ditorial: Affirmative Action
We all favor diversity, now plan out best path
by Frank Wu
Detroit Free Press
July 17, 2005
As we deliberate over affirmative action, it is crucial not only for
supporters of the programs but also everyone who cares about racial
justice that we start the dialogue effectively. We can apply two
lessons from law school.
The first lesson in law school is the importance of framing the
question. In any argument, the side that determines the question to
be asked has effectively determined the answer that will be given.
Nowadays, if you ask anybody whether he or she believes in diversity,
the answer is an enthusiastic "yes." It doesn't much matter what a
person's ethnic background might be or his or her political
preference. Virtually all of us agree that our institutions should be
We are embarrassed to see that a college campus, a major corporation
or a government agency is almost all-white or has only token numbers
of African Americans. Even if the causes of the situation are
complex, we know that it isn't enough to make excuses.
Yet if you ask anybody whether he or she supports racial quotas or
so-called "reverse discrimination," the answer is an equally adamant
"no." There are no advocates for stupidity, laziness or incompetence
over intelligence, diligence and talent. There should be, however,
skepticism about stereotypes that assign traits to groups as well as
superficial definitions of merit.
And there our predicament becomes apparent. Our abstract consensus
about racial diversity is threatened by the practical realities of
racial disparities. We may desire diversity, but we are not sure how
to address disparities. It turns out that it requires considerable
effort to ensure that classrooms, boardrooms and courtrooms are
integrated; it simply doesn't happen automatically.
Accordingly, we must reframe the question. We might challenge
ourselves, especially those of us who are privileged to hold
leadership positions, to make good on our shared ideals of democracy
and equality. Our public discourse would be transformed if we simply
asked, "What will we do as a society to achieve diversity and
In every aspect of our day-to-day lives, there are measurable
differences between the average circumstances of racial minorities,
particularly African Americans, and the dominant majority. In
addition to cases of egregious bigotry, past and present, there also
are subtle instances of racial bias that we might not recognize in
isolation but that become undeniable in the aggregate. In the Detroit
metropolitan area, racial effects are obvious in housing segregation,
which leads in turn to dissimilar educational opportunities. Even if
we eliminate the most blatant exclusionary practices, there are still
social patterns that mark neighborhoods by color.
As we struggle to come up with a response, we should look at all the
options. It turns out, not surprisingly, that the most effective
means of addressing disparities is to confront the basis for the
disparity: race. Other factors, such as socioeconomic class, do
matter, but none are as important as race. Although we may not wish
to rely on race for any decision-making, we may not have any choice.
The second lesson from law school that might be beneficial is the
technique of reasoning by analogy. Perhaps a useful comparison may be
drawn between disaster relief and affirmative action.
When other people are suffering because of a tornado or hurricane, we
don't withhold aid because we were not responsible for their problem
and we didn't intend the harm. Nor do we suggest that they be
responsible for their individual circumstances, and we ought to stop
gathering data about their condition. If a tornado strikes Michigan,
we direct resources here; if a hurricane strikes Florida, we direct
When our fellow citizens are suffering due to racial bias, traceable
to human actions rather than natural phenomena, it makes even less
sense for those of who are relatively privileged to say we weren't
responsible for their problem and we didn't intend the harm.
Likewise, we shouldn't hold people responsible for the prejudices
directed against them or suppose that the issues are resolved if we
don't have information. We should be willing to adopt policies that
target the populations in need.
The Supreme Court has set forth constitutional principles to guide
us. In the pair of University of Michigan affirmative action cases
decided in 2003, the justices recognized that diversity is a
"compelling state interest." Justice Sandra Day O'Connor wrote in the
majority opinion, "In order to cultivate a set of leaders with
legitimacy in the eyes of the citizenry, it is necessary that the
path to leadership be visibly open to talented and qualified
individuals of every race and ethnicity."
So it is up to us to open that path.
