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June 24, 2003 - Image 18

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who, despite a lower LSAT score or under-
graduate grade point average, will succeed
in the study of law. The Law School seeks
oly a facade-it is sufficient that the class
looks right, even if it does nlot perform
The Law School tantalizes unprepared
students with the promise of a University of
Michigan degree and all of the opportuni-
ties that it offers. These overmatched stu-
dents take the bait, only to find that they
cannot succeed in the cauldron of competi-
tion. And this mismatch crisis is not
restricted to elite institutions. See T. Sow-
ell, Race and Culture 176-177 (1994)
("Even if most minority students are able to
meet the normal standards at the 'aver-age'
range of colleges and universities, the sys-
tematic mismatching of minority students
begun at the top can mean that such stu-
dents are generally overmatched throughout
all levels of higher education"). Indeed, to
cover the tracks of the aestheticists, this
cruel farce of racial discrimination must
cpntinue-in selection for the Michigan
Law Review, see University of Michigan
Law School Student Handbook 2002-2003,
pp. 39-40 (noting the presence of a "diver-
sity plan" for admission to the review), and
in hiring at law firms and for judicial clerk-
ships-until the "beneficiaries" are no
longer tolerated. While these students may
graduate with law degrees, there is no evi-
dnce that they have received a qualitative-
ly better legal education (or become better
lawyers) than if they had gone to a less
"elite" law school for which they were bet-
ter prepared. And the aestheticists will
never address the real problems facing
"nderrepresented minorities,"" instead
cpntinuing their social experiments on
other people's children.
Beyond the harm the Law School's racial
discrimination visits upon its test subjects,
np social science has disproved the notion
that this discrimination "engender[s] atti-
tudes of superiority or, alternatively, pro-
voke[s] resentment among those who
believe that they have been wronged y the
government's use of race." Adarand, 515 U.
S., at 241 (THOMAS, J., concurring in part
and concurring in judgment). "These pro-
grams stamp minorities with a badge of
inferiority and may cause them to develop
dependencies or to adopt an attitude that
they are 'entitled' to preferences." Ibid.
It is uncontested that each year, the Law
School admits a handful of blacks who
would be admitted in the absence of racial
discrimination. See Brief for Respondents
Bollinger et al. 6. Who can differentiate
between those who belong and those who
do not? The majority of blacks are admitted
to the Law School because of discrimina-
tion, and because of this policy all are
tarred as undeserving. This problem of stig-
ma does not depend on determinacy as to
whether those stigmatized are actually the
"beneficiaries" of racial discrimination.
When blacks take positions in the highest
places of government, industry, or acade-
mia, it is an open question today whether
their skin color played a part in their
advancement. The question itself is the stig-
ma-because either racial discrimination
did play a role, in which case the person
may be deemed "otherwise unqualified," or
it did not, in which case asking the question
itself unfairly marks those blacks who
would succeed without discrimination. Is
this what the Court means by "visibly
open"? Ante, at 20.
Finally, the Court's disturbing reference
to the importance of the country's law
schools as training grounds meant to culti-
vate "a set of leaders with legitimacy in the
eyes of the citizenry," ibid., through the use
of racial discrimination deserves discus-
sion. As noted earlier, the Court has sound-
ly rejected the remedying of societal
discrimination as a justification for govern-
mental use of race. Wygant, 476 U. S., at
276 (plurality opinion); Croson, 488 U. S.,
at 497 (plurality opinion); id., at 520-521
(SCALIA, J., concurring in judgment). For
those who believe that every racial dispro-
portionality in our society is caused by
some kind of racial discrimination, there

