Admission to a prestige institution like the University of Michigan or its law school is what computer types call a "binary" decision. It's yes or no. You're in, or you're out. There is no partial or halfway admission. The effect of any factor in that decision is also binary. It either changes the result or it doesn't. It makes all the difference, or it makes none at all. Those are the only possibilities.
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StumbleUponFor any individual, the process of turning factors into that yes-or-no decision doesn't matter. Any factor that changes the result has the same impact as if it were an absolute quota of one. It gets you in, or it keeps you out. And this is either right or it is wrong. The process of turning factors into a result doesn't matter here, either. In this sense, the moral question is binary, too.
For 25 years, since Justice Powell's opinion in the Bakke case, moderates on the Supreme Court and well-meaning people throughout the land have been pretending that it is possible to split a difference that cannot be split. This week's court ruling, in which Justice O'Connor contrasts the college and law-school admissions systems at Michigan and essentially reaffirms Bakke, shows how laughable that pretense has become.
Michigan's college admissions policy at the time this suit began was strictly numerical: You needed 100 points to get in, and you got 20 points for being an officially recognized minority. Flatly unconstitutional, the court declared. Michigan's law school, by contrast, "engages in a highly individualized, holistic review of each applicant's file." It "awards no mechanical, predetermined diversity 'bonuses' based on race or ethnicity." Instead, it makes "a flexible assessment of applicants' talents, experiences, and potential …" blah blah blah. This is how it should be done, the court said.
Yes, but does the law school give an advantage in admissions to blacks and other minorities? Well, says the court, quoting the law school's brief, it "aspires to 'achieve that diversity which has the potential to enrich everyone's education.' " The law school "does not restrict the types of diverse contributions eligible" for special treatment. In fact, it "recognizes 'many possible bases for diversity admissions.' "
Yes, yes, yes, but does the law-school admissions policy favor minorities? Well, since you insist, yes: "The policy does … reaffirm the Law School's longstanding commitment to 'one particular type of diversity,' " i.e., "racial and ethnic diversity." But O'Connor's opinion immediately sinks back into a vat of fudge, trying not to acknowledge that "racial and ethnic diversity" means that some people will be admitted because of their race and others will be rejected for the same reason—exactly as in the undergraduate admissions system the court finds unconstitutional. By ignoring the similarities, the court avoids having to explain coherently why it sees such profound differences.
The court actually seems to be in denial on this point. Although it forbids explicit racial quotas or mathematical formulas to achieve racial balance, it is happy enough to measure the success of its preferred fuzzier approaches in statistical terms. If a selection system is going to be judged by its success in approximating the results of a mathematical formula, how is it any different from using that formula explicitly? Elsewhere, arguing for the social value of affirmative action, O'Connor's opinion cites dramatic statistics about how few minority students there would be if it were ended. But don't those statistics imply that affirmative action is having an equal-and-opposite effect now? And isn't that good to exactly the extent that ending affirmative action would be bad? And if that extent can be measured and judged using statistics, why is it wrong to achieve the statistical goal through statistical means?
The majority opinion says that its preferred flexible-flier style of affirmative action does "not unduly harm members of any racial group." Well, this depends on what you mean by "unduly," doesn't it? As noted, we're dealing with an all-or-nothing-at-all decision here. Every time affirmative action changes the result, a minority beneficiary benefits by 100 percent and a white person is burdened 100 percent, in the only currency on issue, which is admission to the University of Michigan. This burden may be reasonable or unreasonable, but it is precisely the same size as the burden imposed by the mathematical-formula-style affirmative action that the court finds objectionable.
The Supreme Court took these Michigan cases to end a quarter century of uncertainty about affirmative action. What it has produced is utter logical confusion. The law-school dean testified that "the extent to which race is considered in admissions … varies from one applicant to another." It "may play no role" or it "may be a determinative factor." O'Connor cites this approvingly, but it is nonsense on several levels. First, "no role" and "determinative factor" are in fact the only possible options: There cannot be an infinite variety of effects on a yes-or-no question. Second, when race is determinative for one applicant, it is determinative for one other applicant, who may or may not be identifiable. Third, the same two possibilities—no factor and determinative factor—apply to any admissions system that takes race into account in any way, including by mathematical formula and even including an outright quota system. So, it says nothing special about the law school's admissions policy compared with any other.
Finally, the court is confused if it thinks that a subjective judgment full of unquantifiable factors is obviously fairer than a straightforward formula. But confusion seems to be a purposeful strategy. The court's message to universities and other selective, government-financed institutions is: We have fudged this dangerous issue. You should do the same.
