The Radical Indeterminacy of “Diversity”

Curtis Crawford has a fascinating discussion of “the radical indeterminacy of ‘diversity'” that I should have blogged earlier. His basic point is that Grutter was, essentially, non-sensical because “diversity” is so radically indeterminate that it could not logically provide the sort of compelling state interest necessary to justifiy treating races differently.

Student body “diversity,” a myriad of facets and relations, with a mixture of good and bad effects, is clearly indeterminate. Since the mind cannot lay hold of it, no rational judgment can be made as to whether it is a compelling interest, or whether any given means is narrowly tailored to serve it. Such judgments would become possible if, but only if, both the type and extent of “diversity” were specified. Without such specification-stating the kinds and amounts of “diversity” at issue-the Court could not know what it was judging. Without such knowledge, the judgments had no rational basis. They were thus absurd-blatantly irrational.

I think Crawford may be on to something here, although, ironically, by taking O’Connor’s opinion seriously he may be paying it more respect than it deserves. “Everybody knows,” I am tempted to say, that the Court didn’t really mean diversity when it spoke of “diversity.” “All” it meant was that college officials could consider race along with whatever else they wanted to consider. Exactly how they considered it, including how much was enough, how heavily to weigh it, etc., etc. was left to their discretion.

ADDENDUM … & QUERY [4/11/04 12:05 A.M.]

Crawford argues that “diversity,” as treated by the Court, is too amorphous, undefined, indeterminate for the Court to be able reasonably to conclude that the need for it meets the “strict scrutiny” test.

As I’ve argued on many occasions, and agree above, I think he’s right. Let’s pursue this a bit further, however.

One way (the best way? the only way?) to describe what the Court actually did is to say that it agreed that “diversity” (whatever that is, since its meaning will vary among different institutions using their own discretion) is a compelling enough interest to justify the consideration of race “as one of many factors” (I’m quoting here not from the opinion but from the common, even ubiquitous, defense of “diversity” from just about all of its defenders) in the process of achieving it.

But if this is what the Court really did — if race really was seen as just one of the possible ingredients in “diversity and if “diversity” really is important enough to justify discrimination on the basis of race — doesn’t it follow that virtually (hell, actually) any other kind of discrimination would also be regarded as compelling enough to justify it? As I’ve asked many times before, if diversity can justify discrimination on the basis of race, why not on the basis of religion as well?

When admissions officers say they merely want to consider race as “one factor among many,” they usually give such examples of those “other factors” as geography, legacy status, musical or athletic ability, and increasingly now social class or income. As bases of discrimination, however, those characteristics are tame and uncontroversial since they trespass on no protected constitutional rights.

Religion, however, does. How could a court, following Grutter, prohibit state universities from granting admissions or hiring preferences to adherents of “underrepresented” religions? And this, in turn, leads to my Query: Are there any cases applying the “strict scrutiny” standard to religious discrimination? That is, has a court ever held that a state agency can discriminate on the basis of religion if the policy in question meets all of the strict scrutiny requirements?

Just as “diversity” comprises more than race, however, there is no excuse for stopping after religion is added to the mix. Does Grutter now undermine the (old?) requirement that the state cannot engage in viewpoint discrimination? Indeed, doesn’t achieving “diversity,” if it means more than simply arbitrary race mixing, actually require admissions and hiring officers to achieve a balance (sort of like the now discarded “fairness doctrine” in broadcasting) of political, social, and moral ideas? And let’s not forget sex: how can an institution be assured of an appropriate mix (with the meaning of “appropriate” to be decided by itself) of sexual and gender identities, persuasions, behaviors without inquiring into them and using them — as “one factor among many,” of course — in making admissions and hiring decisions.

Since “diversity” now justifies discrimination on the basis of race, is there any reason to suppose that it would not also justify discriminating on the basis of religion, political affiliation or ideology, and sexual persuasion?

Say What? (3)

  1. Richard Nieporent May 10, 2004 at 5:36 pm | | Reply

    You really know how to cut to the chase. It is simply a waste of time to argue about what is actually meant by diversity, The Left uses diversity as a euphemism for black and, unfortunately, the Supreme Court agrees with that meaning. In other words, pointing out that the word diversity has a broader meaning will not impact the way universities use it to admit the

  2. Curtis Crawford May 11, 2004 at 3:51 pm | | Reply

    John, many thanks for calling attention to and quoting from my argument that the Court’s judgments concerning “diversity” in Grutter “had no rational basis.”

    You ask whether I pay O’Connor’s opinion “more respect than it deserves.” A strange question, given my accusation that its judgments concerning “diversity” are, in the strictest sense of the term, nonsense! The Court was not required to frame questions that could not be rationally answered. It chose to ask, whether (1) “student body diversity” is a compelling state interest, to which (2) the use of race is a narrowly-tailored means. So long as the kind and amount of such diversity is not specified, there is no rational basis for answering these questions. Key judgments made, utterly lacking in rational basis, deserve no respect. Accordingly, I can report, after a careful examination of my conscience, not a smidgin of respect for them therein. On the contrary, I hear admonitions that rationality is the core of the law, which, without it, becomes merely arbitrary command.

    Now can we peer into your conscience? In your addendum, you argue that if by “diversity” the Court means what people generally assume, and if “diversity” so understood justifies different treatment based on race, then its pursuit might well justify different treatment on other constitutionally sensitive bases, such as “religion, political affiliation or ideology, and sexual persuasion.” Now, if one supplies some specifics that the Court did not, your argument makes sense, and tells against the constitutionality of the Court’s judgments concerning “diversity.” But by guessing what might fit into an empty pail, aren’t you the one who is according the pail more respect than it deserves?

    Referring to my thesis at the beginning of your addendum, you write that you agree, as you “have argued on many occasions.” This may mean that my belief when conceiving the argument that it was new was mistaken. The opinion that “diversity” was too indeterminate to constitute a compelling state interest was certainly not new. Among other places it can be found in plaintiffs’ briefs in both Grutter and Gratz. But I had not seen the substantiation of that view by a simple and solid logical progression. If the Justices had been aware of such a rationale, there might well have been at least four rather than just two votes in Grutter against “student body diversity” as a compelling state interest. John, if you have made or seen the argument thus fleshed out, please refer me so that I can credit appropriately.

  3. John Rosenberg May 11, 2004 at 11:59 pm | | Reply

    Curtis – All I meant by suggesting that you may have taken O’Connor’s argument too seriously — a point I should have made clearer that I offered partly tongue in cheek — is that you assumed she at least meant what she said. But she didn’t! All she meant by “diversity” is … more blacks. More than what? How many more? She didn’t know, and didn’t care. Just … more.

    Consider: despite all the rhetorical bombast about “re-segregation” etc., no one argued that ending preferences would result in NO blacks being admitted. Preferences, it is clear (and I think was clear to O’Connor, her language to the contrary notwithstanding), has nothing to do with diversity as previously understood, and their only relation to “diversity” as currently understood is that they are necessary to admit more blacks to highly selective schools than would be the case in their absence.

    But, once one recognizes that “diversity” means simply more blacks (“critical mass,” or whatever), then the only thing “indeterminate” about it is that the number — how many? how many more? — is indeterminate. But that number doesn’t logically matter if you assume “diversity,” meaning simply more blacks, is of compelling importance.

    Now, as I tried to argue, if O’Connor et. al. really meant, you know, diversity, then all your complaints about “indeterminacy” would be perfectly true, as would the logical necessity of justifying religious, sexual, and “content” (that is, ideology, politics, values, etc.) discrimination in order to achieve it.

Say What?