Affirmative Action for the Future

7. A Defense of Diversity Affirmative Action

7 A Defense of Diversity Affirmative Action Unlike remedial affirmative action, diversity affirmative action is not grounded in the ideal of remedying discrimination, whether present or past. Rather its goal is diversity, which in turn is justified in terms of either the educational benefits it provides or its ability to create a more effective work force in such areas as policing and community relations, or achieving equal opportunity. The legal roots of this form of affirmative action in the United States are most prominent in Regents of the University of California v. Bakke (1978). In Bakke, Justice Powell argued that the attainment of a diverse student body was clearly a constitutionally permissible goal for an institution of higher education. According to Powell, in an admissions program that aimed at diversity, [r]ace or ethnic background may be deemed a “plus” in a particular applicant ’s file, yet it does not insulate the individual from comparison with all other candidates for the available seats....The applicant who loses out in A Defense of Diversity Affirmative Action 67 the last available seat to another candidate receiving a “plus” on the basis of ethnic background will not have been foreclosed from all consideration for that seat....It will mean only that his combined qualifications...did not outweigh those of the other applicant. Furthermore, an admissions program may “pay some attention to distribution among many types and categories of students,” as more than a “token number of blacks” is needed to secure the educational benefits that flow from a racially and ethnically diverse student body. For almost twenty years, Powell’s opinion in Bakke, supported by Justices Brennan, Marshall, Blackman, and White, has been the rationale for the affirmative action used by most American colleges and universities. Even Justice O’Connor, who has rejected diversity as a compelling interest for the broadcasting industry in Metro Broadcasting Inc. v. FCC (1990), allowed in that decision that a state interest in the promotion of racial diversity has been found sufficiently compelling at least in the context of higher education. In 1996, the U.S. Court of Appeals for the Fifth Circuit held in Hopwood v. Texas that Powell’s opinion in Bakke is not a binding precedent. According to the Court, the view that race may be used as a “plus” factor to obtain diversity “garnered only [Powell’s] vote and has never represented the view of a majority of the Court in Bakke or any other case.” However, it has been generally recognized that the Brennan group (which included Brennan, who wrote the opinion, as well as Marshall, Blackmun, and White, who endorsed it) supported Powell’s view. In fact, Brennan himself said as much in a subsequent decision. The reason no other case has supported Powell’s view on diversity in education is that no other case since Bakke has dealt with diversity in education. The Hopwood Court also ruled that evidence of discrimination in Texas ’s school system as a whole was not relevant to whether the affirmative action program of the University of Texas Law School is justified. Even though, as of May of 1994, desegregation suits remained pending against more than forty Texas school districts and, at the time the Hopwood plaintiffs filed suit, the U.S. Office of Civil Rights had not yet determined that the state had desegregated its schools sufficiently to comply with federal civil rights laws, and, even though most of the applicants to the Law School had passed through that very same educational system with its 68 Affirmative Action for the Future alleged inequalities, the Hopwood Court only allowed the Law School at the University of Texas to use evidence of its own discrimination to justify engaging in affirmative action.1 But, as I have argued earlier, once suf- ficient evidence of discrimination has been provided, there seems to be no reason to impose the additional requirement that the agent engaged in the affirmative action program must be further implicated in the discrimination it is seeking to correct. Interestingly, the Court based its overall decision on two contradictory claims about race.2 First, the Court claimed that race does make a difference , that we can’t assume there would be proportional participation in the absence of past discrimination. But the Court also claimed that race does not make a...