[Congressional Record Volume 149, Number 9 (Friday, January 17, 2003)]
[Senate]
[Pages S1123-S1125]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    THE UNIVERSITY OF MICHIGAN CASE

  Mr. BIDEN. Madam President, I rise today to, quite frankly, 
compliment and add to the comments of my friend from West Virginia, 
Senator Byrd--although I will not be as eloquent--who spoke today on 
Iraq and Korea and national security policy.

[[Page S1124]]

  Before I do, there was an intervening comment exchange that was made 
on the floor earlier relating to the Michigan University cases.
  I rise at this moment not to speak on whether or not the merits of 
the Michigan cases or the merits of the Michigan admissions policies 
are constitutional or unconstitutional. My instinct, in what little I 
know about it, is that it seems to be constitutional because there is a 
two-pronged equal protection test that has to be met; and that is, does 
the University's consideration of race as one of many factors in making 
admissions decisions constitute a compelling Government interest, and 
if it does, is it narrowly tailored. It appears, from what I have read 
in the press, that it is.
  But I want to respond in the next 2 minutes to something my friend 
from Pennsylvania, my neighbor, Senator Santorum, said. He talked about 
this point system. I just want to remind everyone how the University of 
Michigan's policy works, which is like many other universities.
  Under the University's undergraduate admissions process, every 
applicant can get up to 150 points in seeking admission. My assumption 
is, what the university does, it reviews all of the applications from 
applicants. No one gets 150 points, necessarily, but there are methods 
by which you can get up to 150 points.
  Madam President, 110 of the 150 points are strictly related to 
academic criteria. They relate to GPA, the school you went to, the high 
school you went to, the curricula you took, your SAT scores, et cetera. 
Forty points are up for grabs, and they relate to nonacademic factors.

  It is possible for a minority to get 20 points because of his 
minority status. People are pointing to that as saying that is unfair. 
Well, forget the constitutional detailed arguments for just a moment, 
because we will have plenty of time to make those on the floor. I want 
everyone to remind themselves what the rest of the University of 
Michigan policy allows.
  If you are the son or daughter of alumni, you get 4 points. If you 
come from an underrepresented county within the State of Michigan, you 
can get up to 16 points. If you are a Michigan resident, you get 10 
points. If you are from an underrepresented State, you get 2 points.
  Let me translate this. And I do not mean this as a criticism of 
anybody else's State. The most competitive, the most difficult place to 
gain admission, the most difficult geographic States to gain admission 
to the most elite colleges are Delaware, Pennsylvania, New Jersey, and 
New York. It is harder to get into competitive colleges if you're a 
resident of those States.
  If you are from Mississippi or Alabama or Alaska and have the same 
scores as students from these northeast states--like my son or daughter 
from Delaware, and my nephew from Pennsylvania--and everything else is 
equal, the child from Mississippi or Alabama or Alaska will get into 
the school before the child from Delaware, Pennsylvania, New Jersey, or 
Maryland. That's because--rightly or wrongly--the academic standards in 
these latter States are considered to be higher, and the competition is 
more intense.
  So that is a literal fact of life. You say: OK, well, why in God's 
name would some child who does not have quite the same marks, or has 
the same marks, from the Midwest or Alaska or the Deep South have an 
advantage over a child from a New England State or a mid-Atlantic 
State? The reason is not to benefit the child. It is to benefit all the 
other students in the university. Because we have made a judgment, 
historically, in this Nation that it is better for my child to go to 
school with someone from Alaska, Mississippi, South Carolina, North 
Carolina--all across the Nation--than it is to go to school with 
everybody being from Pennsylvania, New Jersey, and Delaware. It has 
been a judgment educators have made. And the more elite the university, 
the more diversity, geographically, they seek.
  It is the same way, I might add, that Rhodes Scholarships are, in 
fact, awarded. It is a heck of a lot harder to get a Rhodes Scholarship 
as a resident from New York State than it is from South Dakota. That is 
a fact--a fact. It is the competition pool. Why? More money per pupil 
tends to be spent in those richer States than in the States that are 
not as wealthy.
  So what have we done? In everything we do about education, we seek, 
as a goal, not to reward the student, the diverse student who is coming 
in, but the goal is to reward the student body that is there to expose 
them to diversity.
  It is good that my middle-Atlantic State daughter is in a school with 
people who talk to you like this--you know what I mean--like y'all do 
in the South. It is a good thing. She should be exposed to that. It is 
good your southern son or daughter knows and has someone in class that 
talks like they are from Brooklyn. It is a good thing. Some may 
disagree, but that has been a national consensus.
  Like geography, race is one of those factors colleges do and should 
consider. The only generic point I want to make to people, as a Senator 
who opposes quotas--that is not hyperbole; I oppose quotas; and I have 
a 30-year voting record about that--but what is good for the goose is 
good for the gander.
  All of you who tell me this is a level playing field, give me a 
break. If your daddy happened to go to that school, it is not wrong 
that you get a preference. But at least admit you are getting a 
preference. Stop this game, this silly little game.
  If, in fact, you come from a State that is poor, stop pretending to 
me that it is a level playing field for a kid from Mississippi to get 
to Harvard versus a kid from Westchester County, NY to get to Harvard.
  Give me a break. Let's stop being phony around here. I am not 
suggesting anybody is phony. I am just trying to inform those of you 
who have not had a chance to think of this how things actually work, 
how they actually work.
  And, by the way, even on the academic side, you get somewhere between 
zero and 10 points based on the school you went to.
  The school I went to is a Catholic prep school, with mostly middle 
class kids. My daughter, who is now a senior in college, graduated from 
that same school several years ago. If my memory serves me correctly, I 
believe that out of 114 kids in her graduating class, 69 passed five or 
more advanced placement tests, meaning that they tested out of their 
entire first semesters at the universities they attended--69 out of 114 
passed five or more AP tests.
  According to what was then put out by the SAT outfit out of New 
Jersey, these kids represented the highest number in the region to test 
out of their first semester classes, and one of the highest in the 
country--this little old Catholic school I went to. Guess what. It 
costs 14 grand a year to go to that school. Now, my daughter, I am 
confident, were she applying to Michigan, could have gotten up to 18 
points--up to 10 for the quality of the school and up to an additional 
8 for the quality of her curriculum. And not because of anything she 
had, but because her old man was able to borrow the money with her 
mother to pay for her to go to that school and expose her to that. She 
may have gotten B's and my sons who went there or I who went there may 
have gotten B's, while a kid from a little one-room schoolhouse--some 
States still have one-room schoolhouses, not many--from a small school 
in, say, North Dakota, where you have 20 kids in a senior class, that 
kid got a B, same grade point. My daughter may have gotten up to 18 
points; the kid from North Dakota, with the same grade point average, 
may get no added points.
  How does it really work? A Black kid in west Philadelphia, he might 
have gotten B's from a school we all acknowledge isn't that great a 
school. My daughter gets an 18-point bump on the academic side because 
she went to a school that costs--guess what, when I went there, it cost 
$900 a year, now it is 15, 14 grand. How many middle-class Black kids 
out there are able to pay 14 grand, or Hispanic, Latino kids? So I just 
think we should be honest about this.
  There is a legitimate constitutional argument to make and a test that 
Michigan is going to have to prove, and they should have to prove. 
There is a two-prong test here. When you are in a suspect category--
race is a suspect category--there are two tests: One, is there a 
compelling Government interest in using race as one of many factors to 
achieve a diverse class, and, two, is that use narrowly tailored. I 
think

