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"Critical Mass," or When Orwell Meets Oppenheimer

Well, I finished Grutter v. Bollinger, and it's hard to stay polite after going through it. After reading both decisions, I can't help but be disappointed at what are transparently two dressed-up compromises without the decency to admit they're masquerading as principles.

Justice O'Connor has played Napoleon. Not the French emperor, but the pig in Orwell's Animal Farm, whose most famous dictum is that "All animals are equal but some animals are more equal than others." The 'strict scrutiny' that the decision claims to require justifies every criticism that the dissenters in Gratz (for the most part the majority in Grutter) make regarding the punishment of 'openness.' Rather than simply decide that the 14th Ammendment permits some forms of discrimination (inviting the Congress to decide that it doesn't), or rule that such discrimination cannot be justified except in the most dire of circumstances, the majority embarks upon a 'third way' that would make Tony Blair green with envy. It does this by linguistically torturing words to the point to which they can no longer bear meaning. The majority opinion reserves its most lurid of definitional thumbscrews for two terms in particular: 'critical mass,' and 'compelling state interest.'

I have to admit that 'critical mass' was the term that made me the most upset. Admittedly the term is commonly used to describe a minimum amount necessary for something to occur, but in its technical usage in physics, critical mass is achieved at a definite, measurable point. Items having critical mass in other areas also have such a definite, measurable point. But the majority opinion in Grutter extols the virtue of such critical mass thinking precisely because the university has claimed that it is vague with regards to number.

Chief Justice Rehnquist's dissent contains charts which tend to dispute that such fuzziness ever existed, and he has the advantage of being forthright about what can be statistically deduced: comparisons of the number applying and the number enrolled do not show how the system is designed to work, but only how it functions after an unpredictable external factor (which applicants decide to accept admission). Indeed, the similarity between the percentage of a given minority applying to the University of Michigan Law School and the percentage admitted suggests that the University believes that the 'critical mass' necessary for a given minority is roughly equivalent to its percentage of the applicant pool, though admittedly the justification for that would be mystifying.

Nonetheless, the concept of a 'critical mass' implies some point beneath which a given happening (analogous to a 'chain reaction' in physics) would fail to occur. Critical masses are by definition subject to empirical testing, because any point below critical mass would fail to achieve the 'benefits of diversity.' Defining that point (and it has to be subject to definition) would certainly constitute a quota, but in order to make the poilcy constitutional, the admissions officers have to stay in a state of willful ignorance (innocence?) with regards to exactly where that point lies. At least the officers in Gratz were honestly attempting to make a rational assessment; there is nothing 'critical' about the mass involved in Grutter. [1]

Which brings me to 'compelling state interest.' I've never been a big fan of Justice Thomas, but in this case he's got one heck of a point: how compelling can the interest of a state be in having a law school at all if five states manage to get by quite well without them? And how critical can it be to Michigan to have an elite law school most of whose practitioners then leave the state? [2] If the concern for the welfare of a child (quite reasonably rejected as a grounds for racial discrimination in Palmore v. Sidoti, as cited by Justice Thomas) is not a compelling state interest, what hubris on the part of the legal profession would make us think we were so special? Furthermore, Thomas points to the inconsistency between the Court's decision in United States v. Virginia (where VMI was not given anywhere near the deference to its opinions on women under intermediate scrutiny that U of M has been given under 'strict' scrutiny), a difference on which the majority remains silent. [3]

Ginsburg and Breyer at least seem consistent: roughly, they see a difference between positive and negative discrimination and are willing to try to define that into the Constitution. I'd disagree, but it's a position that can be held without the need to perform linguistic contortions. But the lesson to be learned from Grutter and Gratz has to be that admission to university can be race-conscious, just so long as you close your eyes and don't ever figure out just how 'critical' your critical mass is. Woe betide you if it's worth 20 points.

[1] Indeed, justification by critical mass of minorities brings its own statistical bugbears. Only a few minorities are so favoured, but there's no rationale for why, for instance, one shouldn't discriminate in favour of a Native American over an African-American. But wouldn't to do this invite some form of 'racial balancing?' On the other hand, a 100% Hispanic minority admission would otherwise seem to qualify under a 'critical mass' for underrepresented minorities--which makes no sense either. Indeed, the mass here is only understandable if it is not, in fact, critical.

[2] A comedian rather than a Supreme Court Justice might feel inclined to point out what it says about lawyers if there is a compelling state interest to produce them and then export them elsewhere.

[3] I really wonder if as a result of this, VMI or other single-sex institutions don't renew their cases.

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Comments

As a heads up, the entire enterprise of law school is to mangle normal english vocabulary into twisted malformations that carry completely different levels of semantic content. The word lawyer itself could probably be redefined as "skilled linguistic contortionist." :)
I know, but you can believe that this is a good thing to a greater or lesser degree. :) I'm not too worried about not being able to do it. It's just not a skill I respect very much.
The "linguistic contortionist" did not make his debut in the 21st century, he has been around for some time. The loathsome conditions that characterized minority schools for the 80 + plus years between Plessy and Brown are, in fact, the result of his deforming the meaning of "equal". For me, it not a question of whether affimative action is legal, but what it is likely to accomplish, for the attitudes and practices causing the idea to be even conceptualized have always been, if not illegal unjust. Its only certain promise is to perpetuate the minority student's substandard academic performance.

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