Fundamental Judicial Error

Analysis by Curtis Crawford*

Under American constitutional law, the state may treat people differently based on their race, if the treatment passes strict judicial scrutiny. To pass this test, the racial difference in treatment must serve a compelling state interest, in a narrowly-tailored manner. Last June, in Grutter v. Bollinger, the U.S. Supreme Court held that "student body diversity" qualifies as such an interest, "that can justify a narrowly-tailored use of race in university admissions." (See the Opinion of the Court, here, pp 13, 15, 16, 17)

In this essay, I argue that the Court's decision emerged from a deliberative process that was fundamentally erroneous. The Justices chose to weigh, as the possible compelling interest, a factor that is radically indeterminate. This choice made rational judgment impossible.

My argument does not turn on factual evidence, constitutional provisions, or judicial precedents. It does not depend on any view as to the desirability of racial preference in college admissions. It simply describes an insuperable logical obstacle to the Court's judgments concerning student body "diversity," and the logical prerequisites for making rational judgments on this subject.

The problem arises from the broad and many-sided nature of "diversity." According to the dictionary, "diversity" means difference. It is an attribute of everything that exists, when compared with something different. Kinds of "diversity" or difference may be good, bad, both or neither; they may be good in some amounts and not in others.

The opposite of "diversity" is similarity. When things become less diverse, we say they are more similar, and vice versa. Similarity and Diversity, aka Same and Other, aka Like and Unlike, have been universal categories of being since time began.

The Court did not try to bring all Diversity to judgment. It tackled only so much as pertains to students. But consider how ample that realm is. Student body "diversity" can refer to any respect in which students are different from each other: physical, emotional, intellectual, artistic or moral qualities; political or religious beliefs; racial, ethnic, social, economic, regional or occupational background; home life, family structure, parental competence; friendships or associations; educational interests, tastes or achievements. Within all these and many other kinds of student difference, there are sub-kinds. In every kind and sub-kind, there are different amounts. All these differences do have something in common: the attribute of being different. But they are a countless multitude, often in conflict, always shifting according to what they are compared with. They cannot be combined by the human mind into a single entity, to be comprehended and judged as a whole called student body "diversity."

If every kind of student body "diversity" were good, and if more were always better than less, a rough kind of overall judgment might be feasible. But in those respects in which similarity is preferable, diversity of course is not. For example, the acquisition of knowledge and understanding is eased when students share the same language, the same rules of logic and scientific validation, and similarly high levels of ability and motivation for scholarly work. Equally important are similarly large portions of humility and empathy that help students to learn from contemporaries with different views and backgrounds, and from writers of distant times and places. Other welcome student similarities are in the character traits of not stealing, cheating, lying, raping, or responding violently to disagreement. In these and many other respects, universities wisely seek less student body "diversity," and more similarity. (Should an unspecified "similarity" therefore be recognized as a "compelling state interest"? This would be ridiculous, but no more so than the outcome of Grutter.)

Student body "diversity," a myriad of facets and relations, with a mixture of good and bad effects, is clearly indeterminate. Since the mind cannot lay hold of it, no rational judgment can be made as to whether it is a compelling interest, or whether any given means is narrowly tailored to serve it. Such judgments would become possible if, but only if, both the type and extent of "diversity" were specified. Without such specification-stating the kinds and amounts of "diversity" at issue-the Court could not know what it was judging. Without such knowledge, the judgments had no rational basis. They were thus absurd-blatantly irrational.

Or so they seem, in the light of my analysis. But is it conclusive? Are there valid counter-arguments, tending to refute the charge of fundamental judicial error? What might defenders of the Court's judgment say in its behalf?

Some might argue that specifying the kind and amount of student body "diversity" under consideration was unnecessary, since we all know what the Court had in mind. And that was: enlarging the proportion of African, Hispanic and Native Americans in the student bodies of selective colleges and universities.

This certainly is a major example of what the Court meant by "diversity." But an example does not define a concept, unless the concept has been limited to comprise only that example. The Court's rationale was not thus limited, and gave other examples of the kinds of "diversity" to be sought. These included "diversity" in "ideas," "points of view," "cultures," "backgrounds," "experiences," "qualities," and "achievements." Nor did the Court limit the concept to these examples. It spoke as if no kind of student body "diversity," and certainly no "valuable" kind, were excluded from its concept.

It might be argued that these examples and statements provide an implied specification of the kinds of "diversity" under consideration, which might be stated: every "valuable" kind of student body "diversity." Would such a specification be sufficient for rational judgment?

