As I’ve said already, I’m a believer in the proposition that a racially and ethnically diverse student population serves a valid pedagogical purpose. And indeed, it was the purpose in Justice Lewis Powell’s plurality opinion in Bakke, which served as the closest thing to a majority opinion, to sustain the constitutionality of affirmative action under strict scrutiny.
Josh Blackman argues that the Supreme Court’s decision in the SFFA cases reveals the diversity rationale to be a sham that has outlived its purpose and is now a dead letter. Was I wrong? Was I that wrong?
For nearly five decades, affirmative action was sustained on the opinion of Justice Lewis Powell. The key vote in Bakke thought that a diverse student body could improve learning on campus. Ultimately, Grutter adopted Justice Powell’s rationale, and held that universities have a compelling interest to pursue the educational benefits that flow from a diverse student body. That simple premise spawned an entire institution around “diversity.” Universities were forced to frame every decision they took in terms of using “diversity” as a way to help students learn.
Of course, the real justification for affirmation action could be found in Justice Marshall’s Bakke opinion. He grounded racial preferences for black students (and not other races) in the centuries of oppression, slavery, segregation, and discrimination. Indeed, the “educational benefits” approach tokenized minority students as curiosities for white students to learn from. Advocates for affirmative action had to grit their teeth to stay in the good graces of old white folk like Justices Powell and O’Connor.
As Justice Marshall’s dissent was, well, a dissent, it obviously couldn’t provide the rationale for the holding. And yet, the dissenting opinions of Justices Sotomayor and Jackson rely almost exclusively on Marshall’s dissent and ignore, almost entirely, Justice Powell’s opinion. For its part, Harvard offered a few rationales to bolster its holistic use of affirmative action which the majority did not find “compelling.”
Respondents have fallen short of satisfying that burden. First, the interests they view as compelling cannot be subjected to meaningful judicial review. Harvard identifies the following educational benefits that it is pursuing: (1) “training future leaders in the public and private sectors”; (2) preparing graduates to “adapt to an increasingly pluralistic society”; (3) “better educating its students through diversity”; and (4) “producing new knowledge stemming from diverse outlooks.”
Numbers 3 and, to some extent, 4 raise Powell’s “diversity” interest, adding a couple others for good measure. Why, then, if diversity was held sufficient in Bakke, was that no longer good enough in SFFA?
Although these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny. At the outset, it is unclear how courts are supposed to measure any of these goals. How is a court to know whether leaders have been adequately “train[ed]”; whether the exchange of ideas is “robust”; or whether “new knowledge” is being developed?
Notably, the word “diversity” doesn’t appear in Chief Justice Roberts’ dismissal of Harvard’s claimed interest. So what gives? Josh argues that “diversity” has been reduced to a buzzword that’s been accepted on faith, or perhaps pretense, since Bakke and has outlived its usefulness.
After SFFA, are there any actual educational benefits that flow from diversity, which could be considered an articulable compelling interest? I don’t think so. The remainder of the Chief’s opinion barely mentions educational benefits. The buzz words to end all buzz words are no longer so buzzy. Justice Powell’s concurrence is dead. Justice O’Connor’s majority opinion is irrelevant.
What provides support for Josh’s conclusion is that neither Sotomayor nor Jackson sought to base their quite vehement dissents on diversity or on Justice Powell.
It was to be expected that the majority would discard the “educational benefits” rationale. But I was surprised at how little that rationale opinion featured in the dissents. Justices Sotomayor and Jackson wrote at length about white supremacy, institutional racism, and other reasons to justify affirmative action. But the purported benefits that can be obtained in the classroom were not on center stage. The phrase “educational benefits” appears only four times in Justice Sotomayor’s dissent, and zero times in Justice Jackson’s dissent. Indeed, as Chief Justice Roberts pointed out, Justice Sotomayor cited Justice Powell “barely once,” while Justice Jackson “ignores Justice Powell altogether.”
Rather, the dissenters rely almost exclusively on Justice Marshall’s dissent. Under well-settled law, the universities have not invoked any sort of “remedial” interest. To the contrary, the dissenters adopted the en vogue theory that our society is plagued by structural racism and the Fourteenth Amendment must be interpreted to remedy that oppression. Chief Justice Roberts observed that “there is a reason” the dissenters have to rely on Justice Marshall’s dissent, because they “surely cannot claim the mantle of stare decisis.”
If the pedagogical benefit of “diversity” were merely a charade crafted to rationalize affirmative action, and was neither real nor serious, then the choices become stark. We either reject the use of race as a basis for admission or we accept race conscious admissions to remedy historic racism. It’s remedial racism or nothing. The Court opted for nothing.
