A few days ago I almost sympathized with “Poor Richard Kahlenberg,” whose forlorn attempt to persuade the Obama administration to abandon its consistent support for race preferences and, in effect, throw the University of Texas under the bus in its pending Fisher filing was doomed to failure. Predictably (as predicted), it has now failed. The administration has just filed its Fisher brief, supporting the University of Texas’s “diversity”-based racial discrimination root and branch.
Perhaps because I’ve now read so many Fisher briefs (all briefs and filings are also collected here), or maybe simply because I find the arguments defending “diversity” so lame, the administration’s effort here strikes me as unusually pedestrian and lackluster. There’s little here that wasn’t said in the Grutter arguments, except the extensive quotes from Grutter. Roger Clegg lists a few of the brief’s glaring contradictions here, and although his list is partial it is still long. I can see the liberal justices reading the administration brief and nodding, “Yeah, yeah …,” but I can’t see it having any effect on Justice Kennedy, the only justice whose mind could be changed on this issue (unless the Chief Justice takes another flyer off the deep end).
Thus I want to make only three points about this surprisingly pedestrian and boring brief. First, the administration nicely albeit unwittingly (even with unwitting humor) reveals the absurdity of its position when in the initial “Summary” of its argument it asserted that “diversity” is “of critical importance to the United States” because “careers in a range of fields that are vital to the national interest … must be open to all segments of American society, regardless of race and ethnicity.”
In other words, Obamian national security requires discriminating in favor of some individuals and against others based on their race and ethnicity in order to ensure that important careers are open to all “regardless of race and ethnicity.” Where is Joseph Heller when you need him?
Second, the government’s argument is hilariously circular:
The government endeavors to recruit well-qualified graduates who are diverse and prepared to succeed in a diverse society, and it benefits directly when selective universities ensure that their student bodies are diverse so that all students receive the educational benefits of diversity.
With arguments like this the administration has elevated “diversity” from a mantra to a virtual speech defect, a verbal tic.
Third, the administration endorses a version of “diversity” that is open-ended, even un-ending, limited only by the uncontrolled desire of university administrators. At least that’s how I read (with great difficulty) the following passage. See if you can read it:
Because the point at which a university reaches sufficient diversity is defined “by reference to the educational benefits that diversity is designed to produce,” Grutter, 539 U.S. at 330, whether a university has attained that objective is largely an educational decision that, while based on “empirical data,” id. at 388 (Kennedy, J., dissenting), ultimately entails a qualitative evaluation of the educational experience the university is providing. Accordingly, the University’s conclusion that it had not attained its objectives was based on its assessment of its ability to provide the educational benefits of diversity, rather than a numerical calculation.5 Whether that conclusion is justified by the empirical data should be evaluated with due regard for the multi-faceted educational assessment the University’s determination reflects.
It’s hard to picture Justice Kennedy swallowing this mush.