“Hobbesian Choice”? You Choose

In an essay on National Review Online today Peter Wood, of Diversity fame, had some fun with a comment about a “Hobbesian choice” made by John Payton, who defended Michigan’s undergraduate racial preferences before the Supremes. Here is Payton’s exchange with Justice Scalia, taken from pp. 37-38 of the transcript:

JUSTICE SCALIA: Because your standards are so high, you say that there are very few of those who can meet your standards. So why don’t you lower your standards, actually, I mean if this is indeed a significant compelling State interest, why don’t you lower your standards?

MR. PAYTON: We do have sufficient numbers in our applicant pool to achieve the critical mass that we’re achieving. We’re not taking — you’re right we’re not —

JUSTICE SCALIA: By taking race into account, you can — you can do it. But —

MR. PAYTON: But we’re not taking students that aren’t qualified, you are correct about that, Justice Scalia.

JUSTICE SCALIA: But just lower your qualification standards, if — if this value of — of having everybody in a mix with people of other races is so significant to you, just lower your qualifications.

MR. PAYTON: It is that significant to us. But I think that —

JUSTICE SCALIA: You don’t have to be the great college you are, you can be a lesser college if that value is important enough to you.

MR. PAYTON: I think that decision which would say that we have to choose, would be a Hobbesian choice here. Our premiere institutions of higher education, I’d say, are part of our crown jewels. We have great educational institutions in this country. The University of Michigan is one of them. I think we are the envy of the world. If we had to say, gee, our educators tell us that it is crucial that for the full education they want for those students, all of those students we needed for a student body, that the decision is, oh, gee, we want to you decide to either have a poor education for the essentially white students and/or you can say, change what you are as an institution. I think we get to decide what our mission is. I think the Constitution gives us some leeway in deciding what our mission is and how we define ourselves.

Wood, as I said, had some fun trying to figure out what “Hobbesian choice” meant in this context.

But wait; there’s more. Howard Bashman linked Wood’s essay, which in turn elicited a long, philosopical email from a law student that concluded:

A Hobbesian choice is like the choice between Scylla and Charybdis. It is any choice as impossible to make and as free of true liberty as the choice Hobbes offered us, between living in a state of nature and living under an arbitrary and absolute government. Hobbes told us that in a state of nature, the life of the people is “solitary, poor, nasty, brutish, and short.” He offered the choice between that sort of life and life under an absolute power. Hobbes deemed the latter superior, but for many of us neither option is acceptable. A Hobbesian choice is no choice at all. This is what Mr. Payton referred to in his argument.

Hold on a minute. With all due respect to Mr. Hobbes, there is much more to this exchange than the nature of the choice he had in mind, and I say that not only because I have been asking a version of Justice Scalia’s question for months, such as here:

Even if [“diversity”] is deemed to be compelling, it does not follow that discriminating on the basis of race is the only, or best, way to achieve it. Selective universities, for example, could reduce or even abandon their selectivity to achieve it…. Faced with that choice, I suspect administrations at many selective universities would quickly conclude that diversity isn’t so compelling after all. But if it’s not compelling enough to abandon selectivity, why is it compelling enough to abandon the right against racial discrimination?

Thus, one point clearly revealed by Payton’s comment is the tenacity with which selective universities will fight to hold on to the much maligned means of measuring merit, at least for white and Asian applicants. What these universities really want to do is separate their applicants by race and ethnicity and then select the highest scorers from each pool, to reach a pre-determined mix. That’s what they used to do until the courts put an end to the practice. Since then they’ve been trying to do it covertly since they’ve been barred from doing so overtly. The Michigan cases will decide whether this disguised “race norming” is allowable.

Perhaps even more striking is Payton’s comment that “the Constitution gives us some leeway in deciding what our mission is and how we define ourselves.” I don’t think anyone would quarrel with “some leeway.” The operative question, however, is whether that “leeway” extends to discriminating on the basis of race. If it does, then any university that believes “diversity” undermines its mission would have the same right to employ the discriminatory methods that Michigan and others now use.

Say What? (2)

  1. stu April 21, 2003 at 5:30 pm | | Reply

    The idea of the University of Michigan as an elite university is a cruel joke. Take a look at the course catalog or listen to any number of its male “student-athletes” being interviewed. The only elite standards it has pre-date admission and apply only to whites and Asians. Thereafter, if one chooses–and many do–it is a four (plus) year vacation from adulthood, reason, responsibility, learning, wisdom and thought. It is the epitome of education as a consumer product. Don’t mean to pick on Michigan, since it is merely the template for this corruption. On the other hand given the sanctimony of its defenders, the urge to single it hardly seems unfair.

  2. Jeff Medcalf April 22, 2003 at 12:53 am | | Reply

    “The operative question, however, is whether that “leeway” extends to discriminating on the basis of race. If it does, then any university that believes “diversity” undermines its mission would have the same right to employ the discriminatory methods that Michigan and others now use.”

    This is a question I’ve been asking for a while. If it is OK for Michigan to give bonuses based on race in order to acheive a goal, certainly it is OK for them to decide how much of a bonus to give. They could, then set the bonus to such a degree that it would be impossible as a practical matter for a white or asian student to get admitted. (Giving a bonus of 150 points to blacks, or a detriment of 149 points to white/asians would be OK, based on the Supreme Court’s ruling that anything short of infinity is “a limited time.” You probably couldn’t give a detriment as high as or higher than the maximum possible score before any negative adjustments are made, though.)

    So now that we’ve established that, I should be able to start a college and exclude blacks based on my compelling interest in producing racial harmony. How is this less compelling than racial diversity? And if this is the case, then what meaning does the Constitutional prohibition on state racial discrimination have?

Say What?