More from the transcript of oral questions at the Supreme Court in the Fisher affirmative action case today:
CHIEF JUSTICE ROBERTS: General Verrilli.
[General Verrilli is the Obama Administration's Solicitor General]
... JUSTICE ALITO: Does the United States [i.e., the Obama Administration] agree
with Mr. Garre that African American and Hispanic
applicants from privileged backgrounds deserve a
preference?
GENERAL VERRILLI: I understand that
differently, Justice Alito. Here's how we understand
what is going on with respect to the admissions process
in the University of Texas, and I am going to address it
directly. I just think it needs a bit of context to do
so.
The Top 10 Percent Plan certainly does
produce some ethnic diversity. Significant numbers get
in. The problem is the university can't control that
diversity in the same way it can with respect to the
25 percent of the class that is admitted through the
holistic process.
So my understanding of what the university
here is looking to do, and what universities generally
are looking to do in this circumstance, is not to grant
a preference for privilege, but to make individualized
decisions about applicants who will directly further the
educational mission. For example, they will look for
individuals who will play against racial stereotypes
just by what they bring:
[In other words, economically privileged blacks and Hispanics should also be personally given special legal privileges in order to undermine the stereotype of blacks and Hispanics as disprivileged. It's a tough job but somebody's gotta do it!]
The African American fencer;
the Hispanic who has -- who has mastered classical
Greek.
[I love the General's pause before coming up with the example of the Hispanic who gets into UT despite presumably mediocre grades and test scores but "who has -- who has mastered classical Greek." His pause as he tries to come up with an example reminds me of Waugh's Scoop where novice foreign correspondent William Boot is shown into the office of newspaper magnate Lord Copper and gets some advice on covering wars in Africa:
There are two valuable rules for a special correspondent — Travel Light and Be Prepared. Have nothing which in a case of emergency you cannot carry in your own hands. But remember that the unexpected always happens. Little things we take for granted at home, like...” he looked about him, seeking a happy example; the room, though spacious, was almost devoid of furniture; his eyes rested on a bust of Lady Copper; that would not do; then, resourcefully, he said: “...like a coil of rope or a sheet of tin, may save your life in the wilds. I should take some cleft sticks with you. I remember Hitchcock — Sir Jocelyn Hitchcock, a man who used to work for me once; smart enough fellow in his way, but limited, very little historical backing — I remember him saying that in Africa he always sent his despatches in a cleft stick. It struck me as a very useful tip. Take plenty.]
They can also look for people who have a
demonstrated track record of -
JUSTICE ALITO: If you have two applicants
who are absolutely the same in every respect: They both
come from affluent backgrounds, well-educated parents.
One falls within two of the groups that are given a
preference, the other doesn't. It's a marginal case.
It's the last -- the last position available in the
class. Under the Texas plan, one gets in; one doesn't
get in. Now, do you agree with that or not?
GENERAL VERRILLI: No. I think -
JUSTICE ALITO: Do you agree with -- do you
agree that that is an incorrect statement of the facts,
or do you agree that that's an incorrect understanding
of the Equal Protection Clause?
GENERAL VERRILLI: I think it's both. I
think the -- there is no automatic preference in Texas.
And I think this is right in the -- it says at page 398a
of the Joint Appendix -- the -- they describe the
process as saying, "An applicant's race is considered
only to the extent that the applicant, viewed
holistically, will contribute to the broader vision of
diversity desired by the university."
JUSTICE SCALIA: Yes, but -- but the
hypothetical is that the two applicants are entirely the
same in all other respects.
GENERAL VERRILLI: Right. But the point -
JUSTICE SCALIA: And if -- if the ability to
give a racial preference means anything at all, it
certainly has to mean that, in the -- in the
hypothetical given -- given by Justice Alito, the
minority student gets in and the other one doesn't.
GENERAL VERRILLI: I disagree,
Justice Scalia. What the -- Texas, I think, has made
clear -- and I think this is a common feature of these
kinds of holistic approaches -- that not everyone in an
underrepresented group gets a preference, gets a plus
factor.
JUSTICE SCALIA: It's not a matter of not
everyone; it's a matter of two who are identical in all
other respects.
GENERAL VERRILLI: Right.
JUSTICE SCALIA: And what does the racial
preference mean if it doesn't mean that in that
situation the minority applicant wins and the other one
loses?
GENERAL VERRILLI: There may not be a racial
preference in that situation. It's going to depend on a
holistic, individualized consideration of the applicant.
