The Magazine

Liberalism vs. Diversity

The high stakes in the Supreme Court's affirmative action decision.

Feb 10, 2003, Vol. 8, No. 21 • By STANLEY KURTZ
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

REGARDLESS OF HOW the Supreme Court rules this summer on affirmative action at the University of Michigan, its decision is bound to bring change to our racial spoils system. Because affirmative action is an intrinsically unstable practice, the awaited ruling, far from settling the issue, will only touch off yet another round of debate and reform in a continuing battle.

The cause of the battle is the obstinate fact that racial preferences are at odds with liberal principles. As a result, they generate irresolvable conflicts within liberal institutions. The early experiments in affirmative action were thought of as temporary suspensions of proper meritocractic procedure. But no one wants to think of himself as a temporary exception to the right way of doing things. So the advocates and beneficiaries of affirmative action have elaborated a series of postmodern, post-liberal justifications for racial preferences, which have opened the way for preferential thinking in nearly every aspect of political and social life.

The outcome has been a struggle between those who seek to expand affirmative action and those who seek to eliminate preferences. Already four states have banned affirmative action in public institutions. In the rest of the country, racial preferences have been taken far beyond the mere "plus factor" they were restricted to by the famous Bakke decision of 1978. And everywhere, an ideology of "multicultural diversity" competes with classic liberalism to define our social contract.

So far, the debate over the Michigan case has focused on what will happen if the Court prohibits racial preferences. Will colleges "re-segregate"? Will our streets and campuses be clogged with protesters? None of the scare scenarios will come to pass. Yet in the rush to envision a world without preferences, the real story has been overlooked: What will happen if the Court upholds racial preferences is actually far more dangerous.

Today, no one really knows whether diversity is a legitimate justification for affirmative action. It was Justice Lewis Powell's tie-breaking opinion in Bakke that first advanced diversity as a rationale for racial preferences. Since no other justice joined Powell's opinion, the legal standing of diversity is unclear. That points to a hidden problem. If the Supreme Court now unambiguously affirms diversity as a justification for affirmative action, its decision will do far more than simply freeze existing preferences in place. It will unleash diversity as never before.

Once diversity has acquired unchallenged legal standing, advocates of affirmative action will inevitably seek to extend its range. If diversity can justify racial preferences in university admissions, why not in the selection of jurors? What about preference programs for federal policymakers or even legislators? (Quota systems for female legislators have already been floated in Canada, Europe, and India.) Should there be preferences for females in the high school chess club, or for males on the cheerleading squad? Pro-androgyny feminists have already called for preference programs for male employees at day-care centers. And won't Muslim immigrants soon be coming into their own as a victimized minority entitled to preferences?

Once the principle of diversity has been affirmed, there are no necessary limits, and every demand for inclusion can be adjudicated. Republicans might even get into the act, with suits to force political diversity onto colleges and universities dominated by Democrats. The prospect of lawsuits to impose political diversity suggests what a mess we'll be in once the Supreme Court grants clear legal standing to a doctrine of group rights. Such a doctrine cannot help but operate in opposition to the principles of liberal individualism.

Once it accords constitutional standing to diversity, the Court will provoke a kind of slow motion crisis, in which even the structure of our government, not to mention principles like one-man-one-vote and equal protection under law, will be subject to fundamental renegotiation.

SO MUCH for the aftermath of a Michigan victory. But suppose the Court prohibits the use of racial preferences in college admissions. What will really happen then?