The Diversity Rationale
The briefs that appeared to save affirmative action in 2003 came from top military leaders
and executives at companies like Coca-Cola and Texaco.
When a Supreme Court case involves race, national origin, religion, or alienage, the Court applies the most stringent form of judicial review called “Strict Scrutiny.” In Bakke, Justice Powell maintained that "racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination." He insited that any and all racial distinctions should trigger the same searching judicial inquiry - "stict scrutinby." Pursuant to strict scruitiny, judges are skeptical of the governmental conduct in question and presume it to be illegitmate. Under the strict scrutiny test, laws must be narrowly tailored to reach a compelling state interest for the Court to affirm their validity. In Bakke, the diversity rationale was established as the state’s compelling state interest for affirmative action. Before researching the diversity rationale, I thought the justification was merely concocted to satisfy constitutional review by the Supreme Court. In fact, many liberals and conservatives alike do not believe in the diversity rationale. Multiple justices have already shown their distaste for this rationale. Clarence Thomas stated during oral arguments in 2022, “I've heard the word diversity quite a few times and I don't have a clue what it means. It seems to mean everything for everyone.” However, after researching the diversity rationale, I found there were real, measurable benefits that resulted from the implementation of affirmative action policies.
Affirmative action can facilitate, through racial diversity, enriched learning and wiser decision-making. In Grutter, 65 leading businesses submitted an amicus brief stating that “the existence of racial and ethnic diversity in institutions of higher education is vital to amici’s efforts to hire and maintain a diverse workforce… is important to amici’s continued success in the global marketplace.” Close observers of various types of organizations – universities, firms, juries, etc. – maintain that diversity enhances their overall performance. Not to mention, as Sandra Day O'Connor did in her opinion in Grutter, the military considers diversity necessary for national security purposes. The diversity rationale is a relative newcomer among justifications for affirmative action. It did not attain prominence until Bakke decision and has been viewed with skepticism ever since, even among strong proponents of affirmative action.
The “diversity defense” is a profoundly conservative argument, for it preserves the status quo in higher education. By consciously rejecting arguments that claim the very criteria used to measure merit perpetuate racial and class privilege, the diversity defense obscures some of the main reasons that leading universities adopted affirmative action in the first place: to right the wrongs of the past and to integrate the elite of the future.
Compensatory Justice
The reparations theory of affirmative action is known by various labels, including rectification, restitution, remediation, correction, and compensation. Key to this theory is the idea that leaving past wrongs unadressed cause them to become refreshed wrongs.
Racial affirmative action partially redresses debilitating social wrongs that have been ongoing since at least the Civil War. Racial minorities, and black in particular, have suffered from racist mistreatment at the hands of the federal government, state governments, local governments, and private parties. This oppression has produced a cycle of self-perpetuating problems that will not resolve themselves without interventions that go beyond prohibition of intentional racial mistreatment. Past wrongs have diminished the educational, financial, and other resources that marginalized groups can call upon, and have thus disadvantaged them in competition with whites. As President Lyndon B. Johnson said, “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.” It is not enough to simply end discrimination on the basis of race. Reasonable efforts to rectify the negative legacy original past wrongs are also morally required.
“You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.”
One problem with this argument is that affirmative action based on grounds of compensatory justice always entails an assumption or a finding of culpability for some past or present wrong. Common claims of “reverse discrimination” in the name of white inocence and protests against the supposed intrusiveness of “big government" arise. It is a familiar trick, the kind of rhetorical sleight of hand that had become a staple of conservative pundits everywhere, whatever the issue: taking language once used by the disadvantaged to highlight a societal ill and turn it on its ear. The problem isn’t sexual harassment in the workplace; it’s humorless “feminazis beating men over the head with their political correctness.
Even some on the anti-racist Left also objected to especially favoring blacks. Bayard Rustin, an African American leader in social movements for civil rights, socialism, and nonviolence, saw it as a misdiagnosis that wrongly elevated racial conflict over the centrality of class conflict and a misprescription that would further weaken the prospects for progressive working-class unity by exacerbating racial resentments.
Socio Economic Alternative
Like all policies, affirmative action entails costs. It risks instilling excessive race-mindedness, stoking resentments, and diverting attention from those whose needs are even greater than those typically benefited by positive discrimination. Richard Khalenburg has become the poster-child for a socio-economic alternative.
- Get rid of preferences for ALDCs (Athletes, Legacies, Donors, and Children of Staff)
- Increase community college transfers
- Give a break to students who have excelled in struggling schools, neighborhoods of concentrated poverty, families with low net-worth.
- Pump up the financial aid
- Look for applicants in towns that do not normally send students to highly selective schools
If it sounds expensive, that's because it is! Colleges and universities that admit more low-income students would have to support them through stipends and scholarships, and there is an added cost to recrutuit them as well.
One positive for this proposal is that it seems to be popular. Anemona Hartocollis was surprised after writing about Khalenburg, "A lot of people are intrigued by what he is proposing and support it."
The First Amendment Argument
Time and time again, the Supreme Court has upheld colleges and universities the autonomy to create their own admissions policies. If affirmative action is struck down by the court, there could be a first amendment argument to be made. Justice Lewis Powell’s opinion in Bakke even recognized “a constitutional element, grounded in the First Amendment, of educational autonomy.”
Constitutionality
There is nothing in the Constitution’s text, in the intentions of its framers, or in the logic of its mission that should be seen as precluding racial affirmative action. The Supreme Court has condemned affirmative action because it runs afoul of what it claims is a mandate of constitutional color blindness. The court is wrong. The Constitution does not compel color blindness and should not be seen as harboring an aspiration for color blindness.
The Equal Protection Clause of the Fourteenth Amendment sates, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The thirteenth, fourteenth, and fifteenth amendments are commonly known as the Civil War Amendments because they were created to outlaw slavery. This creates a problem for justices who subscribe to originalism because clearly the author did have race at the time. The authors of these admendments wished to incorporate blacks into society. Affirmative action policies wish to continue supporting integration of racial minorities by admitting them into higher education.