JUSTICE KENNEDY: I don't understand this
argument. I thought that the whole point is that
sometimes race has to be a tie-breaker and you are
saying that it isn't. Well, then, we should just go
away. Then -- then we should just say you can't use
race, don't worry about it.
GENERAL VERRILLI: I don't think it's a
tie-breaker. I think it functions more subtly than
that, Justice Kennedy.
[C'mon, that's the best you can do, General? "More subtly"? What about "more ineffably"? "More transcendentally"? Lay it on thick, man! You have to get Kennedy's vote.]
CHIEF JUSTICE ROBERTS: It doesn't function
more subtly in every case. We have findings by both
courts below -- and I'm reading from the court of
appeals opinion at Petitioner appendix page 33.
"The district court found that race is
indisputably a meaningful factor that can make a
difference in the evaluation of a student's
application." If it doesn't make a difference, then we
have a clear case; they're using race in a way that
doesn't make a difference. The supposition has to be
that race is a determining factor.
We've heard a lot about holistic and all
that. That's fine. But unless it's a determining
factor, in some cases they're using race when it doesn't
serve the purpose at all. That can't be the situation.
GENERAL VERRILLI: It can make a difference.
It just doesn't invariably make a difference with
respect to every minority applicant, and that's the
key -
CHIEF JUSTICE ROBERTS: You have to agree
that it makes a difference in some cases.
GENERAL VERRILLI: Yes, it does.
CHIEF JUSTICE ROBERTS: Okay.
GENERAL VERRILLI: But it doesn't
necessarily make a difference in the situation that
Justice Alito posited -
JUSTICE GINSBURG: But that's the same -
the same would be true in -- of the Bakke plan, that in
some cases it's going to make a difference. The same
would be true under Grutter. The same would be true
under the policies now in existence at the military
academies.
[In other words, we've been BSing Americans since Bakke in 1978 and we'd better not stop now, or embarrassing questions might be asked.]
GENERAL VERRILLI: That -- that is exactly
right, Justice Ginsburg, but the point is that it's not
a mechanical factor.
[It's an organic factor! No, it's a supernatural factor! I've got it, it's a metaphysical factor!]
Now, with respect to the implementation
of -- and the narrow tailoring inquiry, with respect to
the University's implementation of this -- of its
compelling interest, I do think it's clear that,
although the Petitioner says she's challenging
implementation, that this plan meets every requirement
of Grutter and addresses the concern of Justice Kennedy
that you raised in dissent in Grutter. Whether Texas
had to or not, it did address that concern.
There's no quota. Everyone competes against
everyone else. Race is not a mechanical automatic
factor. It's an holistic individualized consideration.
[Yeah, that's the ticket: It's a holistic factor! It's an holistic individualized consideration!"]
And because of the way the process is structured, they
do not monitor the racial composition on an ongoing
basis.
JUSTICE SOTOMAYOR: General, I think, as I
take your answer, is that the supposition of
Justice Alito's question is truly impossible under this
system. There are not two identical candidates because
there are not identical mechanical factors that -
except the 10 percent plan.
Under the PIA, the factors are so varied, so
contextually set, that no two applicants ever could be
identical in the sense that they hypothesize.
[It's a contextual factor!]
GENERAL VERRILLI: That's correct. They
make specific individualized judgments about each
applicant -
JUSTICE SOTOMAYOR: Because no two people
can be the same -
[It's an in-the-mind-of-God factor.]
CHIEF JUSTICE ROBERTS: To get back to what
we're talking about
[Oooh, diss ...]
, you -- as I understand it, race by
itself is taken into account, right? That's the only
thing on the cover of the application; they take race
into account.
And the district court found -- and you're
not challenging -- that race makes a difference in some
cases, right?
GENERAL VERRILLI: Yes. But the key,
Mr. Chief Justice, is the way it makes a difference.
And it makes a difference by casting the accomplishments
of the individual applicant in a particular light, or
the potential of an individual applicant in a particular
light.
What -- what universities are looking for
principally with respect to this individualized
consideration is what is this individual going to
contribute to our campus? And race can have a bearing
on that because it can have a bearing on evaluating what
they've accomplished, and it can have a bearing for the
reasons I tried to identify earlier to Justice Alito on
what they can bring to the table, what they can bring to
that freshman seminar, what they can bring to the
student government, what they can bring to the campus
environment -
JUSTICE BREYER: All right, sir. But it is
the correct answer to Justice Alito's -- if there are
ever two applicants where the GPA, the test -- the
grades, the SA1, SA2, leadership, activities, awards,
work experience, community service, family's economic
status, school's socioeconomic status, family's
responsibility, single-parent home, languages other than
English spoken at home, and SAT score relative to
school's average race, if you have a situation where
those -- all those things were absolutely identical,
than the person would be admitted on the bounds of race.
