One response is to create interventions sensitive to the racial dimensions of class stratification. At the UCLA School of Law, for example, in the aftermath of Proposition 209, officials instituted a program that one of its designers describes as “a system of race-neutral class-based preferences.”22 Aware of the special vulnerabilities of blacks and Latinos because of the intersecting influence of class and race, organizers of the UCLA program commendably devised indicia of socioeconomic status that measured more than mere income. Additional indicia included parents’ educational attainments, parents’ assets, and the zip code in which a youngster lived during high school. In other words, law school officials sought to identify blacks and Latinos, but without saying that expressly.
I applaud the effort to mitigate the racial damage caused by Proposition 209. I applaud, too, the aim to channel affirmative action more directly to poorer racial minorities. Racial affirmative action needs to be better targeted. But we also need to be clear that the program under discussion is a version of racial affirmative action regardless of efforts to hide that fact. That program, viewed realistically, is not an example of “class not race” but is instead an example of race-conscious, class-focused redistribution with racial indicia erased from its exterior.
Some proponents of “class not race” apparently believe that an absence of explicit racial selectivity will save their proposals from white backlash. They err. Eligibility rules that say nothing explicitly about race but are wealth sensitive will still draw fire from detractors who will claim that the rules camouflage a racial Trojan horse—a policy primarily aimed at helping racial minorities while helping needy whites as a cover. In some instances, such claims will be accurate. After all, some proponents of “class not race” have admitted that their main concern is to help the black needy. Convinced that racial affirmative action as conventionally designed is inadequate “to address the problem of [the] disadvantaged” in racial-minority communities, Professor William Julius Wilson once proposed—he has subsequently changed his mind23—a “comprehensive program that … features universal as opposed to race-or-group-specific strategies.”24 He called his alternative “the hidden agenda.” That agenda, he noted, was “to enhance the chances in life for the ghetto [i.e., black] underclass by emphasizing programs to which the more advantaged groups of all class and racial backgrounds can positively relate.”25 In other words, some proponents of class-not-race admit that the absence of overt racial selectivity in programs they propose is merely strategic: the price to be paid for white support and the avoidance of white opposition.i
But even when concern with race is not the primary driving force behind a program, if it turns out to assist racial minorities disproportionately, one can expect it to be attacked as racial affirmative action in disguise. This is the fate that has befallen social assistance programs that were truly nonracial in origin and application—think of the racial stigmatization of “welfare” in the 1960s, ’70s, and ’80s.26 It will surely be the fate of social assistance programs that are aimed at helping the racial-minority needy, albeit through so-called race-neutral means. Up to now, race-silent programs animated largely by a desire to assist racial minorities have fared well in the court of public opinion. I am thinking here of programs such as the one in Texas, which offers automatic admission to the state university system to anyone in the top 10 percent of his or her high school graduating class. I anticipate more controversy, however, as opponents publicize and attack the racial aims that lie just beneath these programs’ ostensibly nonracial exteriors.
Let me summarize my main point: the single most powerful argument in favor of racial affirmative action is that it seeks to rectify, at least partially, injuries that continue to put certain racial minorities at a competitive disadvantage with white peers. It is a policy to which objections can sensibly be raised. On balance, though, the arguments in its favor should be deemed to outweigh those against. Making amends for past wrongs is not, however, the only basis for affirmative action. It is to other justifications and criticisms of them that I now turn.
AFFIRMATIVE ACTION FOR “DIVERSITY”
A second major rationale for affirmative action is “diversity.” Devotees of diversity argue that teaching, learning, and decision making will typically be richer, more informed, and better received if a wide array of people affiliated with salient social groupings participate together in carrying out the missions of the nation’s schools, workplaces, and governments. The catalytic event in the history of “diversity” is the Supreme Court’s ruling in 1978 in Regents of the University of California v. Bakke. In Bakke, the pivotal opinion by Justice Lewis F. Powell declared that the goal of creating diversity, including racial diversity, on a university campus is a compelling justification for properly designed racial selectivity in admissions.j After Bakke, “diversity” became deeply influential throughout American society, including academia, philanthropy, the military, and business. Indicative of this influence is the presence of leading figures in these sectors as amici curiae in affirmative action disputes before the Supreme Court.
