Admissions Policy Lawsuit:
	Affirmative Action Debate Letter from Carl Cohen to Tom Weisskopf 11/26/97 From: Carl Cohen To: Tom Weisskopf Date: 26 November 1997 Dear Tom -- Your Statement on Affirmative Action, of 25 November, is an effective contribution to the on-going discussion. Thanks! The thoughtful participation of many members of the community will be needed if ever we are to work our way through these difficult matters. A public debate between you and me might conceivably serve a good purpose -- but, I fear, it would appear (to some) to make the Residential College a figure in the argument, which is what you and I both want not to happen. So, with your indulgence, I respond privately. Affirmative Action is not the issue. There was and is much affirmative action that morality and good public policy demands. The Congress that, in the Civil Rights Act of 1964, authorized courts to take "affirmative action" to eliminate discriminatory practices is the same Congress that, in the same Act, forbade preference by race. It is preference by race for which the University is being sued, not affirmative action; it is preference by race that the people of California rejected, not affirmative action; it is preference by race, undertaken by my own university (with the best of motives, of course) that causes me such anguish, not affirmative action, which I have always supported. Our University officers have not, in the recent past, distinguished themselves by their forthrightness. Let us give them a good model for straightforward argument. In the interest of candor and public understanding, Tom, I urge you to make your statements about preference by race. I infer from what you write that you support some such preferences in university admissions. Why not say that, straight out? What admissions criteria do we approve, and what reject? Your principle, that "admission [to the University of Michigan] should be based on the potential to make use of a university education to develop one's talents and abilities to a high level of accomplishment by the time of graduation and to enhance the well-being of society in one's post-graduate career" is a worthy one. Those are goals we will certainly share -- although I think you will probably agree that criteria for admission ought probably entail something more than the elements of self-development and contribution. However we might refine such criteria, you and I are likely to share them fully. We differ in this: whatever the criteria we employ for admission -- contribution, promise, accomplishment, or what you will, we ought not (I submit) apply those criteria differently to persons because of the color of their skin. It is the racial line, used to give racial preference, that is morally wrong and is a clear violation of the U.S. Constitution. And using that racial line is wrong, Tom, even if it be true (which I do not believe) that such preferential instruments advance highly desirable objectives. Some things -- in a decent society -- we may not do; one of them is give favor on the basis of skin color. I have worked for racial equality all of my adult life, Tom; the principle of racial equality is, I urge, not one that we rightly play with to achieve ends we find important. Can racially preferential admissions be justified? You defend preferences in admissions on the ground that skin color has been a ground of oppression and a source of disadvantage in our country over many generations, and remains a source of disadvantage today. You argue that therefore it is right to give credit now, in admissions, for colored skin. This is a mistaken argument, in my view, for several reasons, two of which I note below. a) It supposes that all those receiving the racial preference are entitled to it, and all those (unnamed) persons who lose their places because of that preference are rightly burdened. But that is a moral blunder. Preferences in admission give advantage not to minority communities in the large, but to a very small segment of them -- just those members of those communities who are least likely to have been injured in ways deserving compensatory relief. Most members of the minority are not helped an iota by such devices. But it is incontrovertible that members of the majority community are disadvantaged by race preference. When goods are in short supply, to give by race to some is to take by race from others. There is no escaping that. In short, this is a very crude, very unfair, method of giving compensation -- which is the moral ground your argument seems to reply upon. Tom, you know that my regard for you is very high. I urge you: think about individuals more and about ethnic groups less. It is individuals who are advantaged or disadvantaged by preferences first of all. I would also argue [and do so -- but not here!] that, over the course of time, giving preference to a racial group is highly disadvantageous to the members of that preferred group as a whole, reinforcing negative stereotypes, and undermining the fine scholars among them who need and want no preference because of their skin color. b) Suppose, arguendo, the premise of your argument were granted, and it is right to devise some form of compensatory relief for persons of some races in this country, in view of our dreadful history on this front. Such devices are invidious and dangerous -- but, for the sake of reflection, suppose you are right in thinking them called for. Who then shall determine the extent and the nature of that compensatory relief? Surely you will agree that, in the uses of race to give and to take, our national experience is one that justifies the utmost caution, the utmost delicacy and sensitivity to issues of justice. Surely you will agree with the justices of the Supreme Court when they have said, again and again and again, that racial classifications are in every context highly suspect, and that racial instruments, by whomever applied, must be given the strictest scrutiny to determine their justifiability. That much, I think, reasonable folks must allow; we can't use race to categorize and prefer without the most scrupulous attention, even if we were to agree that some such uses were (as you think) called for. And who would you authorize to do this sensitive work, involving the determination of who has been injured, and how greatly, and what kind of relief, and what degree of relief, is therefore in order? Clerks in an admissions office? Bureaucrats in the Student Activities Building of the University of Michigan? Not on your life! This University has been addressed very plainly by the Supreme Court, as has the University of California, and by them expressly notified [438 U.S. 307 - 310] that the University has not made, "and is in no position to make" (my emphasis) the findings that might justify the use of racial remedies. "Its broad mission [the Court continues] is education, not the formulation of any legislative policy or the adjudication of any particular claims . . ." Tom, we in this University are arrogant if we think we are authorized, or competent, to decide who shall receive racial relief for injuries earlier done. And we are doubly arrogant if we think it is within our authority, or competence, to decide as well what the form of that relief shall be, and who shall bear the burdens of giving it. The notion that our preferential racial admissions, planned and executed by our admissions officers (in secret!), is the right way to address deep and painful social wounds, is one that I think you, upon reflection, would not care to advocate. If our University administrators believe that outright preference by race -- which is what we do give, without a doubt -- is morally right, and defensible, let them go to the community, explaining forthrightly what racial preferences are given, and why, (using your arguments if they are thought useful) and seek formal approval from the representatives of the people. If we are not prepared to win that public understanding and approval, we certainly ought to obey Federal laws, and to insure the equal protection of the laws, as our Constitution obliges every state to do. I cannot help but think, Tom, that you and I would not be far from one another in our substantive judgments in this sphere, had we time enough to explore them all in detail. But for now, in any event, I express my heartfelt thanks for the seriousness with which you reflect on the matter, and the honest openness with which you approach the pursuit of the on-going discussion. Be well. Carl Cohen
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