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Jewish World Review April 11, 2001 / 18 Nissan, 5761

Paul Campos

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Consumer Reports

Admissions lawsuits of keen interest to alumnus -- WHEN I applied to the University of Michigan's law school 15 years ago, I knew I would have two advantages over the majority of my fellow applicants: I was both a resident of Michigan, and a Hispanic American.

I don't know what role either or both factors played in my admission, just as I don't know what role they played when I was admitted to the university's undergraduate program a few years earlier.

This personal educational history has led me to follow two federal lawsuits with particular interest. The suits have been brought against Michigan's undergraduate and law school admissions programs, on the grounds that they unconstitutionally employ race and ethnicity as factors when evaluating applications.

In a result that is fairly typical of the chaotic nature of such suits, one federal trial court judge has ruled that the undergraduate program is constitutional, while another has struck down the law school's program, even though on purely legal grounds the latter appears to be far less objectionable.

Both decisions have been appealed, and there is a good chance that one or both cases will eventually end up before the Supreme Court, which may well use the opportunity to once again thrust itself into the middle of contentious social issue.

There are plenty of good arguments both for and against affirmative action, but the nature of litigation is such that most of those arguments will be either distorted or ignored, as lawyers on the various sides of the issue struggle to jam the square pegs of public policy debate into the round holes of constitutional argument.

One unfortunate side effect of all this is that, in legal argument, truth is often the first casualty. For instance, the standard legal defense of affirmative action is that the pursuit of the educational value of "diversity" is both the primary purpose of, and a sufficient justification for, racial and ethnic preferences.

This line of argument disingenuously denies the all-but-explicit goal of affirmative action programs at most elite universities, which is to produce graduating classes whose racial and ethnic demographics mirror those of the population as a whole. That is a far more ambitious goal than achieving an educationally useful degree of diversity in the classroom -- and one that is far more difficult to justify.

Similarly, the argument for ethnic diversity ignores the many other forms of diversity that might have equal or greater value for educational purposes. For example, my law school class of 380 students included dozens of ethnic minorities, but hardly anyone who had grown up in a poor or working-class family.

On the other hand, opponents of affirmative action routinely ignore or deny the profound differences between preferences for racial minorities and old-fashioned discrimination against them -- sometimes going so far as to defend the preposterous proposition that there is no real moral difference between affirmative action programs and the Jim Crow laws of the old South.

They have also largely refused to confront the question of why racial preferences are so much more objectionable than preferences for in-state residents, athletes, and the children of graduates and major donors.

Naturally I have my own opinion as to just where the balance ought to be struck between these exaggerated and polarizing positions. It is, I admit, an opinion based primarily on the anecdotal evidence available to me from my own experiences, combined with an inevitably controversial sense of what justice requires in an extremely complex moral and political situation.

In other words, my opinion regarding affirmative action is no more or less valuable than your own view of the matter -- or than that held by the majority of the nine bureaucrats who make up the Supreme Court. Of course, the difference between our opinions and theirs is that we will not have the opportunity to inform the American people that our views happen to be identical with "what the Constitution requires."

Paul Campos is a professor of law at the University of Colorado. Comment by clicking here.


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© 2001, Paul Campos