In 2003, in the University of Michigan affirmative action litigation, sixty-five leading American businesses (including American Express, Coca-Cola, and Microsoft) submitted an amicus curiae brief to the Supreme Court in support of the university’s affirmative action programs. They declared:
In the experience of amici, individuals who have been educated in a diverse setting are more likely to succeed, because they can make valuable contributions to the workforce in several important and concrete ways. First, a diverse group of individuals educated in a cross-cultural environment has the ability to facilitate unique and creative approaches to problem-solving, arising from the integration of different perspectives. Second, such individuals are better able to develop products and services that appeal to a variety of consumers and to market offerings in ways that appeal to those consumers. Third, a racially diverse group of managers with cross-cultural experience is better able to work with business partners, employees, and clientele in the United States and around the world. Fourth, individuals who have been educated in a diverse setting are likely to contribute to a positive work environment, by decreasing incidents of discrimination and stereotyping. Overall, an educational environment that ensures participation by diverse people, viewpoints, and ideas will help produce the most talented workforce.27
In the same cases, a group of civilians and retired military officers deeply involved in national defense (including several former chairmen of the Joint Chiefs of Staff and two former secretaries of Defense) also submitted a brief in support of the University of Michigan affirmative action program, maintaining that:
Based on decades of experience, amici have concluded that a highly qualified, racially diverse officer corps educated and trained to command our nation’s racially diverse enlisted ranks is essential to the military’s ability to fulfill its principal mission to provide national security.…The military must be permitted to train and educate a diverse officer corps to further our compelling government interest in an effective military.28
In 2012, in litigation involving affirmative action at the University of Texas, the deans of the Harvard and Yale schools of law submitted a brief to the Supreme Court urging it to reaffirm the legitimacy of tailored affirmative action in the service of diversity. They declared:
In our educational judgment, law students who pursue careers both within and outside the legal profession will inevitably interact with increasingly diverse clients, managers, and colleagues. Our commitment as educators is to create the educational environment best suited to prepare our students to succeed in this new world. In our view, diversity is associated with better educational outcomes.
Diverse teams are better at solving a variety of problems when compared with homogeneous groups, even when rated higher on standard ability measures.29
While these distinguished figures may be sincere in their attestations, other considerations also play a role
in their statements. Most important is the tremendous sway over thought and speech exerted by a Supreme Court that has been willing to accept affirmative action for purposes of diversity but not for other purposes, such as the rectification of societal discrimination. The Court’s rulings have given authorities a strong incentive to engage in diversity talk.30 The consequence of this incentive is especially evident in academia. Inasmuch as the Supreme Court upheld affirmative action plans based on diversity grounds, academic officials have become practiced in explaining such plans in terms of diversity, regardless of their actual aims.
There are other reasons that account for the popularity of the diversity rationale. It is widely seen as answering the felt need to ensure the presence of appreciable numbers of racial minorities in strategic positions of influence while apparently damping down toxic side effects of racial selectivity. One unadvertised attraction is that the diversity rationale is nonaccusatory. Affirmative action based on grounds of compensatory justice always entails an assumption or a finding of culpability for some past or present wrong. The diversity rationale, by contrast, depends on no predicate of misconduct or unfairness and thus minimizes the anger ignited when whites are accused of complicity in wrongdoing as the heirs of oppressors, the beneficiaries of racial privilege, or the perpetrators of their own misdeeds.31
Another attraction is that the diversity rationale explains affirmative action not as a special aid to racial minorities or a requirement of distributive fairness but rather as a requirement for better goods, products, and services that will presumably benefit the organizations that see diversity as a boon to their self-interest as well as to the society as a whole. Businesspeople love to say that “diversity is good for the bottom line.” Many of them would be ideologically allergic to a business practice based solely on notions of justice or altruism. They are much more comfortable supporting a program they can promote as reinforcing the principal mission of their enterprise. For them, diversity is no do-gooder effort to right wrongs but rather a pragmatic initiative to do what it takes to make organizations better able to carry out core functions.k
The diversity rationale is also alluring because it facilitates the evasion of prickly subjects. It allows whites to avoid grappling with their status as beneficiaries of past wrongs (although some observers are suspicious of the diversity rationale precisely because they see it as letting white society off the moral hook of a racist history). But the diversity rationale also facilitates the evasion of a subject that makes many blacks uncomfortable: the fact—not the biased perception, but the sometimes discouraging fact—that pursuant to affirmative action, blacks selected for valued positions often have records that are inferior to those of white competitors. This does not mean that black beneficiaries of affirmative action are “unqualified”—a flash word in the affirmative action wars. It simply means that, at least under conventional measures of assessment, affirmative action plans select qualified blacks who are less qualified than at least some of their white competitors.
Many proponents of affirmative action detest discussing this aspect of the controversy; when it arises in college or law school classes, a silent, bitter, embarrassed pall often envelops the room, with black students feeling and exuding a special sense of shame and anger. Few things grate more on the sensibilities of blacks, especially those in the upper echelons, than hearing whites in authority talk about how far down they must reach to obtain minority individuals who are merely satisfactory. Even if the white person in question is a vocal supporter of affirmative action, the black auditor will often bridle upon hearing that standards had to be lowered to assure the selection of black candidates.
The diversity rationale moves the spotlight from the perceived deficiencies of blacks to their perceived strengths. Other rationales accentuate blacks’ comparative weakness by defending the selection of racial-minority candidates even if they were, in conventional terms, inferior to competitors and even if choosing them required sacrificing some degree of efficiency in the carrying out of the institution’s mission. The diversity rationale, by contrast, posits that racial-minority candidates chosen over apparently superior white candidates are actually better qualified than their white competitors when the special qualities of minority perspective, experience, and voice are properly taken into account.
