The legal fiction of "diversity."

The legal fiction of "diversity."

The legal fiction of "diversity."

The law, lawyers, and the court.
May 16 2002 4:56 PM

The Legal Fiction of "Diversity"

Good intentions and the unraveling of affirmative action.

This week, the 6th Circuit Court of Appeals overturned a district court's finding that the University of Michigan Law School's affirmative action policy was unconstitutional. In upholding Michigan's affirmative action program, the Court of Appeals, by a 5-4 vote, took another jog in the twisting national highway of race and education. Because this new opinion directly conflicts with affirmative action decisions handed down by other courts of appeals—such that what's unconstitutional in Texas or Georgia is now permissible in Michigan—it raises questions that can only be answered in the U.S. Supreme Court. But the Supremes have consistently declined to revisit their own baffling affirmative action jurisprudence. Not just because the issue is fraught with political and ideological ugliness, of a sort that makes Bush v. Gore look like a walk in the constitutional park, but because the debate isn't even about "affirmative action" anymore, as most of us understand that term. Instead, the affirmative action debate has become the illusory, impossible attempt to define educational "diversity."

We grow so accustomed to constitutional paradigms that we don't always stop to reflect on where they've come from. That abortion rights are rooted in the right to "privacy" is a mere accident of constitutional history; this right was conveniently planted in the fertile soil of the 14th Amendment—dug into the dirt of its "liberty" jurisprudence, as opposed to the sandy ground under the "equal protection" clause or the barren rocks of the "privileges and immunities" clause. So, too, the constitutional justification for affirmative action is, as a result of historical accident and some constitutional nose-counting, sown in the dirt of educational "diversity." It didn't have to be this way. There were other theoretical hooks to peg it on. And most defenders of affirmative action would prefer that it were otherwise. But as a result of University of California v. Bakke, the last affirmative action education case decided in 1978 by the high court, "diversity" is the only game in town.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

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To understand the gestation and blossoming of the "diversity" rationale requires wading back through the swamp of the vote in Bakke. Because there was no majority vote for any one position in Bakke, Justice Lewis Powell, writing only for himself, became the crucial swing vote on a court otherwise split 4-4. Because he joined one group of four on one issue and the other group of four on the other, his weird solo opinion became decisive and is now seen as having laid out the "law" of affirmative action in public education. The effect of Powell's vote: While invalidating the UC Davis med school's quota system for minority enrollment, the majority of the court nevertheless concluded that taking race into account as a mere "plus" factor in admissions was constitutionally permissible. Why? Because of the compelling state interest in fostering diversity on public campuses.

The oddity in Powell's vote is that it was he alone who felt that affirmative action could be justified solely by a university's compelling interest in a "diverse student body." The other four affirmative action supporters on the court were willing to promote other "compelling interests" by which affirmative action programs could be justified. In fact there were three other rationales for minority preferences that Powell might have chosen from: 1) the need to reduce a historical shortage of minority doctors; 2) the need to cure past discrimination across society; and 3) the need to increase the numbers of doctors willing to practice in minority communities.

In rejecting each of these alternative rationales, Powell—and thus the entire Bakke majority—made student-body diversity the singular goal of affirmative action programs. We don't even get to talk about correcting for past racial imbalances or promoting minority advancement as reasons to favor affirmative action. Those ideas are off the table. At least they're off the constitutional table, forever.

It's vital to understand both the vote count and logic of Bakke to understand the crisis facing the courts of appeals in attempting to rule on the constitutionality of school admissions policies. Judges may not hear arguments about the importance of a "level playing field," even though these are the arguments you make at your kitchen table. The only permissible question before them anymore is whether the school in question is promoting "diversity."

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Whatever that means.

Because student diversity means both everything and nothing, the courts following Bakke have either chosen to bind themselves by the opinion or disregard it whole-hog. The latter is what the 5th Circuit did in 1996, when it invalidated the University of Texas law school's affirmative action program in Hopwood v. Texas.The 5th Circuit simply found that Bakke was not binding precedent and that diversity was not a compelling government interest. Easy. The Hopwood court laid out its more "complete" definition of "diversity": "A university may properly favor one applicant over another because of his ability to play the cello, make a downfield tackle, or understand chaos theory. An admissions process may also consider an applicant's home state or relationship to school alumni." Last August, the 11th Circuit Court of Appeals weighed in, with Johnson v. Board of Regents of University of Georgia, invalidating the University of Georgia's admissions policy as impermissible reverse discrimination. The 11th Circuit simply picked up where the Hopwood court left off, holding that the admirable goal of student "diversity" can as readily be achieved by disregarding race and color altogether: "A white applicant to a Georgia public university who was raised in Athens, Greece may have a much richer background and exposure to a much more unusual environment than a non-white applicant who has spent all his life in Athens, Georgia." To the cello-playing-downfield-tackle test of Hopwood,the 11th Circuit thus added the richness brought to campus by: "individuals who come from economically disadvantaged homes; individuals who have lived or traveled widely abroad; individuals from remote or rural areas; individuals who speak foreign languages; individuals with unique communications skills (such as an ability to read Braille or communicate with the deaf); and individuals who have overcome personal adversity or social hardship."

