October 18, 2009

The "diversity" rationale

By Joshua P. Thompson Senior Attorney

Author: Joshua Thompson

Over at The Volokh Conspiracy, Ilya Somin has an interesting post on the justificaiton(s) for race/ethnic preferences at public universities.  He notes how there are two general theories that are held out to justify such preferences: (1) compensatory justice; and (2) promotion of diversity.  He notes how the first justification fails because a number of different ethnicities, that are generally not entitled to preferences, have experienced various forms of discrimination throughout US history.  He mentions Japanese internment as the prime example, but I would add that Chinese, Catholics, and Jews, to name a few, have also experienced various forms of state discrimination in the United States.  If one ethnicity is entitled to preferences based on past state discrimination, then that justification can be used for preferences for a litany of ethnicities.  Indeed, the "compensatory justice" rationale for preferences at public universities was rejected by the Supreme Court in Grutter v. Bollinger.

The second rationale, promotion of diversity, which was accepted by the Court in Grutter, argues that race preferences are "for the sake of ensuring that each ethnic group is represented by a 'critical mass' in the student body sufficient to educate other students about their culture…"  But Professor Somin also points out a critical flaw in this theory.   "'Asians' are not a monolithic group. Japanese, Chinese, Indians, Filipinos, Vietnamese, and Cambodians all have very different cultures. Indeed, immigrants from one part of India or China often have different cultures and speak different languages from those hailing from other parts of the same nation. Treating them all as an undifferentiated mass of “Asian-Americans” is a bit like saying that Norwegians, Italians, and Bulgarians are basically the same because they are 'Europeans.'"

Nor are "whites," "blacks," or "Hispanics" a monolithic group.  I am white and from Northern, rural Wisconsin.  I can truthfully attest that my culture was unlike most students at UC-Berkeley.  (How many Californians went to school in their snowmobile, or drank from a "bubbler," or know what a squeaky cheese curd is?) Should I have been entitled to a preference?  It surely would have promoted the diversity rationale — I could have educated students about my culture.  Or, to put it another way, doesn't the black applicant from Beverly Hills have a radically different culture than the black applicant from South-Central Los Angeles?

Thus, "promotion of diversity" is a poor rationale for granting preferences to "whites," blacks," "Asians," and "Hispanics." Moreover, since it is possible to continually refine each and every applicant to a point where each and every applicant provides a diverse student body, "promotion of diversity" is a completely useless rationale for treating students differently based on their skin color.

When "promotion of diversity" is seen for what it actually is — a simple color coding of applicants — its philosophical base is impossible to defend. As Martin Luther King, Jr. said, "I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character."

If only our public universities agreed…

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