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With thanks to the Volokh Conspiracy , we give you this link to the Supreme Court's decision upholding the University of Michigan's law school admissions policies. Justice O'Connor's decision for the 5-4 majority is lengthy, and once again, the issues seem divisive and highly charged. I understand there is a companion decision rejecting the "points system" used by Michigan; I don't have a link yet-- but I'm sure Volokh will soon!

O.K. Let's get real. I applied to law schools in the post-Bakke world, and the University of Michigan is, as I recall, one of those to which I applied and was not admitted. I believe that took place before implementation of the policies at issue in the current case, but there you go. Had I been a member of a favored minority group (for admissions purposes), my college grades and test score would doubtless have warranted my admission. Of course, that's interesting in its own right. I am a White male, who grew up in a pleasant suburb, with a stay at home mom, really good public schools, etc. Is it such a fair comparison after all, with someone who likely did not have those advantages? Against similarly-situated White males, there were, evidently, more compelling cases for admission (to Michigan, anyway), than myself. Also, given that the U. of Michigan is a publicly funded institution, I doubtless could have improved my chances if I lived in Michigan (at least I think I could have).

The Supreme Court's decision finds "racial diversity" to be a "compelling state interest", in its own right. I'm not sure if the High Court has made that specific a ruling before, but it is an interesting one. I'm pretty sure its wrong, by the way. If Michigan is like many other public institutions, on net, the low income residents of inner-city Detroit are subsidizing the children of posh Grosse Pointe to attend the state universities, particularly Ann Arbor. Further, despite being publicly funded, Michigan counted such factors as being a child of an alumnus or an athlete, along with race (as well as, ahem, grades and test scores). When you count all of these criteria that may diverge from "pure academic qualifications", it sure seems to me that if you can favor alumni children because of who their parents are, why not members of minority groups?

Said like that, the minority points don't seem an unfair basis of adjusting Michigan's (or any other public institution's) admissions criteria: are the people of the state (i.e., the people PAYING FOR the institution) benefitting from their publicy funded law school, if not "equally", it should at least do it "fairly". To me, THAT is the "compelling state interest", rather than a muddled feel-good notion that somehow diversity itself is a goal to be pursued for its own sake.

Obviously, relying on the courts in this area (or in much of the political realm) has always been problematic. The courts have to come up with criteria based on existing precedent and what is before them in the appellate record, which does not always lead to the best answer. So we'll see how this plays out. On the whole, right decision, wrong reason. The Bush Administration weighed in the other way. Look for it to take credit for this decision anyway.

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Comments

To respond to a couple of your points:

If Michigan is like many other public institutions, on net, the low income residents of inner-city Detroit are subsidizing the children of posh Grosse Pointe to attend the state universities, particularly Ann Arbor.

True, but those Grosse Pointe residents are subsidizing a lot of other programs for the inner-city Detroit residents. I think this is a weak rationale for saying that the Detroit residents should get special points to attend Michigan schools.

if you can favor alumni children because of who their parents are, why not members of minority groups?

To be blunt, because minority groups don't make direct donations to the school. Donations that would diminish if the children of alumni couldn't get into the school. This is a straight "follow the money" issue that will never change one bit no matter how the race issue goes.

Posted by Brandon at June 23, 2003 01:08 PM

"When you count all of these criteria that may diverge from "pure academic qualifications", it sure seems to me that if you can favor alumni children because of who their parents are, why not members of minority groups?"

Um, perhaps because those other things AREN'T race? Isn't it a settled principle that you can't (or shouldn't) EVER discriminate based upon on race? You certainly CAN discriminate based upon all sorts of criteria. Race just isn't one of them.

Are you advocating that we SHOULD discriminate by race? That's rather interesting!

Posted by Richard J. Herrnstein at June 23, 2003 08:16 PM

The Supreme Court (as late as TODAY) has told us it IS okay to discriminate on the basis of race-- as long as you do it in a confusing manner with lots of political cover that no one can figure out a way to criticize too much, and not openly with a points system that people might understand.

Let me make my view easy: I don't think the state of Michigan should BE in the law school business-- especially running an elite law school. Having gone into that business anyway, it becomes obliged to have something like a politically accountable institution, while not exactly representative of the people of Michigan, at least somewhat so. That said, if the ONLY way to do it is to discriminate via race, then its going to do it. It HAS to do it. It owes that to its taxpayers.

My point is simple: the government gets to (HAS TO) do things differently than private institutions. Alumni children should NOT-- as in NOT, NEVER, NOT EVEN A LITTLE BIT, get preferential treatment to receive a publicly provided good. I have no problem with Dubya getting preferential treatment from a private U. like Yale because his Daddy went there. But that's different. (BTW, the current Supreme Court decision would likely apply to any institution receiving federal funds, i.e., virtually all colleges and universities; I disagree with this- but then, you know that).

So I'll repeat-- in a sort of liberal apostasy-- public institutions should take all comers. When they can't, they have to ration the goodies in a politically accountable way-- and in the case of professional schools, that's going to include some race discrimination. Best the state shouldn't be in these businesses AT ALL in my opinion, but if it is-- I have no problem with it attempting to have a student body somewhat representative of its polity.

