July 16, 2012

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.

Comments (2)

George Leef:

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.


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."

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