Grutter Ball

So I’m reading Michael Kinsley’s too-clever-by-half piece in Slate on the University of Michigan case, and I happen on this:

Undoubtedly, Alan Bakke [the plaintiff in the 1978 Supreme Court that allowed schools to consider race “as a factor” but disallowed “quotas”] would have been admitted if he had been black. But that’s not the right question. The right question is whether, as a white, he would have been admitted to medical school if all those places weren’t reserved for blacks. The same question arises in the current case, Grutter v. Bollinger…

Figures from a representative year included in court documents indicate that the school [University of Michigan Law School] gets about six applicants for every available place, and that even among those with Grutter’s [Barbara Grutter, the plaintiff] impressive [3.8/4.0] GPA, your chance of getting in is about 1 in 3. Even assuming, implausibly, that every single one of the special-treatment minority students was less qualified than Grutter and would not have been admitted if they were white, that would have improved Grutter’s own chances by about one-eighth. The likelihood that affirmative action done her in is very small.

The facts are not clean enough to suit Kinsley. Unfortunately it will always be impossible to prove that a rejected applicant was kept out of law school by affirmative action, since many admissions criteria are non-objective and the matter is ultimately at the admission committee’s complete discretion. The Supreme Court understood this, and understood that Grutter’s obviously damaged chances of admission were a sufficient grievance, which is why they took the case. The facts will never be clean enough to suit Kinsley.

Kinsley’s math is also lousy. If you increase the spots available by one-eighth, you do nothing for the bottom half of the applicants, who will be rejected anyway. But you do a great deal for the marginal applicants, like Grutter. You certainly increase their chances of admission by more than one-eighth.

Garden-variety sophistry so far. But then:

And while we’re playing “what if,” we should also consider the effect on Grutter’s chances if she found herself competing against blacks and other minorities who had experienced the same variety of advantages and disadvantages as the white candidates in the applicant pool…
And if justice entitles her to the higher chance of admission to Michigan Law School that she would have enjoyed if there was no reverse discrimination, that calculation should also reflect the lower chance she would have had if there was no discrimination of the traditional sort either.

This is the John Lennon School of Legal Reasoning. (It’s easy if you try.) We may as well consider the effect on Grutter’s chances if we all lived in a different galaxy and she found herself competing against silicon-based life forms. Exactly what “variety of advantages and disadvantages” does Kinsley wish us to iron out? I’d wager on affluent, well-educated parents and better elementary and high schools. But why stop there? Why not genetic endowments as well? Some of us were born stupid: where’s the justice in that?

Kinsley is rarely stupid. But he is often slippery.

(Related: John Rosenberg has interesting comments on the same piece. So does Jane Galt.)