On KNUS, Sharf falsely asserted "no evident facts that diversity in and of itself is a positive good"

Summary: During a December 9 discussion on 710 KNUS about a ballot initiative that would amend the Colorado Constitution to prohibit preferential treatment "on the basis of race, sex, color, ethnicity, or national origin," Backbone Radio co-host Joshua Sharf claimed regarding a 2003 U.S. Supreme Court decision that "there are no evident facts that diversity in and of itself is a positive good." However, in the decision to which Sharf referred, former Justice Sandra Day O'Connor noted "numerous expert studies and reports showing that such diversity promotes learning outcomes."

Discussing the issue of racial preferences on the December 9 broadcast of KNUS 710 AM's Backbone Radio, co-host Joshua Sharf stated regarding a 2003 U.S. Supreme Court decision that "there are no evident facts that diversity in and of itself is a positive good." In fact, in the June 23, 2003, decision to which Sharf referred, which concerned admissions policy at the University of Michigan Law School, former Justice Sandra Day O'Connor noted the existence of "numerous expert studies and reports showing that such diversity promotes learning outcomes and better prepares students for an increasingly diverse workforce, for society, and for the legal profession." Briefs on behalf of the respondent in the case, former University of Michigan president Lee Bollinger, contained citations of such evidence.

Sharf, along with host John Andrews and guest Ward Connerly, was discussing a Colorado Civil Rights Initiative-sponsored ballot initiative that would, through an amendment to the Colorado Constitution, prohibit the state from "grant[ing] preferential treatment to any group or individual on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public contracting, or public education."

Connerly is the chairman of the American Civil Rights Institute, an organization "created to educate the public on the harms of racial and gender preferences," according to the organization's website. As The Denver Post noted in an April 26 editorial, "Colorado is one of eight states targeted by Connerly for anti-affirmative action initiatives on the November 2008 ballot. He led the fight to pass a 1996 California initiative that barred preferential treatment on the basis of race, sex, color, ethnicity or national origin in public employment, education and contracting. Clones of that California ban later passed in Washington state and in Michigan."

From the December 9 broadcast of KNUS 710 AM's Backbone Radio:

CONNERLY: The language of the initiative will read, quote: "The state" -- small "s" -- "The state shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." There will be one or two clauses -- two clauses or so, basically, that will be exempt -- that will be essentially exemptions. Number one: For bona fide classifications. Let's assume that a prison has female inmates, and they want to do strip searches. Well, they want to hire women for that. That one exemption would allow them to do that and not have that be viewed as preferential treatment. The other exemption would be that if the federal government requires a government agency in the state of Colorado to use race and to give preferences, then the federal government will triumph. Their requirements will be supreme over any state or local requirements. Other than those things, every government agency -- the state government, cities and counties, mosquito abatement district, colleges, public colleges and universities, whatever it is -- every government agency that uses taxpayer dollars will be required to treat everyone the same. They will not be allowed to give a preference in hiring, in public contracting, in public employment.

ANDREWS: Now, that sounds like, Ward, that sounds like precisely the vision of the Civil Rights Act of 1964 -- such a landmark in America, realizing the long-cherished but never-fulfilled notion of true equality of all citizens before the law. And it likewise seems to honor the vision of a truly colorblind constitution in our nation and in our states that was first articulated by Justice [John M.] Harlan 110 years ago in his dissent in the notorious Plessy decision. How could people disagree with that?

CONNERLY: Well, surprisingly, there are many who do. The Supreme Court in 2003 ruled by a 5-4 majority that it was OK to use race in the interest of diversity at the University of Michigan. And over the years, through case law largely, we have been violating the 1964 Civil Rights Act, which says that everyone in this country will be treated equally, quote, "without regard to race or color." But case law handed down by the courts over the years has said that they were going to allow an exception to that policy, to that law, more recently to pursue diversity.

