The Post’s postcard to Justice O’Connor

Trunk, I just read the Washington Post’s front page story about affirmative action that you posted. I have several observations. First, the lead sentence of the story is contradicted by what follows. The story opens by warning that the U.S. will likely witness a dramatic decline in the number of black and Hispanic doctors and lawyers if race-conscious admissions are eliminated at the nation’s professional schools. However, in the second half of the story we learn that when California eliminated race-conscious admissions, the percentage of blacks and Latinos in state-run medical and law schools dropped from about 20 percent to about 16 percent. I don’t consider this dramatic, and I certainly don’t think that differences of this magnitude provide the state with the compelling interest required by the constitution before it can discriminate on the basis of race.
Second, one should keep in mind that the interest urged by the University of Michigan for discriminating on this basis of race is achieving the alleged educational benefits associated with having a diverse student body. Michigan is not relying on the alleged need for a particular amount of minority representation among lawyers. In this regard, the Post story notes that without race-conscious admissions, there would only be 10 blacks per entering law school class at Michigan, as opposed to the 21 or more Michigan normally gets. Let’s assume that this is true (a liberal assumption given the dishonesty routinely displayed by colleges when providing data on this subject and given the availability of alternative, none-discriminatory ways of promoting minority admissions). Even so, it’s hard to find the compelling state interest, from an educational diversity standpoint, in admitting the extra 11 or more minority students who don’t meet the normal admissions standards. If there is an African-American perspective on the law (and if this perspective can only be presented through black students), it seems to me that white Michigan students will be exposed to it during the course of their three years at law school by attending classes with one or more of the school’s 30 African-American students. When I was at Stanford Law School, we had fewer than 30 black students. Nonetheless, I recall numerous discussions about Angela Davis and racist policemen in my criminal law class. So even if one agrees that Michigan has a compelling interest in having some African-Americans in its law school, the state hasn’t shown a compelling interest in having more than 10 per class.
Finally, Trunk is spot-on in noting that the Post story is directed at Justice O’Connor. In the end, it probably doesn’t matter what Michigan asserts as its compelling justification for racial discrimination. Key members of the court will likely conclude that, for a variety of public policy reasons, minority representation in professional schools should be higher than what it’s likely to be without discrimination. The briefs submitted by the Bush Administration will only reinforce this view. Thus, we may very well see decisions that, Bakke-like, allow public universities to achieve their desired numbers through one race-conscious approach or another.