GENERAL VERRILLI: Not necessarily.
(Laughter.)
[The audience gets the joke!]
... CHIEF JUSTICE ROBERTS: General, how -- what
is your view on how we tell whether -- when the
University has attained critical mass?
GENERAL VERRILLI: I don't think critical --
I agree with my friend that critical mass is not a
number. I think it would be very ill-advised to suggest
that it is numerical.
CHIEF JUSTICE ROBERTS: Okay. I'm hearing a
lot about what it's not. I'd like to know what it is
because our responsibility is to decide whether this use
of race is narrowly tailored to achieving, under this
University's view, critical mass.
GENERAL VERRILLI: May I answer,
Mr. Chief Justice?
CHIEF JUSTICE ROBERTS: Oh, yes.
GENERAL VERRILLI: Thank you.
I think -- I don't think that this is a
situation in which the Court simply affords complete
deference to the University's judgment that it hasn't
yet achieved the level of diversity that it needs to
accomplish its educational mission.
[Complete deference -- that's all were asking.]
I think that the Court ought to -- has to
make its own independent judgment. I think the way the
Court would go about making that independent judgment is
to look at the kind of information that the university
considered. That could be information about the
composition of the class. It could be information about
classroom diversity. It could be information about
retention and graduation rates. It could be information
about -- that's specific to the university's context in
history. Is it a university that has had a history of
racial incidents and trouble or not?
[If we haven't had any racial incidents, we can get you some quick. Our Ed School professors are very obliging when it comes to racial incidents. You want a noose? We can get you a noose, believe me. There are ways, Dude. You don't wanna know about it, believe me. Hell, we can get you a noose by 3 o'clock this afternoon.]
A series of
factors.
And then what the Court's got to do is
satisfy itself that the University has substantiated its
conclusion based on that -- based on the information
it's considered, that it needs to consider race to
further advance the educational goals that Grutter has
identified as a compelling interest.
And I will say, I do think, as the number of
minority enrollees gets higher, the burden on the
university to do that is going to get harder to meet.
But I don't think -- I don't think there is a number,
and I don't think it would be prudent for this Court to
suggest that there is a number, because it would raise
exactly the kind of problem that I -- that I think
Justice Kennedy identified in the Grutter dissent of
creating hydraulic pressure towards that number.
JUSTICE SCALIA: We should probably stop
calling it critical mass then, because mass, you know,
assumes numbers, either in size or a certain weight.
GENERAL VERRILLI: I agree.
JUSTICE SCALIA: So we should stop calling
it mass.
GENERAL VERRILLI: I agree.
JUSTICE SCALIA: Call it a cloud or
something like that.
(Laughter.)
[Vapor?]
GENERAL VERRILLI: I agree that critical
mass -- the idea of critical mass has taken on a life of
its own in a way that's not helpful because it doesn't
focus the inquiry where it should be.
[In other words, nobody should think nuthin' about nuthin', the Supreme Court should just let the public universities do whatever they feel like. If you can't trust college administrators, who can you trust?]
[For the Supreme Court's questioning of the U. of Texas lawyer, which is also pretty amusing, click here.]
[It's hard not to be reminded once again of Theodore Dalrymple's insight:
[For the Supreme Court's questioning of the U. of Texas lawyer, which is also pretty amusing, click here.]
[It's hard not to be reminded once again of Theodore Dalrymple's insight:
“In my study of communist societies, I came to the conclusion that the purpose of communist propaganda was not to persuade or convince, not to inform, but to humiliate; and therefore, the less it corresponded to reality the better. ... I think if you examine political correctness, it has the same effect and is intended to.”]
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25 comments:
What galls me is that even in Calif. let alone nationally, the majority is opposed to affirmative action, illegal immigration, gay marriage, for the death penalty, three strikes etc but they vote in politicians more liberal than them who govern against their will. Who can explain this? The liberals I know can only sputter when asked.
The transcripts -- the parts I read, anyway (I did not bother to read all of it) -- just show that it's difficult to defend the indefensible.
However, I immediately recall one lawyer who managed it: Johnnie Cochran. It's too bad Johnnie's not around to argue UT's case. Now that would probably be funny.
Other than that prospect, I don't see much that's funny here.
Hah, Steve you're hilarious.
Garre and Verrilli are giving the justices the runaround. Isn't that an example of "contempt of court"?
