- The Washington Times - Sunday, December 15, 2002

Racial or ethnic preferences to advance polychromatic student bodies at institutions sporting impeccable records of nondiscrimination stand at a precipice.
The United States Supreme Court last week granted review of twin cases concerning the University of Michigan and Michigan Law School that question their constitutionality in Grutter vs. Bollinger and Gratz vs. Bollinger. Only one Justice, Lewis Powell in Regents, University of California vs. Bakke (1978), has ever endorsed racial preferences under the banner of educational diversity. Thus, precedent will not tie the hands of the high court. Evidence and a sense of moral justice will dictate the result.
Proponents of preferences celebrate arguments that smack more of religion than of reason. It is said that rigging student body demographics to ensure a nontrivial presence of racial or ethnic minorities on campus enriches the education of all. But it is similarly said in the Bible that the sun stopped for Joshua.
During the 24 years that have elapsed since Bakke and for some years before, hundreds of colleges and universities have employed preferences in admissions. Thus, a mother lode of empirical data is available to substantiate the asserted educational booster of racial or ethnic diversity. Since racial classifications are odious to a free people, as Chief Justice Harlan Fiske Stone declared in Korematsu vs. United States (1944), proponents must shoulder the burden of proving a compelling interest to justify a departure from customary constitutional colorblindness.
Is there reliable proof that campus diversity leads to superior academic or professional excellence? No. Take the University of Michigan Law School. It proffers no evidence that graduation rates jumped with its inauguration of preferences. Ditto for the percentage of graduates who passed state bar exams. Neither does the law school contend that post-preference graduates have achieved more in professional or academic circles based on compensation, prestige, publications, or otherwise. Moreover, the law school makes no attempt to substantiate that its enrollees are better educated than students attending institutions that reject preferences, such as the University of Chicago Law School.
Education, of course, means more than factual knowledge or intellectual attainments. It also includes a mastery of human nature; an embrace of moral and legal equality irrespective or race, ethnicity or gender; an appreciation of the multiplicity of outlooks, backgrounds, and cultures that influence perceptions of truth and falsity, justice and injustice; and, a devotion to participating actively in public life to chart the nation's destiny. These dimensions to education elude quantitative measurement, but available informative proxies have not been shown by proponents to establish a qualitative educational value ascribable to preferences.
They have not demonstrated through field interviews or otherwise that graduates from preference colleges or universities show lesser racial or ethnic bias in their conduct than do graduates from non-preferential institutions. Nor are they shown to be more likely publicly to protest against discrimination or loudly to preach its evils. Neither has it been shown that graduates from preference institutions hold more nuanced or trenchant perceptions of justice or truth in writing or speaking than their non-preference counterparts. And proponents have not shown any difference in the inclinations of graduates to pursue a career in civil rights whether or not they attended a preference or non-preference college or university.
University of Michigan professor of psychology Patricia Gurin has written: "A racially and ethnically diverse student body has far-ranging and significant benefits for all students, non-minorities and minorities alike. Students learn better in a diverse educational environment, and they are better prepared to become active participants in our pluralistic, democratic society once they leave such a setting. Students learn more and think in deeper, more complex ways in a diverse educational environment. Extensive research in social psychology demonstrates that active engagement in learning cannot be taken for granted."
But those conclusory assertions are no more reliable than the testimony of the chairman of the psychology department of Columbia University in a companion case to Brown vs. Board of Education (1954) touting segregation's educational splendors. Neither proponent enlisted plausible hard evidence to prove their racial propositions. As Shakespeare observed, the wish is father to the thought, and consonants can sound like vowels if the desire is sufficiently strong.
Preference proponents also urge that non-preference candidates have no gripe because their chances of admission are infinitesimally reduced. According to former university presidents William Bowen and Derek Bok in "The Shape of the River," abandoning preferences at the universities they studied would jump the chances of admission to a white applicant from 25 percent to 26.5 percent. The constitutional indignity, however, is a denial of equal opportunity to succeed irrespective of race or ethnicity. Would anyone argue that a law banning blacks from seeking the presidency of the United States would be unobjectionable because the chances of winning would fall from but a tiny fraction of a percent to zero?
Finally, preferences stumble on their moral illegitimacy. Our national motto is equal justice under law. When two applicants, neither of which has suffered racial discrimination, are treated differently because of skin color, that motto is stained.

Bruce Fein is founding partner of Fein & Fein law firm in Washington.

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