House of Eratosthenes

Facing threats of litigation and pressure from Washington, colleges and universities nationwide are opening to white students hundreds of thousands of dollars in fellowships, scholarships and other programs previously aimed at minorities.

Southern Illinois University reached a consent decree last month with the Justice Department to allow nonminority students and men access to graduate fellowships originally created for women and minorities.

In January, the State University of New York made white students eligible for $6.8 million of aid in two scholarship programs also previously available just for minorities. Pepperdine University is negotiating with the Education Department over its use of race as a criterion in its programs.

“They’re all trying to minimize their legal exposure,” Susan Sturm, a law professor at Columbia University, said about colleges and universities. “The question is how are they doing that, and are they doing that in a way that’s going to shut down any effort or any successful effort to diversify the student body?”

The institutions are reacting to two 2003 Supreme Court cases on using race in admissions at the University of Michigan. Although the cases did not ban using race in admissions to higher education, they did leave the state of the law unclear, and with the changing composition of the court, some university and college officials fear legal challenges.

The first is that, golly gee, Chief Justice John Roberts and Associate Justice Sam Alito have barely even started to warm up the bench with their butts, and already the college admissions world is being turned upside-down. No Supreme Court decisions, or decisions from any lower court, inspiring this mini-revolution. Just changing faces, that’s all. One justice resigns, another one dies, the empty seats are filled, and voila. We have a different set of rules.

This is a settled matter of fact, because it is exactly what’s happening. It’s also an endorsement of a faulty doctrine; the doctrine that the Supreme Court is essentially a mini-Congress, and it’s up to The People and Congress to make sure it bears a healthy resemblance to the rest of us. You have to have some libs in there, and a bunch of women, a few more blacks and latinos, and unless 56% of us are Catholic, some of those five Catholic justices should step down soon.

Well, my perspective deals with settled matters of fact too, and it’s different.

My take on it is this: Grutter v. Bollinger, 539 U.S. 306 (2003), and its companion decision Gratz v. Bollinger, 539 U.S. 244 (2003), together represent a plural decision that is a textbook example of what our Supreme Court should not be doing. Agreeing with the latter decision and not the former, I would have been happier if the Supreme Court decided against my preferences in both cases rather than in just one of them. For what they did three years ago, really, is hand down three decisions: 1) A “compelling state interest” causes an act of discrimination to be compatible with the Equal Protection clause of the Fourteenth Amendment, when such an act would otherwise not be (Grutter); 2) there is a residual level of incompatibility being trumped by this compelling interest, which is exacerbated to such a level that it can no longer be trumped, if the process becomes unacceptably mechanized (Gratz); 3) As far as how mechanized you can get, you have to keep watching the Supreme Court because, after all, this really isn’t a matter of principle — it’s a matter of which authoritarian zealot gets to make the rules.

And I have the biggest problem with #3. Passionate advocates on both sides of quota-counting affirmative action policies, will insist that whatever policy should prevail, this is about fairness and principle. It seems obviously counterproductive to have the refrees disagreeing with the players about that, when the refrees hand down the decisions by which all must abide.

To put it more succinctly, this is supposed to be about interpretation. O’Connor writes the decision, Alito writes the decision — it shouldn’t matter. It isn’t supposed to be personal interpretation, therefore, it shouldn’t matter whether a justice is Catholic, Protestant, gay, straight, white, non-white, male, female.

Otherwise, what in the hell are those senators supposed to be grilling the Supreme Court nominees about in those hearings?

This is one thing I don’t get about the Supreme Court. The people who sit there, and the hundreds of law experts you can interview on the subject, and the thousands of people who watch the Supreme Court, and the perhaps millions of people like me who simply take an interest in it, we all seem to agree on something: The Supreme Court does a “good” job when it acts as a restraining mechanism on itself, and takes pains to define with laser-precision what matters of law should be settled, and what matters should pass without comment. Nobody’s terribly wild about getting brain surgery with a sledgehammer, in other words.

And yet according to that, we should have universal agreement that Earl Warren was a terrible Chief Justice. How many decisions from the Warren Court caused mini-revolutions in the judiciary? How many of them really had to?

Well, I can certainly buy that Earl Warren was bad for the country, but these days I’m in the minority on that. Okay, maybe I’m wrong. And maybe the doctrine of minimal-impact and self-restraint, has to be applied selectively in order to make sense. I can buy that too; the black-and-white absolute is a hobgoblin and a harbinger of future mistakes.

But couldn’t there be a national consensus that the Bollinger decisions represented a failure, at least for the purpose of defining failure?

Uncertainty and second-guessing before the decisions…uncertainty and second-guessing after. Confusion before, and confusion after.

What in the hell did the Supreme Court bring to the party?

It’s enough to make one yearn for the bygone days of Earl Warren. Chief Justice Warren might have done his brain surgery with a sledgehammer, but at least once the patient came out of the surgery you could tell the surgery had been done. What are the rules now? Do they really have to change just because there are new people on the Supreme Court? And are we still a nation of laws, not of men?

