Peter Schuck of Yale Law School, author of the admirable Diversity in America (discussed earlier here and here), has a breathtakingly dazzling demolition of the majority opinion in Grutter. See it now.
If I quoted only the good parts, I’d quote the whole thing. Here’s his introductory list of reasons why the opinion will fail to change any minds:
Let me count the reasons why. The majority’s application of strict scrutiny amounts to a dilution of that indispensable standard. It relies on an unexamined, shallow conception of diversity and of what is required to produce its benefits. In the name of that diversity, it relies on the very stereotypes it opposes, stereotypes that it ironically believes preferences will discredit and dispel. Its constitutional test compels a conclusion that is precisely the opposite of the one it reaches. It hopes that preferences will be temporary, yet its own logic would perpetuate them. In another of the case’s striking ironies, the decision will promote uniformity, not diversity, in the design of future affirmative action programs. Finally, its decision, far from bringing closure to the bitter, three-decade debate over preferences, will in fact inflame and enlarge it.
On strict scrutiny:
Strict scrutiny is supposed to be, well, strict. Its raison d’etre is to be rigorous, skeptical, and demanding enough to challenge the government’s premises, flush out its true motives, and ensure a very tight congruence of evidence, legal categories, and policy justifications. Strict scrutiny is employed, of course, when there are especially good reasons to think that, as with racial classifications, the government may be playing with fire around highly combustible materials….
Justice O’Connor’s strict scrutiny has all the strictness of an indulgent mother who gives her affable son the keys to the family car without questioning him about his drinking. When the father warns that the youth has gotten drunk before and harmed some bystanders, she replies, “Oh, he’s a good boy, and anyway he says he’s only going to the library.” In this spirit, O’Connor accepts the Michigan law school’s assurances that she needn’t worry, while shrugging off the hard questions posed by the dissenters — a kind of good-natured “Oh, don’t mind dad; he’s just being crabby” response.
I could go on, but then you might not read the whole thing.
This is a great article. Peter Schuck addresses all aspects of the diversity issue and makes some very cogent comments on the subject. I was fascinated, in particular, by the following argument put forth by the defenders of diversity.
“when a critical mass of underrepresented minority students is present,” the majority (citing Dean Syverud’s testimony) states, “racial stereotypes lose their force because non-minority students learn that there is no ‘minority viewpoint’ but rather a variety of viewpoints among minority students.”
So on the basis of that argument, the whole raison d’être for diversity is to demonstrate that there is no raison d’être for diversity! All this time we were lead to believe that the benefit of having diversity on campus was the unique viewpoint that a particular group would be able to offer to the rest of the students. However, now they argue that this argument is a sham and they will prove it by instituting diversity!
Wow, I am awed by the brilliance of that logic. However, if that is all they wanted to prove, wouldn’t it be easier to just have a mandatory class that taught that there is no benefit to diversity. It would have saved everybody a lot of time and effort.