Skip to main content


michael o' donnell '04

Lessons from the Classroom
A law student ponders the lesser of two evils in the affirmative action debate, but there’s no doubt about what real life teaches.

If only Justice Sandra Day O’Connor—the Supreme Court’s swing voter—could have been sitting next to me in Constitutional Law class last November. The pro-affirmative action defendants in Grutter v. Bollinger would’ve had it made. My fellow students and I spent the class debating the merits of university affirmative action programs under the Equal Protection Clause of the Fourteenth Amendment. It was an excellent discussion, partly because of what was said, but more because of who said it. There were black students who weighed in on both sides of the issue. Several Indian- American women spoke, one of whom was strongly in favor of affirmative action. A Pacific Asian- American student denounced the use of racial quotas. A Latino supported them. And throughout, I repeatedly thought how hollow an experience the hour would have been if all the students had been white, like me.

The Supreme Court, in deciding the University of Michigan affirmative action cases, has been forced to grapple with just such a possibility. The Court faced a question that has vexed universities, litigators, and legal scholars since the Court’s first, deeply divided decision on university affirmative action in 1978. Namely, how important is diversity?

Law students have the answer: diversity is absolutely critical. An amicus brief written by students at Georgetown Law Center made its way to more than two-thirds of the nation’s law schools last spring, and it offers an unprecedented statement of support for affirmative action in legal education by those who stand to lose the most if programs like Michigan’s are eliminated. Nearly 14,000 law students signed—and their conviction is well-founded. It is the product of daily experiences in the classroom like my own that day in Con Law. The most powerful rhetorical argument advanced in support of the plaintiffs, white applicants who were denied admission to Michigan’s law school and undergraduate college, is that the Constitution was intended to be, and must remain, color-blind. Affirmative action has had its day, they say: slavery is long gone, the schools have been desegregated for nigh on fifty years, and race should simply no longer be an issue. Besides, affirmative action is unfair to innocent whites like Barbara Grutter, and it is nefarious to the long-term interests of blacks, who are demeaned and coddled by its favors.

Despite the intellectual appeal of the color-blind Constitution argument, it utterly ignores the status of race relations in contemporary America. Many black law students today are the first in their families to have completed college, let alone to have entered graduate school. The badges and incidents of slavery and Jim Crow persistently haunt blacks from racial profiling in the cities to voter inequity in the rural South. Most important, blacks today are just beginning to enjoy the educational opportunities their parents and grandparents only dreamed of. Can they honestly compete with the children of plenty for whom law school is more a matter of where or when than if?

Affirmative action programs are inherently unfair to whites, and they do provide benefits many blacks find unnecessary and degrading. Yet the alternative—a return to the de facto segregated higher education of yesteryear—would be, quite simply, worse. Hence the Supreme Court’s balancing test under the Equal Protection Clause of the Fourteenth Amendment is a choice between evils. Diverse universities with the baggage of inequity versus homogeneous universities with the benefit of theoretical rectitude.

Sitting in class, contemplating an affirmative action debate with 100 other white kids, the choice for me was clear: give me diversity.