Slouching Towards Gomorrah (58 page)

Individualized, holistic assessment, etc., etc., would require at least a staff of ten or twenty persons, which in turn would result in widely varying assessments of very similar individuals. To achieve any degree of consistency, the ten or twenty examiners would have to meet, discuss, and compare each of the 1,716 or 1,144, or 858 files. One can only conclude that the process described by the law school is a sham. Chief Justice Rehnquist applied that term to the school’s further claim to be seeking a “critical mass” of each of the specified minority groups—blacks, Hispanics, and Native Americans. In fact, the figures show that blacks were preferred to Hispanics. Thus, in 2000 there were twelve black and twelve Hispanic applicants in the same range of GPAs and LSATs. Only two of the Hispanics were admitted but all twelve blacks were. Columnist Mark Steyn remarked that

The majority opinion even quoted Justice Lewis Powell, whose constitutionally incoherent
Bakke
concurrence introduced the diversity concept into constitutional law. He said that an admissions program that used race as a “plus” factor would weigh a white applicant’s qualifications fairly and competitively so that “he would have no basis to complain of unequal treatment.“
²¹
He would be rejected because his skin color did not qualify him for
the “plus” factor, but he would have no reason to complain? For incoherence, that is on a par with the majority opinion in
Grutter:
since there are serious problems of justice when a race is preferred, “narrow tailoring, therefore, requires that a race-conscious admissions program not unduly harm members of any racial group.” Apparently Grutter, excluded solely because of her race, was only duly harmed.
²²

Quoting Lewis Powell again, Justice O’Connor said, “‘[S]ome attention to numbers,’ without more, does not transform a flexible admissions system into a rigid quota.” Quite right. The result is a soft quota, but a quota nonetheless. Why a soft quota passes constitutional muster but a rigid one does not remains a mystery. Nor is there any explanation of the school’s assertion that diversity (racial, of course) is “essential to its educational mission.” The Court simply defers to that judgment, an outright fabrication. There is no evidence that learning law is enhanced by the presence in the classroom of any particular racial group. If diversity of group identities were taken seriously as essential to a quality education, the Michigan law school should endeavor to construct classes containing whites, blacks, Hispanics, Native Americans, Asian Americans, Christians, Jews, Muslims, and secular rationalists. Probably students with differing socioeconomic backgrounds should be added to the mix. Not only is the diversity rationale impossible to implement honestly, it rests upon the vicious assumption that membership in a group so defined determines the individual’s views—and that such membership is always an asset. Group membership may determine some individuals’ views, but, we had always thought, it was the function of education to break or weaken that linkage. Only then can the individual be said to be educated; only then will there be a valuable intellectual diversity in the classroom. To the extent that law is an amalgam of history, economics, political theory, logic, and the close reading of texts, what counts is the quality of the intellectual discourse, not critical masses of any racial or ethnic groups.

The expert for Michigan’s law school testified that without race consciousness the class that entered in 2000 would have had only 4 percent minorities rather than the actual figure of 14.5 percent. (There were, of course, more minorities, individuals with disparate and unique experiences in life, than that, but only favored
groups count as minorities.) What would have happened to the 10.5 percent had they not been admitted to Michigan? The assumption seems to be that they would not succeed in life, an assumption that has been ridiculed as “Yale or jail.” The fact is that those not preferentially admitted to Michigan would have gone to very good but less prestigious law schools—Wisconsin or Rutgers, say—where they would have competed more successfully. In turn, Wisconsin and Rutgers would have been relieved of their own internally generated pressure to recruit minorities not equipped to compete at that level. The minorities would have received good legal educations and gone on in the profession without the self-doubt and stigma that preferential policies impose.

Yet another difficulty with the “critical mass” argument is that it has not relieved minorities of the sense of isolation. Quite the opposite. Perhaps because many minority individuals feel themselves unequipped to compete at the law schools to which they have been preferentially admitted and suspect that some stigma attaches to them, they have tended to form exclusive groups in order to feel comfortable, Justice Scalia mentioned “those universities that talk the talk of multiculturalism but walk the walk of tribalism and racial segregation on their campuses—through minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation ceremonies.” This is to be expected whenever coerced “diversity” reigns. Peter Wood wrote that “all those diversities are, in the end, species of illusion. They pump life and energy into the assertion of the radical separateness of all the parts, and then childishly prate about the unity that is sure to follow.” Commenting on Martha Nussbaum’s defense of diversity doctrine by picturing today’s campuses as places where faculty and students grapple with issues of human diversity. Wood says “The ‘grappling’ is her ennobling conceit for the festering discontents, censorship and fear; the gloating privilege; the rotting intellectual insecurity; and the regnant falsehoods that diversity has brought to most campuses.“
²³

Shelby Steele, a research fellow at the Hoover Institution, explains such self-imposed segregation on campuses: “Because diversity works by group preferences, all the individuals in these beatific diverse environments must pursue a good part of their self-interest through their racial groups. The incentive is to make a
tribe of ones race. You end up with a racialist diversity going more toward segregation than integration.” The root of the policies the Supreme Court endorsed, he said, is a spurious moral authority rooted in “the summary indictment of America that emerged in the ‘60s from the convergence of so many social protest movements—civil rights, anti-war, feminism, farm workers, environmentalism, etc. The compound effect of all this protest was to cast America as a spiritually empty, greedy, racist and imperialistic nation—a malevolent force in the world.” Anti-Americanism, he points out, is a formula for power because of its faux moral authority.
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It is sad, in fact unnerving, that the Supreme Court has now endorsed this outlook.

