The corrupting influence of the Supreme Court's favorite doctrine.
Jul 7, 2003, Vol. 8, No. 42 • By PETER BERKOWITZ
Moreover, the Law School can't keep its story straight about the purpose of obtaining a critical mass of minority students. On the one hand, the Law School seeks minority students for the benefits that come from a racially and ethnically diverse student body. On the other hand, the Law School claims that critical mass is needed so that minority students can express themselves in class without feeling isolated or like spokesmen for their race. In other words, the Law School wants minority students for the distinctive viewpoint that they bring and wants them in significant numbers so that they will not feel that they are at the law school in order to represent a distinctive viewpoint.
Second, although she claims to be endorsing Justice Powell's views on diversity, Justice O'Connor in effect changes his meaning. In Bakke, Powell argued that a public university could seek a heterogeneous student body so long as race was only one factor in student admissions and one component of heterogeneity. Yet aside from repeating the Law School's assurances, O'Connor gives little reason to believe the Law School seeks any form of diversity--say diversity of political party or religion--beyond racial or ethnic diversity.
Third, contrary to Justice O'Connor, who defers to "the Law School's assessment that diversity will, in fact, yield educational benefits," diversity's benefits in the areas where everyone agrees it counts most--the robust exchange of ideas in the classroom and the development of friendships between students of different races--remains hotly contested. Indeed, as Yale Law School professor Peter Schuck observes in his meticulously argued and indispensable new book, "Diversity in America," the weight of evidence casts serious doubt on the claims that affirmative action programs promote either lively classroom debate or interracial understanding. Nor would one guess from O'Connor's analysis the sad fact explored by Schuck that "preferentially admitted students . . . tend to have much lower academic performances and higher drop-out rates."
The flaws of the diversity rationale should not be surprising. A law school is an educational institution, and the diversity that truly educates is what John Stuart Mill calls "diversity of opinion." While himself a man of the left, Mill argued forcefully that the vigorous contest between conservative and progressive opinion was crucial to the refinement of both and a great boon to moral and political life. Although the Law School pays lip service to diversity of opinion, the diversity based on racial preferences that it practices works to defeat it.
This is in part because the Law School policy traffics in stereotypes. Protestations to the contrary notwithstanding, the diversity rationale for granting underrepresented minorities a substantial advantage in the competition for scarce seats at elite universities presupposes a minority viewpoint. On the basis of what the justices in the Grutter majority have previously said, one might have thought that this practice, akin to racial profiling, was unconstitutional. In U.S. v. Virginia, the 1996 case striking down single sex military training at the Virginia Military Institute, Justice Ginsburg, in an opinion joined by Justices Rehnquist, Stevens, O'Connor, Kennedy, Souter, and Breyer, argued that one reason that VMI must admit women was that their exclusion was based on constitutionally prohibited generalizations about the tendencies, roles, and abilities of a group that had long been subject to discrimination.
The diversity rationale also officially countenances treating minority students as a means to improving the education of majority students while disguising the costs. It's not only that all minority students are stigmatized. Forced to compete with the best and brightest white and Asian students, minority students with substantially lower academic skills are bound to resent their competition and eventually lash out at the academic criteria by which they are judged and unfortunately often found wanting. And those responsible for administering affirmative action programs expose themselves to the corrupting effects of arranging matters so as to have their cake and eat it too: They want theirs to be an elite university that maintains exceptionally high standards and so serves as an effective credentialing mechanism insuring graduates' access to high paying and prestigious jobs--but also an institution consistent with their vision of social justice, whose costs they do not pay.