Legal Scholar: "Diversity" a Weak Substitute for Justice, Opened Door to SCOTUS Killing Affirmative ActionBreaking News
tags: Supreme Court, higher education, affirmative action, diversity, admissions, Asian American History, Lewis Powell
Richard Thompson Ford is a professor of law at Stanford University. He is the author of five books, including The Race Card (Farrar, Straus and Giroux, 2008), Rights Gone Wrong: How Law Corrupts the Struggle for Equality (FSG, 2011), and Dress Codes: How the Laws of Fashion Made History (Simon & Schuster, 2021).
Most observers of the Supreme Court expect that it will declare affirmative action unconstitutional next year in Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina. The plaintiff’s case isn’t strong. Asian American students are admitted in lower numbers than their grades and standardized-test scores alone would predict, but most of the statistical disparity is attributable not to affirmative action but to admissions considerations such as regional diversity, athletic talent, alumni and donor preferences, and subjective evaluation — all of which favor white applicants at the expense of Asian Americans. None of that is likely to change the outcome: It’s enough to count the justices nominated by Republican presidents to predict the court’s decision. Legal analysis is beside the point.
Still, legal analysis matters, even when it’s a fig leaf for politics. Americans look to the courts not only to resolve specific disputes, but also for more broadly applicable ideas about justice. The rationales offered by the courts can shape, expand, or limit our ideals. Indeed, as the apparently imminent demise of affirmative action nears, the legal basis for the policy, diversity, has come to define the national — and even the global — discussion of racial justice. And while the ideal of diversity has encouraged modest efforts to promote racial integration, the term “diversity” has also become a lazy stand-in for any discussion of the generations of race-based exclusion and exploitation that make race-conscious hiring and college admissions necessary. In this way, “diversity” has encouraged us to ignore and minimize past injustices and distorted our understanding of what justice requires today.
In the early 1970s, when an American talked about racial justice, she would use terms like “civil rights,” “integration,” or maybe even “Black Power.” Today she will speak of diversity. Everyone to the left of Marjorie Taylor Greene claims to value diversity: diverse neighborhoods, diverse workplaces, diverse police forces, diverse political parties, and, of course, diverse classrooms and campuses. Fortune 500 corporations, the Chamber of Commerce, and exclusive private social clubs all pledge to promote diversity.
That represents a certain type of progress. But diversity is not the same as justice. It is a substitute for justice. Like saccharine instead of sugar in diet soda, diversity serves some of the functions of justice, and also takes its place. Diversity has made justice seem redundant. Because it has become a regular part of our diet, it’s easy to forget what the real thing tastes like.
As we anticipate the end of the affirmative-action era, it might help to look back at how we arrived at our tense consensus about diversity, and why.
In the 1970s an aspiring medical student named Allan Bakke was denied admission to the University of California at Davis medical school. Black applicants with lower grades and test scores than his were admitted under an affirmative-action program. Bakke sued the university and took his case to the Supreme Court, which issued a split opinion.
Justice Lewis F. Powell Jr., the author of what is, by jurisprudential convention, considered to be the controlling opinion (the court splintered 4-1-4, and Powell’s opinion provided the narrowest basis for the holding), opined that to be legally permissible, an affirmative-action plan would have to serve a compelling governmental interest and be narrowly tailored to further that interest. Crucially, he stipulated that an interest in remedying what he called the “amorphous” harm of “societal discrimination” was insufficient to justify race-based affirmative action. In other words, affirmative action would be unlawful if the reason a university adopted it was to correct the racial injustices of society. But, he added, affirmative action could be permissible if it was designed to achieve the pedagogical benefits that come with a diverse student body. That was the birth of the modern idea of diversity.
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