can be no distinction between remedying
societal discrimination and erasing racial
disproportionalities in the country's leader-
ship caste. And if the lack of proportional
racial representation among our leaders is
not caused by societal discrimination, then
"fixing" it is even less of a pressing public
The Court's civics lesson presents yet
another example of judicial selection of a
theory of political representation based on
skin color-an endeavor I have previously
rejected. See Holder v. Hall, 512 U. S. 874,
899 (1994) (THOMAS, J., concurring in
judgment). The majority appears to believe
that broader utopian goals justify the Law
School's use of race, but "[t]he Equal Pro-
tection Clause commands the elimination of
racial barriers, not their creation in order to
satisfy our theory as to how society ought
to be organized." DeFunis, 416 U. S., at
342 (Douglas, J., dissenting).
As the foregoing makes clear, I believe
the Court's opinion to be, in most respects,
erroneous. I do, however, find two points
pn which I agree.
{ First, I note that the issue of unconstitu-
'ional racial discrimination among the
groups the Law School prefers is not pre-
Oented in this case, because petitioner has
ever argued that the Law School engages
in such a practice, and the Law School
,aintains that it does not. See Brief for
espondents Bollinger et al. 32, n. 50, and
-7, n. 7. I join the Court's opinion insofar
4s it confirms that this type of racial dis-
imination remains unlawful. Ante, at
13-15. Under today's decision, it is still the
iase that racial discrimination that does not
help a university to enroll an unspecified
dumber, or "critical mass," of underrepre-
sented minority students is unconstitution-
al. Thus, the Law School may not
discriminate in admissions between similar-
y situated blacks and Hispanics, or
*etween whites and Asians. This is so
ecause preferring black to Hispanic appli-
cants, for instance, does nothing to further

the interest recognized by the majority
today." Indeed, the majority describes such
racial balancing as "patently unconstitu-
tional." Ante, at 17. Like the Court, ante, at
24, I express no opinion as to whether the
Law School's current admissions program
runs afoul of this prohibition.
The Court also holds that racial discrimi-
nation in admissions should be given anoth-
er 25 years before it is deemed no longer
narrowly tailored to the Law School's fabri-
cated compelling state interest. Ante, at 30.
While I agree that in 25 years the practices
of the Law School will be illegal, they are,
for the reasons I have given, illegal now.
The majority does not and cannot rest its
time limitation on any evidence that the gap
in credentials between black and white stu-
dents is shrinking or will be gone in that
timeframe." In recent years there has been
virtually no change, for example, in the
proportion of law school applicants with
LSAT scores of 165 and higher who are
black." In 1993 blacks constituted 1.1% of
law school applicants in that score range,
though they represented 11.1% of all appli-
cants. Law School Admission Council,
National Statistical Report (1994) (here-
inafter LSAC Statistical Report). In 2000
the comparable numbers were 1.0% and
11.3%. LSAC Statistical Report (2001). No
one can seriously contend, and the Court
does not, that the racial gap in academic
credentials will disappear in 25 years. Nor
is the Court's holding that racial discrimi-
nation will be unconstitutional in 25 years
made contingent on the gap closing in that
Indeed, the very existence of racial dis-
crimination of the type practiced by the
Law School may impede the narrowing of
the LSAT testing gap. An applicant's LSAT
score can improve dramatically with prepa-
ration, but such preparation is a cost, and
there must be sufficient benefits attached to
an improved score to justify additional
study. Whites scoring between 163 and 167
on the LSAT are routinely rejected by the
Law School, and thus whites aspiring to
admission at the Law School have every
incen-tive to improve their score to levels
above that range. See App. 199 (showing
that in 2000, 209 out of 422 white appli-
cants were rejected in this scoring range).
Blacks, on the other hand, are nearly guar-
anteed admission if they score above 155.
Id., at 198 (showing that 63 out of77 black
applicants are accepted with LSAT scores
above 155). As admission prospects
approach certainty, there is no incentive for
the black applicant to continue to prepare
for the LSAT once he is reasonably assured
of achieving the requisite score. It is far
from certain that the LSAT test-taker's
behavior is responsive to the Law School's
admissions policies." Nevertheless, the
possibility remains that this racial discrimi-
nation will help fulfill the bigot's prophecy
about black underperformance-just as it
confirms the conspiracy theorist's belief
that "institutional racism" is at fault for
every racial disparity in our society.
I therefore can understand the imposition
of a 25-year time limit only as a holding
that the deference the Court pays to the
Law School's educational judgments and
refusal to change its admissions policies
will itself expire. At that point these poli-
cies will clearly have failed to "'eliminat[e]
the [perceived] need for any racial or eth-
nic"' discrimination because the academic
credentials gap will still be there. Ante, at
30 (quoting Nathanson & Bartnika, The
Constitutionality of Preferential Treatment
for Minority Applicants to Professional
Schools, 58 Chicago Bar Rec. 282, 293
(May-June 1977)). The Court defines this
time limit in terms of narrow tailoring, see
ante, at 30, but I believe this arises from its
refusal to define rigorously the broad state
interest vindicated today. Cf. Part II, supra.
With these observations, I join the last sen-
tence of Part III of the opinion of the Court.
For the immediate future, however, the
majority has placed its imprimatur on a