So I take it the problem with this ten per cent plan is that it isn't giving the university the best available NAMs.
The middle-class or better-off black and brown kids, the smarter ones, are more often going to middle class schools and lagging behind whites and asians. Meanwhile anyone hardy enough to show up for four years at some urban hell hole is taking, via the ten percent plan, what would have been the middle class kids' through affirmative action.
The school's dilemma is it gets a lower class of its target percentage of color. Those kids are probably failing at higher rates and are not as uplifting as they could be (are they ever?), ultimately threatening to degrade the university's brand and scare off all those tuition-paying white and asian parents and whose progeny might be expected to donate a building or two down the road.
It's funny how not only Verrilli but all the liberal commentators are parroting the BS term of holistic assessment. Calling the race-based admissions process at selective schools holistic is about as credible as the insistence of the Soviet Communist Party that the country was democratic.The NAM deficiencies in purely academic measures like the SAT and GPA are so large in selective schools that if race weren't the decisive factor, then the NAMs who get accepted would have to have a preposterously large advantage over whites and Asians in terms of "leadership, activities, awards, work experience, community service, family's economic status" etc. In practice, whites and Asians are likely to be superior to NAMs also in terms of non-academic criteria, and the situation where a white or Asian applicant and a NAM applicant are absolutely the same in every respect other than race almost never occurs.
In case I haven't treated this to you before, here is my own rule for tie-breaking at university admissions.
If the two who tie are male, admit the younger; if female, admit the prettier; if one of each, spin a penny.
The humour of the situation is enhanced by the American habit of referring to and addressing their attorneys general as "General". Top brass among attorneys, people are thinking? Uniquely in the English-speaking world, they do not realize that in the phrase "Attorney General", "General" is an adjective.
The humourousness of the transcript is enhanced by the American habit of referring to and addressing their attorneys general as "General". Top brass among attorneys, people are thinking? Uniquely in the English-speaking world, they do not realize that in the phrase "Attorney General", "General" is an adjective.
My bipolar ex-girlfriend could tell a more convincing lie under questioning than this.
Their argument basically boils down to:
We never look at the box marked "NAM" and use that to decide whether to admit a student. Instead, we look at the overall person and think about how he would contribute. So we take race into consideration as a driver of that, but not as a direct factor itself, so you can't pin us down as having used race.
We can't say when we'll have achieved a critical mass of diversity, because you told us that would be too much like a quota. So it's your own fault that we can't tell you what our goal is.
Therefore, we're just going to keep admitting more and more minorities based on "holistic" nonsense, and you're going to have to come check out the results every few years and tell us when YOU think we've achieved Diversity.
In the meantime, you can't criticize or ban our methods, because we don't have methods. We just have admissions officers admitting people they think will add to the awesomeness of the university.
The liberal justices aren't embarrassed by the credulous and fawning nature of their chatting up of the Solicitor General. That performance shouldn't be dignified by the term "questioning".
It is as if their vetters began by posing this stumper: "Are you deeply and profoundly puzzled by the meaning of the following Dalrymple quote... In order to proceed, answer "Yes!."
For all of the faults of Romney and his policies, that's a reminder of one area in which the country would benefit from a change in leadership.
"So my understanding of what the university
here is looking to do, and what universities generally
are looking to do in this circumstance, is not to grant
a preference for privilege, but to make individualized
decisions about applicants who will directly further the
educational mission. For example, they will look for
individuals who will play against racial stereotypes
just by what they bring: "
If this is their goal, Universities have been fucking up mightly at it, and get worse at it every year. Nearly all the NAMs you see at most colleges conform well to pretty much every negative stereotype of their groups in dress, speech and behavior that Jesse Helms would have been frustrated with.
If they're bringing in the Hispanic fencers or African American opera sopranos, they're doing a mighty good job of hiding it at nearly every university.
"
Anonymous Anonymous said...
What galls me is that even in Calif. let alone nationally, the majority is opposed to affirmative action, illegal immigration, gay marriage, for the death penalty, three strikes etc but they vote in politicians more liberal than them who govern against their will. Who can explain this? The liberals I know can only sputter when asked."
In many cases the politicians pose as being more to the right, and more in-line with middle America than they actually are at election time. Its why Obama around this time every 4 years talks about apple pies, his white mother and grandparents, and his time in a Christian church.
In other cases, you have a situation where the only two candidates with major funding and therefore a shot at actually winning, are both spouting off liberal ideas, perhaps only to different degrees. Though Obama unabashedly supports mass immigration to the US, even Romney seems to go with the flow and talk about giving away green green cards, etc. In these cases, you have to go with the lesser of two evils.
