For four decades, the diversity rationale has offered a lifeline to affirmative action in higher education. Yet even after forty years, this critical feature of equal protection doctrine remains constitutionally insecure and politically fraught. Legal challenges persist, the Justice Department has launched a new assault on affirmative action, and a rightward shift on the Supreme Court could usher in an era of increased hostility toward the concept of diversity itself. The future of race-conscious admissions may hang in the balance.
In this Article, I contend that the diversity rationale’s present fragility rests, in part, on its defenders’ failure to center diversity’s most compelling quality: its ability to promote personal equality within the university. To fill this void, this Article advances the first comprehensive case for diversity rooted in each student’s interest in an equal opportunity to enjoy, regardless of race, the full benefits of university membership. This framing is appealing, in part, because it makes salient the present and personal equality harms that students of color suffer when severely under-represented in predominately white institutions. Race-conscious admissions, in turn, emerge as an essential component of institutional efforts to further normative commitments—ranging from racial integration to individual meritocracy—that should resonate with Justices across the ideological spectrum.
To support this new framing, I resurrect the Supreme Court’s pre- Brown desegregation cases. These decisions reinforce the constitutional infirmity of institutional conditions that compromise a student’s ability, because of her race, to access the full benefits of university membership. I then bridge the theory to social science that reveals how environmental cues—including racial demographics—can exact concrete and quantifiable burdens on students from negatively stereotyped groups. Although well-traveled in other domains, this research has only begun to inform legal scholarship.
Feingold, Jonathan P.
"Hidden in Plain Sight: A More Compelling Case for Diversity,"
Utah Law Review: Vol. 2019:
1, Article 2.
Available at: https://dc.law.utah.edu/ulr/vol2019/iss1/2