by Robert Herold

In the affirmative action case regarding the University of Michigan Law School, had the Supreme Court ruled against the university, its diversity wouldn't have been affected at all. Here's why: Michigan is one of the nation's most selective law schools. Every year, many highly qualified applicants are turned away. The challenge for the admissions committee isn't to sort between those highly qualified and those not so highly qualified, but to differentiate among a group of applicants, all of whom are highly qualified. Despite the color of their skin, this is not a diverse group.

A finite number of students will be admitted. It follows that, since raw grades and test scores can only describe some of a student's qualifications, other factors must be considered. Once this process is accepted, diversity becomes an indirect result. Unless we see the quality of the school deteriorating because of this admissions process, why all the fuss?

The issue at stake here was far greater than diversity in law schools. As for the case itself: Michigan was including race as one of many factors it considered when making admission decisions. It did so to reach what it called "critical mass" in reaching diversity. The court ruled, 5-4, that racial balancing to achieve diversity is a legitimate state purpose so long as neither quotas are used nor a point system is employed.

In many respects, Michigan's case was weak, as Chief Justice Rehnquist observed in his dissent, pointing out that the school could not even define what constituted a critical mass, let alone explain how they knew when they had it or, more important, when they didn't. If, because of affirmative action, two or three more black students were admitted, would that constitute a critical mass? Or do you need 10 more? Or, if we are making reference to demographics, why aren't we seeing more Hispanics? In any case, aren't we kidding ourselves to be drawing distinctions between the number, say, two and the number five? Critical mass doesn't have much to do with anything.

If that argument failed to persuade, neither did the charge, made by Justice Antonin Scalia, that taking any students but the very best would "dumb down" the school or other institutions that followed similar practices. Scalia observed during the hearing that if Michigan wanted to admit marginally qualified students, then perhaps it should simply do so -- minorities and non-minorities alike -- and acknowledge that it was no longer as selective as it pretended to be. Well, yes, Michigan admitted a few applicants whose raw scores were not as high as some other applicants it rejected. But for a serious case of dumbing down, Scalia needed to go no further than President Bush's much touted race-neutral policy in Texas of granting, out of hand, admission to the top 10 percent of high school graduates, regardless of any of the real factors that could gauge preparation and performance. Now that's dumbing down!

Once we accept the obvious need for multiple and even subjective measurements, one would think the affirmative action issue moot -- unless the school itself chooses to make a point of its position, which Michigan did by unnecessarily using the word "race" in its documentation. In higher education, race as a factor for consideration is rapidly being overtaken by demographics.

Columbia University history professor Barbara Fields, who is African-American, made just this point in a speech she delivered a few years back. When asked to identify her race on any official form, she pens in "mixed American heritage." Race then only comes up at all because the university chooses to dissociate it from socioeconomic circumstances, which offer a criteria that would permit the university to achieve a more accurate brand of diversity. Why, for example, should a black applicant from Bellevue, the daughter of, say, an orthopedic surgeon, get preference over a white kid from some rural town, a first-generation college student, who matriculated with high scores at a land-grant school? I can think of no reason, apart from misplaced liberal white guilt.

Law school admissions processes produce complex social choreographies that play out on our most rarified of academic stages. Law schools have always sought to tailor the look of the incoming student body; they value a mix of experiences and perspectives, and seek gender balance. These choreographies can take many forms and have all kinds of motivations behind them (although it's safe to say that neither critical mass nor dumbing down were ever really big concerns).

So, again, what was really at stake in the Michigan case?

While many institutions, both public and private, lent support to Michigan's position -- with the White House a glaring exception -- the one institution most concerned with the outcome was the U.S. military. Whereas law students spend their days working with other law students, regardless of race or class, struggling diligently to learn all the rules of behavior and conduct that define their every move, military officers don't have such a luxury. Command requires that elbows be rubbed with enlisted personnel of wildly different ages, competencies and inclinations. And what the military understands is that in close quarters and under pressure, race does matter. At worst, a leadership made up mostly of white officers from the South, only two generations away from popular segregation, might well lead to insurmountable command challenges. (Nor is the situation improved by the leadership of white-guilt liberals, if the New York Times' recent experiences are any indication.)

For 30 years now, the military has sought to address this problem. It has come to understand that role models matter, as do shared prior experiences. The military seeks a practical outcome to a very large problem: Can race be used as a criterion in developing a representative, and therefore effective, officer corps? At stake in this case, then, was nothing less than the future look and feel of the all-volunteer armed forces. Not a trivial concern at all. For this reason alone the Supreme Court made the right decision.

Publication date: 07/10/03

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About The Author

Robert Herold

Robert Herold is a retired professor of public administration and political science at both Eastern Washington University and Gonzaga University. Robert Herold's collection of Inlander columns dating back to 1995, Robert's Rules, is available at Auntie's.