Unlike other justifications for affirmative action that seek to justify exceptions to meritocracy, the diversity rationale is consistent with meritocratic premises.l It does not concede that for reasons extrinsic to the mission of an institution minority candidates should be chosen who are less capable or accomplished than white competitors. Rather, the diversity rationale contends that conventional indicia of talent, achievement, and potential must be supplemented by other indicators that have heretofore been overlooked. Under the diversity rationale, affirmative action is tied to meritocracy because, to paraphrase Harvard College, such racial selectivity brings to an enterprise (student body, faculty, board of directors, slate of honorary degree recipients, editorial board, etc.) something that white candidates cannot offer. Diversity is thus predicated on the idea that racial-minority status carries with it useful sources of information. Indeed, the most striking and historically significant aspect of the diversity rationale is that it enables coloredness for the first time in American history to be seen as a valuable credential. Instead of the presence of blacks or other racial minorities constituting a necessary punishment in expiation of past sins, the diversity rationale makes their presence a positive good.m
THE REACTION AGAINST “DIVERSITY”
In the marketplace of political culture, few terms have amassed more influence as quickly as “diversity.” Were it tradable as stock, its price would have soared over the past three decades. Perhaps the most striking indication of its prestige is the way it is handled by influential opponents of affirmative action. Theodore Olson, the solicitor general of the United States during the George W. Bush administration, was a fervent foe who argued on behalf of the federal government that the programs at issue in the University of Michigan litigation violated the federal Constitution. Olson, however, took pains to defer to “diversity’s” iconic status. “Ensuring that public institutions … are open and accessible to a broad and diverse array of individuals, including individuals of all races and ethnicities, is an important and entirely legitimate government objective,” Olson averred. “Measures that ensure diversity … are important components of government’s responsibility to its citizens.”32 Like his solicitor general, President George W. Bush also opposed the affirmative action plans at the University of Michigan. Yet he, too, took care to genuflect to “diversity,” declaring, “I strongly support diversity of all kinds, including racial diversity in higher education.”33
There are those, however, who repudiate “diversity.” They dispute claims that it demonstrably enhances learning, facilitates creativity, and inculcates a sense of cross-racial empathy. They note what they see as weaknesses in the empirical basis of these claims and point to studies that reach different conclusions.n
According to Justice Clarence Thomas, “ ‘diversity’ … is more a fashionable catchphrase than it is a useful term.”34 Shelby Steele of the Hoover Institution scathingly remarks that “diversity” stands for a “spurious” notion that has given rise to a “parasitic” industry. Elaborating upon this critique, he says that “diversity” is “an administrative banality … an unexamined kitsch that whites (especially administrators and executives) use to dignify their use of racial preferences as they … engineer … a look of racial parity.” Diversity, he concludes, “is a great American cynicism.”35 In Diversity: The Invention of a Concept, Professor Peter W. Wood argues that “it is time to retire diversity from the small company of concepts that guide our thinking about who we are as a people and how we might best reconcile our differences.”36 And that is the mild expression of his distaste. Elsewhere in his book, he mentions that he would like to be present at diversity’s funeral. The critiques
of “diversity” just noted arise from the right. An acerbic attack from the left is voiced by Walter Benn Michaels. In The Trouble With Diversity: How We Learned to Love Identity and Ignore Inequality, Michaels argues that “the commitment to diversity is at best a distraction and at worst an essentially reactionary position.”37 Asserting disapprovingly that “diversity has become virtually a sacred concept,” Michaels complains that all too many Americans “would much rather get rid of racism than get rid of poverty … would much rather celebrate cultural diversity than seek to establish economic equality.”38
The diversity camp has long been dogged by allegations of insincerity or outright duplicity.39 When Justice Powell announced his diversity rationale, detractors complained that he penalized the honesty of the University of California set-aside while valorizing the Harvard policy that reached essentially the same result under cover of an intentionally obfuscatory rhetoric. Furthermore, according to Professor Lino Graglia, Powell’s opinion “was taken as little more than an invitation to fraud by nearly all colleges and universities.”40 Complainants have alleged that agents and facilitators of the diversity regime, including administrators, scholars, and judges, have knowingly misrepresented their handiwork. Critics charge that the extent of preference for racial minorities is greater than acknowledged, that the desired outcomes are more predetermined than admitted, and that the real animating force behind affirmative action has much more to do with other considerations—rectification, simply advancing the interests of beneficiary groups, or keeping social peace—than a true interest in “diversity.” In a brief to the Supreme Court in the Michigan cases, a group of conservative, anti–affirmative action law professors complained that diversity talk “is generally used as a cover for direct racial decision-making.”41 Their charge was echoed by several of the justices, with Scalia and Rehnquist repeatedly referring to the affirmative action programs and their rationales as “sham[s].”42 In the most recent affirmative action case to reach the Court, Fisher v. University of Texas, a loud refrain of those attacking the diversity rationale is that it is pretextual.43
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