[[Page S1125]]

Michigan can prove that. I haven't done all the work. I teach 
constitutional law; I think I know a little about it. I can't say to 
the Chamber, I am guaranteeing I know the Michigan test is 
constitutional. They should have to prove it. No problem. I think they 
will. But let's not kid each other. OK? Level playing fields? I will 
conclude this part and get on to what I was going to speak about and 
just look at it.
  Of the total 150 points an applicant to the University of Michigan 
can get, 40 points are for non-academic factors. You can get 20 points 
if you're an underrepresented minority, but also if you're a 
scholarship athlete, or if you're a kid who is socio-economically 
disadvantaged; you can get 10 points if you're a Michigan resident, 16 
points if you live in 2 particular counties in Michigan; 4 points if 
your parents are alumni; 3 points for your required personal essay; 5 
points for personal achievement; 5 points for leadership and service 
and, guess what--I say to my friend who went to a great, great 
university, the Presiding Officer, Duke University, one of the great 
universities in America; this will not surprise her, I suspect--the 
provost has 20 points of discretion. How about that one? The provost 
has 20 points of discretion.
  Do you think the provost is more likely to receive a phone call from 
the chairman of the board of General Motors, or do you think the 
provost is likely to take a phone call from Rashid's mother in Detroit? 
My colleagues, as the kids used to say, let's get real. Let's 
acknowledge the truth of this. There is no absolutely totally blind 
test out there.
  I am not criticizing. Universities have a reason for giving alumni 
preference. How do you think Harvard was built? There is a little red 
book on how Harvard's endowment was built. You build loyalty to a 
university. People then do things for the university. That is a good 
thing, not a bad thing. It is a good thing. There is geographic 
diversity. It is a good thing that there is discretion built in.

