From a jurisprudential point of view, this compromise nature is unsettling.
As deployed by the University of Michigan in defense of its race-conscious practices, “diversity” is
an almost hopelessly vague and elastic concept, susceptible to multiple interpretations and
almost no inherent limits. Its use raises a plethora of questions, none of which were adequately
answered by the Supreme Court. Can race be used for its own sake, or only as a proxy for something
else (such as culture, viewpoint, or life experience)? If the latter, why not require colleges
to assess that underlying characteristic directly? If the former, why is race per se an educationally
relevant factor? If “race” is a permissible consideration, which “races” may
a college consider? Why was the Michigan Law School entitled to limit its preference to blacks,
Latinos, and Native Americans only? Furthermore, why is it permissible to give, as the law
school did, differential advantages to different races or to seek different “critical
masses” of different races? And what about the costs of race-conscious affirmative action,
in terms of the well-documented phenomenon of “academic underperformance” of racial
groups who are advantaged in the admission process? Is there any limit on the extent of the
advantage that a school can give based on race? What does it mean to have an “individualized” assessment?
How much weight can race receive in such a system?
These questions can perhaps be answered. But my own view is that the
answers must grow out of an awareness of the social, economic, and educational conditions produced
by the Jim Crow regime struck down by Brown. Without a firm sense of history, and good sociological
theories of causation, we have no way of deciding what forms of “diversity” matter
and how to marshal our educational resources to promote them. As a constitutional argument,
the diversity rationale is a late-comer, almost an afterthought. The original purpose of educational
affirmative action programs was frankly remedial. When the Supreme Court decided, in Bakke
and a host of later cases, to reject the “societal remediation” argument, those
who were by that time committed to race-conscious admissions practices scrambled to find an
alternative rationale. Enter “diversity.” This justificatory gambit may have proved
successful for the moment, as a way of protecting those programs from invalidation. But it
sets race-conscious admissions policies adrift of their mooring.