More surprising than Scalia's attitudes this week were the Texas attorney's weak arguments.

"Now's not the time to lower diversity"? Jesus Christ, why not say "you're wrong, I'm right"? Wouldn't we demand our money back, look for better support than this?

Try it this way -

1) Justice Scalia's contention that blacks need college with training wheels is wrong - it's a guess with no backing statistics - blacks frequently have adverse circumstances affecting their *application* for college, but not so much their performance and ability to catch up while there.

2) Even the business world is adapting to the idea that college-like or standard HR entrance tests aren't a perfect indicator of capability, nor a predictor of ability to perform. I heard a presentation from Google re: their carefully balanced approach that every employee needs to master. We need qualitative approaches to approximate these very fuzzy chances.

3) put another way - these are human beings - no one knows if a student will party too much and flunk out or if a laggard will get excited and hit the books hard. No one knows if a straight A student will come out and excel in the business world, or will fall on his or her face - just as we couldn't predict how many high school dropouts would be billionaires. We play the odds, but those odds are hugely flawed unless we calibrate and improve on those odds.

4) Since we can't be completely sure about the numbers, we do what schools and employers have done for hundreds of years - we look at circumstantial evidence, surrounding factors, life stories, assessment of background challenges and inequalities, even the way the student carried him/herself or looks at the examiner - to see if they might have the spark to succeed or the flagging spirit to fail.

Oh wait, we can't do that in colleges, as that's been struck down as arbitrary, so we assign measures that give a roughly quantitative measure of ability plus situational handicap (standard for any golf players out there) and come up with a mechanistic approach to dealing with the unequal playing field of life, race, region, wealth, et al. That a student could afford a tutor to cram him/her on the ACTs doesn't assure that same student will successfully write an intelligent term paper or consistently answer brightly in class - just one of the uncertainties we try to adjust to.

5) The work world is not a "whites only" club, and no longer predominantly male. American universities have an obligation to prepare students for the many types of environments they will encounter after graduation, whether their peers, their bosses, their subordinates or their customers. Most universities are teaching subject matter tied to real-world context these days.

A lawyer that doesn't have experience with multiple races and genders and income groups and other situations will be unable to arbitrate effectively such matters as a gay discrimination suit or an illegal minority-targeted foreclosure operation. An HR exec will not be able to properly consider the effects of a health plan on female hospitalization and doctor requirements, or assess synergetic team personalities vs. unproductive "all chiefs/no indians" scenarios. A marketer will be unable to effectively introduce product positioning and communications across a diverse public he/she has no experience with. A design engineer will make inexact assumptions on how his/her product will be used in daily lives, and be unable to communicate effectively with support staff, other engineers and customers off in China, Romania, Denmark and Brazil.

6) As the world gets more complicated, the courts are asking for selection criteria to get overly simple. Unfortunately, there can be no simple and accurate and fair litmus test. Every approach we could bring to solving the problem will have an inherent bias, whether we admit it or look close enough or not. The best that we see is to try to make biases reflect our better values and desired outcomes, and continually monitor those criteria to look out for flaws and take on better approaches. In this case, we see the need for both assured academic excellence and exposure plus participation in a varied, vibrant community that somewhat reflects expected conditions.

7) If there's one thing the internet and our modern political "discourse" have taught us is that there are few accepted "right" facts anymore, and that our decisions are based more on mosaics and final consolidation of varying opinion. Even "Big Data" analytics and Google search rely heavily on using huge varying data sets that are then condensed to a set of possible answers - the certainty desired on campus is as far away as the certainty desired in the marketplace, and like opinion polling & interpretion sites like FiveThirtyEight have concluded, the best approach is to accumulate as many diverse sources for objectivity and then to weight those sources by predicatability & accuracy. More and more for our campuses, it's the students and faculty themselves that are the library, the vast deposit of varying opinion and viewpoints and clues to the answers and methods we seek. Our creaky view of justice is a lady holding a 2-platter scale, but in real life, our scale is growing to be as many-faceted as the faces in our society. Get used to it, embrace diversity or be dragged down by simple-minded intolerance.