CrimLaw

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I want to thank Legal Ramblings for getting me to read the Thomas dissent in Grutter. However, I must respectfully disagree with him as to the point of Thomas' dissent. Steven uses the time honored technique of setting up and knocking down a strawman with the basic idea that, even though facts and general experience may lead you to stereotype a group, you are not justified in treating a group member poorly. I agree with that and will add that one is never justified in treating a member of any group poorly even if s/he does fit perfectly within your stereotypical view. However, I think that it misses the point.

Here is what I think is the pertinent section of that part of Justice Thomas' opinion:

Indeed, the very existence of racial discrimination of the type practiced by the Law School may impede the narrowing of the LSAT testing gap. An applicant's LSAT score can improve dramatically with preparation, but such preparation is a cost, and there must be sufficient benefits attached to an improved score to justify additional study. Whites scoring between 163 and 167 on the LSAT are routinely rejected by the Law School, and thus whites aspiring to admission at the Law School have every incentive to improve their score to levels above that range. See App. 199 (showing that in 2000, 209 out of 422 white applicants were rejected in this scoring range). Blacks, on the other hand, are nearly guaranteed admission if they score above 155. Id., at 198 (showing that 63 out of 77 black applicants are accepted with LSAT scores above 155). As admission prospects approach certainty, there is no incentive for the black applicant to continue to prepare for the LSAT once he is reasonably assured of achieving the requisite score. It is far from certain that the LSAT test-taker's behavior is responsive to the Law School's admissions policies. Nevertheless, the possibility remains that this racial discrimination will help fulfill the bigot's prophecy about black underperformance--just as it confirms the conspiracy theorist's belief that "institutional racism" is at fault for every racial disparity in our society.

As far as it goes, I agree with Justice Thomas as to the fact that setting lower standards leads to a disincentive to achieve; I know if I could have gotten into the schools I wanted with a 155 I wouldn't have spent hours upon hours practicing those thrice-damned word puzzles.

On the other hand, I find myself having to disagree with the Justice as well. While there are very good reasons why the admission policy is clearly contrary to the constitution (I don't say unconstitutional because the rule of 5 has prevailed), causing prejudice is not likely one of them. Rather than argue this out myself I will quote at length an argument made by Waddling Thunder

But after thinking about it for a while, I've realized why I can't get particularly angry about racial preferences in university admissions, and why in general most of the population seems to tolerate it.

For my part, I've had my last admissions process. Barring something very odd in the future, in other words, I'm done with affirmative action in its most annoying manifestation. Because I no longer have any stake in the matter, therefore,? I just can't experience the visceral anger someone else who feels cheated out of their rightful desserts might feel.

For most other people, affirmative action is a completely ephemeral beast. Sure, it might keep?some fancy pants suburbanite out of putatively schmancy college Y, but it doesn't keep Josephine out of Southern X State, and for most people, that's what matters.

Affirmative Action, in other words, survives its manifest unfairness by dividing and conquering. The elite who make the legal decisions don't care, because it obviously didn't stop them from getting wherever they got. The people at large don't care because they perceive it as only effecting the elite. So the only people who end up being wronged (assuming anyone is wronged at all) are a small group of relatively elite people who ended up at slightly less elite schools then they might have liked. And however unfair things are for them, the vagaries of life as an above average suburbanite just don't do much for the average realist judge. And so we get yesterday's decision.

I think that captures the essence of what really happens and explains why the Justice's fears - while somewhat valid - are probably an over emphasis.

As to other sections of the concurrence-dissent: I was tickled when the Justice "concurred" that after 25 years the policy of using race in admissions would not be constitutional - it ain't now, it won't be then. Who says that a conservative Justice cannot have a sense of humor?

I thought the argument that there is no compelling State interest to even have a State run law school (because several don't) interesting but not necessarily persuasive.

I found the argument that there is no compelling State interest in an "elite" State run law school which only provided 6% of those taking the bar in that State very compelling. There is absolutely no reason (other than pride) that Michigan cannot lower its admission standards for all so that it broadens its admission base and can get equally qualified students from all races, creeds, and locales.

I also found the argument that the unquestioning acceptance of U.Mich.'s stated reason in a case requiring strict scrutiny conflicts with the refusal to accept VMI's reasoning in a case requiring intermediate scrutiny compelling. Gee, have any of those concerns VMI raised about fraternization, pregnancy, lowering physical standards actually come true? Of course they have. Nevertheless, this kind of base, prejudicial sectionalism is something which anyone who has grown up in the South has grown to expect so I never think that an argument for equal application of the law in these matters will ever work.

I don't often delve into these weighty constitutional matters since leaving law school. Thanks again to Legal Ramblings for peaking my interest.

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