(The Return of) Ignatz, by Sam Heldman

Thursday, January 16, 2003

The big legal news issue today, of course, will entail looking at exactly what the Administration has decided to file in the Supreme Court in the University of Michigan admissions cases. We know that the Administration will be urging the Court to hold Michigan's policies - at both the undergrad and law school levels - unconstitutional. (Thanks to Atrios for pointing out that, if you want to know what you're opining about before you opine (a rare quality these days) you can find these policies online).

The brief, when filed later today, will presumably be available on-line at this page. I'll post a more specific link when I can.

Even having decided to oppose the Michigan policies, there is a great variety of positions that the Administration could take, depending on how vigorously and widely the Administration wanted to condemn "affirmative action". One of the most important things to look for, when reading the brief, is how it answers two questions: (1) is diversity in university admissions a "compelling state interest"? and (2) are the Michigan policies "narrowly tailored" towards reaching that interest? I get the sense from trying to read between the lines of the newspapers that the Administration will likely say "yes" to #1, which will mightily piss off many on the right. If they do say yes to #1, though, they'll be saying "no" to #2. What does "narrowly tailored" mean? Essentially the question is whether the judges think that the program under review is designed well enough to achieve the important goal without too many unnecessary bad side effects on those pitiful oppressed white folks. Yes, I just got snarky for a minute.

But one thing worth noting, before we go farther, is that this "narrow tailoring" inquiry does involve value judgments and policy judgments by courts -- what side effects are bad, and how much bad side effects are too much in light of the goal being sought? Now, I've long since become comfortable with the fact that constitutional law decisionmaking involves value judgments and policy judgments, and intrusion into local affairs; but if you think that that's bad, then you should apply your principle to this case as well as to others, and advocate upholding the Michigan policies.

If the Administration's brief does come down on the "narrow tailoring" issue, we will then look to see whether they give any concrete examples of things that would, in their view, be narrowly tailored and therefore lawful as means of increasing diversity in admissions. To my eye, the "top 10%" proposal (which seems to be what the President likes to toss around as the great alternative) - that anybody who graduated in the top 10 percent of her high school class will be admitted, or something of that sort - has absolutely no value as to law school admissions, absolutely no value as to private university admissions at any level (and those private universities' decisions will, of course, be vitally affected by the outcome of this case), and has some value as to some public undergrad admissions depending on local conditions that may vary. (In some places, a top 10% plan wouldn't increase diversity at all, perhaps). So if "top 10%" is the only lawful alternative they offer, then this will to a large extent constitute a hide-the-ball: "we're pretending that we're not opposed to diversity-increasing efforts across the board, but we won't tell you which ones we would support!!"

I'll close for now by offering what I hope somebody is arguing in an amicus brief in this case: that in the specific context of university admissions, the old "compelling state interest? narrowly tailored?" constitutional inquiry should not be the sole inquiry. Instead, the court's consideration of the policies should go something like this: First, you've got to figure out why we admit people to public universities. It's not as a reward for making good grades in high school. It's so that we can improve our society -- spending public resources to expand the minds of a lucky relatively-few, so that they will go on to do things that will make the world better. Admission is not an entitlement that arises from being smart. It is a matter of being chosen to be the subject of a public investment. Second, we have decided that we ought to invest in just about as many minority kids, proportionately, as white kids. Why? Because it seems pretty obvious to us that this is the way to improve the world -- not by reserving this public good mostly for white folks, but by spreading it around. The world will be better more quickly, we think, if there are black lawyers as well as white lawyers, Hispanic engineers as well as Anglo engineers, etc. And it also appears to us that any fairly-designed system of assessing "merit" just would result in approximately proportionate representation among races and ethnicities -- that is definitional, we think, as to the words "fairly-designed" and "merit". Third, if we went solely on SATs, LSATs, and grades, we wouldn't achieve this goal -- so we make adjustments. It's not a perfect system, but no one has ever yet designed a perfect system for measuring or even defining human merit in any sphere. So get over it.

To my eye, the beauty of this argument - as contrasted with the often-heard "we think diversity is a great thing because it will foster a better learning environment" argument - is that it puts the opponent to the real test: What, are you saying that you don't take it as a fundamental agreed principle that we should be investing just as much in the smartest minority kids as we do in the smartest white kids? Are you saying that you don't take it as a fundamental agreed principle that the distribution of human merit, in terms of that specific sort of merit that deserves great educational opportunity, is equal across races and ethnicities? Well, I take those things as fundamental principles, and I would hope that my Supreme Court wouldn't declare the contrary as a command of the Constitution.

posted by sam 7:35 AM 0 comments


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