The Diversity Zombie
Legally, the only reason “diversity” has the power it has to enable state racism, primarily in education, is because of one man, Justice Lewis Powell. In Regents of University of California v. Bakke, four justices held that a state medical school’s use of a racial quota, absent past discrimination, was unconstitutional. Four held that it was permissible. One, Justice Powell, said “sometimes.” In particular, taking account of race, without using quotas, was permissible to further “diversity” among the medical population, which in his view was a compelling state interest.
That solo concurring opinion is still, incredibly, the law of the land, affirmed as recently as 2003 in a case involving the University of Michigan law school, Grutter v. Bollinger. Ironically, in both Bakke and now the Seattle case the school doling out government spoils on racial grounds lost, but the diversity rationale lingers on.
Justice Kennedy is now the controlling opinion on such matters on the Court, and he refused to accept the reasoning of Justices Scalia, Thomas, Souter and Alito that the state simply cannot be racist in any way in allocating educational opportunities. Instead, he left the door for race to be used on diversity grounds, allowing Justice Powell’s reasoning to stagger on, zombie-like, for another term, rejecting in particular the Roberts opinion’s “all too unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account." He agreed that the use of race as a mechanistic consideration was unlawful, but not that race could never be used. Diversity is still a compelling state interest, meaning it is possible to have racial considerations determine who gets into a good school and who doesn’t. (Ironically, the biggest victims of this policy are not whites but Asians, who are now subject to informal quotas in many elite private colleges and universities.)
This is a shame. The Court’s reasoning on diversity is a mess, inviting a never-ending stream of clever camouflage of racial quotas and litigation. Four Justices are chasing racial favoritism all over the halls of jurisprudence, and one Justice or another (Justice Powell, Sandra Day O’Connor, and now Justice Kennedy), refuses to let it be captured. We would be better off as a country if the plug were simply pulled on Justice Powell’s historical accident of a controlling opinion, so that at last we may be confident that no state is denying to any person within its jurisdiction the equal protection of the laws..