What is affirmative action? 

"Well, I guess your social life is down the drain, since the only person you seem to like just got convicted of murder," one of my more affectionate readers hissed. Though I smiled bravely, truth is, Halloween this year just won’t be the same.

Stumbling blindly out of the courthouse, staring moist-eyed at that shiny polyester suit for perhaps the last time, I went off to moderate a panel on affirmative action, which you may think is old news, but is anything but at the University of Michigan, an institution which this year faces two major federal class action law suits over the issue.

Patrick Hamacher and Jennifer Gratz are behind one, alleging the school improperly gives unlawful preference to minorities in undergraduate admissions. Barbara Grutter filed the other, alleging the same at the law school.

Lee Bollinger, U of M president, vowed to aggressively defend the status quo.

"Our use of race in our admissions practices is not only lawful but appropriate," claiming the 1978 United States Supreme Court case known as the Bakke decision allows "public institutions of higher education to use race in this matter. The university intends to continue to follow this practice," he said, drawing a line in the spring mud.

Affirmative action always seemed a no-brainer to me, with those opposing it right-wing ideologues and narrow-minded bigots. Those who support it believe in Martin Luther King Jr.’s dream of a just and fair society.

Then I met Carl Cohen, a philosophy professor at the U, who has taught there since the ink was still wet on his Ph.D., back in 1955. He is old enough to remember when discriminatory practices at certain schools set quotas for Jewish students like himself.

Politically, Cohen was liberal enough to cause the state police’s infamous "Red Squad" to keep a file on him, primarily for showing a certain enthusiasm for teaching Karl Marx. That didn’t get him sent to the capitalist gulag, but now he’s in trouble with the Ann Arbor thought police, this time over affirmative action.

Trouble is, he believes in it. Affirmative action, that is, as it was meant to be, as was meant by those who fought the major civil rights battles of the 1960s.

"The Civil Rights Act of 1964, expressly authorizing courts to take ‘affirmative action’ to root out (established unjust practices) was plainly intended by its sponsors to prohibit all racial discrimination and all preferences by race," he said.

Cohen is absolutely in favor of that. What he opposes is any system of race preference, which is what the civil rights struggles were designed to eliminate. "If you read the debates over the civil rights bill you will see they vowed this would never happen, that they promised not to give any race unfair consideration."

But the opposite occurred. Several years ago, he asked to see the criteria for how students were admitted, and was told sorry, confidential. Never mind that it is a public institution supported by taxpayer dollars, or that he was a ranking member of the faculty.

Peeved, he turned to the Freedom of Information Act and demanded the documents. After some initial stonewalling he got them, and had his worst fears confirmed. Though official policy is "race is but one of many factors taken into account in making admissions decisions," he found the opposite.

Actually, he found the university systematically discriminates in favor of blacks, regularly admitting lesser qualified blacks in place of better-qualified white ones. We aren’t talking tiny differences. Cohen has complied a massive – and devastating – body of statistics. For white students seeking to enter the U of M’s tough INTEFLEX medical program, SAT scores of 1320 are necessary even to be considered.

But "underrepresented minority students" could get in with scores of 1170.

Suddenly, I had a flashback to an interview long ago, with Clarence Pendleton, the sometimes clownish head of the civil rights commission in the Reagan administration. "Would you want to be operated on by an affirmative action doctor?" he said cuttingly, to show why he was so strongly against quotas.

Similar statistics hold across the board. "This has damaged relations between the races," Cohen alleged. "Legitimately good black students feel like they are walking around campus with ‘affirmative action’ on their foreheads."

But whether you like it or not, doesn’t the Bakke decision allow universities, as Bollinger claims, to do that? Well, no. That opinion was written by Lewis Powell, who wrote "preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This, the Constitution forbids."

What he did say they could do was, when other factors were more or less equal, pick an individual candidate for the sake of diversity.

Now Cohen knows full well the legacy of discrimination, as do I. He also knows all groups need a stake in this society. So how do we get an equal playing field? There are no easy answers. That will take time, money and years. That’s something we now should be demanding from the Detroit schools.

But admitting lesser qualified blacks in place of more qualified whites is not only unconstitutional; it doesn’t work, and will breed race hatred. That is an unpopular truth in Ann Arbor, one that has cost Cohen socially and, I suspect, professionally. Men of principle always pay a certain price, in return for which society is sometimes saved.

More by Jack Lessenberry

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