"Diversity" Is a Crock

Time for SCOTUS to put it where we put the other crock

Affirmative action and its principal (if not at this point its only) legal justification  --  "diversity"  --  have been written about a zillion times.  The most important thing I can add at this late date takes root in what I used to do as a federal prosecutor, namely, to try to see what's really going on beneath the high-minded language and call things what they actually are.

I have an example to work with.  In criminal law, the fashionable trend is what the MSM calls "criminal justice reform."  That's an opaque and vaguely appealing name, used to avoid saying what it actually is  --  shorter sentences and earlier release for criminals, including hundreds if not thousands of violent thugs who're going to do some robbing and mugging and killing when they get out.  The reason "criminal justice reform" is deceptively named is, thus, easy to see:  If it were called what it is, only a few quite odd people would buy it.  As public policy, it would go nowhere.

Therein lies the key to analyzing affirmative action's key "diversity" rationale.  What "diversity" actually means is this: Based squarely on race, colleges will deny admission to whites and Asians  --  admission they would get under normal, achievement-oriented criteria  --  and give it instead to less qualified blacks.   In other words, it's rank racial discrimination.  Without a pleasant-sounding disguise, it too would go nowhere.  There's a reason its defenders relentlessly use "holistic" and numerous other antiseptic (if slightly mysterious) words in talking about it.

So the first among many things wrong with "diversity," and the tip-off to most of the others, is that it's dishonest.  Like anything else that's being sold to you through dishonesty, your reaction should be to refuse to buy it on that ground alone.  If the seller understands he needs to disguise the product in order to make the sales pitch, he's telling you all you need to know about his own assessment of it.  You’d best understand.

Like criminal justice "reform," "diversity" would be a dead letter if it were called "racial discrimination against more accomplished whites and Asians to give important benefits to less accomplished members of more favored races."  The reasons any fair-minded person would reject this are too obvious and numerous to state (although I'll take a stab at it, see below).  Still, as I found out in my career as a litigator, it's sometimes useful to state the obvious, and the plaintiffs in the Harvard and UNC cases do a good job in leading off their SCOTUS brief:

“It is a sordid business, this divvying us up by race.” LULAC v. Perry, 548 U.S. 399, 511 (2006) (Roberts, C.J., concurring in part, concurring in judgment in part, and dissenting in part). “‘[D]iscrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society.’” City of Richmond v. J.A. Croson Co., 488 U.S. 469, 521 (1989) (Scalia, J., concurring in judgment). “‘[E]very time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.’” Fisher I, 570 U.S. at 316 (Thomas, J., concurring).

“Our nation gave its word over and over again: it promised in every document of more than two centuries of history that all persons shall be treated Equally.” Price v. Civil Serv. Comm’n, 604 P.2d 1365, 1390 (Cal. 1980) (Mosk, J., dissenting). “Our constitution,” as Justice Harlan recognized, “is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissent). The Court vindicated the promise of the Fourteenth Amendment in Brown v. Board of Education, 347 U.S. 483 (1954), rejecting “‘any authority … to use race as a factor in affording educational opportunities.’” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 747 (2007) (plurality). 

The odiousness of discriminating against people on account of race is so much a part of our national consciousness that it's almost impossible for me to understand how, without the fancy dance and the intentional deceit liberals having been pulling on us for decades, “diversity” could have become so much a part of present law (and present culture, which is even worse, but beyond the scope of this entry).

This is so even without considering who the victims are  --  high school kids applying to college.  In other words, the people we have chosen to sacrifice on the Altar of National Guilt are, legally (and in many other ways), children.  Is this supposed to make us proud?  Last year, they were still learning how to drive.  They do babysitting and lawn-cutting for summer jobs.  They clean your pool.  They still dread the geometry exam.  Lots of them are nervous on a date.  They have metabolism most readers of this entry will never see again.  But for years they did their homework while others partied, and now stand a chance, in the colorblind system they were told it was our national creed to honor, to get into Harvard or Stanford, etc.  But in the name of "diversity," adults have chosen to make them pay the price, and often a big price for their life prospects, for something they had nothing to do with.

Forcing other people  -- teenagers, no less  --  to pay the Price of Ancient Guilt is not far-sighted. It’s not Greater Justice or The Path to Fairness.  It's immoral and vile, and it's time to say so. 

Not that racial preference/diversity would have a lot going for it anyway.  As the nations competing with us know, the point of higher education is intellectual challenge, excellence and achievement.  In a world that understood this (previously) obvious point, the notion that what the entering class looks like makes a difference would seem somewhere between quaint and crazy. [UPDATE: See this WSJ story, out tonight, titled, “American Universities Continue to Falter in World Rankings, China Rising.” Chinese universities have no “diversity” admissions programs I ever heard of].

The “diversity” argument is that racially rigged college admissions will promote excellence among blacks, in a way and to a degree whites have had for a long time but blacks have not had before.  Again, it sounds high-minded, but it's an empirical proposition, so we might ask:  Where's the proof?  It's not like racial preference admissions are a brand new thing; they've been around for 50 years or so.  How are they working out in terms of producing excellence, or even just a solid education, for blacks?

Let's ask that question using more specifics.  Over the last half century, where is the evidence that racial preference has resulted in black students learning more?  And I don't mean just having more college degrees, or more college degrees from places like Harvard.  I mean learning more and knowing more, which is different.

There might be evidence that black students who received racial-preference placement learn more and know more than they did 50 years ago, but I haven't seen it.  To the best of my knowledge, actual black achievement in higher education over that time is similar to actual white achievement  --  flat.  (If any reader knows differently, please use the comments section to elaborate).  If that is true, the main argument for racial preference simply comes up short on fact-specific evidence.

One aside: This may be the place to comment on the related counter-argument that moving blacks into more demanding colleges through racial-preference admissions actually hurts them, because it's a formula for failure.  They would have had a better chance to succeed if they went to the middling school their academic credentials fit, rather than to Stanford, etc.

The evidence I've seen pretty strongly suggests that this argument is true, but I prefer not to use it anyway.  Its premise is that we should judge the merit of race-based admissions on how well they serve their intended beneficiaries.  I don't think so.  It's a subset of the argument that we should judge set-asides of one sort or another based on how they well they work for The Intended Victimhood Group  --  blacks, trans, ex-cons, Islamicists, what have you.  That's wrong for at least three reasons.  First, it puts a premium on victimhood and manufacturing claims to victimhood.  Second and more broadly, it treats people as members of a group rather than as individuals  --  something that's perverse in any event, and especially perverse when the assignment is made on the basis or race, something a person doesn't choose and can't change.  Third, it gives short shrift to the immorality ab initio of racial preference as legal policy (see above), focusing only on the favored group while treating whites and other disfavored groups (who together are a big majority of the population) as if they don't count.

Finally and very briefly, "diversity" turns out to be  --  guess what!!  --  a political grab-bag.  The idea that, on a nationwide basis, we would distribute something as wanted and as valuable — and as politically supercharged — as admission to elite or just real good universities with church lady honesty is beyond naive.  It will suffer from political infection for the same reason government-run health care suffers from it.  As I type this,  blacks are a reliable voting bloc for the Party that currently runs the Department of Education.  If you think this isn't going to affect how the Department pressures universities, public and private, to "adjust" their admission criteria, and perhaps a good deal more, I have this bridge........