Jewish World Review April 4, 2001 / 11 Nissan, 5761
http://www.jewishworldreview.com -- SOME of the most intelligent people in the country, federal judges, have taken the longest time to see the obvious. In cases across the country, various courts are finally coming to appreciate the negative effects of what is called affirmative action.
After taking a good look at how some of the country's leading universities admit students -- on the basis of their race or their ethnic background -- one judge after another has opened his eyes, and the nation's.
The latest is the Hon. Bernard Friedman in Detroit, who has just ruled against the University of Michigan's policy of admitting students to its law school on points -- so many points for grades, so many points for test scores and so on.
Well, what's wrong with that? This: The law school gives black or Hispanic applicants an extra 20 points. Automatically. Could anything be more arbitrary, or less fair?
That's the essence of the case made by a white student who had been excluded from the class. Her test scores and grades were higher than some of the students who were admitted on the basis of their color or ancestry.
Judge Friedman agreed with her. He said the law school had every right -- some of us would say duty -- to combat racial discrimination. But not to practice it.
To quote the judge: "Whatever solution the law school elects to pursue, it must be race-neutral. The focus must be upon the merit of individual applicants, not upon characteristics of racial groups.''
Gosh, that sounds so sensible, so fair, so ... American.
Not everyone would agree. A separate but equally convinced federal judge upheld the university's race-tilted system in another case. And what was his reasoning, or facsimile thereof?
The university isn't handing out those 20 automatic points on the basis of race or ethnicity, explained the Hon. Patrick J. Duggan, but only in order to assure its law school's "diversity,'' which is the law's latest euphemism for racial preferences.
This use of diversity as a cover for racial discrimination goes back to the landmark decision in the Bakke case, in which four justices of the U.S. Supreme Court ruled against a California medical school that had reserved 16 of its 100 places for black students. Four other justices said that kind of racial quota was just dandy.
It was left to Associate Justice Lewis Powell to write the deciding opinion. He ruled (a) against this kind of racial discrimination, but (b) for diversity. With the result that he left the door open just a crack for (c) racial discrimination by another name.
Universities like Michigan have been trying to slide through that crack in the door ever since. Now it's been caught, just as the University of Texas' law school was caught a few years back.
Mr. Justice Powell knew that racial discrimination was wrong and, more to the point, unconstitutional. At least so long as the Constitution guaranteed Americans the "equal protection of the laws.''
To quote his deciding opinion: "Preferring members of one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.''
Ah, but suppose the university takes race into consideration not for its own sake but for some other, better reason -- like assuring a diverse student body?
In that case, said Mr. Justice Powell, it's all right to consider the race of the student. Just as one might consider what part of the country the applicant was from -- in order to promote diversity.
Immediately schools like Michigan saw their chance and took it. Commenting on the effect of Justice Powell's ruling, one candid advocate of affirmative action explained how the game is played: "The decision may have been a statesmanlike piece of jurisprudence,'' Nicholas Lemann wrote in The New Yorker, "but in admission-office circles it is widely viewed as meaning that it's OK to reverse-discriminate as long as you're not really obvious about it.''
I have yet to find a clearer explanation of just what is going on here behind all the tributes to "diversity.'' The term is just a cover for the same old Jim Crow, only with the colors reversed. "Diversity'' is this decade's functional equivalent of "separate but equal.''
After all, the University of Michigan isn't interested in regional diversity, or a diversity of ideas. It isn't setting aside a set number of places at Ann Arbor for Southerners or awarding 20 automatic points to applicants who come to the university offering distinctive ideas.
This kind of diversity is only skin-deep. It's called diversity, but it's more like racial profiling. Certain people are picked out for different treatment solely on the basis of their appearance.
It gets crazier: In order to assure group justice (a concept fraught with injustice itself) we will treat individuals unjustly. In order to assure equality, we will treat people unequally. This is a species of what George Orwell called Doublethink -- the ability to hold two contradictory beliefs simultaneously.
This game is being played on campuses all over the country. The students know it, or at least the brighter ones do, and the more candid ones say so. At the University of California at Berkeley, to quote a law student there, "race serves as a proxy for opinion.'' And diversity "is defined according to skin color rather than according to ideas.''
Indeed, nothing seems to offend champions of "diversity'' so much as ideas different from their own. Note the names called black intellectuals who dare diverge from the party line as handed down by the NAACP. Uncle Toms! Sellouts! Republicans!
To quote a letter to The New York Times from an undergraduate student at Ann Arbor:
"The liberal mantra of tolerance in higher education appears to embrace distinctions of color, class, gender, sexuality, ethnicity and so on. Ideas, however, seem never to make the cut.
"That irony pervades life here at the University of Michigan, which is embroiled in a court challenge to its affirmative action programs. Liberal activists defend racial preferences as fostering diversity, which in turn nourishes tolerance. But the movement betrays its own intolerance in chilling attacks on students who happen to believe that preferences offend the Constitution. We are branded "racists'' and "segregationists.
"How deliciously ironic to tolerate people of all varieties, so long as they agree with you.''
The letter to the Times was signed Anand Girdharadas. Clear and incisive as his ideas are, and
despite the diversity they might lend to the stale groupthink at Ann Arbor, something tells me that,
should he apply someday for its law school, he's not about to get 20 extra