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re: Gratz v. The University of Michigan (reverse discriminination in college and graduate school admission)

By Marty Nemko

Memorandum submitted to attorneys appearing before the United States Supreme Court

RESPONDENT’S ARGUMENT: Diversity is a compelling interest.

RESPONDENT’S SUBARGUMENT 1: A discriminatory admission policy will enhance intellectual diversity.

PETITIONER’S RESPONSE 1: The amount of improvement in students’ academic experience that accrues from adding additional “underrepresented” minorities is tiny. In science, math, computer, and similar classes, racial diversity is largely irrelevant to classroom discussions. In other classes, lamentably, the amount of time spent in discussion rather than lecture is small. Looking within that discussion time, the percentage of time that “underrepresented” minorities who, if not for discriminatory policies would not have been admitted, are making comments or asking questions that reflect a perspective uniquely associated with their racial background is tiny. If one were to ask students about to graduate from the University of Michigan, “How much did “underrepresented” students’ comments reflecting their racial perspective enhance your college/graduate school education?,” I am confident that most students would say the impact was small, certainly not rising to a state interest so compelling that it justifies imposing the unfairness of reverse discrimination on all applicants who are not “underrepresented” minorities.

RESPONDENT’S SUBARGUMENT 2: A discriminatory admission policy will enhance the out-of-classroom experience for students. In an ever more diverse world, it is important for white/Asian students to have the opportunity to interact with underrepresented minorities.

PETITIONER’S RESPONSE 1. In fact, “underrepresented” minorities have little substantive interaction with other students, mainly because of self-segregation—observe, for example, students walking on campus or eating in a cafeteria, and you will see little interaction between “underrepresented” minorities and others. Ironically, the university encourages segregation. For example, there are at least 38 student organizations, specifically for African Americans: from the Black Biology Association to Sister-to-Sister to Black Folx, even a separate Black graduation celebration. For a complete listing, see The University can hardly claim that increasing interracial interaction is a compelling state need when it makes prodigious efforts to increase segregation.

And even the presumption that increasing interracial interaction is beneficial is suspect. A recent study conducted by the University of Michigan itself found that the longer students attend the University of Michigan, the more likely that are to feel enmity toward people of different races!

Petitioner stipulates to the value of students learning to interact with diverse people. But what kinds of diversity? What matters most is the ability to interact with people of different personality types and socioeconomic statuses, which are present in all races: extroverts and introverts, calm people and hotheads, passive-aggressives and assertives, elitists and egalitarians, intellectuals and emotionals, urban and rural, low-, middle- and high income, etc. If students learn to interact successfully with all of the above, they will likely have the skills to interact successfully with “underrepresented” minorities. For Respondent to disagree would require it to make the racist assertion that “underrepresented” minorities are so difficult to deal with that even the ability to deal with all of the above is insufficient. At a minimum, after parsing out the personality and socioeconomic factors, insufficient residual differences among the races remain to make the need to discriminate rise to a compelling state interest. Students at the University of Michigan students get to interact with a wide range of people without requiring reverse discrimination. And as will be demonstrated immediately below, reverse discrimination imposes enormous costs to students, the university, and society.

PETITIONER’S RESPONSE 2: The negative consequences of insisting on race-based diversity are enormous.

The University’s reverse discrimination policy has a devastating effect on white and Asian applicants.

-- Applicants must score 100 points to be admitted to Michigan. Each year, thousands of applicants score between 80 and 100 without application of the 20-point bonus for being an “underrepresented” minority. When that racial bonus is added, 100% of the “underrepresented” minority students in that range are admitted, 0% of the not-”underrepresented”.

-- Being a member of an “underrepresented” minority earns an applicant more points than all of the following combined: an outstanding application essay, personal achievement or leadership on a national level, and a perfect 1600 on the SAT!

Decrements to rejected white and Asian students’ lives. Students who, but for their race, would have attended Michigan and instead are forced to attend less selective institutions, are more likely to be bored in class, learn less, and graduate with a diploma less well regarded by employers and graduate schools, thereby significantly impeding their careers.

Decrements to the supposed beneficiaries of the discriminatory admission policy. Many “underrepresented” minority students who are admitted using lower standards struggle academically, suffering assaults to their self-esteem and incurring the liabilities of attending a college more difficult than is optimal for them. For example, in an attempt to survive, “underrepresented” minorities disproportionately choose less demanding majors such as sociology and Black Studies (which are not in demand by employers) and still drop out at a rate much higher than do white and Asian students.

Those “underrepresented” minorities who do graduate, often do so as the result of reverse discrimination grading. I have taught at four universities and found that professors, out of a desire to help “underrepresented” minorities or because of pressure from the student, the student’s racial group advocates, or college administrators, often give “underrepresented” minorities higher grades than they would have received had they been white or Asian. As a result, “underrepresented” minority students are often hired for positions for which they are less qualified than are white and Asian students, thereby setting themselves up for failure, and reinforcing among employers and other employees negative stereotypes about “underrepresented” minorities. The University of Michigan asserts that it imposes reverse discrimination to provide an enriched educational experience for other students. If that indeed is its purpose, Michigan is albeit unintentionally, using minorities to benefit white students even if it means that minorities will be hurt as a result.

Decrements to “underrepresented” minorities who would have been admitted to Michigan without reverse discrimination. It is well established that most “underrepresented” minority students would not have been admitted to selective colleges if it weren’t for reverse discrimination. So, the fully qualified “underrepresented” minorities go through life saddled with an unjust negative image.