Surely not, since people are bound to disagree somewhat as to which "diversities" are "valuable," and a whole lot as to which "valuable diversities" should take priority. Moreover, no amounts have been specified. Most "diversities" that are considered "valuable" will exist to some extent on campuses, without special admissions efforts. Greater amounts in some or most might be nice to have. But to judge whether greater amounts are a public necessity (a compelling state interest), one needs to say of which kinds, and how much greater.

Moreover, the indeterminacy is intensified by the fact that pursuing some kinds of "valuable diversity" will often conflict with pursuing other kinds of "valuable diversity" and/or kinds of valuable "similarity." If increases in only a few kinds of "diversity" were sought, one might overlook the impact on other kinds. But the Court has chosen to juggle innumerable balls, with no idea what most of them are and where.

The Court's conceptual muddle is illustrated by its reply to a suggestion that basing admissions on a lottery would be a race-neutral means of increasing student body racial "diversity." This, said the Court, "would effectively sacrifice all other educational values, not to mention every other kind of diversity." No doubt, a lottery would sacrifice the school's freedom to choose the best applicants, but it would not sacrifice every "kind of diversity" other than racial. Indeed, it would increase many kinds of "diversity." It would broaden the range of academic ability and achievement of the students enrolled. It would yield an entering class that looked far more like America (not only in race and ethnicity but in parentage, home life, upbringing, personalities, opinions, tastes, social class, economic level, religious belief, and political affiliation) than the admissions results challenged in Grutter. Given the scope of the concept of student body "diversity," it should not be surprising that the Court has no clear idea what it is talking about.

My critique does not require perfect specificity as a condition of judgment. All I ask is enough for a rational judgment. In the area of constitutional law with which Grutter is concerned, other state interests have been judged to be compelling. They were (1) to defend the country against armed attack, and (2) to remedy specific past racial discrimination for which the state was responsible. Neither goal was fully specified. But, without further specification, one could make rational judgments as to whether the goal was compelling, and whether a proposed means was narrowly tailored to it. Neither instance presented the radical indeterminacy of student body "valuable diversity."

The approach of the Grutter majority was not their invention. They borrowed heavily from Justice Powell's influential opinion in Regents v. Bakke (1978). (See Section IV-D of the opinion, pp 312-315 here. ) If the judgment in Grutter is absurd, what should be said of its avowed model? Although no Justice voted with Powell, and some have since disagreed, none has censured his rationale as fundamentally erroneous.

The problem for the Powell rationale, as for the Grutter court, is the radical indeterminacy of "diversity." Unless one specifies the kind and amount of student body diversity" under consideration, one cannot make a rational judgment of its necessity or of how to achieve it. How did Powell deal with this problem? The name he gave to the state interest under consideration as possibly compelling was a "diverse student body." Concerning the indeterminacy of "diverse" or "diversity," he said nothing. Concerning the kinds of "diversity," he mentioned different "ethnic, geographic, culturally disadvantaged or advantaged [backgrounds]" and different "experiences, outlooks and ideas." He also included: "exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, [and] ability to communicate with the poor." These examples were not meant to be exhaustive. An admissions program, he wrote, should be "flexible enough to consider all pertinent elements of diversity." Concerning the amounts of "diversity," he gave no specifics.

Taking into account these partial specifications, one can state Justice Powell's key questions as follows: Is the achievement of every "pertinent" kind of student body "diversity," in every combination, in every amount, a compelling state interest in university admissions? Can different treatment based on race be an appropriate means of achieving such "diversity"? To both questions, his answers were, Yes. Although these answers did not command the Bakke court, they have ruled the nation for a quarter century. Nevertheless, the judgments they express were rationally impossible, since the posited interest was too indeterminate for judgment. Powell's judgments, like the Grutter court's, were, in the strict sense of the word, absurd.

These absurdities were self-inflicted wounds. Nothing about "diversity" required the Justices to attempt impossible mental tasks. They were free to frame the questions in a way that could be rationally answered. Rather than "valuable" or "pertinent" student body "diversity" in general, the subject of deliberation could have been one or many student body "diversities," each clearly specified in kind and amount. For example, the Grutter court might have weighed, as a possible compelling interest, Michigan Law School's goal of enrolling underrepresented minority students (kind of "diversity"), in sufficient proportion, say 15% (amount of "diversity"), for extensive campus interracial interaction. But deliberation and judgment concerning student body "diversity," without adequate specificity, is simply nonsense. It resembles the fabled warrior, who mounted his steed and rode off in all directions.


November, 2003