Diversity's Precarious Moorings

By ADAM LIPTAK
New York Times
Week In Review, week of December 8th

The United States Supreme Court's decision last week to revisit whether and how public colleges and universities may consider race in their admissions decisions will require it to address difficult constitutional questions.

But the concept at the center of the two cases concerning admissions to the University of Michigan's undergraduate program and its law school is not, at bottom, legal. The justification offered for the Michigan preferences โ€” the need for diversity โ€” has entered the popular discourse so thoroughly that it has in some ways lost its meaning, or has become a shorthand for support for affirmative action without regard to rationale. A number of scholars, many of whom support the goals of affirmative action in education, say the idea of diversity as a justification for racial preferences deserves closer scrutiny, as its emergence involved a sort of legal happenstance.

"The diversity rationale should be seen as little more than a rhetorical Hail Mary pass," writes Peter H. Schuck, a professor at Yale Law School, in "Diversity in America," to be published by Harvard University Press in April. It is, he added, "an argument made in desperation when all other arguments for preferences have failed."

Justice Lewis F. Powell Jr., writing separately in the landmark Bakke decision in 1978, had in mind a particular definition of diversity in the context of higher education. The splintered decision in Bakke struck down the admissions system at the medical school of the University of California at Davis, which had specifically reserved seats for minorities, but Justice Powell said that attention to diversity could justify some race preferences that promote "speculation, experiment and creation."

Before Justice Powell's opinion, the diversity rationale was one of many offered in favor of preferences and hardly the most obvious one. "It's a very fuzzy argument," said Nathan Glazer, professor emeritus of education and sociology at Harvard, "and it's very hard to set bounds for it and it's very hard to say who represents diversity."

After Bakke, to the extent that Justice Powell spoke for the court, diversity became the sole permissible justification for taking race into account in admissions.

"The importance of racial diversity in the educational process has become something of a mantra in higher education circles in the years since Justice Powell's pivotal opinion in Bakke," Terrance Sandalow, a former dean of the University of Michigan Law School, wrote in its law review.

INDEED, the Bakke decision touched off an intellectual exercise akin to a game of Simon Says, Sanford V. Levinson, a law professor at the University of Texas, wrote in the University of Pennsylvania Journal of Constitutional Law. The Supreme Court, he wrote, had in effect called out, "Simon says, 'Start talking about diversity โ€” and downplay any talk of rectification of past social injustice.' "

In an interview, Professor Schuck said that "defenders of affirmative action repaired to this firm redoubt as others were destroyed under them."

But how secure is the redoubt?

On the one hand, the diversity rationale is politically attractive, Eugene Volokh, a law professor at the University of California in Los Angeles, wrote in the school's law review. "It ascribes no guilt, calls for no arguments about compensation."

But it also may cheapen the uniquely powerful claims associated with the legacy of racial discrimination. Writing in an online column last week, Sherry F. Colb, a professor at Rutgers Law School, said that "the diversity rationale risks diminishing the moral significance of racial integration, by placing it in the same category as other types of enrichment programs."

If, though, diversity is a way of talking primarily about race, it does not fit particularly well with Justice Powell's conception of the term, and it may imply a sort of racial stereotyping. Associating particular "experiences, outlooks and ideas" with a student's race can demean them as individuals, Stephen L. Carter wrote in "Reflections of an Affirmative Action Baby" (Basic Books, 1991). "The diversity movement runs into the trouble that has bedeviled every effort to define the special shared characteristics that would justify preferential treatment for people of color," he wrote.

The federal appeals courts are divided on whether the quest for diversity is a constitutionally adequate justification for racial preferences. The Michigan cases will give the Supreme Court its first opportunity in a generation to address these questions and perhaps to settle what role race may play in admissions decisions. For many, these issues are not just academic.

Derek Bok, formerly the president of Harvard and the dean of its law school, said the need for diversity in the professions requires diversity in the classroom. "The idea can be misapplied," he said, "but it's not a phony." He considered the alternative. "What a dull class it would be," he said.