Tag Archives: Grutter v. Bollinger

specious reasoning


In an exchange on Facebook about my post

Harvard does not discriminate against Asian-Americans (except that it does).

Harvard does not discriminate against Asian-Americans (except that it does).

the following points were made.


PETE SMITH (my brother)

If you ran a college and accepted applicants only on test scores and extracurricular activities and grades and references, without any consideration of ethnicity, and it turned out that the incoming class was going to be 95% Asian, or 95% white Christians, or some other clear imbalance that doesn’t begin to resemble the general population (as with the classes when we were in college), would you be OK with this?



I think it is a fault or defect in argumentation to hinge your point or rebuttal on the most extreme cases. It is unlikely that such an imbalance is going to happen today, or can be foreseen under your scenario. I don’t know about the case of, say, Southern Baptist colleges, historically black colleges, or Yeshiva University. But my post focuses on what I see as principle and what I regard as a commitment to educational excellence. From my perspective and experience, and based on what I have read in the press.

I don’t think that educators should be counting heads. It is not their job, as I see it — they should not have to worry about this unless clear patterns of discrimination can be shown. I also feel that it is wholly commendable for university officials to be trying to encourage and recruit qualified students from groups not well represented or from abroad. And if the university feels sports are important, I think it’s okay to admit athletes using athletics as one criterion; or talented musicians for the music department; and so forth That’s a kind of diversity I would endorse.



But not ethnic diversity? Gender diversity? Income diversity? Are these less important than having the right combination of musicians and basketball players? What if these groups are not “well represented”?



It’s not that there is a “right” combination of musicians or basketball players. It’s just that if a school has a music department, it wants some music majors. This should be a matter of common sense and it does not affect policy questions.

If it is going to have sports teams (at my school, sports were deemphasized), it needs some athletes. And it wants some English, French, and bio majors; physics and math majors and premeds; future businessmen and businesswomen if it has a business major or perhaps wants students studying economics; and so on. (Rensselaer Polytech and Julliard are different in this respect.)



I keep running this discussion through my mind, and similar ones and thoughts I have had about such issues ever since racial preferences in college (and elite secondary school) admissions became an issue. And about broader issues involving race, gender, and so on in the workplace and in matters affecting public policy.

In the Plessy v. Ferguson Supreme Court decision (1896), the Court ruled that racial segregation laws did not violate the U.S. Constitution as long as facilities are equal — the infamous “separate but equal doctrine.” It was a bit of specious reasoning that violates the fundamental principles of fairness and law.

In Grutter v. Bollinger (2003), the Supreme Court’s ruling was again based on specious reasoning that supposedly upholds the concept of race blind admissions policies (affirms the Fourteenth Amendment’s Equal Protection Clause) while holding that an admissions process that favors “underrepresented minority groups” does not violate the law so long as it takes into account other factors evaluated on an individual basis for every applicant. The Court held that the Equal Protection Clause did not prohibit the University of Michigan’ Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.

Something that has occurred to me in articulating points I made in my post and similar ones is a sort of philosophical question. Is race a “thing”? Regarding the concept of race and government mandated racial categories (used for demographic purposes and to examine compliance with rules and guidelines), I wrote in a previous blog:

the absurdity of racial categorizations (a glaring example

the absurdity of racial categorizations (a glaring example)

There is such diversity in ethic groupings that it seems nonsensical to me to sort them into ironclad groupings. The groupings were made up by someone or other who manufactured them out of thin air, bureaucrats; they ignore many ethnic groups and sort them almost willy-nilly.

When (as I assert above) admitting an entering class, it makes sense to ensure that there is diversity among the academic disciplines (majors) of students. A candidate for admission is qualified and interested in pursuing a career in music. This is something tangible and specific that it makes sense to take into account — provided that the student’s qualifications are valid. It’s a fact, and a meaningful one.

You would not want an entering class with no music or art majors (or any other pertinent example), if your school has a music department and (probably) a student orchestra.

But what makes two candidates from different racial or ethnic (or religious, for that matter) groups fundamentally different, in the case of an admissions committee considering the applications of each candidate? Assuming the race of the student is known, why should it be a positive or negative factor (admission wise)? Which group of groups has more or less to contribute? Which individual students? How can this be determined?



Justice Sandra Day O’Connor:

Diversity is a compelling interest that can justify the narrowly tailored use of race when public universities select applicants for admission. In this case, the Law School’s (Defendant) admissions program bears the hallmarks of a narrowly tailored plan. Truly individualized consideration demands that race be used in a flexible, non-mechanical way. It follows from this mandate that universities cannot establish quotas for members of certain racial groups or put members of those groups on separate admission tracks. Universities also cannot insulate applicants who belong to certain racial or ethnic groups from the competition for admission. However … universities can consider race or ethnicity more flexibly as a plus factor in the context of individualized consideration of each and every applicant.

And so on.

This is the same tortured, specious reasoning. It says that discrimination in the admissions process is not being condoned — it is not okay — it’s against the law! Except that it is okay. To ensure a diverse student body. Well, we are very much the same, fundamentally, all of us, or we should think this way. (All men are created equal.)

Discrimination (as the term implies) involves non-acceptance of this principle. When I discriminate, I choose between groups. Some groups are superior and some inferior. The inferior groups and persons are not entitled to the same rights and privileges as the superior ones. So Plessy v. Ferguson held — except that they didn’t exactly. They got around this by saying that all persons would be treated the same under the doctrine of separate but equal.

And (Grutter v. Bollinger), while the Constitution and acts of Congress prohibit discrimination, it’s okay under some conditions. In giving consideration to the race of an applicant. This is actually specious, Plessy v. Ferguson style reasoning. But, you see, it’s not discrimination; it’s the promotion of diversity, which sounds good, as an abstraction. Except that people aren’t abstractions. They are all equal, in principle. And different, naturally, in actuality (different inherited characteristics and differences manifested as people grow and change over the course of a life).

We do come from different racial and ethnic backgrounds, but in what sense does that make us different? In a meaningful way? It does make us different experientially. But this can’t be quantified and it is meaningless to try. In practice, we should treat everyone the same. It’s nonsensical to look at another person and expect them to be the same as you, and wrong to make the differences matter from a legal or moral point of view.

Am I too idealistic? Blind to actual disparities and social realities? Well, I submit my reasoning — sophisticated or unsophisticated as it may be — for consideration vis-à-vis the tortuous process by which the courts arrive at decisions and officials implement policy. A music major is different from a computer science major. A school can and should keep track of how many of each it has. You can’t quantify what a student from one race or another may or not add to a school’s educational environment, or take away from it, using race as a metric. And while there is clearly such a thing as broad groupings according to the type of categories an Ancestry.com DNA test will identify, in individual cases (as a tool of differentiation among individuals) they are meaningless; and by the way, the categories used by the government and organizations for counting purposes are crude and inaccurate for descriptive or classification purposes.


— Roger W. Smith

   January 2022