FRANK WU is dean of Wayne State University Law School. Write to him
at 471 W. Palmer St., Detroit, MI 48202
Editorial: Affirmative Action
Aim for true equality by ending preferences
by Carl Cohen
Detroit Free Press
July 17, 2005
If the Michigan Civil Rights Initiative is adopted by the people of
Michigan in 2006, our state, and our state universities, will no
longer be permitted to discriminate in any way by race or national
Will the MCRI end affirmative action? That depends entirely on what
one means by affirmative action. If one means giving special
preference to some racial or ethnic groups, as the University of
Michigan now does, then of course affirmative action in that sense
will be ended. If one means taking positive steps to ensure that all
persons of all races are treated equally, then the MCRI will give
strong support to affirmative action.
For example: Have examinations and other qualifications for
employment or admission been distorted by racial preference for
whites? Yes, they have. Affirmative action is essential to cleanse
such instruments of all ethnic bias. MCRI supports such affirmative
action categorically. With the adoption of the Michigan Civil Rights
Initiative, all forms of racial discrimination, including
discrimination in housing and lending, would be explicitly prohibited
by the Michigan Constitution. That is wholesome affirmative action.
"Affirmative action" has many meanings and many forms. Its ambiguity
is the reason courts and legislators now avoid the phrase. But it
originally meant, and should still mean, the steps we take to
eliminate racial unfairness. Executive Order No. 10925 (issued by
President John F. Kennedy in 1961, and still in effect) obliges every
contractor with the federal government "to take affirmative action to
ensure that applicants are employed, and that employees are treated
during employment, without regard to their race, creed, color, or
national origin." That is affirmative action of which we can be
proud, and that is exactly the force of the Michigan Civil Rights
Three years after that executive order, one of the greatest pieces of
legislation in our national history, the Civil Rights Act of 1964,
was adopted, recognizing the need for affirmative action to eliminate
all racial preferences. "No person in the United States shall, on the
ground of race, color, or national origin ... be subjected to
discrimination under any program or activity receiving Federal
financial assistance." That's Section 601 of the Civil Rights Act.
Equal treatment, not preferences. That's affirmative action as it
ought to be.
Does the Michigan Civil Rights Initiative support that? Of course!
That is precisely what the MCRI says: no discrimination by the state,
no preferences -- no one to get more, or less, because of the color
of her skin or the national origin of her ancestors.
The term "affirmative action" was later kidnapped by advocates of
preference. Now, as we know, it commonly means exactly what
affirmative action was originally intended to eliminate. The phrase
was turned on its head. And the result is that very many people are
understandably confused. Most Michiganders want to be fair, want to
be inclusive and welcoming to all, want to be truly nondiscriminatory
-- and we do want affirmative action in this original and honorable
sense. But most Michiganders also despise preference by race.
The Michigan Civil Rights Initiative simply says that in our state
the equal protection clause of the U.S. Constitution will be taken
seriously. In our state, the great Civil Rights Act of 1964 is to
mean just what it says. No ambiguity, no confusion. Here it is:
"The State shall not discriminate against, or grant preferential
treatment to, any individual or group on the basis of race, sex,
color, ethnicity, or national origin in the operation of public
employment, public education, or public contracting."
Is that the thrust of the Civil Rights Act, or of the Michigan Civil
Rights Initiative? It is the sense of both, of course!
The words are those of the MCRI; they deliberately echo, almost
exactly, the words of the Civil Rights Act. To vote against the MCRI
is, in effect, to vote against the Civil Rights Act.
Why would anyone do that? Why oppose such a clear statement of the
principle of equal treatment? The reason can only be that opponents
of the MCRI wish to retain racial preferences, now often hidden. Or
they hope to introduce new preferences for some ethnic groups. They
may have good motives -- as many in my university do -- but acts that
are wrong are not made right by good motives.
Our governments, and our universities, are great teachers. They must
not be allowed to discriminate by race or national origin. When that
principle is firmly embedded in our state Constitution by the passage
of the Michigan Civil Rights Initiative, we will all be proud.
CARL COHEN is a professor of philosophy at the University of
Michigan. His research formed the basis of the legal challenges to
the university's use of affirmative action in admissions. Write to
him at [log in to unmask]