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 meaningfully inclusive. 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 eliminate disparities?" 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 resources there. 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 origin. 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 Initiative. 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] --