Perversion of the Hail Mary pass

Diversity in America
February 13, 2004

"Diversity" most commonly refers, in America today, to race. The politically popular quest for diversity aims not so much for variety in general as for the greater participation of blacks and other racial minorities in the various spheres of US life. Our celebration of diversity is a kind of euphemistic national self-congratulation.

But genuine diversity goes far beyond race, as Peter Schuck well understands. In this book, he asks why we ought to prize diversity, and how we might best promote it.

Diversity in America is immense and increasing, Schuck observes, and it is a great and wonderful inheritance. He explores the ramifications of US diversity with a balanced mind and wise restraint. Diversity is a feature of US society to be treasured, he argues, but it is not the proper role of government to cultivate or to certify specific diversities. (Note the book's subtitle, Keeping Government at a Safe Distance .) In the US, we rely not so much on programmatic initiatives launched from the centre, as on the fragmented, disordered but productive processes of civil society. Daily interactions, groups blending and sharing their traditions, avocational activities, religious passions, aesthetic pursuits, the enormous impact of immigration - all these and more contribute to the dumbfounding diversity of the whole. Diversity has become our new ideal.

That ideal cannot justify outright racial preference, however. Advocates of preference, Schuck holds, resort to diversity in its defence mainly because they find it strategically convenient. The diversity rationale for racial preferences, he writes, "is being used as a rhetorical Hail Mary pass, an argument made in desperation, now that all other arguments for preferences have failed". Yes, but the pass was thrown in Grutter v. Bollinger - and it was caught for a touchdown in that landmark case. The diversity rationale for preferences that Schuck finds so inadequate has been firmly ensconced in American constitutional law.

This book was completed while the University of Michigan admissions cases, decided in June last year, were awaiting resolution by the Supreme Court.

The decision in Grutter, in which the racial preferences given by Michigan's law school were upheld solely on the diversity rationale, has given a new and august role to diversity in American law, a role that Schuck rightly finds inappropriate. "After interrogating the diversity rationale for racial preferences," he writes, "one is left with serious doubts about its coherence and persuasiveness."

Although laudable, diversity cannot meet the very high standard, that of strictest scrutiny , that any justification of race preference in American constitutional law must meet. It is indefensible for an arm of government to prefer the members of one race to those of another; racial classifications have repeatedly been called "odious" by the Supreme Court.

To be constitutionally permissible, therefore, racial preferences must be shown to serve a state need that is "compelling", and must serve that need in a "narrowly tailored" way.

This very high standard, the Supreme Court held, was indeed satisfied by Michigan's law school. The equal protection clause of the constitution provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws". Deliberate racial discrimination by one of the states would seem to be precluded by this clause. But not in this context. The court wrote, in the majority opinion of Justice Sandra Day O'Connor, that "in summary, the Equal Protection Clause does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body".

This decision is deeply wrong and will one day be overruled. Diversity, although a value rightly pursued, is not a state need so compelling that it justifies preference by race. Moreover, the argumentative use of diversity in that decision, as Schuck might well have predicted, was a sham. The Michigan admissions data, analysed by four justices of the Supreme Court, prove that "diversity" at the University of Michigan was no more than a euphemism for the pursuit of racial balancing - a practice that, all agree, is unconstitutional in this country.

Furthermore, the alleged educational benefits of diversity that the university has claimed so fulsomely cannot be substantiated when "diversity" is perverted to mean - as it now most commonly does mean - no more than diversity of race. The empirical evidence is inconsistent but, on balance, it leads pretty surely to the conclusion that racial diversity by itself has no positive impact on the education of university students.

Rising above the transitory corruptions of its current uses, diversity remains an honourable ideal, and in the many-faceted diversity of American society there is genuine splendour. The perversion of that ideal has been shameful. Diversity in America agrees.

Carl Cohen is professor of philosophy, University of Michigan, US.

Diversity in America: Keeping Government at a Safe Distance

Author - Peter H. Schuck
Publisher - Harvard University Press
Pages - 444
Price - £23.50
ISBN - 0 674 01053 1

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