At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.” Cummings v. Missouri (1867). A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.
Josh concludes that the “educational benefits” argument for diversity is dead and “will not be missed.” Much as the majority and dissent eschewed the old Bakke “diversity” rationale, that means the sides have grown more divided and take to more extreme positions. But it doesn’t necessarily make the diversity interest a sham or valueless. It’s just no longer in favor to serve as sufficiently compelling to overcome racial discrimination against Asian students.
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I think Josh overstates things, as he often does. He’s been explicit in the past that his approach to the Constitution and the law is ends based; originalism, textualism, or other -isms are merely tools to achieve whatever his policy preferences are. Diversity isn’t dead although hopefully the means used to achieve it’s benefits will be more thoughtful and will deal with discrimination against Asian students and others. I’ve read that this isn’t necessarily an issue except at highly selective colleges, that most colleges accept most applicants. I don’t know if that’s true, but it wouldn’t surprise me. The benefits of an Ivy education are primarily associational and reputational. Students there receive instruction that is little if any better than that I received in my small rural Indiana college. It may be worse as they’re taught by TAs and I had actual profs who’d written textbooks.
Maybe the greatest value to going to Harvard is making friends with other people who will one day be Harvard grads.
That is exactly the benefit. Same for Yale and the other elite schools. When Juan Trippe was looking for financing to start Pan Am Airlines, he went to his former Eli classmates.
“Diversity” has become a code word for inter group equity and marketing. In the simplest terms, the real drivers of admissions, hiring, teaching, training, human resources management, and the status of individual right come from the modern elite sense of equity – almost group and societal guilt.
This sense of equity, almost group based retribution and reparations, does not get much explicit attention. Much post World War Two discussion of rights focused on protecting each individual’s person rights. Because the conceptual framework for D-I-E comes from a group based rights system, trying to make it coherent in the individual rights paradigm creates paradoxes.
For example, if due process assures individuals are treated with dignity and respect, that runs head on into demands that people accused of wrongs against a protected group be punished for the good of the protected group. Facts and reasoning justifying actions that do not benefit the protected group are irrelevant or bad. Thus, to ensure the dialogue is free of this anti-narrative pollution, individual speech, press, and thought rights must be officially ignored or suppressed. Thus a presumption of guilt and diminish ment of individual rights and humanity is permissible if not required to reach equity.
Of course, in a truly mixed race, pluralistic society, such group treatment will almost inevitably lead to group clashes as individuals see that they are not really individuals, but are treated as group or tribe members.
The real lesson of history is that such tribalism does not end well. Just as the respect for religious freedom was informed by the consequences of sectarian strife, so was the emphasis on individual rights informed by the consequences of looking at people through tribal or group lenses.
Perhaps the lesson for today is that modern opinion leaders no longer see the problems inherent in group based preferences and punishments so long as the right groups get the “right” treatment. Thus “identity” in the sense of group affiliation becomes central to everything. If one respects and honors the individual, expect disappointment.
The seeds for the Harvard decision were sown in Justice O’Conner’s opinion in Gutter. When she said that preferential treatment shouldn’t be needed 25 years hence, she (knowingly or not) started a clock on affirmative action in education.
Diversity as an argument seems to have become less effective as opposing groups have seized upon it to argue for diversity of thought and not just race.
Proponents of racial diversity have likely recognized that it is a dead end argument that will ultimately be used against them.
“Is Diversity Dead?”
As the current king of meaningless, undefinable doublespeak ideas, I sure as hell hope so.
I don’t believe it was ever really alive, unless you call an electrified corpse made out of weasels, rats, and pretentiousness, alive.
Frankenstein monsters don’t have a very long shelf-life, but you can grind them up and use them to fertilize the garden where individuality is cultivated.
PS: I’m still wondering (like simpletons do) about what the fuck happened to ‘judging a person on the content of their character’.
Why is diversity only about race or gender? Why not consider diversity of religion ( including none), ethnicity, political preference, national identity, or preference for a cat over a dog as a pet? Why is racial diversity so sacred?
The 14th Amendment did not create any protected categories. The need to label people really seems to only benefit political movements that want to divide the country. The US is a very unusual country in that it has tried to bring together people of all different backgrounds based on the concept of freedom of the individual, without consideration of the person’s background, or identity.
E pluribus unum. Labels are about division.
