Tuesday, July 11, 2006

While I'm at it

While I'm staring mystified into the recesses of Supreme Court opinions, I'll mention Grutter v. Bollinger, the relatively recent affirmative action case. My sympathies in the case lie mainly with the dissent by Rehnquist, which declines to mount a frontal attack on affirmative action but finds that the University of Michigan's policy fails strict scrutiny. It makes a brilliant and incisive point:

"From 1995 through 2000, the Law School admitted between 1,130 and 1,310 students. Of those, between 13 and 19 were Native American, between 91 and 108 were African-Americans, and between 47 and 56 were Hispanic. If the Law School is admitting between 91 and 108 African-Americans in order to achieve 'critical mass,' thereby preventing African-American students from feeling 'isolated or like spokespersons for their race,' one would think that a number of the same order of magnitude would be necessary to accomplish the same purpose for Hispanics and Native Americans. Similarly, even if all of the Native American applicants admitted in a given year matriculate, which the record demonstrates is not at all the case,* how can this possibly constitute a 'critical mass' of Native Americans in a class of over 350 students? In order for this pattern of admission to be consistent with the Law School's explanation of 'critical mass,' one would have to believe that the objectives of 'critical mass' offered by respondents are achieved with only half the number of Hispanics and one-sixth the number of Native Americans as compared to African-Americans. But respondents offer no race-specific reasons for such disparities. Instead, they simply emphasize the importance of achieving 'critical mass,' without any explanation of why that concept is applied differently among the three underrepresented minority groups."

Rehnquist proceeds to note that according to available data, the University of Michigan's admissions standards are far, far gentler for African-Americans than for Hispanics. Given the substantially higher numbers of African-Americans at the law school, this policy has no "critical mass" justification whatsoever. The Native American case is arguably different, since Native Americans may form a small enough percentage of the population that a law school cannot plausibly achieve "critical mass." After all, you can't guarantee sizable representation to every minority (although then the University should articulate a separate justification for favored admissions policies to minorities too tiny for "critical mass"). But surely it is possible to achieve this mass for Hispanics, and accordingly there is no rationale for providing further breaks to African-American applicants to raise their numbers above Hispanics'.

It's the most cogent argument in the case.


Anonymous said...


Screw the Supreme Court, Matt. That's it. Game over. There is no law. See you on the next boat to England, buddy.

Elizabeth said...

Skimming through what you wrote (my apologies for not reading terribly carefully), and given that I don't know a whole lot about the case, or even the precise definition of critical mass...anything not based on merit all sounds like racism to me.

That is, critical mass really sounds a lot like racism.