Good News Bad News News

Actually, it’s on balance good news, at least compared to what the SCOTUS could have done: Affirmative action is constitutional. Using race-based bonus points is not. (Salon here and the NYT here). It was pretty easy to peg four of the votes on each side, and I feared that O’Connor would come out against, but I was wrong.

Now a university can’t use quotas (Bakke) and can’t use bonus points (today’s ruling), so the rule seems to moving towards something like “no quantifiable race-based advantage may be given to any racial group but subjective favoritism is fine and dandy”, which doesn’t really make sense, but has the potential advantage of not leaving a paper trail. If there is no “system” then the system can not be unfair and there will be no grounds for lawsuits.

What would a system with only subjective/non-quantifiable racial preferences look like? Teaching colleges already evaluate applications on a number of subjective dimensions (experience, leadership, teamwork, creativity) and many presumably already consider diversity in the way now sanctioned by the Supreme Court. Implementing such a system at the major state colleges (like the University of Michigan) will be much more difficult. I’m guessing here, but Michigan probably gets at least 20,000 applications per year. Due to the huge the numbers, large state schools use objective measures to determing admissions–e.g., Michigan’s infamous “formula” that takes into account GPA, class ranking, SAT score, whether the student is from certain poor areas of the state, and race. Switching to a qualitative system would be extremely costly for these schools.

The more likely outcome is that large schools will use quantitative measure based on GPA, class ranking, SAT score, and possibly a measure of the difficulty of the student’s high school, to set two thresholds. Students above the top threshold would be in; students below the bottom one would be out. Students landing between the two would be subjectively evaluated by hand, and in that process race could be a factor. This seems likely to give admissions officers more discretion over how and whether to weight race. I can’t decide if this is likely to be a good thing or a bad thing, but I’m leaning towards the latter. Not that I distrust admissions staff (I suspect they come from the ranks of educations majors and are on balance no less liberal than the population at large; likely they are more liberal). My fear is that universities can say “we consider race as a factor”, but they can never say how they do so–if they can articulate it, then it’s quantifiable, and therefore tantamount to quotas (Rehnquist’s logic). Any system that is constitutional under the new standards will surely be a morass of uncertainty. In general, as an activity becomes more costly and entails less predictable results, people and institutions engage in less of that activity. I don’t see a compelling reason why this will not apply to affirmative action, hence my pessimism.


Meanwhile, in the background I hear some jackass on CNN, his name may have been “Jeff Block”, doing interviews at the University of Michigan. His question for each minority he speaks to: “Are you here because of affirmative action?”

In other news, “A divided Supreme Court ruled on Monday that a Congressional mandate forcing the nation’s public libraries to equip computers with anti-pornography filters do not violate the First Amendment, even though it shuts off some legitimate, informational Web sites.” This is why the Democrats have to keep opposing, by any means necessary, Apellate Court nominees like Owens, Pickering, Estrada, and Pryor.