So I’m ticked, not because of the way the rules have been, or how they’re changing, or even that they’re changing. The bee in my bonnet, is that this is a rare opportunity to figure out something is terribly broken, and I’m not optimistic that the opportunity will be properly realized. A different set of judges shouldn’t create a different outcome, and it certainly shouldn’t create a wave of new policies as the college administrators anticipate that different outcome. I know sometimes it’s a fact of life…but that doesn’t make it right.

It’s got to do with the way the law actually works. And guess what? If you’re more interested in watching American Idol than in following the way the law works…the law applies to you just as much as it applies to geeks like me, who are interested in following what’s going on. You’ll just learn about it a little bit later, that’s all.

This guy doesn’t seem any happier than I am.

Advocates of focused scholarships programs such as Theodore Shaw, president of the NAACP Legal Defense and Educational Fund Inc., challenge the notion that programs for minority students hurt whites.

“How is it that they conclude that the great evil in this country is discrimination against white people?” Shaw asked. “Can I put that question any more pointedly? I struggle to find the words to do it because it’s so stunning.”

I think Mr. Shaw is going to be even unhappier when he sees himself quoted in this story. For one thing, unless he said some more stuff that I’m not seeing here, he never “challenge[d] the notion that programs for minority students hurt whites.” What he seems to be doing here, is challenging the notion that “discrimination against white people” is “the great evil in this country.” Not that I see how that’s relevant. Lots of things are evil, without being “the great evil.” Wrong is wrong.

But ultimately, this is a decision being made by our elected representatives and it belongs to We The People, right? So we can keep an eye on what’s going on, right? Wrong.

It is far too early to determine the effects of the changes on the presence of minorities in higher education and how far the pool of money for scholarships and similar programs will stretch.

Firm data on how many institutions have modified their policies is elusive because colleges and institutions are not eager to trumpet the changes. [emphasis mine]

I would suggest if Mr. Shaw is wondering how reverse-discrimination is harmful, he could get his answer simply by following what’s going on, unless he’s making money off the status quo (which is probably the case). We have these special opportunities for people with certain skin colors, but the opportunities aren’t written into anything binding — they’re determined by what faces are on the Supreme Court. The faces change, the opportunities change. And how? Nobody really knows. Nobody, who is in a position to know, will say. And, I guess, if the faces change some more, the opportunities will change some more. How’s that? I, of course, don’t know, and neither do you.

Some opportunity. Real fair stuff.

Quota-counting lacks vision. It has to; it must. People who must live by established rules, have always considered themselves and will always consider themselves to be better informed about the impact of those rules than those who make them. It contradicts human nature for elites to tell commoners, regardless of the color-of-skin of those commoners, “you must stand aside and give things to other commoners with a different skin color, to make up for past wrongs that had nothing to do with your personal actions in any way” and for the aggrieved commoners to say “the authority has told me this is fair, so it must be so.” That doesn’t work for white commoners or non-white commoners. People respect authority to a certain extent, and in all cultures, this practice far surpasses that extent. It’s just the way people work. They know unfair when they see it.

So quota-counting breeds resentment and is anathema to any vision of harmonious integration. It doesn’t matter how you’re counting the quota. It doesn’t matter who you think is being helped. If you get out of bed in the morning and you’re determined to achieve something that day, you have to presume the things you’re going to do are going to be a lot more important than just sitting around being…white, or black, or red, or yellow. People have to believe that. They have to have hope, and confidence in the things they do. If this hope isn’t given to them, they will go out and find it.

And that means if you’re asked to step aside for someone lesser-qualified, or let your brother take an extra turn in Monopoly, or forced to give money to someone who you’re not personally convinced is “poor”…in your heart, you’re going to think it’s a boneheaded decision. And you’ll be right. Because elites don’t know this much about common affairs, and never can, no matter how elusive those elites are in releasing the data upon which they make those decisions. This isn’t an issue of fairness to be decided by college chancellors or deans, or by Supreme Court justices. Note that here they are, trying to decide it, and what do they end up doing? Looking at each other, trying to divine answers that aren’t forthcoming, endlessly pointing to someone else in the daisy-chain like a bunch of spineless bureaucrats. In the end, Job #1 has nothing to do with fairness or principle, it all comes down to “make sure nobody blames me.”

Ultimately, if a university official commands a non-white student to give his opportunities to a white student, or a white student to sacrifice for a non-white student…if the university official ends up somehow being “right” in this decision, he’s only right in the way a stopped clock is right twice a day. There is no knowledge about the issue being offered from this position of authority, and when the rubber meets the road, there’s no knowledge anyone’s even pretending to offer. It ends up being just a tired, soulless ritual, practiced by spineless bureaucrats seeking only to obey the rules as written and interpreted by someone else.

So if you seek to see how this can be a great evil, Mr. Shaw, there’s your answer. The practice pretends to stand up for principles and fairness and decency to the individual, but in the end, does no such thing and cannot do any such thing. It simply causes injury to what we have done, and what we can in the future become. And as frosting on the cake, the process tells us that none of us, black or white, will do anything in life any more noteworthy than just be…whatever color we are.

To sum it up, it intrudes into our homes, plunders all of our possessions, poisons our food, and on the way out turns around & insults us. All of us.

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Rob Me Blind, Poison My Food, Insult MeWednesday, March 15th, 2006

Rob Me Blind, Poison My Food, Insult Me
Wednesday, March 15th, 2006