“Diversity” As Racial Balancing

[NOTE: This post has been UPDATED]

Can anyone explain to me the difference between “diversity,” as actually practiced (which distinguishes it from promoting actual diversity), and “racial balancing”?

It’s an important, even crucial, distinction, since the Supreme Court has repeatedly made it clear that racial balancing “for its own sake” is impermissible. Most recently, for example, in Parents Involved, prohibiting the racial assignment of students in Seattle and Louisville, Chief Justice Roberts, in his majority opinion, noted that a fatal flaw of the “racial balance” sought by the school districts is that it was defined “solely by reference to the demographics of the respective school districts.” Continuing, he emphasized:

We have many times over reaffirmed that “[r]acial balance is not to be achieved for its own sake.” Freeman [v. Pitts, 503 U.S. 467], at 494. See also Richmond v. J. A. Croson Co., 488 U.S. 469, 507 (1989) ; Bakke, 438 U.S., at 307 (opinion of Powell, J.) (“If petitioner’s purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected … as facially invalid”). Grutter itself reiterated that “outright racial balancing” is “patently unconstitutional.” 539 U.S., at 330.

Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that “[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson, 515 U.S. 900, 911 (1995)…. Allowing racial balancing as a compelling end in itself would “effectively assur[e] that race will always be relevant in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race’ will never be achieved.” Croson, supra, at 495…. An interest “linked to nothing other than proportional representation of various races … would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the [program] continues to reflect that mixture.” Metro Broadcasting, supra, at 614 (O’Connor, J., dissenting). [Parts of citations omitted]

So, let me repeat my initial question: how is “diversity” for its own sake (and whose other sake is it for?) any different from “racial balance for its own sake”? I certainly can’t find a difference in most of the ritualized defenses of and demands for “diversity” that emanate from the foggy swamps of higher education.

Consider this typical example from Penn, picked only because it appeared in my inbox this morning (HatTip to reader Ed Chin). Responding to a recent report from the Council of Graduate Schools calling for more “diversity” in graduate education,

Mary Lou de Leon Siantz, Penn’s School of Nursing assistant dean of diversity and cultural affairs, agreed that more diversity is necessary in Penn graduate schools.

The Nursing School, for example, recently started an initiative to diversify the school and create a model for nursing schools across the country.

“This vision has changed the face of nursing at all levels to reflect the diversity of a global society, which is what Penn is about, and to make Penn’s School of Nursing the model for diversity,” de Leon Siantz said. [Emphasis added]

So, the University of Pennsylvania, formerly thought of as one of the nation’s leading institutions of research and learning, is now “all about” being a demographic reflecting pool.

Aside from this degradation of Penn’s mission, what does “diversity,” reflected in the face of the nurse, actually contribute to the treatment of patients? Does that matter, or is facial reflection itself the only justification for a “diversity” that has “changed the face of nursing at all levels”? Unless Diversity Dean de leon Siantz can explain what facial diversity contributes to what nurses actually do, isn’t this determination “to reflect the diversity of a global society” simply “‘diversity’ for its own sake”?

Penn’s defense of “diversity” is no different from, certainly no worse than, the sort of defense offered by all sorts of other institutions, many of them far removed from higher education (which, it’s important to remember, remains for the moment the only area of American life where the Supreme Court has legitimized the sorts of racial preference necessary to implement it).

Take the City of New Haven, for example. (No, you take it.) As we’ve seen in discussions of the case of the firefighters there who were denied promotion because not enough blacks passed the promotion exam (see here, here, here, here, here, and here), the City of New Haven was distraught that promoting only the 19 whites and one Hispanic who passed the promotion exam would leave its fire department insufficiently “diverse.” A largely unrebutted claim of the Ricci plaintiffs, for example, is that New Haven discounted the results of the exam, as the District Court put it, “in the interest of pleasing minority voters and other constituents in New Haven whose priority was increasing racial diversity in the ranks of the Fire Department.” Or again: “As the transcripts show, a number of witnesses at the CSB hearings mentioned ‘diversity’ as a compelling goal of the promotional process.”

Compelling? See Chief Justice Roberts and others, quoted above.

And again, what is the justification of the New Haven Fire Department’s, any fire department’s, desire for “diversity”? Are there culturally different forms of fire that require culturally different skills in fire fighting? Is race a valid proxy for possessing those skills? When his or her house is burning down, Roger Clegg has pointedly asked, do average Americans “care about anything but the … firefighter’s ability?”

Let’s hope the Court recognizes that “diversity,” in most of its current applications, is simply “diversity” for its own sake, and thus that it is no better and no more acceptable as a rationale for racial preference than racial balance for its own sake.


A few days ago, in asking Is Judge Sotomayor A Wise Latina Woman?, I quoted her remarkable assertion from a panel discussion in Berkeley several years ago, a quote that for some reason has not been treated with the shock and awe it deserves:

I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Now, this assertion, with its implication that all white males are benighted by a thinness of experience that leaves them bereft of the wise empathy necessary to judge those different from themselves, is extreme, but don’t all diversiphiles believe something quite similar?

Although Judge Sotomayor’s comment is indeed extreme, and deserving of more attention than it has received, doesn’t it in essence simply state what all the “diversity” arguments logically imply? Most diversiphiles may not assert — indeed, may not even believe — that a wise Latina woman/black/whatever will more often than not reach a better conclusion than a white male, but must not all diversiphiles believe that a court with such a person or persons will most of the time reach better conclusions than a court without? If that weren’t true, after all,what would be the point of “diversity,” aside from “racial balance for its own sake”?

Say What? (2)

  1. Alex Bensky May 20, 2009 at 9:07 am | | Reply

    I’m just a simple country lawyer from a simple country law school, but can someone explain to me how the “wise Latina” approach better informs decisions on, say, commercial law or questions of federalism?

    Still, I admire Judge Sotomayer for her candor, if not much else. She genuinely thinks people are definited by certain group identifies. I think it’s an abhorrent viewpoint, but she’s at least straightforward in embracing it.

  2. […] I googled the difference between racial balancing and diversity, and was taken to an interesting website that contained an excellent description of this issue.  The website contains several quotations […]

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