Keeping the Faith

Russell K. Nieli

In what would prove in time to be among the most momentous dissents ever handed down by a justice of the U.S. Supreme Court, the elder John Marshall Harlan stated his view of why the U.S. Constitution prohibits all government distinctions based on race. “Our Constitution is color-blind and neither knows nor tolerates classes among citizens,” Harlan declared in the 1896 Plessy case in which the court majority found nothing constitutionally suspect in Louisiana’s state-mandated segregation law. Harlan continued:

In respect of civil rights all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.…The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.…The sure guarantee of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, National and State, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States without regard to race.1

For three-quarters of a century after Plessy, “a color-blind constitution” and “equal treatment without regard to race” became central components in the rallying cries and fighting ideologies of the major civil liberties and civil rights organizations in the U.S., including powerful litigation-focused groups such as the American Civil Liberties Union and the Legal Defense Fund of the National Association for the Advancement of Colored People. “Distinctions by race are so evil, so arbitrary and invidious that a state bound to defend the equal protection of the laws must not invoke them in any public sphere,” declared NAACP chief litigator, Thurgood Marshall, in his organization’s brief in the famous Brown school desegregation case.2 “Classifications based on race and color have no moral or legal validity in our society,” Marshall had declared earlier in a challenge to racial segregation at the law school of the University of Oklahoma.3

The color-blind ideal of the Constitution and its Fourteenth Amendment’s Equal Protection Clause would be written into federal law in the mid-1960s through the Civil Rights Act of 1964, the 1965 Voting Rights Act, and the 1968 Fair Housing Act. Throughout the land those styling themselves “liberals” or “progressives” rejoiced in what was seen as a triumph, after long struggle, of the moral and constitutional values behind Harlan’s Plessy dissent.

But the urban riots changed everything. In more than a hundred U.S. cities in the late 1960s angry black mobs looted, burned, and engaged in multiple acts of violence in what some saw as acts of desperation and protest, others as simple criminality. Whatever their cause or meaning, in the wake of the riots left-leaning elites in academia and elsewhere rapidly abandoned the venerable ideal of a color-blind justice that had so inspired the recent civil rights and civil liberties movements. That ideal, noble as it seemed, was no longer viewed as adequate to deal with the anger and alienation so dramatically on display in the violence of the riots. A new approach was needed, it was said, to deal with these problems, one involving the use of race that would give substantial preference to blacks over whites in many areas of American life, including higher education, public and private employment, and the awarding of government contracts.

Such a dramatic reversal of direction, while never approved by the general public, was defended as a means of compensating blacks for the injustices and deprivations of the past, and jump-starting the creation of a stable black middle class that would provide a counterweight to the riotous behavior of the inner cities. Support for this newer ideal of “affirmative action” (as it was euphemistically called) found some of its strongest resonance in many of America’s leading universities and law schools. That support was often impassioned and pursued with a righteous zeal those outside the academy frequently found astounding.

From the beginning, however, there were in-house dissenters, including civil rights-supporting academics who had fought the good fight against racial discrimination and Jim Crow. For them the transition from the older, color-blind ideal of the Plessy dissent to the newer ideal of color-conscious preferences was a great betrayal of a noble cause for which they had fought with all their moral conviction and political energy. Perhaps no one felt this betrayal more acutely, and has challenged it more persistently, more intelligently, and over a longer stretch of time than the person whose book is here under review.

Carl Cohen has taught philosophy at the University of Michigan (UM) since the mid-1950s. It is a university that he has come to love for its great traditions, great students, and dedicated, gifted faculty. He has served on numerous faculty and administrative committees, been a popular and respected teacher, and earned the respect of all segments of the academic community from university presidents on down. It is with a heavy heart and great misgivings that he has been cast into the role, beginning in the 1970s, of leading critic of UM’s commitment to highly color-conscious admissions policies and naked racial preferences. While some would see his oppositional stance as reflecting a negative attitude to an institution he really loves, Cohen says he believes racial preference policies dishonor a great university like Michigan and that he, not preference supporters, has the real interests of the institution at heart.

