A Weird Defense of Affirmative Action

Under the headline “Diversity’s
Evidences
.” Len Niehoff’, described as a “professor from
practice” at the University of Michigan law school, offered an almost humorously
pathetic defense of “diversity on Inside Higher Ed today. He served on the
legal team that defended Michigan in Grutter, which he claims the Court
got “exactly right,” and his essay is an attempt to buttress his further claim
to “have seen the evidence” of that correctness in his own classes.

Niehoff somehow lost sight of the fact that
the only “diversity” at issue In Grutter,
and in the upcoming case of Fisher v. University of Texas, concerns
discrimination for and against applicants based on race or ethnicity. He thus
defends the very sorts of “diversity” — those that have nothing to do with race
or ethnicity– that no one criticizes.

 Here
are the two “evidences” Niehoff provided from his classes:

      
a
student in an evidence class who, because of her experience as a waitress,
identified unlabeled cups of Coke and Pepsi by smell, which “immediately led to
an interesting debate: Was this student a layperson offering an educated guess
based on her personal experience or an expert offering an informed opinion
based on her specialized knowledge?”

      
a
blind student who made a persuasive argument that a woman’s testimony that she
could identify her neighbor and his dogs even though she couldn’t see them
through her closed door should be admissible under an exception to the hearsay
rule because you don’t “need to see something to have personal knowledge about
it.” She knew what her neighbor and his dogs sounded like.

The fact that the professor and the entire
class “sat in stunned silence” after this so obviously correct as to be banal
argument is almost enough to justify a snarky comment about the blind leading
the blind, but I will limit myself to pointing out something equally obvious:
neither acute Coke-sniffing skills nor a blind student’s argument based on his
experience are examples of cultural “difference;” neither provide any
justification whatsoever for discriminating for or against applicants based on
their race or ethnicity.

Anyone like Niehoff who wants to argue that
“race matters” because it shapes experience “in myriad and unique ways” — and
of necessity that it matters enough to justify excluding some better qualified
applicants because of their race — has the burden of justifying the racialist
stereotype that race is a valid proxy for the “dramatically contrasting [but
unidentified] orientations” that Niehoff found valuable in his Legal Ethics
class.

Niehoff’s essay failed so miserably to meet
that burden that I hope it is widely distributed and read. It demonstrates far
better than most of the criticisms or racial preference (including mine) how
weak the arguments in favor of it are.

John S. Rosenberg

John Rosenberg blogs at Discriminations.

2 thoughts on “A Weird Defense of Affirmative Action

  1. here’s another interesting fact: Prof. Niehoff is married to the (very powerful) vice president of communications at the UM, so one wouldn’t expect him to be other than an affirmative action warrior.
    diversity at the UM is of paramount concern, in an earnest but pathetic way. but diversity to these people means things like “black” and “LGBT” and “Hispanic”commencement ceremonies.
    to me, that sounds an awful lot like “separate but equal.”

  2. In my own Evidence class long ago, I recall the professor making the point that sometimes a lawyer needs to try to salvage a bad case by getting the jury to think that the verdict depends on some irrelevant point he can prove, such as whether or not the butler had silver buttons.
    Niehoff is trying the same tactic. He wants to defend the continuation of the racial preference policies he worked to preserve in the Grutter case, but rather than showing that racial preference policies are on the whole beneficial, he points to something completely irrelevant (a couple of instances in his law school courses that have nothing to do with race) and then declares victory for the side that wants to continue to favor some students because of their ancestry.
    Nice try professor, but it won’t work.

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