On Oct. 14, 1997, Jennifer Gratz and Patrick Hamacher, two rejected white applicants to the University of Michigan, filed suit charging that they had been discriminated against on the basis of their race and that less-qualified minority applicants were given preference in violation of constitutional rights to equal protection under law. Along with lawsuits, ballot initiatives and executive measures in several other states, this constitutes a frontal assault on the 1978 Supreme Court decision in University of California vs. Bakke, which public universities have relied on for two decades as their constitutional warrant to pursue racial and ethnic diversity. Michigan’s defense–one of the more vigorous in the nation–is being led by President Lee Bollinger, a 1st Amendment scholar and former dean of the law school. Bollinger was in Chicago recently.
Q: Tell us where the lawsuits now stand.
A: Both are before federal judges in the eastern district of Michigan. I think we probably will have the trials sometime in the winter, if things go smoothly. When we were sued, we decided that it was extremely important to build as strong a legal defense as possible. And we’ve done that, principally by developing social science research and expert testimony on a variety of things, like the saliency of race in American society, the patterns of segregation that still exist and the significance and importance to a good education of being educated in a diverse environment.
I’ve also really tried to make the point that taking race into account for diversity purposes has been built into the fabric of American society since Brown vs. Board of Education. If you start to unravel this, it will be a tremendous societal change. I’m now trying to get the military involved. Military academies try to make sure that they have a diverse student body and thus a diverse officer corps, in the belief that you can’t have a diverse military in today’s world without having a diverse officer corps. If Bakke is overturned, military academies will not be able to take race into account either.
Q: How is race taken into account in the admissions process?
A: Obviously SAT and grades or LSAT and grades matter a great deal. At the undergraduate level we give more weight to grade point average than we do to the SAT. But we also look at the difficulty of the [high school] curriculum. We don’t want to give the same weight to classes that are not very rigorous and those that are. In other words, we make a very significant assessment of the academic performance by looking at the grade point average and the base that underlies it.
We look at geographic distribution, socioeconomic status and motivation. We give weight if you’re the child of a Michigan alum. And we also give weight in order to try to achieve a diverse student body–racially and ethnically diverse. It’s very important to realize that the pool from which we select on these bases is the very top group of people in the country.
Q: In your allusion to Brown vs. Board of Education, you seem to suggest there will never be an end point to this, that race will always need to be taken into consideration.
A: No, I don’t think I said that. In any event, I didn’t mean to say that. We believe, in the academic world, that educating students with lots of different types of people–and I mean that in a very broad sense–contributes to the education of all the students who are there; and that having students who are all just like you is not a good way to achieve open-mindedness and the capacity to understand other people and other sensibilities.
One of the myths of affirmative action is that we admit all these students based on grade point averages and standardized tests and maybe look at little else, such as their personal essays and so on–and then there’s this one thing that we make a big effort to do by looking at race and ethnicity and that’s the only thing we look at to achieve a diverse student body. And that’s simply not true, in two senses. First, in the admissions process, we look at geographic diversity, international diversity, diversity of socioeconomic status–we look specifically at a lot of things in addition to race and ethnicity.
Q: It seems that the reality is that you can achieve a diverse student body but that, once the students are there, there’s a certain element of social segregation that exists. What is the university’s responsibility in this regard?
A: The university has a major responsibility to see to it that the diversity we seek is meaningful in the education of the students. A myth about affirmative action is that because there is such social segregation on campus, there are none of the benefits that come from this diversity we talk about so eloquently.
I have two answers to that. First, come to the campus. Sit in a cafe and see the way in which the diversity plays out. Look and you will see much more integration across racial and ethnic lines and other lines than that stereotype would suggest.
Second, is there self-segregation? Yes, but there’s less than that stereotype would suggest. The overwhelming majority of our students who come to the University of Michigan as freshmen come from segregated, all-white high schools or all-black high schools. What would you expect of 17-, 18- and 19-year-olds coming to a campus and for the first time encountering an integrated environment? You would expect this to be difficult, not simple and not easy. We have all kinds of programs that try to help overcome that and break that down. It’s really an incredible effort by the university to deal with it. But rather than being proof that diversity doesn’t work, in my mind it’s proof of the necessity and the benefits of diversity that come in the educational environment.
Q: I wonder whether you would call your university campus an integrated environment, any more than Chicago is an integrated environment, where black and white work together and then go home to their separate neighborhoods.
A: It matters to me a lot as a teacher when I teach my 1st Amendment class, and I think it matters a lot to them as students, that the classroom has black students in it, Native-American students, women, Hispanics, different racial and ethnic groups. Because one of the issues we’ll talk about is hate speech, and people sometimes have very different feelings about how to deal with that depending upon where you come from in the society, what your experiences are and how you see the world.
The same has been true in having women in 1st Amendment classes. The transformation in the understanding of the problems of obscenity and pornography from 1965, when there were no women in law school classes or just a few, to the understanding from 1975 on, is as fundamental as you can get. That kind of intellectual change occurred because of a segment of the population that had not been part of the debate getting into the debate.
Q: Did Jennifer Gratz and the other named plaintiffs in this case lose points because they were white?
No. We don’t take away points because of your race.
Q: Did others gain points because of their race?
A: Yes. But I think that’s playing with words. I think the question is: Do we as an educational community have a sound view of what is needed for a modern education? And within that sound view is the critical importance of diversity of all kinds, of which race and ethnicity are two. And given the soundness of that, is it something that the Constitution should permit? Since Bakke the answer has been yes. And now people are saying the courts should give a different answer and say no. And that’s what we’re fighting over.
Q: Are you asking Jennifer Gratz and the other plaintiffs to do now what blacks–what Rosa Parks, for example–were asked to do in the era of segregation, which is to surrender an individual right because of somebody else’s conception of a larger social good?
A: I think there is a fundamental problem of different perspectives at work here. One perspective is that each of us as individuals, with our own achievements, have a right to be compared individually with every other person in the society. And given that competition, I’m entitled to whatever it is that I win against everyone else.
And then there’s the view that says, given the society’s complexity and the different ways people experience life, should we in an educational setting be able to enhance the experience of those who come to us? We’re not simply interested in saying, “All of you compete and we’re going to have a footrace and we’re going to take the top 200.” We’re not in the business of conducting a track program; we’re in the business of creating an educational environment that is the richest possible educational experience for all who are in it.
Q: If you were to lose the suit, took race out as a consideration, and gave more weight to socioeconomic status, couldn’t you get the same results and in fact maybe have a more diverse student population?
A: There’s lots of research on this now. And the answer is that you will not get racial and ethnic diversity by turning to socioeconomic status as a proxy. The very simple fact is that at each layer of socioeconomic status in the United States, the overwhelming proportion is white, including the poorest.
Q: You won’t get racial and ethnic diversity if you use socioeconomic status as a proxy?
A: It goes back to the question: Do we think that race in the United States, independent of socioeconomic status, is significant? We know that on everything from the O.J. Simpson trials to the impeachment of Bill Clinton, there seem to be different perceptions of the world that come from the African-American community than come from the white community. Understanding that, grasping it, talking with people from different races, is an education.
To my mind, it goes beyond simply understanding race in America as an educational benefit. Why is it that we think Shakespeare is so fundamental to a liberal education? One reason is his incredible capacity to enter into the minds of other characters, to create people who are real within the world of our imaginations. That capacity is simply extraordinary, and it’s a capacity we need for democracy, for human relationships, this ability to understand what is happening in another person’s sensibilities and mind.
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This is an edited transcript.
