WHAT THE JURIST SAW

Recently the Supreme Court adjudicated the constitutionality of a Michigan law prohibiting consideration of race when determining admission to public institutions. While differences and dissension remain venerable prerogatives of the courts, these prerogatives are increasingly under attack by a culture that demands strict allegiance to red or blue orthodoxy. Supreme Court Justices Clarence Thomas (siding with the majority) and Sonia Sotomayor (joining the minority) saw the merits of Schuette vs. Coalition to Defend Affirmative Action quite differently.

The Justice’s backgrounds have much in common to include: economic and social challenges surmounted by strong family values, hard work, and the audacity of self-reliance. Both are pioneers, having provided invaluable stewardship to radical new campus organizations; one helped to found the Black Students Union at Holy Cross, and the other served as co-chair of the Acción Puertorriqueña at Princeton. Both were courageous enough to fall in love and marry partners outside of their ethnic group.

Justices Sotomayor and Thomas know first hand the power and disquiet of access to the privileged sanctums of higher education, where each had to weather the shock of temporarily unpolished verbal fluency. Though graduates of Yale, arguably the most prestigious of Law Schools, both have voiced doubts about its imprimatur with regard to people like them. Initially, Justice Thomas served as an Assistant Attorney General in Missouri, and Justice Sotomayor a NYC Assistant District Attorney.

Though their backgrounds suggest otherwise, their opinions from the bench are usually conflicted. However, their positions on the merits of Michigan’s anti-affirmative action law might have been more similar had the question before the court focused explicitly on public benefit rather than the unstated, prior academic accomplishment. Granting priority admission to publicly supported institutions of higher education to those with superior prior academic accomplishment presumes to actualize highest return on public investment.

It would be absurd to consider an applicants prior academic record as other than a principled barometer of future performance (“merit”); most of whom are also distinguished beyond their demonstrated levels of intellectual accomplishment. Many also consider aversion to racial preferences (artificial denial) a principled position. There are other principled and relevant criteria. Private academic institutions and commercial businesses have reaped demonstrable value by broadly assessing applicants for admission and job candidates respectively. While public initiative purports to facilitate private initiative outcome, like the two Justices, these models in practice have little in common.

It’s difficult to discern best-use policies and practices under the influence of errant context materially altered by time and reformation. Fashioning prudent and actionable policy requires a clear understanding of what disciplines contemporary higher education experiences actually attend and their relationship to return-on-public-investment. Publicly supported education must act responsibly to endow public benefit over personal reward. The perception that current admissions policies reward certain applicants from the pubic coffers absent corresponding impact on public well-being, adds fuel to plaintiff’s rage before the court and energizes defendant’s determination to legally enshrine the practice.

A closer look at the critical disciplines attended by higher education is revealing. Three valuable related disciplines predominate, students learn more, how, and about. Students learn more regarding: specific subjects of interest, subjects in which they previous held no interest, and subjects that add value regardless of their personal interest. Students learn how to: study in a manner best suited to them personally, productively collaboration with others, prioritize time and effort, sacrifice and persevere. Students learn about: making social and professional connections, nurturing and leveraging connections, and integrating and transitioning connections.

Even though the wavelength of illumination can mislead (Darwin’s handicap), the merit and artificial denial arguments remain synergistic in that they are both exceedingly personal. They’ve also proven to be symbiotic. When merit is assessed apart from constructive correlation with all three critical higher education initiatives (more, how, about), it yields a relatively uniform intellectual pool, exacerbating structural denial. Reputable social science investigations both support and refute the notion that a critical mass from all groups adds unique value to educational experiences and outcomes. These conflicted findings likely reflect the confluence of artificial and structural denial (Michigan’s handicap).

Universities offer a range of challenging courses of study, well suited to correspondingly different degrees of intellectual giftedness and personal preparedness. Some argue that universities ought to be reorganized into but two schools-of-study, one for the study of mathematics and physics, and another for all other disciplines – often emerging nations first establish technology focused institutions of higher education to jump-start economic development, demonstrably beneficial to public interests. Predicating all admissions substantially on student applicants applied science aptitude would be brutally and irrationally exclusionary, even though it would be lawful to adopt just such a policy.

California practices a lawful form of macro-differentiated admissions. It places applicants into two merit based intellectual pools; each applicant is then guaranteed admission to either the University of California or California State University systems. What constitutes a best fit varies more broadly and differently than a single branch of preparedness. Though neither system currently differentiates admissions, for example by school-of-study, such an admissions letter might read: “congratulations you’ve been admitted to the School of Social Sciences, and wait-listed for the School of Public Administration; we regret to inform you that your application for admission to the School of Material Sciences has been declined”.

There are other lawful and beneficial approaches to broadening qualified applicant pools and higher return-on-public-investment, without resorting to artificial denial, or structural denial induced by uniform intellectual pools. The most successful American technology firm’s hire candidates from a far broader cross section of graduates than universities recruit applicants from. If the actual challenges faced by students within higher education were better reflected in both admissions criteria and recruitment efforts, merit and public interest outcome would be better aligned and likely more apparent.

Supreme Court Justices Clarence Thomas and Sonia Sotomayor have clearly excelled at learning more, how, and about, without which neither could hope to perform, as expected, above the standard. Haggling over whom to invest in apart from cogent assessment of how to best invest imperils formulation of policies suitable to realizing highest public benefit. Nevertheless, review and reconciliation of potentially discordant policies should not be entrusted to well intentioned all seeing Justices, unable to differentiate or resist exigent activism over scrupulous adjudication.