Admissions Policy Lawsuit:
	Affirmative Action Debate Letter from Carl Cohen to Tom Weisskopf 12/1/97 From: Carl Cohen To: Tom Weisskopf Date: December 1, 1997 Dear Tom -- Your very thoughtful rejoinder is much appreciated. I did not mean to embroil you in lengthy argument and counter-argument, but (as you will understand) I feel obliged to make reply. I think I have not failed to grasp the essence of what you are arguing. Yours is a sophisticated and nuanced defense of the differential treatment of minority applicants for admission -- but it is, nevertheless, a defense of decisions made by race, and that ground for decision-making is neither morally right nor legally permissible. I explain. The logical beginning of your view is that there ought to be appropriate and even- handed standards for admission. But, you go on to contend, students of color (I presume this argument gives no support for differentiation by sex) have been disadvantaged in such a way that it is reasonable to treat all persons of certain races as a "disadvantaged group," and on that ground to make the appropriate adjustment in their scores and other credentials. That is, persons "whose common group identity exposes them to disadvantageous treatment" may reasonably have their scores looked at in different ways, and therefore may (on any table of scores, for example) be given a boost. "Non-white skin color," you write, "is precisely a group identity that exposes members of that group to disadvantageous treatment in the United States." Tom, I read carefully. I grasp your meaning. The argument fails. First. If those of non-white skin color were one such group, one of many groups, and if it is appropriate to give a score-boost to all such groups in view of their historical circumstances, the University is surely obliged to have a schedule of score boosts for the several groups. They have not, of course. You may say in response: "But they ought to have, and the fact that they have not identified the other groups ought not bar them from identifying this group, which we know to have been oppressed." Ah, but it does bar them from doing that, Tom! In our country, where the history of the uses of race are so fearfully invidious, it will not do to say, in effect, that there are many groups on which we might bestow special consideration, but we choose to do so only on some racial groups." When the Courts say that race is a highly suspect category, and selecting that category for use in differentiating treatment is necessarily subject to the strictest scrutiny, they mean that because it is a racial group being identified, the advocate must show that there is a compelling need to use that instrument, and must show that the devices with which race are to be used are narrowly tailored to address specifically the injuries ("disadvantages"?) identified as done to that group. Note also, please, that the institution giving differential treatment is not authorized to do that by race unless the racial disadvantage for which compensation is now given (adjustment is now made?) was inflicted by the institution now seeking to give the compensation or to make the adjustment. Our University is no court in equity, Tom. It is as though you would have us speak with Hamlet's voice: The time is out of joint, Oh cursed spite! That ever I were born to set it right. You may try to argue that this is just one such group among many, and that while we must not give racial preference, of course, we may attend to the disadvantage suffered by many groups, and weigh all their scores in the light of that disadvantage. But that argument will ring hollow indeed in a context in which the classificatory system of the admissions program is replete with racial categorizations and with no others -- only racial groups having their scores so re-considered. [Note, by the way, that "race norming" is now a violation of Federal law.] Other "factors" are weighed by us, true enough -- but you are too honest to say that race is treated by our University the way we treat poverty, or rotten schooling, or employment oppression, or familial distress. No, Tom, the actual system we (and most universities) use is one that is, in fact, based on a set of racial categorizations; that is patently evident upon examining them; the pervasiveness and centrality of race in the system you defend cannot be evaded by lamenting the failure of the University to attend to other "group-identities" you think deserving. Second. It may be that the standardized test scores (and GPAs?) of applicants are systematically discriminatory, as you contend. I think that is not an easy conclusion to defend, but supposing that you can defend it, what that conclusion would entail is the elimination of those scoring devices, or their improvement. Get rid of them. Or change them. But, Tom, no inadequacy of those tests and like devices entitles the University to make adjustments by racial group. That, precisely, is what the Civil Rights Act forbids, for good reason. And, contrary to its plain words, we do discriminate by race; this, precisely, we may not do. Third. You argue that no one can have lost a place in the university because of race because, understanding correctly the adjustments we make by race, it will be understood that we have only sought to determine who among the applicants were truly deserving of the available places. But that is plainly not what we have done, Tom. If, in truth, we had sought to measure the degree of injury done to applicants by racial oppression, and had then adjusted the scores of those found damaged using some such measure of disadvantage experienced, that case might conceivably be made -- although it would even then be acceptable only if we could show that we had sought to measure other disadvantages often as great, for other applicants of all races. But of course we