Batson and Affirmative Action

[Mark Graber]

Looking at the opinions in the Miller-El case an interesting question
arose.  Suppose instead of admitting that race was used as a plus in the
context of overall diversity, the University of Michigan insisted that
the admissions process race-blind, but very discretionary, a lot like
preemptory challenges in jury trials, and it just happened that
virtually all of the students admitted with relatively low test scores
were persons of color.  Indeed, for every case, the admissions office
attached a race-neutral explanation (we were wowed by a particular
letter of recommendation, no one from that high school in years, etc.).

1. Would that explanation be less believable than the prosecutor's
insistence in Miller-El that race does not explain why 10 of 11 eligible
blacks were excluded by peremptory challenges?

2. Would the three dissenters in Miller-El agree that there was
insufficient constitutional evidence of race discrimination?  Does it
matter that in the context of habeas the standard of proof is higher. 
Would the Michigan Government department be more successful, given they
have far fewer applicants for graduate studies, so trying to get
statistical significance may be difficult.

Mark A. Graber