Supreme Court Fudge

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.

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.

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.