practice that can only weaken the principle
of equality embodied in the Declaration of
Independence and the Equal Protection
Clause. "Our Constitution is color-blind,
and neither knows nor tolerates classes
among citizens." Plessy v. Ferguson, 163 U.
S. 537, 559 (1896) (Harlan, J., dissenting).
It has been nearly 140 years since Frederick
Douglass asked the intellectual ancestors of
the Law School to "[d]o nothing with us!"
and the Nation adopted the Fourteenth
Amendment. Now we must wait another 25
years to see this principle of equality vindi-
cated. I therefore respectfully dissent from
the remainder of the Court's opinion and
the judgment.
1. Throughout I will use the two phrases
2. The Court's refusal to address
Wygant's rejection of a state interest virtu-
ally indistinguishable from that presented
by the Law School is perplexing. If the
Court defers to the Law School's judgment
that a racially mixed student body confers
educational benefits to all, then why would
the Wygant Court not defer to the school
board's judgment with respect to the bene-
fits a racially mixed faculty confers?
3. "[D]iversity," for all of its devotees, is
more a fashionable catch-phrase than it is a
useful term, especially when something as
serious as racial discrimination is at issue.
Because the Equal Protection Clause ren-
ders the color of one's skin constitutionally
irrelevant to the Law School's mission, I
refer to the Law School's interest as an
"aesthetic." That is, the Law School wants
to have a certain appearance, from the
shape of the desks and tables in its class-
rooms to the color of the students sitting at
I also use the term "aesthetic" because I
believe it underlines the ineffectiveness of
racially discriminatory admissions in actu-
ally helping those who are truly underprivi-
leged. Cf. Orr v. Orr, 440 U. S. 268, 283
(1979) (noting that suspect classifications
are especially impermissible when "the
choice made by the State appears to

redound ... to the benefit of those without
need for special solicitude"). It must be
remembered that the Law School's racial
discrimination does nothing for those too
poor or uneducated to participate in elite
higher education and therefore presents
only an illusory solution to the challenges
facing our nation.
4. The Law School believes both that the
educational benefits of a racially engi-
neered student body are large and that
adjusting its overall admissions standards
to achieve the same racial mix would
require it to sacrifice its elite status. If the
Law School is correct that the educational
benefits of "diversity" are so great, then
achieving them by altering admissions stan-
dards should not compromise its elite sta-
tus. The Law School's reluctance to do this
suggests that the educational benefits it
alleges are not significant or do not exist at
5. Cf. U. S. News & World Report, Amer-
ica's Best Graduate Schools 28 (2004 ed.)
(placing these schools in the uppermost 15
in the Nation).
6. The Court refers to this component of
the Law School's compelling state interest
variously as "academic quality," avoiding
"sacrifice [of] a vital component of its edu-
cational mission," and "academic selectivi-
ty." Ante, at 27-28.
7. For example, North Carolina A&T
State University, which is currently 5.4%
white, College Admissions Data Handbook
643, could seek to reduce the representation
of whites in order to gain additional educa-
tional benefits.
8. Cal.
Art. 1,
ยง31(a), ,
states in
" T h e
state shall
not dis- Number of
criinate W C0
ciiaelwaagainst, or
grant pref- Y ar
erential 1995 4147
to, any 1996 3677
or group 1997 3429
on the 1998 3537
basis o
race, sex, 1999 3400
color, eth-
nicity,or 2000 3432
origin in
the opera-
tion o
p u b l i c
ment, pub-
1 i co
education, Nutberof
or public laWEIIIOOI
contract- Year mt I
ing See 1995 4147
C oalition 19 17
for Eco 1996 3677
n o m i c
Equity v. 1997 3429
122 F. 3d 1998 3537
692 (CA9
9. Given 2000 3432
the incred-
ible defer-
ence the1
L a w
from the
Court, I
think it Numbero(f
appropri- lawscbciol
ate to
indulge in Year isa