Cohen’s opposition to racial preferences seems to flow from a visceral repugnance against classifying people according to racial and ethnic criteria, as well as a strong belief in the Constitution’s requirement of color-blind justice. In addition, he recognizes the many practical harms of current racial preference policies at elite universities, harms that include (1) creating and reinforcing negative stigmas about the intellectual competence of those in the supposed beneficiary categories; (2) mismatching students and colleges such that many otherwise capable students are placed in institutions too competitive for their individual needs; and (3) creating false doubts and suspicions in the minds of many that even the highest minority performers, who have achieved academic distinction purely on their own merit, have gotten to where they are because of lowered standards.

Cohen’s solution is simple: stop counting by race and accept whatever color composition of the student body that a merit-based system produces. Especially because UM is a state institution, it should live up to the color-blind theory of justice that so energized the civil rights movement. While he doesn’t entirely dismiss claims to the value of demographic “diversity,” Cohen believes that if they are achieved through differential entrance standards based on race, the moral, social, and civic costs are enormous and far outweigh any claimed diversity benefits.4

Much of the earlier parts of A Conflict of Principles focuses on Cohen’s struggle to bring attention to, and document statistically, the huge degree of racial preference UM was granting at both the undergraduate level and at the law school. He believed—correctly in the case of the general public, but not so among fellow academicians—that merely publicizing these findings would lead to positive pressures to change things. Cohen obtained data under Michigan’s Freedom of Information Act that showed just how great the advantage of being black was in the admissions process at the law school. For example, of applicants with a college GPA between 3.25 and 3.49, and a score on the LSAT exam between 151 and 160 (both middle-to-upper-middle-level scores by national standards), twenty of twenty-five blacks (80 percent) were admitted, compared to only two of 157 whites (1.3 percent). The pattern was similar for both lower and higher achieving applicants, with whites obtaining the same acceptance rates of middle-scoring blacks only at the very highest level of LSAT scores and high school GPAs. Middle-range black applicants were accepted with the same alacrity as top-of-the-line whites. Middle-range whites didn’t have a chance.

The situation at the undergraduate school was similar. Using a point system with a maximum score of 150, the university sought to increase its black, Hispanic, and Native American enrollment by granting an enormous bonus for minority-race status. Regardless of socioeconomic background, merely being black garnered an applicant an additional twenty points on the 150-point scale, while a perfect SAT score rated a boost of only twelve points.

In March 1996 Cohen drew up, on his own initiative, an extensive report titled “Racial Discrimination in Admissions at the University of Michigan” that summarized his findings from all the material sent to him from his Freedom of Information Act petition. Cohen was particularly incensed that UM officially professed a policy (which it advertised extensively) of “non-discrimination and equal opportunity” while blatantly practicing racial discrimination. He hoped that his report would stir a desire for change in his university president and among UM’s board of regents. Alas, this didn’t happen, but the report did inspire various individuals and groups—including rejected undergraduate applicant Jennifer Gratz, rejected law school applicant Barbara Grutter, and the libertarian-oriented Center for Individual Rights—to challenge UM’s admissions policy in the federal courts.

The middle chapters of A Conflict of Principles are dedicated to explaining the legal battles that ended in the “split double-header” decisions of the U.S. Supreme Court in Gratz v. Bollinger (539 U.S. 244) and Grutter v. Bollinger (539 U.S. 306), both handed down on the same day in 2003. Cohen was a major player in deciding the litigation strategy in the two cases, and although not a lawyer, worked closely with the two plaintiffs’ attorneys. It seemed clear to the Gratz and Grutter legal team that the Constitution’s Equal Protection Clause and Title VI of the 1964 Civil Rights Act (which outlaws racial discrimination by institutions receiving government money) clearly prohibited the kinds of policies practiced by UM.

