Posted 4:01 PM by Robert

"Individualized Assessment" v."Race-neutral Approach"

Linda Greenhouse's report on today's oral argument before the US Supreme Court in the Michigan affirmative action case includes this passage:

Justice Kennedy asked [the University’s lawyer] to assume that the court would invalidate both affirmative action plans. What would happen then, Justice Kennedy asked. Would it be the court's job to tell the university what to do or the university's job to devise an admissions program that relied more on "individualized assessment?"

What was important about Justice Kennedy's choice of words was that he said "individualized assessment" and not "race-neutral approach," the formulation urged by the lawyer for the disappointed white applicants who are suing the university and by the Bush administration, which entered the case on their behalf. An individualized assessment presumably permits consideration of race as one of the elements in an applicant's personal profile, as a race-neutral approach would not.

Contrary to Ms. Greenhouse's belief, what was important about Justice Kennedy's choice of words was that he asked the University’s lawyer to assume that the court would invalidate both affirmative action plans - which is a pretty good indication that Justice Kennedy is fairly confident that the court will invalidate both affirmative action plans.

In my opinion Ms. Greenhouse is probably right that "individualized assessment" is an interesting choice of words - and that their meaning is probably not the same as "race-neutral approach." However, she is probably way overreaching to think that affirmative action would survive its most important test in 25 years and that colleges and universities would still be able to take steps to ensure the presence of more than token numbers of minority students on their campuses. A term like "individualized assessment" will mean different things to different people. But at least to my ear, "individualized assessment" suggests determining whether an individual candidate for admission has personally been the victim of racial discrimination to the point where it likely suppressed the candidate's other qualifications. That would not be a "race-neutral approach" - and such "individualized assessment" could even be called a form of "affirmative action." After all, the university is taking affirmative action to determine if the particular candidate has been a victim of serious racial discrimination. But "individualized assessment" specifically seems to refer to some process that is not class based, and does not presume that mere race likely leads to individual suffering.

One consequence of "individualized assessment" should be that the children of middle-class minority families will no longer benefit from whatever kind of program the Court allows. That, in turn, will likely undermine political support for allowable "affirmative action" and also not necessarily lead to any particular number of minority students on campus.

All of which would be good things.

UPDATE: These posts ( here and here and here and here and here) from the Power Line seem consistent with my take on where Justice Kennedy thinks the Court is headed. [Link via InstaPundit.]