In
defense of discretion In
defense of discretion
A fractured Cincinnati-based 6th U.S. Circuit Court of Appeals this week issued an important - and controversial - decision upholding the explicit use of race in determining college admissions. Legal experts are already saying the case might become the long-sought vehicle for prompting the U.S. Supreme Court to re-examine the issue, which it last addressed in 1978. We hope the high court does take up the case. We hope, not for a quota system, but for a ruling which gives universities a reasonable amount of discretion in making decisions about admissions.
And beyond that, we hope that someone - be it Congress, the Supreme Court or the appellate judges themselves - dampens the political and procedural infighting that is becoming increasingly bitter on the 6th Circuit. Ever since the 1978 Bakke case, in which a discordant Supreme Court outlawed separate admissions policies for minority candidates but seemed to allow race to be considered as one factor among many, universities and the lower courts have been wrestling with the issue.
This week's ruling stems from a challenge filed by a female white student who was denied admission to the prestigious University of Michigan law school. She asserted that she was denied her constitutional right to equal protection under the law, and was the victim of illegal racial discrimination, because less qualified minorities had been admitted.
(A similar, related case was filed by a white student challenging the university's undergraduate admissions policy; the appeals court is considering that case separately.) Law school officials acknowledge that race is a factor in choosing applicants, and that admissions decisions are sometimes made expressly to promote diversity.
(One example cited in the majority opinion by Chief Judge Boyce Martin, Jr. was the selection of an Argentinian single mother with extensive business experience who had graduated summe cum laude from the University of Cincinnati, but had scored at just the 52nd percentile on the Law School Admission Test.) Law school officials denied there was a de-facto quota system in place, and noted that a wide range of variables - among them test scores, class rankings, extra-curricular activities and letters of recommendation - come into play when they make admission decisions.
About 14.5 percent of the 2000 entering class at the University of Michigan
Law School were racial minorities; school officials estimated that a wholly
colorblind process would have cut that number to about 4 percent. This in a
nation where blacks, Hispanics, Asians and other racial and ethnic minorities
account for about 30 percent of the population. This type of discretion, this
type of sensitivity to diversity, needs to be protected - not only in the context
of university admissions, but across the spectrum.
The court is not being asked to sanction lazy, formulaic quotas or setasides, but instead to allow progressive institutions to try to do their part to ensure that everyone in our society has a fair shot at its opportunities. There's a big element of self-interest here as well, of course. As the University of Michigan Law School Dean Jeffrey Lehman noted in a New York Times oped piece Wednesday, ''students who learn at integrated campuses are better prepared to succeed in the courthouses and companies of America. . .''
This week's decision was a 5-4 ruling, from an appeals court that is supposed to have 16 judges and which has been characterized of late by a rancorous split between its surviving conservative and liberal members. Unfortunately, the opinion is notable not only for its legal conclusions, but also for its procedural irregularities and for the published sniping between several of the judges.
(To cite but one example, Judge Danny Boggs of Kentucky included in his dissenting opinion an appendix outlining what he believes were outcome-driven procedural maneuvering. That prompted a colleague, Judge Karen Nelson Moore of Ohio, to assert that Boggs' published opinion ''marks a new low in the history of the 6th Circuit.'') The Supreme Court can and should signal its unhappiness with this kind of infighting.
This is the same type of judicial warfare evident in recent death penalty cases involving the 6th Circuit, and it is undermining public confidence in the court. Congress, meanwhile, could settle things by confirming the pending appointments to the Cincinnati-based appeals court, which handles federal cases from Ohio, Kentucky, Michigan and Tennessee.
But these are appointments made by a Republican president, and require confirmation by a Senate that is (narrowly) in Democratic hands. The game in Washington lately has been for the Democrats to pay back Republicans for sitting on President Clinton's nominees when the GOP held the Senate. We deserve better than this, from our courts and from our Congress. University Center for Human Values and the author, with Amy Gutmann, of ''Color Conscious: The Political Morality of Race.''
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