  But if you are going to take this purest view that race can never be 
considered, that minority status can't be considered and you want to be 
fair, be fair. Cash in your senatorial credentials when you start 
writing recommendations. OK? Don't write a recommendation.
  You want to be really fair? Be like every other person out there, do 
you know what I mean? Maybe it is because I come from a place called 
Claymont. I come from an Irish Catholic family. I am the first one in 
my family to go to college--no Horatio Alger story.
  I once got in an argument during the Thomas hearings which I don't 
like to recall very often. Someone was saying to me that there was no 
preference given to the Justice getting in the Yale University Law 
School. And I looked at this particular guy, who wasn't happy with me 
over another issue about logging roads through Federal lands. He was 
really mad at me about that. I looked at him and I said: Where did you 
go to school?
  He said: I went to Yale.
  I said: You are the guy who took my spot at Yale.
  He said: What do you mean?
  I said: We are the same age. You took my spot at Yale. I know you are 
the one.
  He said: What are you talking about?
  This guy happened to be from Alaska. I come from Delaware. If I'm not 
mistaken, you got points at Yale for being from Alaska. And probably 
his marks were better than mine, but I joked with him. He didn't know.
  I said: I bet my marks were better than yours. I said: I'll make you 
another bet. I bet your daddy went to Yale.
  He said: Yes, what difference does that make?
  It makes a difference. Assume my marks had been the same as his. I am 
from Claymont, Delaware. My father is making 17,000 bucks a year, and I 
applied to Yale. He is from a geographically underrepresented area and 
his daddy went to Yale.
  I mean this sincerely, I understand the anger of working-class and 
middle-class White people like me, my background. I can remember when 
my dad, who was an automobile salesman, I remember my dad being so 
angry when he was trying to borrow the money to get a student loan to 
send me to the local university and my sister almost at the same time. 
He was $800 over the limit. It was like 18,000 bucks he made that year, 
over the limit to be able to borrow.
  The guy who worked on the lot came in really happy one day, and my 
dad was good friends with him. But the guy was the laborer who cleaned 
the cars. And he said: My son is getting in. I got the loan.
  And my dad thought it was so unfair that this guy made one-third less 
than he did and he was able to get the loan, but my dad couldn't afford 
to send us all without the loan.
  So I am not in any way belittling the legitimate concern and anxiety 
of middle class and lower middle class White folks who feel they are 
pushed out of the way. That is why I think we should give them all a 
$12,000 tax deduction to get to school which I have been pushing for 8 
years now.
  But it amazes me how some of our friends in this Chamber and in the 
body politic political elite really will bleed over the 1 or 2 or 
whatever percent of the White children who really do get bumped out of 
the way. Where is their bleeding for the 10, 20, or 30 percent of the 
Black kids or Latino kids who get pushed out of the way a thousand 
ways? Is anybody suggesting to me the injustice done to middle White 
class or any White student is anywhere nearly equivalent to the 
injustices done or the lack of opportunity available to minorities?

  There is such an imbalance about this. That doesn't mean we should 
justify a wrong when it is only done to 1 percent of the people because 
there is a greater wrong done to another group of people. We ought to 
be able to figure out how to deal with this.
  I will end with this: I respectfully suggest we should be making it a 
lot easier for kids to get to college, period, across the board. One of 
the things we should do is what my friend from Connecticut has devoted 
his career to, and he knows more about it than I do by a long shot, and 
that is making elementary and secondary education truly equal. He had 
an amendment that said, on this big bill we passed on education, by the 
way, if you are going to test people equally, make sure you spend equal 
amounts of money on them.
  If you are a kid in west Philadelphia and you are a kid in Marion, 
which is one of the wealthiest areas just 4 miles away, I don't 
remember exactly what the numbers are, but it is like two or three to 
one resources spent on the kid in Marion to educate him than the kid in 
west Philadelphia. We are going to give them the same test. It reminds 
me of the old separate but equal stuff. So there is a lot we can do to 
make sure no child, White or Black, is bumped out of the way because 
they are qualified, but otherwise they do not suffer from one of the 
litany of things listed as being able to be taken into consideration in 
admission.
  I am not making the case on the merits. I don't know enough about the 
Michigan policy. I hope we have a honest discussion about this when we 
talk about it because there are preferences built in across the board, 
absolute preferences.
  I know, as a middle-class White kid--lower middle class 
economically--growing up, who did relatively well, I knew that the kid 
who had a lot more money, whose parents had gone to college, had more 
of an advantage. I didn't begrudge them the advantage. It is just 
there. It is just there. Let us at least admit to that and acknowledge 
that. Let's stop this--and nobody has done this in the Chamber, but 
let's not start demagoging this notion that all these White kids are 
being discriminated against and so-called reverse discrimination is 
killing opportunities for White children.

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