I teach at the University of Michigan Law School, the subject of the landmark 2003 Grutter v. Bollinger case in which the Supreme Court upheld the university’s affirmative action admissions policy. Now, a decade later, the court hears arguments in the case of Schuette v. Coalition to Defend Affirmative Action, which deals with a 2006 Michigan ballot initiative that bans affirmative action in public education and employment.
So far, the Supreme Court has permitted affirmative action, but with limitations. The judicial decisions on this issue have focused on the educational value of having diversity in the student body. But I have observed from my experience that racial diversity has virtually no effect on educational quality and is not the real rationale for the affirmative action policy.
In my view, the true rationale for affirmative action comes from the view that it is problematic – perhaps even intolerable – to have a significant segment of society left out of the mainstream of prosperity and power. If Americans are to live harmoniously together, all parts of society should participate in its important functions. That justification explains why preference is really given to minorities: They also should be able to participate in the American dream.
Universities contend that a diverse student body improves the educational quality of classes and that a critical mass of minority students is needed for that purpose. Having diverse students is said to bring different perspectives and viewpoints into the classroom. But in fact, from what I’ve seen, ethnic and racial diversity has very little effect, if any, on the quality of classes. “Diversity” became a useful tool to sway the courts and public opinion to support affirmative action, but it looks to me like more of a rationalization than a rationale for the program.
There is a case for diversity’s benefiting student life outside of the classroom. But even there, the benefits are not so substantial as to justify a large-scale program that rests on utilizing race or ethnicity as a factor in choosing a student body. Moreover, socializing students is not the main function of a university.
A university education is primarily an intellectual activity. If the faculty believed that diversity was important, they would seek to have an intellectually diverse faculty. But most universities devote little-to-no effort to add faculty members who hold diverse political and ideological views. Based on my experience, university faculties actually tend to be biased against hiring faculty whose political and ideological views differ from those of the majority of the existing faculty.
Another rationalization made for affirmative action is to compensate for past injuries done to specific groups. While there is no disputing that great wrongs were done to African-Americans in the past, the people who benefit from affirmative action are not the ones who have directly suffered those past wrongs. Nor did the institutions that provide those benefits perpetrate those past wrongs. Nor did those who were deprived of a place in the student body by race-based preferences.
Moreover, affirmative action is not limited to African-Americans. Preferences are given to other groups whose ancestors did not suffer wrongs. So this justification of compensation for past mistreatment cannot apply to those groups.
While racial discrimination continues to exist, it is reduced from and evolved from what it once was. There is reason to doubt that racial discrimination today is any more of a problem than discrimination against many other groups who are not included in affirmative action programs – women, people of certain religions, people with disabilities, or people with low socio-economic status.
Admittedly, the question of whether the time is ripe to end the policy is one on which reasonable people can differ. The answer largely depends upon one’s view of whether affirmative action is still needed to provide opportunities for those groups that previously were excluded from the mainstream.
In my view, while it served its purpose, it is no longer needed. African-Americans occupy important positions in this country. The president of the United States, members of the cabinet and Congress, a member of the Supreme Court, and numerous judges and officials are African-Americans.
The debate in the Supreme Court and in the public at large should focus on the question of how well minority groups fare in US society rather than on makeweight claims for diversity or compensation for past injustices.
Douglas A. Kahn is the Paul G. Kauper Professor of Law at the University of Michigan Law School.