Justice Holmes’ maxim, that the life of the law is experience, may have come into play here: in theory, diversity was supposed to provide educational benefits and increase understanding. But in the 25 years between Bakke and Grutter, and especially the 20 years between Grutter and this case, diversity wasn’t doing this, and instead was being used to degrade all manner of university departments, including the hard sciences and math. Nor was it bringing students together and fostering open dialogue in the classroom, but instead inspiring intellectual terror and siloing people off into various aggrieved affinity groups, some of which didn’t even exist at the time Bakke was decided.
This quote from Thomas’s concurrence summarizes my understanding of what happened to the diversity rationale: “If Harvard cannot even explain the link between racial diversity and education, then surely its interest in racial diversity cannot be compelling enough enough to overcome the constitutional limits …”
As a person with a quantitative bent, I find discussions of values that are qualitative and subjective to be unpersuasive. Besides which, economics teaches us that if black students believe in a benefit from tales of courage and persistence, then that’s what they will provide. Meanwhile, their white classmates can tabulate the number of CTOs (Chief Technology Officers) who call to discuss their award-winning science projects (“Effects of Cosmic Rays on the Production of Sauvignon Blanc”).
I’m also noting the absence of a purely statistical argument that a minority is disadvantaged just because it’s a minority. (Is this true? Maybe. Depends on your assumptions.)
The recent opinion is conceptually inconsistent with Grutter, because the “critical mass of diversity” was never defined or measurable in a way that permitted meaningful judicial review. Yet, in Grutter, it was good enough.
Notably, nearly all of the public commenters lamenting the current ruling are discussing affirmative action as remedying historic discrimination, not as creating a “critical mass of diversity.”
Diversity is dead, and even Blackman suspects, “No one ever actually believed that racial preferences were justified by those purported [educational] benefits.” For what it’s worth, Pops, I believe you believe diversity is a worthwhile goal. It’s sad to see the idea dropped in favor of others, but the times they are changing.
Was the diversity argument ever actually alive, though? I know it’s hard to believe that a 70s-era Supreme Court decision might have been results-oriented, but Bakke seems to fit the bill. To make matters worse, the desired result couldn’t be justified Constitutionally for the reason they actually wanted. As such, “diversity” (being a “compelling interest” to satisfy strict scrutiny) was always a smoke-screen for the real reason, namely trying to rectify past discrimination. Unfortunately, that wasn’t going to pass muster with the general white public, so the Court hung its hat on “diversity.” Everyone knew the game, and it’s why the dissent in this case doesn’t even try to focus on diversity. After all, if “diversity” is your real goal, why would there be theoretical a 25-to-50-year clock on it? Such a clock only makes sense in the context of trying to right pasts wrongs, where we hope that in that timeframe we’ve fixed the issues that made the odious, results-driven policy necessary in the first place (spoiler alert: we haven’t).
Colleges knew the game, and the courts knew the game. Everyone said it was in the name of “diversity,” which is a great buzzword that makes everyone feel good. Who doesn’t want diversity? Only commies and racists, that’s who! It seems the Court couldn’t stomach the game anymore, seeing that colleges were going well beyond the originally limited and unspoken purpose, so they pulled the curtain back and put a stop to it. At least 3 justices finally had the honesty to say what the game really was.
Since Grutter is the case that 1) transformed Bakke’s diversity rationale into a compelling government interest instead of a legitimate pedagogical goal, and 2) put the 25 year countdown clock into play, it seems that Justice O’Connor’s majority opinion transformed Bakke’s holding from diversity as an end-in-itself, into diversity as a means of achieving integration and better understanding between the white majority and historically marginalized groups, primarily black people, but also to a lesser extent Chicanos/Mexicans and Puerto Ricans. This isn’t the same as Justice Marshall’s dissenting opinion in Bakke, of righting past wrongs (his time period was virtually unlimited, but at least 100 years); Justice O’Connor’s vision is more in line with traditional American attitudes about great institutions assimilating people into WASP-y middle class norms, like a corollary of Brown v. Board’s emphasis on integration (perhaps why the diversity interest became “compelling”).
The choice to write off diversity as a compelling interest in 2028, though, is mysterious. But maybe Justice O’Connor was thinking, with 1968 being the end of Southern resistance to integration and the collapse of the civil rights movement in the wake of MLK’s assassination, that the passage of six decades (roughly 3 or 4 generations depending on your reckoning) was enough time to see whether integration was occurring. If not, then time to call off the project. So to your point, maybe diversity in Justice Powell’s sense was really “alive” in the 1980s and 90s, but Grutter arguably killed it by turning it into a cross-generational social project of completing the Warren Court’s goal of desegregation.