To be fair, the 5th and 11th circuits are not wrong. If we're really after "diversity" in schools, we should recruit more Maori warriors. It was probably a historical inevitability that the definition of "diversity" proffered by Justice Powell, in his concurrence in Bakke, would someday be used as a weapon against minority students. What Justice Powell was calling race-neutral diversity was always known to be a code word for racial diversity. Powell wasn't really interested in filling colleges with Alsatian goat herders. He was looking for some neutral-sounding reason to give minority candidates a small "plus" in the admissions office. But subsequent courts of appeals have called him on it. Refusing to honor his code, they take him at his word. If diversity is important, they say, admit more Wiccans.

This was the damaged legal universe inherited by the 6th Circuit when called upon to decide two University of Michigan cases this year. To highlight the ironies here, one lower-court judge had invalidated the University of Michigan Law School's admissions policy while another upheld the undergraduate policy at the same school. (The 6th Circuit will decide this latter case shortly.) A close reading of the majority opinion in the Michigan decision proves that the affirmative action debate no longer concerns itself with the blood-and-guts issues of racial disparity and the need for national remedies. It's about diversity, stupid.

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The majority spends its energy getting out from under the quota ban in Bakke by arguing that Michigan's minority admissions policy does not constitute a mathematical quota. The opinion holds that minority race and ethnicity, among other factors, count as a "plus" in student applications at Michigan but that being a minority guarantees no one a slot. The opinion even argues that schools need a "critical mass" of minority students so that minorities do not feel "isolated." (This goes well beyond diversity and starts to look like constitutional snuggliness, but whatever.) The opinion devotes some energy to slathering the love all over Powell's opinion in Bakke, insisting that his is, in fact, the majority holding. But nowhere does the majority attempt to unpack the core assumption first asserted by Powell and repeated blandly by courts in the 24 years since: that educational diversity is somehow vital for our democracy.

The heavy lifting on why diversity is a compelling state interest is left to Judge Eric Clay, who, in his concurrence to the majority opinion, offers up empirical evidence proving the "positive impact of diversity in education." Clay cites studies showing that racially diverse settings allow students to "learn better"; that they "encourage intellectual experimentation"; that "[c]omplex thinking occurs when people encounter a novel situation for which, by definition, they have no script, or when the environment demands more than their current scripts provide"; and that diversity in education thus fosters positive "democracy outcomes." In conclusion, Judge Clay can justify refusing some qualified white applicants positions in the law school because the wonderfulness of diversity "provides significant benefits to all students—minorities and non-minorities alike." In other words, some white students are refused so that other white (and nonwhite) students may be enriched. This is the core of the "diversity" defense.

Needless to say, the dissenters go to town on both the inherent benefits of "diversity" and on the notion that racial diversity is of greater value than diversity of the cellist-Greek-Wiccan variety. Stating from the outset that "it's not clear what [diversity] means," Judge Danny Boggs' dissent charges that the "Law School grants preference to race, not as a proxy for a unique set of experiences, but as a proxy for race itself." In other words, the dissenters want "diversity" to mean "diversity" and not "racial preferences for historically disadvantaged minorities."

Ultimately, it's almost impossible to read the dissents in this case, or the majority opinions from the 5th and 11th circuits, without finding them to be on the right side of the argument. Not because affirmative action is wrong. I, for one, continue to be all for it. The problem is that Justice Powell's legal fiction of "diversity" is crumbling fast; the legal frame he crafted for Bakke does not support the work that needs to be done. The issue of affirmative action could never properly be contained within the rationale that generalized campus "diversity" was compelled by the Constitution. It could only be justified based on the historical reality of race discrimination in this country.

Still, Justice Powell made his constitutional bed, and now the current Supreme Court has to lie in it. They have dodged the affirmative action bullet three times in the past. It's not at all clear that with the Michigan decision being appealed, they'll be able to do it again.