Whatever else may be said of racial and ethnic preferences, it seems undeniable that they inflict injustices on both those who are excluded and those who are included because of their race or ethnicity. At least equally serious, the defense of the indefensible requires conspicuous intellectual dishonesty by the institutions that practice discrimination and by the courts that ratify that practice. As lies and half-truths become increasingly necessary to sustain the charade, there will inevitably occur the progressive loss of individual and institutional integrity. Finally, the effect of Grutter will not be confined to universities; the decision ratifies discrimination in the name of diversity (which is already the common practice) in government and private-sector employment and promotion. What is morally acceptable for higher education must be acceptable everywhere. Race relations will not be improved; probably they will be worsened, for which the cure will be more diversity and mandatory sensitivity training to change thoughts and attitudes as well as behavior. These are very high prices to pay for the empty moral posturing that lies at the root of the concept of diversity. But at least our Olympians will feel good about their virtue.

How should parents react when a son or daughter announces that he or she is “gay”? The Supreme Court has adopted a principle that, by its own logic, suggests that the parents should be indifferent, that the question of sexual “orientation” is nobody’s business but the sons or daughters, and that any contrary attitude is nothing
more than bigotry. That answer is not only morally perplexing but has absolutely no plausible connection to the Constitution the Court claims to be interpreting. The Court’s answer, however, has everything to do with the modern liberal attitude toward sexuality.

That answer was given in
Lawrence
v.
Texas
,
²⁵
which effectually made homosexual sodomy a constitutional right by means of an argument that owes nothing to law but everything to a subsophomoric moral argument.

Viewed narrowly, what was at stake in
Lawrence
was the state’s criminal statute prohibiting homosexual sodomy between men. Lawrence and Garner were seen engaged in sodomy in an apartment by a police officer who was lawfully on the premises. Fined $200, they took the case, ultimately, to the Supreme Court. The Court majority, in an opinion by Justice Kennedy, struck the statute down as a violation of the liberty said to be guaranteed by the due process clause of the Fourteenth Amendment.

The majority opinion continues the tradition of incoherence in these matters. Although it purported to apply a clause ratified in 1868 (and taken verbatim from the Fifth Amendment, ratified in 1791), the majority opinion said, “we think that our laws and traditions in the past half century are of most relevance here.” In 1955, for example, the American Law Institute, an unofficial organization of lawyers, stated that its recommended Model Penal Code did not advocate or provide for “criminal penalties for consensual sexual relations conducted in private.” In 1957, in the Wolfenden Report, a committee established by the British Parliament recommended repeal of laws punishing homosexual conduct, and ten years later Parliament complied. The puzzle is twofold. There is no explanation of why recent events of the last fifty years are relevant to the meaning of a constitutional amendment over one hundred and thirty years old, nor why recommendations about
legislation
in the United States and Britain should affect the meaning of the United States Constitution.

Even more puzzling was the Court’s statement:

This was said to show the falsity of the premise that the claim to a right to engage in homosexual conduct was insubstantial in Western civilization. Justice Kennedy also cited the trend in American states to decriminalize homosexual conduct.

None of this should be taken as serious constitutional analysis. Whatever the ALI and the Wolfenden Report said, however the Court of Human Rights sitting in Strasbourg decided under its law, and however many states decided to decriminalize homosexual sodomy, the fact remains that Texas had a right to make its own moral judgments unless something in the federal Constitution denied that right. And it is here, in the attempt to muster a
constitutional
rationale for its decision, that the Court majority opinion floundered most abysmally.

That effort began, amazingly, with a repetition of the same mystery-of-life passage from
Casey
mentioned earlier, as though it had some discernible meaning:

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexuals do.

These words defy explanation just as they defy any attempt to guess what the concept of constitutionally guaranteed liberty might cover. This passage, discussed in chapter 6, is at best a blank slate on which anything may be written at the pleasure of the justices. The wonder is that this empty incantation, despite having been endlessly ridiculed, should now be relied upon once more as the opening gambit in what purports to be a constitutional argument.

Justice Kennedy went on, with the approval of four colleagues, to quote
Rower’s
conclusion that the provision of the Colorado constitution denying localities the right to make homosexuals a specially protected class, along with racial minorities, by claiming that “the provision was ‘born of animosity toward the class of persons affected’ and further that it had no rational relationship to a legitimate governmental purpose.“
²⁶
This denies the right of government to enact the judgment of its citizens that some behavior is immoral and harmful. That is not a proposition that can be applied across the board; moral judgments are the stuff of legislation.