Affirmative Action: The Court Got It Right 

Affirmative Action: The Court Got It Right

I agree with both affirmative action decisions handed down by the Supreme Court yesterday, permitting the University of Michigan Law School's program while invalidating the less-individualized point system of the undergraduate college. Lots of people seem to be bashing the Court for making this too confusing. Some claim the opinions are inconsistent with one another. Those critics are wrong.

Any racial classification, such as an affirmative action program, is subject to equal protection review by the courts under "strict scrutiny." To pass constitutional muster, the program must serve a "compelling interest" of the state and be "narrowly tailored" to meet that objective. One could argue that this scheme for evaluation, developed over the years in several cases, is not so great, but that would be a book that I'm not qualified to write. For a good overview of the cases and issues in it, I suggest the NY Review of Books article from May 15 by the eminent legal theorist Ronald Dworkin.

In the Law School case (Grutter v. Bollinger), Sandra Day O'Connor, writing for the five-justice majority, holds that the benefits from diversity in a university class rise to the level of a "compelling interest." This is a subjective call, and many conservatives detest the logic behind it, but their claims that there is no evidence of benefits from diversity is incorrect. In fact there is plenty that his been written and said in defense of diversity, more eloquent than anything I could write, and conservatives simply don't agree with it. I think the fact that leaders from higher education, organized labor, Fortune 500 companies and the military all went to bat in favor of the diversity interest speaks volumes.

The narrow tailoring inquiry is where the opinions differ. The Law School's admissions procedures are sufficiently narrow in their tailoring, writes O'Connor, with school officials looking at each candidate individually and assessing the contribution that candidate could make to the diversity of the class, and by extension the potential contribution to the recognized educational benefits that the university strives to provide. The undergraduate program does not do this, instead automatically giving minority applicants a fixed number of points, regardless of the kind of contribution that the student may bring to the class in terms of diversity.

This is not a meaningless distinction. In practice it will probably require more admissions officers to spend more time reviewing applications. This has a cost that I believe is worthwhile because it both allows affirmative action to continue and forces an administrative procedure more in line with the actual substantive goals of affirmative action. Michael Kinsley makes the illogical argument that, "the court is confused if it thinks that a subjective judgment full of unquantifiable factors is obviously fairer than a straightforward formula." The diversity interest affirmed by the court is not one that can be served by formulas very well, and admissions officers already make subjective decisions about essays, recommendations, artistic or athletic ability, etc.

George Will makes another incorrect point that, "future cases will reveal a court increasingly mired in criteria and categories rooted in a vanished America's problems with a binary, black-and-white understanding of its racial composition." The Court struck down the point system that was based on the binary decision--is someone a minority or not--that troubles Will. The Law School's system of individualized consideration allows full accounting for any kind of diversity that a candidate may bring to the class, a more flexible program that is appropriate given the demographics of the country.

I am more inclined to agree with Lee Bollinger, offering the Washington Post's counterpoint to Will:

"The Michigan undergraduate admissions policy, which the court found flawed, awarded points for race and ethnicity. The only reason for that system was to ensure consistency across many different applications reviewed by many different admissions counselors. Nothing precludes the university from now embracing a non-quantitative method that permits counselors to consider 'race' as one among many factors. And that will be true of every college and university admissions program in the country. It is, therefore, misleading and inaccurate to think of what the Supreme Court has done as a 'split' or 'murky' decision in this area of constitutional law. It is about as clear as constitutional law gets."

In short, the decisions do make coherent sense when examined together and in full. I am disappointed in the media coverage I have seen so far, much of which has been obviously uninformed or patently wrong. Howard Kurtz documents some of yesterday's TV blundering in his media notes column. As someone who has actually studied this stuff, I realize how bad the reporting has been, and this makes me wonder if there is similarly woeful coverage in other areas I know less about.