If the Supreme Court holds that diversity is a compelling governmental interest, would the federal government, states, counties, cities, et. al. be, well, compelled to provide it?
Would a state that barred racial preferences, as California did with Proposition 209,, be violating the 14th Amendment if preferences were seen as necessary to produce diversity, as the ACLU argued in seeking an injunction against 209?
In 1991 Congress amended Title VII (42 U.S.C. § 2000e-2) to prohibit “race norming” (grading applicants, test takers, etc., only in comparison with members of their own racial or ethnic group) even where such norming is claimed to be necessary to achieve diversity. If diversity becomes a compelling governmental interest, will this provision be held unconstitutional?
William Raspberry, usually a thoughtful columnist, today suggests the desirability of bringing back race norming (though he doesn’t use the phrase) when he says that “the best of the black applicants ought to be admitted to the top places of learning — provided they demonstrate the ability to perform the work.”
If “diversity” is held to be a compelling governmental interest, might race norming be constitutionally required, not just allowed?