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Reading Gratz v. Bollinger

Well, like just about every other person with an interest in law, I've been reading Gratz v. Bollinger and Grutter v. Bollinger today. I've not had time to read the second yet, but my immediate reaction is, 'Wow. This is how to confuse the issue and satisfy nobody.'

As one might guess, I'm of the opinion that racial preferences should be abolished in college admissions. But assuming that there is a compelling interest in promoting 'diversity,' and that this is consistent with the 14th Ammendment, I really can't see how Gratz helps. Try as I might to hold with Rehnquist (and I think the court is right with regards to the issue of standing), I keep wondering if the entire project doesn't boil down to one of mathematics.

Without rehashing the facts of the case, the majority decision seems to think that the +20 point preference given to minorities in the University of Michigan undergraduate admissions system is not strictly-tailored enough, but doesn't answer my immediate next question: what about five points? or ten? At what margin does the policy become constitutionally respectable? [1] Souter makes a very good case here, unfortunately.

On the other hand, the dissenting opinions fare no better with my internal economist. Justice Ginsberg [2] wades in with the idea that if the number of minority applicants to a university are small in comparison to the number of non-minority applicants [3], then the odds of any given non-minority applicant being turned down are not noticably diminished. But this is patently ridiculous, as it assumes that university placements are distributed at random except for according to race. Otherwise, while the overall number of non-minority applicants won't be much different--they can't be, given the supposition that minority applicants are a small proportion--the odds faced by any individual will vary greatly depending on how close they are to the margin. In economic terms, what we're worrying about is marginal price.

Similarly, while I grudgingly have to go along with Souter as far as his maths, he (and to a greater degree Ginsberg) obfuscate the point in their criticism of the Texas high school policy of set-asides:

While there is nothing unconstitutional about such a practice,it nonetheless suffers from a serious disadvantage. It is the disadvantage of deliberate obfuscation. The “percentage plans ”are just as race conscious as the
point scheme (and fairly so),but they get their racially diverse results without saying directly what they are doing or why they are doing it. In contrast,Michigan states its purpose directly and,if this were a doubtful case
for me,I would be tempted to give Michigan an extra point of its own for its frankness. Equal protection cannot become an exercise in which the winners are the ones who hide the ball.

But those who set up the Texas set-asides did so to recognise that all high-schools are not created equal, and that the residents of a given area to a great degree share the same disadvantages, regardless of their race. Indeed, I'd be surprised if this point, when debated within the Texas legislature, wasn't made frequently and at length.

Anyway, this will probably be revised several times over the next few days, as I take a look at the decisions more deeply. For now it's enough to note those points. There weren't a lot of surprises as to each justice's opinion, but the use (and misuse) of statistics was enlightening.

[1] The majority decision seems to state that racial preferences are acceptable so long as they are subject to individual consideration, i.e. a member of a given race may be given a preference because of that, but not automatically. The really tragic thing, however, is exactly how little individual consideration is given to each applicant [i]whatever their race[/i]. A truly good application essay, according to the evidence cited in the decision, may give no more than three points. Given the vast number of applicants to top undergraduate schools and the lack of individual scrutiny that any of them receive, this ruling may functionally eliminate race-based preferences from undergraduate admissions, at least in theory.

[2] If anything worries me about the political bent of my future law school, it's that I really can't find it in me to agree with Justice Ginsberg on most of her opinions.

[3] Actually, she quotes a source siting 'minority' and 'white' applicants, while the majority opinion is careful to limit themselves to 'minority' and 'non-minority' applicants. Ginsberg seems to gloss over the point that, from the point of view of the University of Michigan, Ichiro's a white ball-player. Indeed, if the purpose of minority enrollment was the promotion of 'diversity' in higher education, then a foreign-born student of a 'non-preferred' minority ought to have greater benefit than a 'minority' applicant.

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Comments

Your internal economist? Is this like Mini-Duke in Doonesbury? M
Um... if you absolutely insist on ruining your life by becoming a lawyer, here's a small hint: The Chief Justice spells his name "Rehnquist". Back when I was a lobotomized legal droid, the senior partner would have ripped me three new assholes for a spelling mistake of that magnitude. Don't let it happen to you. Best regards, Len "left the legal profession and found true happiness" Cleavelin
Heh. Thanks for the tip. I'll correct it now. Yeah, my spelling's atrocious when I don't proofread things, and I have to admit I don't edit my blogs as thoroughly as I should.

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