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The Diversity Diversion Supreme Court Sows Confusion On Sound Social Policy
By Doreen Hemlock
June 29, 2003
Once upon a time, affirmative action was justified because it was an attempt to compensate for past wrongs. As of Monday's U.S. Supreme Court decision, the rationale is the promotion of diversity in high places.
It remains to be seen if this approach to getting around the ironclad constitutional prohibition against racial discrimination will cause more legal problems than it solves. The argument is certainly convoluted.
The public needs tangible evidence that race is not determinative when it comes to access to opportunity. Therefore, because everyone knows that the nation's most competitive universities provide tickets to the top, it follows that high-powered schools like the University of Michigan Law School should be permitted to consider race in admissions decisions.
As a lifelong proponent of affirmative action, I suppose I should be willing to take its constitutional affirmation any way I can get it, but this rationale seems narrow and elitist. I also wonder about "diversity" as the poster child for social justice. Equal opportunity and compensation are understandable concepts; the notion of a "diverse" society is more elusive. There is, in short, a great difference between the notion that "diversity is a compelling social interest" and the conclusion that proactive policy is necessary in specific instances to correct errors that were the product of racial discrimination.
Consider these four groups: The U.S. Supreme Court itself, the chemistry department at Penn State, the sixth grade at The Ellis School and the New York Knicks basketball team. Are these diverse collections of people? Should they be diverse? And, if not, why not?
Let's start with the court, symbolism personified: Needs to touch every political base -- male, female, North, South, liberal, conservative, black, white. If the nation doesn't put its money where its mouth is when it comes to the highest court -- an institution whose membership is clearly within the control of the majority of the American people -- testimonials about equality of opportunity in the United States ring hollow.
It is sad, but true, that tokenism is everything when it comes to the court and race and gender. This also suggests the potential danger of too much preoccupation with diversity in high places at the expense of factory floor.
Now for the chemistry department. What is a diverse chemistry department like? Is a preponderance of Indian males an indication that girls are steered away from the sciences in early years, that educational opportunities for Hispanics are poor and that something needs to be done to produce stronger black role models?
It has been said. An ideal chemistry department, under prevailing diversity theory, would be one whose membership was roughly proportionate in gender, ethnicity and national origin not to the population of Central Pennsylvania but to the nation as a whole.
Needless to say, this is close to impossible to effect on a national scale, if for no other reason than the character of specific regions are determinative when it comes to where people choose to live. In Puerto Rico the chemists are more likely to be Hispanic and in Mississippi to be black. With chemists, gross numbers would seem to count more than rainbows.
With my two private organizations, if diversity comes into play at all, it is in more circumscribed ways. Ellis, a private school in Shadyside, is in the business of educating girls. The Knicks are concerned with winning basketball games. No one worries about gender or race in the Knicks' case, though there are those who would argue that in a just world, the coach would be black because so many professional male basketball players are black.
Similarly, Ellis works hard to promote minority representation within its student body, with participation in programs like FAME, a private school scholarship program for African Americans about which I have written before. It also finds a positive value in discriminating against males in admissions, a fact that neither the government nor the society as a whole finds bothersome.
It is clear in a nation as large and complicated as ours that clustering on the basis of talents and particular interests is going to occur and that the society always will be populated by institutions and activities that are not diverse in the sense that the population of the globe is diverse.
And so what? If the only "good" places in the world were those characterized by "proportional representation" of this sort, there would be would be no hope for societies like Japan and Norway, to cite two countries with very homogenous populations.
Diversity, in sum, is a ragged goal compared with specific opportunities for individual members of specific minority groups. The use of race as a factor in providing disproportionate help in specific circumstances for specific needs is sound public policy and responsible institutional behavior.
It is too bad the Supreme Court did not say so -- did not say that is what affirmative action is about -- and that it is sustainable social policy under federal law.