[1418] in Discussion of MIT-community interests
Slate Article
daemon@ATHENA.MIT.EDU (Chienta Wu)
Wed Jun 25 11:41:19 2003
Date: Tue, 24 Jun 2003 15:45:06 -0700
From: Chienta Wu <jimmbswu@ALUM.MIT.EDU>
To: MIT-Talk@MIT.EDU
readme=20
Supreme Court Fudge=20
By Michael Kinsley=20
Posted Tuesday, June 24, 2003, at 12:30 PM PT=20
=20
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. =20
=20
For 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.=20
=20
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.=20
=20
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 =E2=80=A6" =
blah blah blah. This is how it should be done, the court said.=20
=20
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.' "=20
=20
Yes, yes, yes, but does the law-school admissions policy favor =
minorities? Well, since you insist, yes: "The policy does =E2=80=A6 =
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=E2=80=94exactly 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.=20
=20
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? =20
=20
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.=20
=20
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 =E2=80=A6 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=E2=80=94no factor and determinative factor=E2=80=94apply =
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.=20
=20
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.Michael Kinsley is Slate's founding =
editor.=20
=20
Illustration by Robert Neubecker.=0A=
---------------------------------------------------------------------
Documentation on the use of the mailing lists mit-talk, all-talk,
mit-news, housing-talk, and the mit-talk Zephyr class is available at:
http://web.mit.edu/institvte/talk/
