Thanks to all of you who have commented, tracked back, etc. I’m not at all sure my tentative idea of “moving on” and making the best of “diversity” is a good one, but I am pretty sure it is a non-starter. I’ve already heard from enough friends, and read enough predictions of conservatives organizing around judicial nominations and spawning Prop. 209s across the country, to be convinced that too many are too angry at losing a principle they regard as fundamental to just let it go and make the best of our new, changed reality.
Before “moving on” myself to contemplate where we are and what we should do, however, let me pause another moment over my aborted idea of trying to make “diversity” less objectionable than it will be if left unchallenged in the hands of its proponents. (For more on this, see Dean Esmay’s excellent post here.) I have argued before (no time to cite now) that diversity, even “diversity,” is not inherently unappealing, that if we were starting afresh, without our history and our values, it would be easily possible to imagine a society built on that principle rather than the principle of non-discriminatory neutrality that, I believe, has been at the core of our actual experience. I have argued, in short, that “diversity” is not so much unappealing as un-American.
But now it can be (and certainly will be) argued that SAnDra Day has amended both our capital “C” and small “c” C/constitutions and given us a new America. Faced with that new reality, it may well be that we would be better off to make the best of it ” whatever that may mean ” rather than devote all our energies to attempting to bring us back to the USA – B.S. (Before SAnDra).
But, as I said at the beginning, that is not likely to happen. So, what is?
Following the path blazed by the pro-life movement after Roe, I suspect conservatives will begin organizing to overturn Grutter. This will probably take several forms:
a) seeking state legislation or constitutional amendments (Let 48 more Prop 209s bloom!) to ban racial preferences;
b) political action to promote the nomination and approval of judges committed to non-discrimination and opposing preferentialists and those thought to be soft on preferences such as White House counsel Alberto Gonzalez. (See criticism of Gonzalez here);
c) seeking federal legislation to overturn Grutter. Congress of course can’t reverse the Court’s interpretation of the 14th Amendment (except in the long run, through the Senate’s role in the appointment process), but if it chose to it presumably could through new legislation say the Court was wrong in concluding that Title VI ” barring federal funds to schools that discriminate ” does not, well, bar federal funds to schools that discriminate. Given the Republicans” unwillingness to stand up and be counted on this issue, however, this would appear to be unlikely.
“I don’t think there is any hope in terms of Congress doing anything to limit affirmative action,” said Linda Chavez, president of the Center for Equal Opportunity, which is among a coalition of private groups working to end race-conscious programs nationally. “The White House would be apoplectic if Republicans in Congress decided to raise the issue.”
The past (and continuing) failure of Republicans to fight for the non-discrimination principle is based on a fear that it would hurt them politically, which reveals one of the risks of conservatives circling the wagons on this issue. Of course such cowardice can also be a self-fulfilling prophecy: if you don’t defend your principles, you’re pretty sure to lose them. If you allow trespassers to run roughshod over your principles, they will eventually take adverse possession of them, and that is what has happened here. For the past generation the Republicans have run from the colorblind principle as though it were another third rail, and so it may well have become one. The only groups speaking up for this principle have been the small private groups such as the Center for Equal Opportunity, the Center for Individual Rights, etc. Compare that with the Democrats, who are indistinguishable from the interest groups favoring preferences.
Thus, as unappealing as the Republican fear of defending colorblindness may be, it is hard to say that it is a winning issue. Polling data tends to confirm that most Americans oppose preferences, a view that is re-inforced by the votes in California on Prop. 209 and inWashington state on the similar Prop. 206. On the other hand, the “diversity” principle is also very popular now, and it is not clear to me how trench warfare in the states would turn out. We also must acknowledge that such warfare could prove more divisive than anything we’ve seen since the bitterness produced by the battles over busing.
Although the prospect of this divisiveness is not appealing, there would be a certain amount of poetic justice in it. The preferentialists — especially the ones in law schools, wearing their new and ill-fitting neo-Frankfurtian garb — have been preaching and praying for a good while now that non-discrimination is a political issue that the courts should avoid. There will thus be a strong urge to give them what they have asked for and force them to defend preferences before voters in the states. The risk here — although it may well be a risk worth taking — are a series of battles that will make the busing fights look like child’s play.