In the final outcome of the two cases, the four most conservative justices agreed, but Sandra Day O’Connor, the swing vote, found reason in the diversity-enhancement argument to approve the racial preference policy at Michigan’s law school, though not at the undergraduate institution. The relevant legal distinction O’Connor made between the two cases, and the dissent’s criticism of that distinction, is too complicated to summarize here. Suffice it to say that Cohen and others were deeply disappointed, since O’Connor’s majority opinion in Grutter left other universities free to continue using preference policies pretty much as always. The litigation route to meaningful change had resulted in failure.

Although well into his seventies at the time of the Grutter decision, Cohen didn’t lose heart, and along with Jennifer Gratz, Barbara Grutter, Ward Connerly, and a host of Michigan volunteers, organized a petition drive to place on the state-wide ballot a proposed amendment to the Michigan state constitution that would prohibit racial preferences in all state-sponsored institutions. The three chapters in A Conflict of Principles on the Michigan Civil Rights Initiative (MCRI), as the ballot initiative was unofficially called, are among the book’s most inspiring, and reveal Cohen, along with some of the others with whom he worked, as possessing a rare combination of sound principles, basic human decency, and relentless courage in the face of opponents who would do almost anything to stop the ballot initiative from being submitted to the voters. (One of the anti-proposition groups even chose the name By Any Means Necessary.)

As in the Gratz and Grutter litigation, Cohen found himself in the years leading up to the vote on the MCRI in the unenviable position of opposing a perspective passionately defended by his own academic institution. His deeply held moral and philosophical principles conflicted with the stance taken by his beloved university, but as in the Grutter and Gratz cases, he believed that UM’s viewpoint was morally indefensible and that it was doing itself a great disservice in acting as it did. Here is how Cohen explained himself in the many talks he gave in favor of Proposition 2, as the MCRI was officially designated, to Michigan audiences:

All citizens have the right to be treated equally by the laws, to be confident that there will be no discrimination for or against whites, or blacks, or any racial or ethnic group. Our initiative [in Michigan] aiming to protect that fundamental and universal right to equal treatment, we justly named the [Michigan Civil Rights Initiative]….[Between 2004 and 2006] I was called to give talks and engage in debates around the state [in defense of the initiative]….In the talks I gave I rarely failed to report that I had long been, and will always remain, a loyal servant of the University of Michigan, to which I have devoted my entire professional career. I would say, proudly, that of all worldly institutions besides my family and my country, the University of Michigan is the one I love most. But the principle that all races, by right, deserve equal treatment was more important than institutional loyalty. That principle I had been defending all my adult life and with enthusiasm as the chairman of the American Civil Liberties Union (ACLU) of Michigan. The preferential policies of my university were inconsistent with that principle and morally wrong. (pp. 228–29)

Unlike the Grutter case, this story had a happy ending, with the ballot initiative passing by a margin of 58–42 despite the powerful resources of the state’s academic establishment that were thrown in against it. UM, as well as other state institutions in Michigan, were henceforth affirmative action-free zones, and were prohibited from discriminating on the basis of race, ethnicity, and a number of other proscribed criteria. Harlan’s dissent in Plessy had finally become the law of the land—at least in Michigan.

Cohen remarks near the end of the book that the victory on the Michigan ballot initiative in 2006 was one of the four most thrilling moments of his life. (The other three, he says, were V-J Day, which ended WWII in August 1945, when he was 14; the passage of the 1964 Civil Rights Act; and the election in 2008 of America’s first black president.) This old school liberal Democrat, civil libertarian, and early civil rights crusader retained his dedication to a color-blind constitution when so many like-minded others bailed and betrayed the highest ideals of American constitutional law. The University of Michigan has been blessed to have someone of Cohen’s stature and integrity teaching on its faculty for almost sixty years. If anyone deserves a lifetime achievement award for dedication to civil liberties and civil rights it is Carl Cohen. A Conflict of Principles gives us an insider’s account of some of the most important legal and constitutional struggles he has taken on over the past three decades.

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