, and LSAT scores between 156 and 166, only 6 were admitted
-- an admissions rate of less than 5%. But the analogous chart, "Admissions
Grid of LSAT & GPA for African Americans," reveals that of the 20 African
American applicants in that same category, 17 were admitted, a rate
of 85%. To suppose that thoughtful attention to individual merit accounts
for a rate of admission 17 times higher for one race than for another
strains credulity, does it not?
- B) Of those applying for undergraduate admission whose GPA was 2.80 - 2.99, and whose ACTs were 27 - 32, or whose SATs were 1100 - 1390, there were 486 "non- minorities," and 48 "underrepresented minorities" ["Indian Americans, Black/African Americans; Hispanic/Latino Americans"] Of those 486 non-minority applicants 56 were offered admission -- 11.5%. But of those 48 minority applicants the number offered admission was 48 -- 100%.
Are these racial disparities -- our admissions figures are replete with them -- to be explained by the unusually good character or fine talent or contribution of minority applicants? Are we to conclude that non-minority applicants are relatively deficient in these virtues? Or does character and talent not count if exhibited by members of racial groups not underrepresented? Or is it that, in truth, it is not character or contribution or talent, but race that makes the critical difference? The records of the University reveal that nothing distinguishes the groups in which these remarkable disparities arise except race. We count by race. Let us be forthright: our practices in admissions are saturated by deliberate preference flatly on the basis of race.
President Bollinger advises us that "our admissions policies are fully consistent with existing legal principles." I would not seem presumptuous, and I apologize for any offense given -- but I cannot forbear noting that when, in Bakke, Justice Powell (having agreed that universities are not precluded from considering race as one among many factors) turns to the appraisal of an admissions program in dispute, he insists that the words used by its authors to describe the system are of no consequence. What counts, said Powell in his ruling judgment, is whether, in the actual working of that system
"a line is drawn on the basis of race and ethnic status. . . . The fatal flaw in [a university's] preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment." [438 U.S. 289, 318]
Assurances of our administrators to the contrary notwithstanding, it is reasonable to conclude that we are not in compliance with the law of the land.
In view of the litigation already underway, it is also worth noting a key provision of Title VI of the Civil Rights Act of 1964, expressed in language that is perfectly unambiguous, and that is (as Justice Powell describes it in Bakke) "majestic in its sweep."
"No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance." [#601, 78 Stat. 252]
With honest deference to Prof. Bollinger's knowledge and experience in the law, I respectfully submit that the application of this clause to our conduct is inescapable: We are an institution whose programs receive much federal financial assistance. Under programs we conduct, many persons are plainly subject to discrimination by race. There can be no plausible denial that we are in violation of Title VI of the Civil Rights Act of 1964.
The majesty of the Civil Rights Act, and the power of the Equal Protection Clause of the 14th Amendment, arise from the deep and universal recognition of the iniquity of discrimination on the ground of color or race or national origin. Such discrimination is profoundly wrong -- and that, more than any legal consideration, is why we ought not to engage in it.
Thurgood Marshall, of happy memory, when he was Executive Director of the Legal Defense Fund of the NAACP, wrote the brief in Brown v. Board of Education. In that brief he wrote:
Distinctions by race are so evil, so arbitrary and invidious that a state, bound to defend the equal protection of the laws, must not invoke them in any public sphere.
He was right then, in 1954; he was right in 1964 when the Civil Rights Act was adopted; he was equally right in 1864, however few were willing to say it then; and he is right today. Marshall's principle is our principle, and it does not change with the times. We all aspire one day to transcend the racism that has so long pervaded American life. Difficult to achieve, that goal will certainly not be advanced by the continued reliance upon the very evil we seek to eradicate. Let us resolve, by law and practice, never again to engage in discrimination by race in any form whatever. Let us take the ideal of human equality seriously. I respectfully urge our President, and our Regents, and my colleagues, to see that it is our duty, our legal duty and our moral duty, to cleanse ourselves of racially discriminatory activities of every kind. If we fail to do so, we will reap the whirlwind.
Disputants on both sides of this controversy seek justice, and seek what is best for our University and for our students, of course. I am confident that we will in the end resolve these matters with reasoned debate and good will. To all my colleagues at the University of Michigan I convey cordial good wishes.
Carl Cohen