SCOTUS is a Monkey House

Man, elections make people nutsobananas.

But, it turns out, so does affirmative action. Nina Totenberg brought some bananas to the monkeyhouse.

Chief Justice Roberts, returning to the question of what constitutes a critical mass of minority students, asked: When is enough, enough?

Verrilli said the school looks at many factors — information about classroom diversity, retention and graduation rates, and information about racial incidents on campus, among other things. The school, however, cannot measure success by numbers, he said, because that would be a quota.

“We should probably stop calling it critical mass then,” said Justice Scalia, noting that mass suggests numbers.

Verrilli agreed with this characterization, prompting Scalia to offer a solution: “Call it a cloud or something like that.”

Because cloud is the new black.

Seriously, Verrilli? A cloud? A cloud of African-American, Latina, Asian, Pacific Islander, and low-income students?

A cloud?

About race-based admissions, at least, conservative justices are in deep, passionate, blinding love with the idea that law happens in a vacuum. That law is pure reason. To make that work, though, you have to think of people and society as pure reason, too. Like numbers.

Numbers are governed by god-given principles of arithmetic and, for the ballsy, calculus. Math is unchanging, reliable, gender- and race-neutral (although tell that to the women and people of color flocking to other majors in college). And the Constitution, they think, is a collection of such principles. Unchanging. Majestically fixed. Free of the encumbrances of messy people and their skin colors and body parts. And, cough cough, history.

So, funny, the conservative justices seize on numbers to (try to) demonstrate the logical fallibility of race-based admissions. What percentage of the student body should be minority? What numbers constitute a “critical mass”? Does someone who is 1/32 Latina “count”? Should she be allowed (by the government, presumably) to check that box on her application?


Was this even a serious question? Or was it misguided and smug satire?

I’m hoping that other people in the courtroom were thinking about the one drop rule when Scalia asked that question. All the ways that government has tried to quantify our racial identities for us, and all the ways that has led to (and sprung from) deep, deep, deep injustice.

Was Scalia trying to point out the irony of using historically problematic classifications to help underrepresented people? In which case, OK, but look at history and numbers and research, dude. Affirmative action programs tend to be imperfect, but they’re better than nothing.

Or was he trying, instead, to use feverish numbers to prove some kind of injustice in the idea that a black person might contribute more to a learning environment—more character, more struggling against odds, more important underrepresented perspective—than a white person? That there are elements of a student’s dossier that are not quantified in grades or scores but that indicate a more valuable social investment?

It’s hard for me not to see racism underlying all the conservative apoplexy about race as a consideration in college admissions.

A systematic unwillingness to consider the reams of social science research proving that racial and economic diversity in the classroom improves outcomes for everyone. To willfully ignore the idea that our public universities should offer equal opportunity for all our students. To see inclusive, representative and corrective admissions policies as bad for our country, rather than good.

So this is Scalia’s preferred alternative: merit-based college admissions that ignore race. Resulting, as happened in California, in a massive drop in minority admissions. And then maintaining a fiction, cemented by social welfare policy, that there are no structural barriers to success for low-income people, most of whom tend to be people of color.

Now, for the record, (after reviewing some research to be sure), I’d be happy replacing race-based consideration with class-based consideration. That would still provide racial diversity, but would maybe simplify UT Austin’s convoluted admissions formula. And maybe calm the conservative paranoia about black people! in college! But what if they’re not fit for it! And would represent the fact that income is a stronger predictor of success than race. Though the two are still strongly correlated.

On the other hand, race permeates everything about our identities and experiences. Even for white people! Even for middle-class people!

As we listen to the Biden Ryan wonk festival tonight (I’d like my wonk with sauerkraut, please, and my friend here would like hers deep-fried), I’ll be thinking about their underlying attitudes about opportunity. About that tattered American dream.

What does it take to succeed in this country? I mean, what does it really, actually take? What does a kid have to do, and what does she have to start out with to even try?

And how can we make success more fair, more democratic?

More American?

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