Levin vs Moses on 'Critical Mass'

Here’s a clip from Mark Levin’s argument posted at the Texaminer.

“Thus,

Gates’ new policy is entirely consistent with the Supreme Court’s rulings. In the University of

Michigan Law School case, the Law School defined “critical mass” in lower court proceedings as at

least ten percent combined black and Hispanic students. Texas A&M currently exceeds this threshold,

with 11 percent of its students being either black or Hispanic. While many wish this number were

higher, it is unclear whether A&M can resort to racial preferences under the Michigan decisions because

it has already achieved a “critical mass” using colorblind policies.” [Mark Levin texaminer.com

1/7/2004]

But Levin is wrong in fact and in principle. (see more below) Levin seems

to have overlooked the following sentence from Justice Sandra Day O’Connor’s majority opinion in

Grutter vs. Bollinger [p. 3 (c)]:

“Enrolling a “critical mass” of minority students

simply to assure some specified percentage of a particular group merely because of its race or ethnic

origin would be patently unconstitutional.”

Justice O’Connor goes on to

aruge:

“But the Law School defines its critical mass concept by reference to the

substantial, important, and laudable educational benefits that diversity
is designed to produce,

including cross-racial understanding and the breaking down of racial stereotypes. The Law School’s

claim is further bolstered by numerous expert studies and reports showing that such diversity promotes

learning outcomes and better prepares students for an increasingly diverse workforce, for society, and

for the legal profession. Major American businesses have made clear that the skills needed in today’s

increasingly global marketplace can only be developed through exposure to widely diverse people,

cultures, ideas, and viewpoints. High-ranking retired officers and civilian military leaders assert

that a highly qualified, racially diverse officer corps is essential to national security. Moreover,

because universities, and in particular, law schools, represent the training ground for a large number

of the Nation’s leaders, Sweatt v. Painter, 339 U. S. 629, 634, the path to leadership must be visibly

open to talented and qualified individuals of every race and ethnicity. Thus, the Law School has a

compelling interest in attaining a diverse student body. 15–21.

Note: Fortune 500

Companies filed briefs in defense of affirmative action before the Supreme Court.

So we

are pleased that Mr. Levin has pointed us in the direction of “critical mass” because, if the term is

to be used according to contemporary constitutional standards, it requires an intelligent discussion of

the educational value of diversity at the College Station campus. This discussion is so far not in

evidence.

But furthermore, Levin ignores also the historical situation of Texas higher

education, which is now pursuing desegregation under federal supervision.

Levin is wrong

about “critical mass” and he fails to consider “de-segregation”. But he’s popular with the

conservative crowd, which I am tempted to call reactionary and

racist.