don't do anything of the kind. We favor race flatly; indeed, we are delighted to favor those affluent black students who come through private schools with good records, and who perform well on standardized tests. These students we prize most because we think them most likely to make it through -- and we know that mid-course attrition is bad for everyone. But that pattern of favor (not adjustment!), Tom, belies any possible claim that we are trying to determine which applicants really deserve admission. Fourth. You cannot plausibly argue, Tom, that a group is deserving of score- adjustments and the like because it is exposed to disadvantageous treatment. That is no ground for adjustment at all. You may conceivably argue that there has been actual unfair disadvantage imposed upon every black applicant simply because he or she is black, although I would not envy you the job of defending that claim. And if you say in response, "We can assume that it's true of blacks because we know that lots of blacks . . ." I will recall to your attention the fact that it is just such group-think that the Civil Rights Act and thoughtful morality have long aimed to uproot. Fifth, and finally for now: I know that you are knowledgeable about and sensitive to the painful complexities of the history of the uses of race in this country. It is not seemly for me to lecture you about it, and I apologize if I seem to do so. But Tom, I urge you to see: We Americans cannot treat race as just one other "group-identity" exposed to disadvantage. For us, in view of our ghastly racial history, race is not like other "group identities." For us every use of race, every use of a racial classification, every use of a racial device (however honorably intended), every effort to give favor, or adjustment, or special treatment by race, is fraught with danger, is explosive, is almost sure to be counter-productive, and -- in our juridical system -- is rightly confronted by the very highest barriers. There are, I agree, some very few special circumstances in which there is no way to do justice without taking account of race, because of identifiable injustice earlier done by race. But even that taking account must be done with the most extreme caution, by authorized representatives of the citizenry, only after open consideration of the needs and the dangers of the racial tool. The uses of race in the sloppy, off-hand, arbitrary, deliberately hidden, systematically unfair way that our University has been using race, supposing this most delicate authority to lie in the hands of admissions officers (!) who will decide, as you put it, which group identities will have its scores adjusted, while making such adjustments for some racial groups but no other groups, is wholly intolerable conduct for an arm of our body politic. Our University, once again, is going to be given a stern lecture by our Federal Courts. The last time that was necessary, you will recall, was when, a few years ago, we decided what it was not appropriate for citizens to say if they were among us, as though we could set new rules for speech (with the best of motives, of course) in our precincts. A Federal judge had to rub our noses in the First Amendment, teaching us that the protections enjoyed by each person are enjoyed by each person here in the University just as elsewhere. So, again, we will have to be re-taught a fundamental lesson: the guarantee of the equal protection of the laws -- protection against the unauthorized and unjustifiable uses of racial discrimination -- applies to every applicant for admission to the university, to each applicant taken singly, as an individual person and not as a member of an identity group. The first section of the Fourteenth Amendment to the U.S. Constitution, Tom, reading in part, "No state . . . shall deny to any person within its jurisdiction the equal protection of the laws" applies, as the Supreme Court has emphasized on many occasions, to each individual singly. The right to equal treatment is an individual right, a personal right. The use of "group-identities exposed to disadvantage" -- even if that were the justification employed by the University, which it is not -- cannot serve to justify categorization and then systematic adjustment, or re-ranking, by skin color. Remember, Tom, that the groups for which you would allow that adjustment may be made to determine true desert are racial groups -- while other groups, for which adjustment (on your view) ought be made with equal fervor, receive no adjustments -- their handicap being that they are not in the favored racial groups. One final point. It seems very clear to me that the University -- in the light of its own profession -- engages in racial preference to advance toward what it conceives as a needed "diversity" -- racial balance or something approaching that. Adjustment for "exposure to disadvantage" is not at all the premise of the case that our University has made or is likely to make -- not least because it would fail utterly if such a case were made. But suppose they come to think yours to be a powerful argument, and theirs (taking cover behind "diversity") to be a weak one. May they, recognizing your wisdom, abandon their shield and take up yours in defense of the current admissions programs? To answer, here is the principle to be kept in mind, an old one and a good one: What it is wrong to accomplish directly, it is wrong to accomplish, or to seek to accomplish indirectly. Were the University to take up your argument they would be exposed as frauds and publicly humiliated. You are special, Tom. No one else I know takes the time to think it all through, or uses the time and energy you take to formulate deep reasons carefully and thoughtfully, as you do. I am proud to work with you. Yours ever, Carl Cohen
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