If Diversity Is Compelling…

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. ยง 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?

Say What? (3)

  1. Dean Esmay January 28, 2003 at 2:21 am | | Reply

    When I read this, I shudder.

    Shasti has the best argument against it I’ve ever seen:

    Click here to read it.

  2. Xrlq January 28, 2003 at 6:50 pm | | Reply

    In case anyone’s taking this post too seriously (John, I’m assuming it was at least partially tongue-in-cheek), it’s enough to say that when a court finds a “compelling” interest, it is common sense, not the Constitution, that “compels” it. Thus, if diversity is a “compelling” interest, states are still not legally required to pursue it; they’re just considered to be “legally nuts” if they don’t.

  3. John Rosenberg January 28, 2003 at 7:18 pm | | Reply

    Well, it was sorta tongue in cheek, but not completely, 100%, altogether. Indulge me for another moment.

    I think the question is, is there a slope — and if so, how slippery is it — from the ACLU argument against Prop. 209, that the 14th Amend. bars a state from requiring colorblindness, to the conclusion that any state agency, say a university, acting on the colorblind principle would be guilty of illegal discrimination? Whatever, as a practical matter, if diversity is held to be a compelling rationale for preferences, I think it will be nearly impossible to resist the pressure to have preferences everywhere. But then that seems to be what you’re saying as well when you say it’s nutty for a state not to do what’s compelling.

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