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Remarks from the Fray:
I agree with Michael Kinsley's appraisal on the ruling. I do feel the fuzziness is saying more than we want to confront. That fine line of constitutionality is looking like the culprit. Just like the double win Bakke case by ambiguity, this one is destined to be challenged until the court once and for all admits the yes or no where the constitution is in all of this and then in turn gives more specific guidelines for alternate routes to absolute reinforcement for minorities and absolute reinforcement of the constitution. This halfway house of parse is just making it more distressing for this affirmative action supporter.
--Meta4
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The message from the Supremes is: go ahead and admit based on race. Just don't say it too bluntly. Use a smokescreen….The Justices reflect a hypocrisy on race and affirmative action that seems endemic to America today. In a recent survey by the Pew Research Center, Americans, by 2 to 1, approved of "programs designed to increase the number of black and minority students." But the same people, by 3 to 1, disapproved of "giving [minorities] preferential treatment." Words, yes. Actions, no. Or actions yes, if you can make it sound and look like something palatable. Bush reflects the same hypocrisy in even greater measure. Astonishingly, after fighting the UMI policy on both cases, he now crows as if it is a victory for him. His proposed "race-neutral" alternative for achieving diversity, practiced in mainly the Bush Bro. States, involves offering automatic admission to the top 10% of every graduating class. Given that schools are still highly segregated by race, any person free of cognitive dissonance will see that this is simply race-based admission through the back door, involving more dilution of meritocracy than is necessary. Justice Souter, in his dissenting opinion in Gratz vs. Bollinger, catches this baloney....At least one Justice has refused to take the weasel way. I must say that while I deeply disagree with Rehnquist, Scalia and Thomas, they have been honest and consistent. While Scalia can do no more than scoffing, both Rehnquist and Thomas have some brilliant analysis of specific points in their opinions. The pivotal O'Connor, who carried the day, unfortunately reflected America's hypocrisy and refusal to face the truth about race, and by splitting the decision, continued to bury the issue in a morass of confusion.
--Sissyfuss1
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The point of Grutter was to keep race preferences. The point of Gratz was to ban specificity about said preferences. The result of Grutter will be that supporters of affirmative action won't have to make a case that it does any good. The result of Gratz will be that opponents of affirmative action will have a more difficult time finding a hook for legal challenges to any discriminatory policy a university chooses to follow, as long as the university is careful not to be explicit about what it is doing. The only error Kinsley makes is his avoidance of the question about what might happen without race preferences, following a steep decline in minority enrollment. Might members of minority groups no longer preferred end up in schools where they would do better? Might they work harder? Might they not react at all? I don't know the answer, but surely there is one, and the question is important.
--Zathras
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Kinsley joins others sympathetic to race based affirmative action in suggesting that the two opinions are hypocritical, largely since they want colleges to have a freer range….Many who oppose race based affirmative action argue we can get minorities to colleges other ways. The liberal critics basically don't agree with them ... if so, they wouldn't be so snide at Justice O'Connor for supporting diversity and goals while not supporting programs that just give blacks twenty automatic points. Apparently, and I don't think this has been proven, all affirmative action is created equal. But, hey, twenty points or not, the programs will take race in account. In fact, says some, the exact same thing will be done but underground. Again, this is in no way obligatory. There are a myriad of ways to skin this cat, and the twenty point system seems to be particular blatant. And, if the solution turns out to be a somewhat lesser evil, but still an evil ("race based program"), so what? I'm so impressed with the moral absolutists here. They are so upset when race is used in any fashion ... a lesser evil is just an evil by another name… But in politics, criminal due process (including the death penalty), and other important fundamental areas, they are more accepting. "Yes, the system isn't perfect, the reforms not as far as we can go, but it's a step in the right direction." Anyway, we have to fudge some, accept some bad things ... c'est la vie. Except here. Here, stopping the most blatant programs, declaring some unconstitutional, and putting people on guard that it all isn't beneficial, even if done with good intentions, is hypocrisy. We should either admit everything goes, or stop it all. The word for this is utopia. We aren't there yet. Suspicious acceptance is a good message to send legislatures and the public at large trying to formulate a solution, especially the realistic out there that know the institutions would not suddenly stop things unless Thomas wrote the opinion. Kinsley probably would have been annoyed that Brown and its immediate successors fudged things too.
--Joe_JP
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(6/25)