Did the University of Michigan lie to the Supreme Court about crucial facts in the famous case on racial preferences?
Stanley Kurtz asked that question today. It has come up because of a recent court action seeking to “strike down Michigan’s new, voter-passed, amendment barring so-called affirmative action.” Terry Pell digs into the facts that may have come out unintentionally:
But then suddenly Lawson pulled the plug on all this with an opinion in March that, whatever else it did, certainly ended the prospect of further discovery and a trial.
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,
“not to put too fine a point on it, Michigan graduates pass the bar. It doesn’t matter really whether you’re a minority or whether you’re white… I think there might of have been a statistically significant difference favoring whites, but it was substantively sort of completely trivial. It was like 95 percent of minorities and 98 or something or 99 percent of whites.”
Lempert based this conclusion on an exhaustive study he authored with David Chambers and Terry Adams of the careers of minority law school graduates during the 26-year period between 1970 and 1996. But in Sander’s view, it was implausible that minority bar failure rates could have been stable for 26 years up until 2001 when Lempert testified, and then suddenly balloon to eight times the white failure rate in 2004, 2005 and 2006.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.
Rather suddenly, the UM refused to provide the additional data Sander needed. Then, after Sander submitted an affidavit explaining his initial findings and why he needed additional data, the ACLU and NAACP — interveners in the case — moved to dismiss CIR client Eric Russell on the grounds that his document requests for “irrelevant” documents posed a hindrance to the efficient litigation of the case.
Now Lawson was left holding the bag — he couldn’t very well allow discovery to go on without granting Russell’s request for the data. Yet if he did so, he knew that Russell’s lawyers could use the subsequent trial to make a strong case against the use of racial preferences – one based on their documented effect in undermining the ability of minority students to compete academically.
Lawson’s apparent about-face is probably the final blow to the efforts of the Michigan state establishment to block Prop. 2. Key to its strategy was a loose confederation of political leaders, college presidents and BAMN. Michigan leaders had always been wary of BAMN, which as often as not directed its aggressive street theatre against state officials. But after Michigan voters passed Prop. 2 by a margin of 58 to 42 percent, BAMN’s tactics looked like a good way to keep the new referendum tied up in legal knots.
It does look as if they lied, but here is the kicker:
Before the UM clamped down on CIR’s request for data, Sander was able to confirm his earlier finding that the undergraduate system may have produced fewer harms than the law school system. For one thing, the newly-produced data showed that a substantial number of minorities with strong credentials attend the UM undergraduate college. These students could have been admitted without any consideration of race and presumably resisted offers from more competitive schools to attend the UM. It was thus possible for Sander to compare, for the first time, the academic records of UM undergraduate minorities who did not receive a racial preference with those who undoubtedly did.
According to Sander, there were dramatic differences between the two groups. Undergraduate blacks at the UM who were admitted without a preference had a graduation rate of 93% — higher than the rate for comparable white students, and far higher than the graduation rate of the school as a whole. In stark contrast, UM undergraduate blacks who received a preference had a graduation rate of 47%. If Sander is right, it raises a real question whether this latter group benefited from the UM’s heavy use of race or whether they would not have had better academic outcomes at less prestigious schools.
While Judge Lawson now has dismissed the case, the reason probably has less to do with the law and more to do with the what the evidence was starting to show about the real harms of the preferential admissions policies followed for years by the UM and other schools. For the time being, Judge Lawson has sidelined the effort to get a full decade’s worth of data as part of this litigation. But given what even three years worth of data seems to show, schools like Michigan will find it increasingly difficult to keep this data secret. If even the “holistic” use of race makes it difficult for minority students to compete academically, the moral and legal imperative to publicize and analyze this information becomes great.
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