Any 18 year old who has 'mastered classical Greek' is certainly a sincere Christian who wants to read the New Testement in its original form so I'd be pretty shocked if our academy were to discriminate in favor of such applicants.
In the meantime, you can't criticize or ban our methods, because we don't have methods.
Kurtz: Did they say why, Willard, why they want to terminate my command?
Willard: I was sent on a classified mission, sir.
Kurtz: It's no longer classified, is it? Did they tell you?
Willard: They told me that you had gone totally insane, and that your methods were unsound.
Kurtz: Are my methods unsound?
Willard: I don't see any method at all, sir.
"JUSTICE SCALIA: Call it a cloud or
something like that."
A thing of sarcasm is a joy forever.
The discussion is truly amazing. The argument seems to be that the college administrators should be fully trusted to employ race as a factor in an utterly ineffable process to achieve an utterly ineffable goal -- and that that should be the precise and correct interpretation of the relevant law.
It's like the earthly counterpart to the Holy Trinity: mere mortals can't understand.
Nexin:
That's partly the effect of AA, I think. If the average black student is, say, at the 10th percentile of his class in terms of intelligence and preparation, then you will notice that the black students at your university congregate in the least demanding majors and classes, that they're not as serious students and not as hard workers and not as bright as the average student, because that's what the selection criteria for black and white students has ensured would happen. It's like if you live in a town where some families are so important, their kids always get to start on the high school football teams, you will notice that the kids from the good families are, in general, less capable and hard working players than the other starters.
This effect is independent of the population distribution. If you implemented lower admissions standards for green-eyed red-haired people across the board, then everywhere but at the top schools, you'd notice that all the green eyed redheads were majoring in sociology or education and seldom found their way to the library or to study sessions. You could create stereotypes of how green-eyed redheads were stupid and lazy by implementing such a policy.
Anon:
The obvious guess is that there are other incentives for politicians to support those things, even if they're vote losers.
One incentive is almost certainly money--some issues are critical for fundraising. If there are some big donors who care a lot about some issue (say, support for Israel or gay marriage), then politicians have a pretty serious incentive to take that side of the issue. From what I have read, every national-level politician spends a huge amount of his time raising money to run for election/re-election, so this probably matters a great deal. The claim I've heard is that Obama's recent "evolution" on gay marriage was driven by the need to raise money from gay and gay-friendly donors.
Another incentive involves entrenched interests that can fight back. Affirmative action has well-defined beneficiaries who will fight to keep it, as well as thousands of people whose jobs depend on implementing it, whereas the people who lose by it are much more diffuse and don't usually even know for sure that they're losing anything by it. Gay marriage similarly has a well-defined interest group who know who they are and have some cohesion.
Still another incentive involves not making enemies who can make a public fuss--media companies and big visible interest groups and super PACs are all examples. Take a public stand against something most broadcast media are morally opposed to, and you will get hammered by people who buy ink by the barrel and own lots of megaphones.
It would be interesting to try to work out which of these (or other incentives) is having the biggest effects on given issues.
Commodore:
Which one is the lesser evil, again? I'm not sure I really care wherher I get poison disguised as food or poison disguised as antidote--the end result is the same.
So many paleocons, begging the mighty Nine for just a taste of that sweet, sweet, judicial activism, doled out as only uncle Antonin and his gang can.
As in Lochner, Bush v. Gore, Citizens United, and dozens more.
"An applicant's race is considered only to the extent that the applicant, viewed holistically, will contribute to the broader vision of diversity desired by the university."
You will not automatically get a place just because you're not White as you may be part of the dominant oppressive discourse against the Other and as such will not contribute to the broader vision of diversity. Better a submissive SWPL than an Oreo!
Being black is not enough. You must be Holistically Black.
So I take it the problem with this ten per cent plan is that it isn't giving the university the best available NAMs
You mean "NWAMs". Remember, Whites are a minority in Texas.
The humourousness of the transcript is enhanced by the American habit of referring to and addressing their attorneys general as "General". Top brass among attorneys, people are thinking? Uniquely in the English-speaking world, they do not realize that in the phrase "Attorney General", "General" is an adjective.
There is no such habit.
Is race a factor? Does race even exist? Perhaps it's not given to mere mortals to ponder such mysteries.
Thanks Steve. As an occasional reader of Supreme Court decisions, your annotated transcript of the testimony was great stuff. I wish the right-leaning members of the media were smart enough to take the time to address topics like this and get it in front of more people. Although that may just lessen people's opinion of The System and give up.
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