Letter from Michigan: Law School Dean on the Passage of Proposition 2

As Dean of Wayne State University Law School, I know that I am here only because of affirmative action.

Although I grew up in Detroit, when I left in 1984 I had no intention of ever coming back. It was not until I testified in the trial of the Grutter case that I realized the Motor City itself was coming back. I had the honor of serving as an expert witness in that important case, before it reached the Supreme Court – which ruled in 2003 that diversity was a “compelling state interest” – and when I returned downtown I saw that it was once again a place of opportunity and optimism. My role in the case was modest: I was asked to explain how Asian Americans benefited from efforts to ensure inclusion and to refute the erroneous claim that Asian Americans as a group somehow are an example against the programs.

To be sure, I had had doubts about the effectiveness and the justice of using such volatile factors as race and gender in decision-making, regardless of how laudable the reasons. It was through research and deliberation, reviewing the many studies that were produced as well as examining actual processes in use, that I became convinced of what Justice Sandra Day O’Connor wrote in declaring affirmative action was constitutionally permissible: “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. . . Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.”

Yet my participation in the Michigan litigation changed my life as I never would have expected. It was then that I realized I had a duty to my hometown to participate in its renaissance. If I meant what I said and wrote, I should be willing to undertake the difficult work of turning words into action. Someone who says he stands for civil rights and civic responsibilities must take a stand someplace that is not academic and abstract.

And so it was that twenty years after departing, I was eager to be considered for the office I was fortunate to be offered. During a recent discussion about Proposition 2, I was asked by an audience member whether I thought I had obtained my job through affirmative action.

The individual who made the inquiry mentioned that he was interested in attending law school, and it was evident he had considered how best to ask the question as a lawyer conducting cross-examination might: if I said yes, he wanted to claim I had unfairly displaced someone white who was better qualified; if I said no, he wanted to claim there was no need to consider diversity. There is a better question, however, that transforms our dialogue: perhaps I was qualified, but was taken seriously only thanks to a willingness to consider a more diverse range of possibilities.

After all, whatever my merits, I didn’t look like any law school dean anybody had ever seen before — literally. When I was nominated to be a law school dean, there were no Asian American law school deans anywhere, and there had been no person of color serving as a dean ever in the history of Wayne State University Law School. Even though I certainly believe I was qualified, I would be naïve if I failed to recognize I was unconventional in numerous respects. I taught at a historically black institution of higher education, had experience primarily in clinical education, and was quite young.

My academic work also has been made possible through interaction with people of many backgrounds on an equal basis, and I would not have met these key individuals (nor would they have met me) without effort. It would not have happened automatically or naturally, for the patterns of our lives remain segregated even if we do not intend them to be so. It is the legacy of history, the habits of mind, the privileges that pass unnoticed, and a myriad of other factors that prevent us from making good on ideals we claim to share about integration.

It should come as no surprise to anybody with whom I have worked over the past two and half a years, then, that I am saddened by the outcome of our election. I cannot imagine, as Dean, welcoming an entering class to the law school that was virtually all-white, or presiding over a faculty meeting with only token numbers of African Americans, Latinos, and other persons of color. Nor do I suppose that as a public urban institution we are fulfilling our role of offering access to higher education and the justice system if we graduate a handful of racial minorities or if women are absent from senior leadership positions. I have disappointed myself that we cannot seem to do better in recruitment and retention of students and faculty.

Nonetheless, I take heart in the good will of the people of our great state. I know from conversations with many people who held every conceivable opinion about Proposition 2 that almost to a person they agreed that it was important for us to continue to be welcoming in a meaningful manner to people regardless of skin color or gender. Time and again, supporters of the measure assured opponents of it that they, too, wished to have more than a rhetoric of belonging, that they would dedicate their energies toward achieving a reality of equality.

Proposition 2 is not as simple as it might seem, as is the case with most laws. We will need to engage in deliberation about how best to proceed, ensuring we are complying with applicable laws. I expect we will have much to do, the administrators and the faculty, not to mention our alumni and our current students, following traditions of academic freedom and shared governance. My assurances are not enough; let us be judged, especially if we expect to lead, by our actions.

The challenge for us, as it has always been and likely will remain, is to determine how best to progress on a vision of a diverse democracy.