G.E. Zuriff is professor of psychology at Wheaton College (Norton, Massachusetts) and clinical psychologist in the Medical Department at the Massachusetts Institute of Technology.
Now wending their way through the appeals process to the Supreme Court, two legal challenges against the University of Michigan (UM) will probably decide the fate of racial preferences in higher education admissions. UM has acknowledged that it has given preference to members of underrepresented racial and ethnic groups in its admissions procedure. As a result, whites and Asian Americans entering the university had much higher standardized test scores and high school grades than members of underrepresented racial and ethnic groups on the other.
Jennifer Gratz and Patrick Hamacher, two 1995 applicants to the UM undergraduate division, subsequently filed suit against UM, claiming they were rejected because they are white. In February 2001, Judge Patrick Duggan, writing for the U.S. District Court, decided in favor of UM and found UM's admissions procedures constitutional. However, a month later, in a second suit, U.S. District Court Judge Bernard Friedman decided in favor of Barbara Grutter, an unsuccessful applicant to the UM Law School who sued on similar grounds. This past May, a sharply divided U.S. Court of Appeals for the Sixth Circuit in Cincinnati voted 5 to 4 to overturn Judge Friedman's decision and upheld the legality of the UM Law School's admissions policies. These confusing rulings follow a series of contradictory decisions on this issue by federal courts in several states. Consequently, the UM cases will appear before the Supreme Court this fall. The Supreme Court ruling may finally settle the issue of the role of race in university admissions, but it will also have important implications for affirmative action as it is practiced throughout American society.
Racial discrimination in choosing applicants violates Title VI of the Civil Rights Act (for any school receiving federal money) as well as the equal protection clause of the Fourteenth Amendment of the U.S. Constitution (for any state school). However, in the notorious 1978 case of Regents of the University of California v. Bakke, the Supreme Court made exceptions to this general rule. Although any racial discrimination must be strictly scrutinized by courts, it can be found legal if a court finds that the racial discrimination serves compelling interests and that it is as narrowly designed as possible to achieve that goal.
Over the course of two decades of court decisions based on Bakke, one compelling interest has survived judicial scrutiny, namely the educational benefits that allegedly derive from racial diversity. Supreme Court Justice Lewis Powell held that "the attainment of a diverse student body" is a "constitutionally permissible goal for an institution of higher education." He judged that "the atmosphere of speculation, experiment and creation--so essential to the quality of higher education--is widely believed to be promoted by a diverse student body," adding that "the nation's future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples."
Because this argument, known as the diversity defense, is the one most readily available to universities, they have modified their rationales for racial preferences to fit its legal requirements. UM assembled a team of nine high-powered scholars as expert witnesses to support its case that racial diversity means a greater diversity of perspectives and therefore better education. Additionally, UM published "The Compelling Need for Diversity in Higher Education," written by the chair of its psychology department, Patricia Gurin.
Despite the reasoned appearance of this document, the diversity defense is internally incoherent. To attribute certain …