Decrements in quality of education. By admitting students based on lower standards than normal, professors’ classes contain a wider range of students. Dr. K. Patricia Cross, professor emeritus at UC Berkeley and among the nation’s most respected experts on undergraduate education, asserts that this has a serious negative effect on the quality of education. How does a chemistry professor teach a class in which some students are proficient in calculus while others are still struggling with algebra—common among "underrepresented” students, even at selective universities? How does an English professor assign readings when some students are ready for Joyce and others are still reading on a 10th grade level—common among “underrepresented” students, even at selective universities? Professors are faced with a Hobson’s choice: pitch the class at the able students’ level, thereby leaving the weak students frustrated and asking so many questions that the class is slowed down inordinately, dumb down the class, which bores and undereducates more capable students, or resort to breaking the class into small groups which results in students mainly having to learn without the benefit of an instructor.

Decrements to society.

1. Reverse discrimination in admissions, graduation, and employment is yielding underqualified professionals. A recent nationally publicized example is that of Dr. Patrick Chavis. He was a veritable poster boy for reverse discrimination, the subject of a glowing cover story in the New York Times Sunday Magazine. That article reported that Chavis, an African-American, despite being admitted to UCLA Medical School under lower standards than for white or Asian students, went on to graduate and practice medicine back in his hometown of East L.A., serving his community. Unfortunately, a few years later (and this somehow has never been reported in the Times), Chavis’s license was revoked for botching many surgeries, even secreting his botched patients out of the hospital to avoid being discovered. It was later discovered that nine of Chavis’ 15 professors at UCLA Medical School urged Chavis’ dismissal, but Chavis filed racial discrimination actions, and the professors relented. Society pays a big price when it must accept reverse-discrimination professionals.

2. Another decrement to society of reverse discrimination is that it causes an increase in racial enmity. Because of the unfairness of rejecting applicants merely because of their race, many whites and Asians resent “underrepresented” minorities. Many white and Asian high school seniors and their parents fume when they learn that they have been denied admission to their first-choice college while “underrepresented” minority classmates with clearly inferior records were admitted, many with scholarships. The U.S. population is growing ever more multi-racial (e.g., people who are part Asian, part black). As a result, ever-growing numbers of applicants who are just a small fraction “underrepresented minority,” identify themselves as an underrepresented minority on college and employment applications and receive preference in admission. The son of a corporate titan who is white except for a black great grandfather will get that preference while a white without that tiny bit of African-American ancestry who is living in squalor in Appalachia will not. Political correctness precludes white and Asians objecting in public, but in the privacy of their homes, they often express racial enmity.

3. Race-based discrimination in admissions also creates a slippery slope problem. Once we allow that a person’s race—even if he or she is only 1/16 “underrepresented” minority--constitutes grounds for reverse discrimination, other groups documented as having suffered discrimination—the homosexual, transsexual, old, short, fat, bald, those with speech impediments, the hyperactive, etc., will use Gratz as the basis for claiming the right to reverse discrimination. Merit will ever more take a backseat in selecting applicants for colleges, graduate schools, and in employment.

PETITIONER’S RESPONSE 3: Intellectual diversity can be accomplished in a race-neutral way. Petitioner stipulates to a small increase in intellectual diversity accruing as the result of a racially diverse student body. However, arguably greater and more useful diversity in the college setting—the diversity of ideology and worldview-- can be accomplished with race-neutral efforts. Ironically, advocates for racial diversity are those most likely to restrict diversity of ideology and worldview. For example, a student submitting an application essay espousing liberal views is more likely to be viewed positively than an essay espousing conservative views. Therefore, intellectual diversity can be increased by using admission criteria that value:

n diversity of ideology and worldview: liberal vs. conservative, materialistic versus non-materialistic, aesthetic vs. utilitarian, etc.

n diversity of family background. The white child of a rural coalminer and a white child of a famed concert pianist offer more diverse perspectives than those of two black students both of whose parents were managers in corporate America.

PETITIONER’S RESPONSE 4: The argument that reverse discrimination will enhance students’ education is a smokescreen. If the University were truly interested in enhancing students’ education, it would have long ago taken more potent steps to do so: require faculty to take teaching improvement courses, lower class size, and hire and promote faculty based on how well they teach instead of on how many arcane, rarely useful research articles they can publish.

RESPONDENT’S SUBARGUMENT 3: Racial discrimination is superior to non-race-based efforts to enhance diversity because it will help remedy lingering discrimination and level the playing field for past discrimination.

PETITIONER’S RESPONSE 1: Far more potent interventions have failed to close the achievement gap between “underrepresented” minorities and whites/Asians. Over the past 40 years since the Civil Rights Act of 1964, trillions of dollars have been spent on compensatory programs, notably on Head Start and Title I. Yet, the definitive metaevaluations show that these programs have not reduced the achievement gap. Therefore, there is no reason to presume that a far less potent intervention such as reverse discrimination in selective college admission will narrow the gap, let alone rise to the level of being a compelling state interest.

PETITIONER’S RESPONSE 2: It is argued that “underrepresented” minority role models are crucial to closing the achievement gap between them and whites/Asians. If this were true, then why have other minority groups such as the Chinese, Japanese, Koreans, East Indians, Arabs, and Jews succeeded socioeconomically far more than “underrepresented” minorities in their first generation upon arrival in the US despite the lack of role models? And condoning a mindset in which students feel that they can or should primarily draw role models from people of their own race encourages racism. Some benefit may occur from same-race role models, but does not rise to a compelling state interest.

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