The diversity narrative was just that. A narrative. And higher ed has used it as a crutch for years.Josh Blackman writes at the Volokh Conspiracy blog at Reason:
Say Farewell To The “Diversity Benefits” Rationale For Affirmative ActionFor nearly five decades, affirmative action was sustained on the opinion of Justice Lewis Powell. The key vote in Bakke thought that a diverse student body could improve learning on campus. Ultimately, Grutter adopted Justice Powell’s rationale, and held that universities have a compelling interest to pursue the educational benefits that flow from a diverse student body. That simple premise spawned an entire institution around “diversity.” Universities were forced to frame every decision they took in terms of using “diversity” as a way to help students learn. Of course, the real justification for affirmation action could be found in Justice Marshall’s Bakke opinion. He grounded racial preferences for black students (and not other races) in the centuries of oppression, slavery, segregation, and discrimination. Indeed, the “educational benefits” approach tokenized minority students as curiosities for white students to learn from. Advocates for affirmative action had to grit their teeth to stay in the good graces of old white folk like Justices Powell and O’Connor.Fast forward to Students for Fair Admissions. The majority opinion did not formally reverse Grutter–though I agree with Justice Thomas that the precedent is all but overruled. Still, the “educational benefits” rationale seems to have been nullified. Harvard identifies several specific educational benefits it was pursuing:
Respondents have fallen short of satisfying that burden. First, the interests they view as compelling cannot be subjected to meaningful judicial review. Harvard identifies the following educational benefits that it is pursuing: (1) “training future leaders in the public and private sectors”; (2) preparing graduates to “adapt to an increasingly pluralistic society”; (3) “better educating its students through diversity”; and (4) “producing new knowledge stemming from diverse outlooks.”
The Court easily found those rationales were not sufficient:
Although these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny. At the outset, it is unclear how courts are supposed to measure any of these goals. How is a court to know whether leaders have been adequately “train[ed]”; whether the exchange of ideas is “robust”; or whether “new knowledge” is being developed?
Of course, the shortcomings of the “diversity rationale” were apparent in Fisher II, and Grutter. Nothing has changed. The voluminous trial record was irrelevant. But the earlier Courts, stocked with “brave” judges of “wisdom,” did not ask the hard questions. They blindly deferred to the universities.
Blackman goes on to explore the surprising lack of the “educational benefits” narrative in even the dissents.
It was to be expected that the majority would discard the “educational benefits” rationale. But I was surprised at how little that rationale featured in the dissents. Justices Sotomayor and Jackson wrote at length about white supremacy, institutional racism, and other reasons to justify affirmative action. But the purported benefits that can be obtained in the classroom were not on center stage. The phrase “educational benefits” appears only four times in Justice Sotomayor’s dissent, and zero times in Justice Jackson’s dissent. Indeed, as Chief Justice Roberts pointed out, Justice Sotomayor cited Justice Powell “barely once,” while Justice Jackson “ignores Justice Powell altogether.” Rather, the dissenters rely almost exclusively on Justice Marshall’s dissent. Under well-settled law, the universities have not invoked any sort of “remedial” interest. To the contrary, the dissenters adopted the en vogue theory that our society is plagued by structural racism and the Fourteenth Amendment must be interpreted to remedy that oppression. Chief Justice Roberts observed that “there is a reason” the dissenters have to rely on Justice Marshall’s dissent, because they “surely cannot claim the mantle of stare decisis.”
CLICK HERE FOR FULL VERSION OF THIS STORY