Thanks, SAnDra.
I’m unsure of the court’s exact holding in Grutter and hope that brighter legal minds than my own might weigh in. Has the court found that diversity is always a compelling state interest in the context of university admissions or that diversity can be a compelling state interest depending upon the particular school’s institutional mission?
The court first states that “for the reasons set out below, today we endorse Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.” Later the majority states “[t]oday, we hold that the Law School has a compelling interest in attaining a diverse student body” and “[o]ur conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School’s proper institutional mission, and that ‘good faith’ on the part of a university is ‘presumed’ absent ‘a showing to the contrary.”
By the rationale employed, it seems clear that most all undergraduate programs will be able to demonstrate/cite similar benefits flowing from diversity as the law school. I wonder, however, whether math/hard science graduate school programs can similarly justify the need for diversity (livelier classroom discussions, etc.) I suppose they could cite the future need to work in diverse workplaces as a justification. Medical schools might have similar problems, though they could also cite the need to learn to serve diverse patient populations. If the court has merely held that diversity can be a compelling state interest, it may be difficult for some of these post-grad schools to prove in the context of their programs.
On a slightly different note, the court has clearly only spoken to university level admissions, though my gut instinct is that diversity would be similarly upheld in the context of public K-12 admissions for similar reasons.
I disagree about your comment on Repubs not defending their priciples. How many politicians are willing to hold on to a principle if it means they will not have a chance in the next election? And if we have people who are dogmatic on their principles even if those principles go against the electorate how long do those people last in politics? Not long. You probably would not be elected if your district is majority Black and poor and you do not agree with affirmative action. You sometimes have to pick your fights.
In a different vein:
Individual-rightsters and diversiphiles alike are neglecting the “law of unintended consequences” in contemplating the post-Michigan landscape. People will modify their behaviors as they take account of the new circumstances. The broad outlines of some changes can already be seen.
1. Some people will aggressively search their geneologies for ancestors who belonged to a currently-favored ethnic group, and declare themselves to be members of that group.
2. Some members of disfavored groups will “game the system” by stating their membership in a favored group.
3. Non-favored groups (Burmese-Americans, Coptic-Americans, Australian-Aboriginal-Americans) will use the logic of critical-mass to demand preferential status.
4. More and more people will decline to self-identify by race on institutional forms.
Actions (1) and (2) require action by diversiphile institutions on individual cases. Obviously preposterous claims can’t be routinely allowed as the basis for preference. (For example, an assertion of “Hispanic” identity by virtue of descent from a Sephardic great-great-grandparent.) However, how will these institutions handle the inevitable appeals of the inevitable preferred-status denials? Due process will require clear and objective definitions: definitions that don’t, and in some cases can’t, exist. Soon, diversiphile rule-making bodies are going to find themselves resurrecting odious pseudoscientific concepts of the 19th century: “mulatto”, “octaroon”, “one drop of Jewish, er, Amerind blood.” Renamed, of course. Will genetic testing help? What about adoptions? What about appearance? Cultural experience?…
Answering protests based on (3) forces legislators and administrators to explain their positions. Does diversity mean favoring everybody except Whites and East Asians? Or, is it to be (in part) reserved as a tool for redressing Black-White issues? Where is the charmed midpoint that will satisfy all aggrieved parties?
Action (4)–writing “Mongrel” instead of ticking a race box–doesn’t interfere with the bureaucracy of diversity. Other is equivalent to White or East Asian; extend no preference. However, this action may be a common first step that leads to more critical reflections on the meaning of “race” in American life. I suspect that self-declared Mongrels will be much more willing to vote Yea for measures similar to California’s Proposition 209. If widely practiced, this consciousness-raising may do the most to alter the terms of the national debate.
I don’t understand the category of “non-favored groups” in the last posting. Please explain.