Paul Brest, former dean of the Stanford Law School and co-author of a leading constitutional law text, defends diversity in a Los Angeles Times OpEd. His is an argument that is worth taking seriously, at least for its pedigree and popularity.
It begins with what strikes me as an unintentional but revealing non sequitur (no, not the ubiquitous kind I’ve often discussed, such as here.) First, referring to Bakke, Brest writes that “I fervently hope that the court will reaffirm this precedent. To do otherwise would compromise the core educational mission of American law schools.” Immediately on the heels of his fervent hope, however, he observes that
American legal education is highly interactive, getting students to examine the law from all possible perspectives…. Students are pressed to examine even well-settled cases with a skeptical eye.
Brest’s own “skeptical eye” examining Bakke, however, appears to have been clouded by his “fervent hope.”
Next comes the familiar “diversity of perspectives” argument, with an attempt to blunt one of the obvious objections to it:
Of course, a law student’s race does not determine his or her point of view on issues of legal policy. As a professor, I encountered a range of viewpoints within every racial and ethnic group. But it is a fact that people of different races and ethnicities often have different experiences. For example, African Americans regularly encounter discrimination not experienced by whites.
This is a bit slippery. Brest attempts to avoid the racialist assertion that race is a valid proxy for ideas, attitudes, perspectives by substituting the assertion that it is a valid proxy for experience. But that would be irrelevant if the different experience didn’t lead to different perspectives, and thus Brest fails to avoid the unappealing racialist essentialism that is at the core of all diversity arguments. Brest admits as much in his next paragraph:
Because of their different experiences, policies that seem benign or neutral to whites may have a different meaning for the members of minority groups. And the salience of discriminatory acts may be different — a factor that is relevant in the inevitable balancing of competing interests that courts perform.
Brest is honest enough to recognize that admitting minorities so that the other students may benefit from being exposed to their allegedly different perspectives places a burden on them. He notes that “[w]hile minority students complained of the burden of constantly having to educate their white classmates, the minority students learned as well.” Of course they did, but the fact they did does not validate the diversity justification for racial preferences. They would also have learned at the schools to which they would have been admitted without preferences. The diversity argument is based on the contributions the preferentially admitted minorities make to others, not on the benefits they undoubtedly receive. I have discussed here at some length the problems associated with admitting preferred minorities so that others may benefit from being exposed to them.
The implication of Brest’s discussion is that “the core educational mission of American law schools” is a dialog about race. In any event, he never discusses the relevance of different black-white perspectives on discrimination to wide swaths of the legal curriculum such as tax, torts, contracts, trusts and estates, corporations, international law, etc.
The too-easy assumption in Brest’s OpEd, and in fact in most arguments for diversity-justified racial discrimination, is that diversity comprises little more than race and ethnicity. True diversity, of course, would encompass many more qualities and characteristics, with religion primary among them. Does Brest favor preferences for Muslims, Mormons, born-again Methodists, and Missouri Synod Lutherans? Surely Stanford needs a few more of each to round out its discussions, and it could prefer them where Boalt Hall at Berkeley, a state institutions, might (or at least should) encounter some constitutional obstacles that have not yet been eroded by diversity arguments.
Indeed, insofar as the racialist argument that race is a useful proxy for perspective (even if disguised as “experience”) is valid, does not giving a privilege to it that is denied to other perspectives amount to viewpoint discrimination? After all, skinheads, armed militia members, and other similar groups also have different experiences that presumably lead to different perspectives on discrimination, and they could also make classroom discussions of discrimination more interesting for students and faculty. If diversity leads to preferences for Hispanics (are Cubans and Mexicans and Puerto Ricans and Salvadorans fungible?) because they are thought to bring different perspectives on immigration and multiculturalism, shouldn’t it also lead to preferences for some nativists?
In short, the breadth of the justification for diversity combined with the narrow limitation of diversity-justified preferences to arbitrary subsets of race and ethnicity suggest that the diversity argument, even though it is believed, is in practice a pretext for a properly discredited attempt at traditional racial balancing (a topic also addressed in my previous post).