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The Battle of Ann Arbor

A philosophy professor’s belief in colorblind law led him to oppose the university’s use of affirmative action in admissions decisions.

The Supreme Court has decided four cases involving affirmative action in admissions, two of which were the 2003 controversies from state schools in Michigan, Gratz and Grutter. Treated to an amicus brief in the cases by the Center for Equal Opportunity, the Court divided on the merits, leaving resolution on the issue for a later case, perhaps the one now arising from Harvard. In 2015 University of Michigan philosophy professor Carl Cohen wrote the compelling account of Gratz and Grutter in A Conflict of Principles. I reviewed it on March 5 of that year for The Wall Street Journal and have included the full text below. 


In his famous dissent in Plessy v. Ferguson, the 1896 Supreme Court decision that upheld racial segregation, Justice John Marshall Harlan declared: “Our constitution is color-blind, and neither knows nor tolerates classes among citizens.” Nearly 60 years later, in Brown v. Board of Education (1954)—the decision that overturned Plessy’s “separate but equal” doctrine—lawyers for the NAACP, including Thurgood Marshall, echoed Harlan by telling the court: “That the Constitution is colorblind is our dedicated belief.” But a broad belief in this principle would last for only a few more years. By the mid-1960s the idea had taken hold that colorblind law and morality were too constraining if minorities were to advance in America. Race-based affirmative action emerged in higher education, employment and government contracting.

Over the years, affirmative-action policies have been the target of lawsuits alleging that they discriminate against those who do not belong to a preferred group—necessarily, when such policies help decide who wins and who loses in a competition for limited opportunities, whether seats in a freshman class or jobs in a fire department. Affirmative action has survived the litigation so far, but it remains unpopular with the American people and its future in the courts is always in doubt.

Carl Cohen knows a thing or two about affirmative action. He is a professor of philosophy at the University of Michigan who has long committed himself to the idea that, as he puts it, “all persons should be treated equally, without regard to race.” “A Conflict of Principles” is a kind of legal memoir, tracking Mr. Cohen’s own involvement in the battles over racial preferences and, in engaging and lucid prose, offering a critique of the judicial reasoning behind several momentous court decisions.

A liberal when he joined the Michigan faculty in 1955 (he is now 83), Mr. Cohen stuck to his belief in colorblind law even as educators at his own campus and elsewhere abandoned it. Early in his career, he joined the debate over preferences, arguing against them in various publications and at public events, though to this day he donates money to the NAACP and the ACLU, both ardent supporters of preferences.

A CONFLICT OF PRINCIPLES
By Carl Cohen 

Kansas, 302 pages, $34.95
Not until 1995 did Mr. Cohen undertake to find out whether his own school used preferences in its admissions. “I am unable to say now, in retrospect,” he writes, “how I had managed to keep my attention on the general problem while somehow avoiding its bearing . . . on our circumstances in Ann Arbor.” Unsurprisingly, it was “like pulling teeth” to get the relevant information from administrators. But persistent FOIA requests netted the data, which showed that the admissions process gave substantial race-based preferences to minorities. Mr. Cohen’s own principles now brought him into “sharp conflict with my university.”
A question obvious to Mr. Cohen upon receiving the admissions data was: “How might I get the university to cleanse itself of this dreadful discriminatory admissions pattern?” He tried to inform the university president, sending him a “matter-of-fact summary of what I had found.” He never heard back, but word of the preferential admissions policies soon spread beyond the campus, becoming a topic for state politics. Unsuccessful applicants came forward, and in 1997 two lawsuits were filed. Gratz v. Bollinger challenged affirmative-action preferences at the University of Michigan’s undergraduate school; Grutter v. Bollinger took on preferences at the law school.

Mr. Cohen had no formal role in the two cases, but he was close to the plaintiffs and the lawyers who represented them. In “A Conflict of Principles” he provides a valuable insider’s account of the path of each case through the courts; along the way, he supplies the relevant case law, including the fateful Supreme Court decision in 1978 that sanctioned racial preferences in admissions: Regents of the University of California v. Bakke. In 2003, the Supreme Court struck down the preferences in Gratz but sustained the law-school preferences in Grutter.

In 2006, the people of Michigan effectively overruled Grutter by adopting a constitutional amendment outlawing preferences in public education, public employment and government contracting. Mr. Cohen tells the story of the Michigan Civil Rights Initiative and of his own role in getting the amendment passed. As he tried to speak at one event, a group supportive of admissions preferences shouted: “They say Jim Crow. We say ‘Hell no!’ ”

Of course, the Grutter decision applies in venues beyond the state of Michigan, and the Supreme Court may have the chance, even this year, to reconsider it. In Grutter, the court held that obtaining the educational benefits of a diverse student body is a “compelling interest” that can support the “narrowly tailored” use of race in admissions. Relatedly, the court approved the law school’s effort (on behalf of diversity) to “enroll a critical mass of minority students.”

The law school did not define “critical mass,” however. Its witnesses in the courtroom were “canny and evasive,” Mr. Cohen writes, avoiding numbers “scrupulously.” But if critical mass is indeed a number, as the evidence suggests, it may well function as a quota—and would thus be unconstitutional. Grutter, Mr. Cohen says, is “more than normally vulnerable” to reversal. “The sham quest for ‘critical mass’ and the frailty of the defense of diversity as an allegedly compelling need, invites attack.” What is at stake, he makes clear, is the principle of equal treatment under the law that stirred the civil-rights advocates of old and that remains today our best guide to a fair and just society.