Chief Justice John Roberts asked a question during oral argument in Fisher II that offended many.
CHIEF JUSTICE ROBERTS: What unique perspective does a minority student bring to a physics class?
It’s an incisive question, which is why it caused such offense. I tried to answer it, though my response was unsatisfying to many. In a New York Times op-ed, black astrophysicist Jedidah C. Isler offered her putative response, but it failed miserably. It wasn’t that her essay was bad, or wrong, but that it was completely non-responsive. When you have no answer to the question, dance around it, and she did. And readers made clear that she wasn’t a very good dancer.
Black students come to the physics classroom for the same reason white students do; they love physics and want to know more. Do we require that white students justify their presence in the classroom? Do we need them to bring something other than their interest?
Cool story, but that has nothing to do with the question posed. And the question posed reflected the legal issue raised by the case. Linda Greenhouse offers a curious column which, I think, is meant to bridge the gap.
Given the Supreme Court’s contorted precedents on the role of race in higher education, the answer to Dr. Isler’s question is actually unclear.
The chief justice’s questions often go to the heart of the matter, and this one was no exception. The reference, clearly, was to the “diversity” argument at the center of Fisher v. University of Texas, the challenge to affirmative action that is now before the court for the second time in three years. The chief justice no doubt meant his query to Gregory G. Garre, a former United States Solicitor General now representing the University of Texas, as a kind of reductio ad absurdum.
An ignominious characterization of what Greenhouse acknowledges goes to the “heart of the matter.”
Contrary to Chief Justice Roberts’s implication, science is not some unchanging world of pure objectivity and fact. Nor does the pursuit of scientific knowledge exist completely apart from the social dynamics, attitudes and cultures of those who seek answers. Science is inextricably linked with our shared humanity and distinct experiences.
That was pretty much what I wrote, though I think I explained it in more concrete, less conclusory, terms.
By suggesting, and sadly litigating, that diversity — and more important, inclusion and equal opportunity — aren’t paramount to the production of new scientific information, we wrongly imply that the most important part of scientific discovery is in the classroom.
Except the question before the Court is whether affirmative action, or “holistic” admissions because we’re all about cute rhetoric these days, provides a sufficient benefit in the classroom to survive strict scrutiny. Fudging the question may play well with the choir, but isn’t going to change the law.
And the law was established in a decision, Regents of the University of California v. Bakke, back in 1978. Greenhouse realizes this.
Here’s the problem, as Chief Justice Roberts well knows: under the court’s precedents, diversity isn’t just one rationale for creating or maintaining a racially integrated student body. It is the only rationale. Ever since the Bakke case nearly four decades ago, no other reason for affirmative action has passed constitutional muster in the view of the Supreme Court’s majority: not equalizing opportunity, not redressing past wrongs (the flagship Austin campus was formally all-white until 1956 and functionally segregated long after that) or opening previously closed doors. Only “diversity.”
This rationale isn’t so much “contorted,” as Greenhouse initially called it, but unhelpful. It’s a high hurdle of reason. It fails to comport with the religion of social justice, which needs no rationale to justify affirmative action or diversity. It rejects a laundry list of social goods in favor of a constitutional test that allowed the use of race when every iota of reason suggests that if race is a wrongful basis for discrimination one way, then it’s a wrongful basis for discrimination the other way.
My favorite SJW cartoonist offers his flavor of reductio ad absurdum to explain what he feels should be sufficient justification for affirmative action:
But this is a political approach to remedying racial inequities, even if a simplistic view. The Supreme Court doesn’t get to ignore the Constitution’s mandate of equal justice under law because it doesn’t like the way it feels. Not even if it makes SJWs cry.
But what does diversity mean? If diversity is the only acceptable rationale for taking account of race, as the court insists, then what is the rationale for diversity? It must be something more than the reductive image the chief justice served up, but what exactly?
Better yet, what the hell is Greenhouse talking about? This is gibberish, and so the only thing one can do with gibberish is add more to the mix.
It’s almost as if minority students do everyone a favor by showing up, but we can’t acknowledge that they themselves get anything out of the bargain.
This is strange, even perverse. It’s why there is no a clear answer to the questions Dr. Isler asked in her Op-Ed piece. It’s the result of the upside-down reinterpretation of equal-protection doctrine that conservatives on the Supreme Court and in American politics have engineered over the past decades.
Except it’s not strange at all, and only perverse when the logic of law clashes with the feelz of social justice. There is nothing strange at all about the argument that the mandate of our Constitution is that race not be an acceptable factor for legal discrimination. Your problem, as reflected in Barry Deutsch’s far more honest final panel, is that we should remediate the oppression of blacks by suspending the Constitution, at least as to affirmative action, just because historic wrongs happened.
But the justices face a crucial choice nonetheless: to keep the diversity door open or to further reduce the court’s equal protection jurisprudence to the caricature it is becoming.
Ridiculing a fair question isn’t going to persuade anyone. Ad hominem attacks won’t change reason, at least among those who aren’t singing hallelujah at the top of their lungs. I tried my best to argue the benefits of diversity within the framework of sound equal protection doctrine, because I, like Greenhouse, believe that diversity sufficiently contributes to the university experience to overcome strict scrutiny. The only difference is I tried to answer CJ Roberts’ question. I was honest about it. I tried not to make people stupider.
But Yale’s journalist in residence, Greenhouse, like Dr. Isler, has a piece in the New York Times.
So let me rephrase the question: Is strict scrutiny the test for all facial exceptions to equal protection and due process, or only the ones whose outcomes we don’t favor? If the latter, consider the consequences for constitutional questions of the myriad exceptions that deprive us of our rights. When you forsake principle, it will come back to bite you in the ass. Neither social justice rhetoric nor cartoons are a substitute for principle or logic.