the pre- 11995141471
that Boalt 1996 3677
Hall oper-
ates with- 1997 3429
o u t 1998 3537
California 1999 3400
10. Were 2000 3432
this Court
to have the
courage to forbid the use of racial discrimi-
nation in admissions, legacy preferences
(and similar practices) might quickly
become less popular-a possibility not lost,
I am certain, on the elites (both individual
and institutional) supporting the Law
School in this case.
11. For example, there is no recognition
by the Law School in this case that even
with their racial discrimination in place,
black men are "underrepresented" at the
Law School. See ABA-LSAC Guide 426
(reporting that the Law School has 46 black
women and 28 black men). Why does the
Law School not also discriminate in favor
of black men over black women, given this
underrepresentation? The answer is, again,
that all the Law School cares about is its
own image among know-it-all elites, not
solving real problems like the crisis of
black male underperformance.
12. That interest depends on enrolling a
"critical mass" of underrepresented minori-
ty students, as the majority repeatedly
states. Ante, at 3, 5, 7, 17, 20, 21, 23, 28;
cf. ante, at 21 (referring to the unique expe-
rience of being a "racial minority," as
opposed to being black, or Native Ameri-
can); ante, at 24 (rejecting argument that
the Law School maintains a disguised quota
by referring to the total number of enrolled
underrepresented minority students, not
specific races). As it relates to the Law
School's racial discrimination, the Court
clearly approves of only one use of race-
the distinction between underrepresented
minority applicants and those of all other
races. A relative preference awarded to a
black applicant over, for example, a simi-
larly situated Native American applicant,
does not lead to the enrollment of even one
more underrepresented minority student,
but only balances the races within the "crit-

ical mass."
13. I agree with JUSTICE GINSBURG
that the Court's holding that racial discrimi-
nation in admissions will be illegal in 25
years is not based upon a "forecast," post,
at 3 (concurring opinion). I do not agree
with JUSTICE GINSBURG's characteriza-
tion of the Court's holding as an expression
of "hope." Ibid.
14. I use a score of 165 as the benchmark
here because the Law School feels itsis the
relevant score range for applicant consider-
ation (absent race discrimination). See
Brief for Respondents Bollinger et al. 5;
App. to Pet. for Cert. 309a (showing that
the median LSAT score for all accepted
applicants from 1995-1998 was 168); id.,
at 310a-31la (showing the median LSAT
score for accepted applicants was 167 for
the years 1999 and 2000); University of
Michigan Law School Website, available at
dents/Admissions/ index.htm (showing that
the median LSAT score for accepted appli-
cants in 2002 was 166).
15. The majority's non sequitur observa-
tion that since 1978 the number of blacks
that have scored in these upper ranges on
the LSAT has grown, ante, at 30, says noth-
ing about current trends. First, black partic-
ipation in the LSAT until the early 1990's
lagged behind black representation in the
general population. For instance, in 1984
only 7.3% of law school applicants were
black, whereas in 2000 11.3% of law school
applicants were black. See LSAC Statistical
Reports (1984 and 2000). Today, however,
unless blacks were to begin applying to law
Table 2
13of Number I
Number of appicants appicatst
Afivan- who were adnitted
American African- by the lae
404 9.7% 113}
342 .1% 1170
320 9.8% 1218
304 8.6% 1310
247 7.5% 1280
259 7.5% 1249
Table 3
Number of
%Of apPlicant l
N'umber of applicants admitted
fi A ic w hotwee by the law i
apliaants Hispanic school
21 1.1% 1130..
186 5.1% 1170
163 .% 1218
150 4.2% 1310
152 4.5% 1230
168 ?.9% 1249
% o Numbor If
Kumber of appkiante applicants
Native who were adttd
Amerncan Nat eb the law
a heiats Amriecan school
45 1.1% 113}
31 0.8% 1170
37 1.1% 1213

40 1.1% 1310
25 0.7% 1280
35 10% 1249
school in proportions greater than their rep-
resentation in the general population, 'the
growth in absolute numbers of high scoting
blacks'should be expected to plateau, and it
has. In 1992, 63 black applicants to law
school had LSAT scores above 165. In
2000, that number was 65. See LSAC Sta-
tistical Reports (1992 and 2000).
16. I use the LSAT as an example, but the
same incentive structure is in place for any
admissions criteria, including undergradu-
ate grades, on which minorities are consis-
tently admitted at thresholds significantly
lower than whites.

