Misleading the Supreme Court on affirmative racism

National Association of Scholars:

Some means are by no means necessary.

That’s what Federal District Court Judge David Lawson decided last month about the efforts of a Michigan advocacy group that calls itself the “Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary” or, more simply, “BAMN.”
In a sweeping opinion, Lawson rejected every one of the legal arguments that BAMN and other opponents were hoping to use to strike down Michigan’s new amendment barring the use of racial preferences. Lawson’s decision takes the steam out of the multiple legal challenges that have dogged the new amendment almost from the day it passed in November, 2006.


Lawson’s about-face was no accident. Pre-trial discovery was turning up evidence that the extensive use of racial preferences at Michigan universities was directly causing racial disparities in grades, majors, graduation and professional examination results. Far from helping the case for racial preferences, pre-trial discovery was undermining it.

The new evidence was the result of efforts of UCLA Law Professor Richard Sander. Sander had donated his services as an expert to Eric Russell, one of the parties in the case represented by my firm, the Center for Individual Rights. Last fall, Sander had submitted his preliminary findings to the court, including the revelation that minority students at the UM Law School failed the bar at more than eight times the rate of white students during the years 2004, 2005 and 2006.

According to Sander, this data contradicted sworn testimony by UM experts during the trial in Grutter v. Bollinger, the Supreme Court case challenging the use of race-based admissions at the UM law school. When called as an expert witness in that case, then UM Professor Richard Lempert testified that,


The evidence Sander was beginning to develop seemed to undermine the well-financed effort by the UM to reassure the Supreme Court that the racial preferences employed by the UM law school were a comparatively modest effort that produced benefits for the law school and for minority law students. Sander’s analysis suggested just the opposite: the preferences were extreme and directly harmed the academic prospects of minority students. If Sander’s analysis held for other years, it would have undermined both the UM’s expert testimony and the Supreme Court rulings based on that testimony.

There is much more and it is not pretty for the affirmative racism lobby. The harm these preferences were doing to minority students was as great as it was to non minority students who were excluded because of the preferences. The bar association should undertake an investigation of the evidence that was produced for the Supreme Court to determine whether a fraud has been perpetrated on the Court.


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