SHARF: You know, you know, what's interesting is that courts will frequently use facts as established by research in overturning, or in what we would consider to be legislating from the bench. And yet here are two instances -- one in the Michigan case -- where there are no evident facts that diversity in and of itself is a positive good.

CONNERLY: Right.

SHARF: And the California case that you're working on now, where there is evidence that, in fact, affirmative action may be a, may be an affirmative bad. And yet they're unwilling to properly use facts in both of those cases.

CONNERLY: That's right. You're absolutely right.

On June 23, 2003, O'Connor issued a 5-4 decision in the case of Grutter v. Bollinger et al. Contrary to Sharf's statement that "in the Michigan case" to which he and Connerly referred "there are no evident facts that diversity in and of itself is a positive good," in finding for the University of Michigan, O'Connor referred to evidence that "diversity promotes learning outcomes and better prepares" law students:

Attaining a diverse student body is at the heart of the Law School's proper institutional mission, and its "good faith" is "presumed" absent "a showing to the contrary." Id., at 318 -- 319. Enrolling a "critical mass" of minority students simply to assure some specified percentage of a particular group merely because of its race or ethnic origin would be patently unconstitutional. E.g., id., at 307. But the Law School defines its critical mass concept by reference to the substantial, important, and laudable educational benefits that diversity is designed to produce, including cross-racial understanding and the breaking down of racial stereotypes. The Law School's claim is further bolstered by numerous expert studies and reports showing that such diversity promotes learning outcomes and better prepares students for an increasingly diverse workforce, for society, and for the legal profession. Major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. High-ranking retired officers and civilian military leaders assert that a highly qualified, racially diverse officer corps is essential to national security. Moreover, because universities, and in particular, law schools, represent the training ground for a large number of the Nation's leaders, Sweatt v. Painter, 339 U. S. 629, 634, the path to leadership must be visibly open to talented and qualified individuals of every race and ethnicity. Thus, the Law School has a compelling interest in attaining a diverse student body. 15 -- 21. [emphases added]

An amicus brief in support of the University of Michigan filed by the American Educational Research Association, the Association of American Colleges and Universities, and the American Association for Higher Education cited what the brief characterized as "relevant research addressing the educational benefits of student body diversity in higher education," noting that "the consistency of the findings in demonstrating the educational benefits of diversity is impressive." In its summary, the brief stated:

[N]umerous research studies show that student body diversity can promote learning outcomes, democratic values and civic engagement, and preparation for a diverse society and workforce -- goals that fall squarely within the basic mission of most universities. Recent studies focusing on diversity in law schools demonstrate that student body diversity improves classroom learning environments and promotes critical thinking skills. Diverse learning environments challenge students to consider alternative viewpoints and to develop tolerance for differences. Studies further show that student body diversity better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals to work with a diverse population of clients and actors in the legal system.

In a section titled "Research Studies Support the Law School's Compelling Interest In Promoting Educational Diversity," the brief "provid[ed] highlights" from four "recent studies focusing on the positive benefits of educational diversity in legal education." These studies are:

• Gary Orfield & Dean Whitla, Diversity and Legal Education: Student Experiences in Leading Law Schools, in DIVERSITY CHALLENGED: EVIDENCE ON THE IMPACT OF AFFIRMATIVE ACTION 143 (Gary Orfield with Michal Kurlaender eds. 2001).

• David L. Chambers, Richard O. Lempert & Terry K. Adams, Michigan's Minority Graduates in Practice: The River Runs Through Law School, 25 LAW & SOC. INQUIRY 395 (2000).

• Richard A. White, Preliminary Report: Law School Faculty Views on Diversity in the Classroom and the Law School Community (May 2000), available at http://www.aals.org/statistics/diverse3.pdf

• José F. Moreno, Affirmative Actions: The Educational Influence of Racial/Ethnic Diversity on Law School Faculty (2000) (unpublished Ed.D. dissertation, Harvard University).

—E.B. & J.F.B.