chigan Daily - Tuesday, June 24, 2003 - 18
I agree with the Court that, "in the limit-
ed circumstance when drawing racial dis-
tinctions is permissible," the government
must ensure that its means are narrowly tai-
lored to achieve a compelling sate interest.
Ante, at 21; see also Fullilove v. Klutznick,
448 U. S. 448, 498 (1980) (Powell J., con-
curring) ("[E]ven if the governmenrof-
fers a compelling interest to support \
reliance upon a suspect classification, tle
means selected must be narrowly drawn t
fulfill the governmental purpose"). I do nolt
believe, however, that the University of
Michigan Law School's (Law School)
means are narrowly tailored to the interest
it asserts. The Law School claims it must
take the steps it does to achieve a "'critical
mass' of underrepresented minority stu-
dents. Brief for Respondents Bollinger et
al. 13. But its actual program bears no rela-
tion to this asserted goal. Stripped of its
"critical mass" veil, the Law School's pro-
gram is revealed as a naked effort to
achieve racial balancing.
As we have explained many times,
""'[a]ny preference based on racial or eth-
nic criteria must necessarily receive a most
searching examination."' Adarand Con-
structors, Inc. v. Pea, 515 U. S. 200, 223
(1995) (quoting Wygant v. Jackson Bd. of
Ed., 476 U. S. 267, 273 (1986) (plurality
opinion of Powell, J.)). Our cases establish
that, in order to withstand this demanding
inquiry, respondents must demonstrate that
their methods of using race "'fit"' a com-
pelling state interest "with greater precision
than any alternative means." Id., at 280, n.
6; Regents of Univ. of Cal. v. Bakke, 438 U.
S. 265
299 (1978)
of Powell,
% f J.) ("When
N~ithr Of aditt~ed udg-
Arkcan- appbcantg ments]
American who were touch upon
appicants Viman individ-
e~tf r ethnic
106 9.4% back-
ground, he
108 9.2% is entitled
101 .% cial deter-
103 79% mination
*that the
91 7.1% burden he
is asked to
91 7.3% bear on
that basis
is precise-
ly tailored
to serve a
%oj pelling
N~b ()f admit govern-
Hispanc aPPficants interest").
sipp- a wts who wee . Before
admitted Hispanic the Court's
56 5.0% today, we
54 46% consistent-
ly applied
47 3,9% the same
55 4.2% scrutiny
48 3.8% analysis
53 4.2% of the gov-
reason for
using race
Of regardless
Number of ad ited of the set-
Native appl- anta ting in
American who were which race

8 _ wsbeing
licants Native was
used. We
14 12% calls to use
13 1.1% lenient
19 16 the face of
18 1.% claims that
race was
13 100% being used
in "good
14 11% faith"
1"'[ Wore
than good motives should be required when
government seeks to allocate its resources
by way of an explicit racial classification
system."' Adarand, supra, at 226; Fullilove,
supra, at 537 (STEVENS, J., dissenting)
("Racial classifications are simply too per-
nicious to permit any but the most exact
connection between justification and classi-
fication"). We likewise rejected calls to
apply more lenient review based on the par-
ticular setting in which race is being used.
Indeed, even in the specific context of high-
er education, we emphasized that "constitu-
tional limitations pro-tecting individual
rights may not be disregarded." Bakke,
supra, at 314.
Although the Court recites the language
of our strict scrutiny analysis, its applica-
tion of that review is unprecedented in its
Respondents' asserted justification for
the Law School's use of race in the admis-
sions process is "obtaining 'the educational
benefits that flow from a diverse student
body."' Ante, at 15 (quoting Brief for
Respondents Bollinger et al. i). They con-
tend that a "critical mass" of underrepre-
sented minorities is necessary to further
that interest. Ante, at 17. Respondents and
school administrators explain generally that
"critical mass" means a sufficient number
of underrepresented minority students to
achieve several objectives: To ensure that
these minority students do not feel isolated
or like spokespersons for their race; to pro-
vide adequate opportunities for the type of
interaction upon which the educational ben-
efits of diversity depend; and to challenge
all students to think critically and reexam-
ine stereotypes. See App. to Pet. for Cert.
211 a; Brief for Respondents Bollinger et al.
26. These objectives indicate that "critical
mass" relates to the size of the stu-dent

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