Posted by the talking dog at June 23, 2003 08:35 PM

To quote the great Justice Thomas:

"Putting aside the absence of any legal support for the majority’s reflexive deference, there is much to be said for the view that the use of tests and other measures to “predict” academic performance is a poor substitute for a system that gives every applicant a chance to prove he can succeed in the study of law. The rallying cry that in the absence of racial discrimination in admissions there would be a true meritocracy ignores the fact that the entire process is poisoned by numerous exceptions to “merit.” For example, in the national debate on racial discrimination in higher education admissions, much has been made of the fact that elite institutions utilize a so-called “legacy” preference to give the children of alumni an advantage in admissions. This, and other, exceptions to a “true” meritocracy give the lie to protestations that merit admissions are in fact the order of the day at the Nation’s universities. The Equal Protection Clause does not, however, prohibit the use of unseemly legacy preferences or many other kinds of arbitrary admissions procedures. What the Equal Protection Clause does prohibit are classifications made on the basis of race. So while legacy preferences can stand under the Constitution, racial discrimination cannot."

Posted by Richard J. Herrnstein at June 23, 2003 10:18 PM

Richard:

I'd love to go all ad hominem on Justice Thomas and his own anathema to the very programs that doubtless got him where he is today in this world-- but that point has been made elsewhere (and actually isn't really important-- though its awfully amusing).

The law on racial discrimination is in a hopeless muddle already , and such cases as Bakke v. U. of Calif. and now this Michigan case just make it worse. So-- behind all that- somewhere, constitutional amendments and federal statutes simply prohibit discrimination based on race, and do so plainly.

It was to AVOID discriminating based on race that the affirmative action quotas (I won't deny that's what they are) were set up in the first place.
Yes, there are anomolous results of Upper Middle Class Black kids unfairly benefitting-- though, I suspect, not ALL that many cases, but they unquestionably exist.

On the whole, the affirmative action programs, on net, boost people who otherwise just would not get there (based on the usual academic criteria) into the opportunity. Why wouldn't they get there? Lots of reasons: parents in lousy jobs (if both- or either- are even around); parents in lousy housing; parents living in lousy school district; tough neighborhood; forced to work to support family. Reasons both because of poverty, and in some cases, overt racism (there are documented cases of Black males earning less than White males for the same category of jobs-- LOTS of documented cases).

Its one thing to say, lookit: affirmative action replaces one set of problems with another-- now even if some of the brothers and sisters DO make it out of the ghetto-- they have the stigma that it was ONLY because of some dodge like affirmative action, rather than having to work twice as hard as a middle class White kid to get to the same place. That's not only a fair criticism of affirmative action-- that may be sufficient justification to scrap it, in my view-- and if anyone were making that argument, I'd stand up and listen.

Instead, we run into the Twilight Zone (or perhaps, Through the Looking Glass) if we start to argue that programs designed to combat the pernicious effects of racial discrimination violates the law because IT discriminates.

The laws were intended to prevent discrimination AGAINST PEOPLE WHO ARE DISCRIMINATED AGAINST-- that's why the law (in its muddle) came up with "protected classes" (which are bad enough since it counts women as such a protected class, and already amounts to making protected classes the vast majority of the population). But that's the way it is.

White men are not in the "protected classes" intended to be covered by the anti-discrimination law. The intent of the laws is pretty clear; I think Thomas' argument is a tortured reading of it.

Do two wrongs make a right? The second isn't a "wrong". I don't think its any more illegitimate for the state legislature to parcel out "Black seats" for its law school any more so than it does for Congress.

Just my opinion.

Posted by the talking dog at June 24, 2003 05:51 PM

"I don't think its any more illegitimate for the state legislature to parcel out "Black seats" for its law school any more so than it does for Congress."

Of course, it's wrong in both cases. Why not passel out some lkaw school seats based on ECONOMIC deprivation? Wouldn't that be fairer?

Discriminating on the basis of race waswrong 50 or 100 years ago, why in the world should it be acceptable now?

Posted by Richard J. Herrnstein at June 25, 2003 12:27 AM

TD:

"Its one thing to say, lookit: affirmative action replaces one set of problems with another-- now even if some of the brothers and sisters DO make it out of the ghetto-- they have the stigma that it was ONLY because of some dodge like affirmative action, rather than having to work twice as hard as a middle class White kid to get to the same place. That's not only a fair criticism of affirmative action-- that may be sufficient justification to scrap it, in my view-- and if anyone were making that argument, I'd stand up and listen."

Lots of people **are** making that argument (and many others are disputing its merits):

http://www.google.com/search?q=stigma+affirmative+action&sourceid=opera&num=0&ie=utf-8&oe=utf-8

Richard's economic deprivation argument (also made by many) might have more merit than race-based AA. Economically deprived white kids from Appalachia and other rural areas have problems, too. As you (I think) in effect noted above, there are black kids "who grew up in a pleasant suburb, with a stay at home mom, really good public schools, etc." (Did I read that the Michigan law also gave extra points to folks from the Upper Penninsula, Michigan's Appalachia, or was that a joke?)

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