A Deliberative Defense of Diversity: Moving Beyond the Affirmative Action Debate to Embrace a 21st Century View of Equality

Abstract

“Diversity” is a recent construct in our equal protection jurisprudence, but during its relatively short existence it has garnered many critics. Even critical race scholars, the most vocal proponents of aggressive civil rights and equal protection enforcement, are skeptical about “diversity,” to say nothing of its many opponents. Critiques of “diversity” argue that it is vague, an alter ego of affirmative action, and an inferior method of achieving the remedial purposes of equal protection abound. More troubling than this scholarly critique of diversity, however, is the “mixed motive” analysis of the diversity interest in the Court’s equal protection jurisprudence that conflates the aspirational aims of diversity with the remedial aims of affirmative action. Diversity can and should be defended and materially distinguished from affirmative action both in the instrumentalist theories justifying it, as well as in the legal standards by which its constitutionality is evaluated. This Article offers that defense. The primary aim of this Article is to elucidate the “diversity interest,” as recognized in our equal protection jurisprudence, through the lens of modern diversity practice. This corporate perspective on constitutional law may seem inapt. But viewing the constitutional diversity interest through the lens of modern diversity practice exposes the deficiency of our equal protection jurisprudence grounded solely in a remedial principle of equality to appropriately define or adequately accommodate the distinct aspirational aims of the diversity interest. Modern diversity practice offers insight and analogy for how our equal protection jurisprudence should respond to this deficiency, first by defining the various instrumentalist justifications for the diversity interest, and second by reframing the equal protection analysis to suit the constitutional contours of the diversity interest. Modern diversity practice offers both a theoretical and empirical defense of diversity that can help illuminate the legal analysis of diversity and move our equal protection jurisprudence from a backward-looking doctrine of redress to a forward-looking doctrine of egalitarianism.