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Mr. Diversity
June 28, 2003
By BILL KELLER
Whatever you think of the jurisprudence of Clarence Thomas,
his dissent in the University of Michigan Law School
affirmative action case this week is surely one of the most
poignant documents ever issued by the U.S. Supreme Court.
It is the angry exclamation of a black man who feels
personally patronized and demeaned by what he sees as
racial gerrymandering.
The bitterness spills into the footnotes; in one, he
explains why he derides racial diversity as an "aesthetic"
concept. The law school, he writes, "wants to have a
certain appearance, from the shape of the desks and tables
in its classrooms to the color of the students sitting in
them." To Justice Thomas's mind, diversity means the black
man as décor.
This is hardly the first time Justice Thomas has infused
the court's deliberations with the power of personal
experience that no white justice could bring to the bench.
During oral argument last December, for example, he
startled the chamber with a rare outburst against the
symbolic terror of cross-burning, which may well have
influenced the court to rule that states can ban the
practice. You can question how heavily personal narrative
should weigh in deliberations on the law - and you might
well prefer Thurgood Marshall's life wisdom to Clarence
Thomas's ferocious self-doubt - but as a general rule it
seems to me our legal system is more human, and more
humane, if the cold logic of the law is warmed by a rich
variety of experience.
Clearly Justice Thomas would be mortified to have himself
held up as evidence in the case for diversity, but in a
slightly off-kilter way he is exactly that.
Until Sandra Day O'Connor rescued the cause of diversity
with her majority opinion in the Michigan case, the concept
seemed to be falling into an ideological purgatory. It is
not just a target of the right, which mocks diversity as a
p.c. fashion. Liberal critics, too, question the value of
diversity as a rationale for affirmative action. The
Harvard sociologist Orlando Patterson, writing on this page
last Sunday, said it is safer to base such claims on an
appeal to historical justice, which is not so amorphous as
diversity. (Unquestionably there are substantial debts
outstanding from the legacy of racial oppression, but it's
not clear to me why this is the only rationale for
affirmative action.) Peter Schuck of Yale argues in his
book "Diversity in America" that in practice diversity is
"comically arbitrary" and rests on false, even insulting,
assumptions that most blacks share the same experiences.
Moreover, Mr. Schuck told me after the Michigan decision,
"It's putting off the day that we will become something
approaching a colorblind society."
Richard Kahlenberg at the Century Foundation argues that
under the flag of racial diversity, universities admit
middle-class black kids and congratulate themselves, while
leaving a huge problem of economic disadvantage untouched.
Mr. Kahlenberg proposes instead affirmative action based on
economic class. (Not necessarily a bad idea, but an
enormously expensive one.) The astute court-watcher Dahlia
Lithwick, writing in Slate, ridiculed the notion that
campuses should be designed so that white students can be
enriched by a rainbow environment: "Schools are not petting
zoos - we don't fill them with lots of varied and
interesting creatures merely as an end in itself." These
are not right-wing misgivings.
My own views on this subject are not entirely theoretical.
I'm a trustee of a liberal arts college that tries to
attract black and Latino scholars using a standard much
like the one at the Michigan Law School. I also work for a
newspaper that makes an effort to hire and promote talented
minority journalists. The paper does this not for the sake
of doing good (for that it has a charitable foundation) nor
to defend a principle (for that it has an editorial page),
but mainly because we can better comprehend a disparate
world and explain it to a disparate audience if our
reporting and editing staff does not consist entirely of
Ivy League white guys.
Anyone who supports diversity as more than a dogmatic
slogan, though, has to wrestle with some serious questions.
What about merit?
Some supporters of diversity answer this objection by
redefining merit, which is fair enough, since America has
often changed the definition. Admission to top colleges was
once based on something called "character," measured in
such a way that it included mostly the scions of elite
families. Now "merit" means G.P.A. and SAT. Why not expand
the definition to include, say, "the predisposition to
contribute to society"? One study of the University of
Michigan Law School graduates showed that minority
graduates, perhaps grateful for the opportunities they have
received, give much more of their professional time to pro
bono work.
My own answer to the merit question is a little different.
When you are grading a student or assessing an employee,
you judge by performance; to do otherwise would be
condescending. But when you are admitting a student or
hiring an employee, you are not just rewarding past
achievement, you are placing an educated bet on future
promise. Once you get past the threshold test - can this
person do the work up to our high standards? - why would
you not look broadly at what else they bring to the table?
If diversity is a virtue, why just race?
Why indeed?
There are many experiences other than growing up black that
are underrepresented in the most selective schools, or in
the upper ranks of a business like mine. College admissions
officers routinely give priority to point guards and
cellists. Many editors I know would award implicit bonus
points to a strong applicant who happened to be a military
veteran, an evangelical Christian, a Muslim, a child of
poverty or the proprietor of a small business, among other
perspectives that are scarce in the American news business.
But anyone who thinks that the legacy of race does not
carry special weight is not living in the real world.
What about the stigma?
Justice Thomas once told an
interviewer that as a black student at Yale, every time he
walked into a classroom he felt as if a monkey had jumped
onto his back from the Gothic arches. Other
African-Americans who have risen high in our nation's
service are less tortured by these anxieties. Condoleezza
Rice, who acknowledges that diversity played a part in her
academic career, and Colin Powell, who rose meteorically in
a diversifying Army, both endorse some measure of
affirmative action at important institutions. As Lani
Guinier of Harvard Law School points out, if the stigma
blacks experience were really about affirmative action
itself rather than race, legacy students like, say, George
W. Bush would share Justice Thomas's pain.
My favorite answer to the stigma question comes from the
scholar Stanley Fish: the low self-esteem that comes from
wondering if your success was based on merit is probably
preferable to the low self-esteem that comes from never
getting a chance to succeed in the first place.
Doesn't it divide us?
Professor Patterson argued in this
space that under the rubric of diversity, "the pursuit of
inclusion is replaced by the celebration of separate
identities." It is true that on some campuses populated
through affirmative action there is distressingly little
contact among the races.
But that - if you read carefully - is not what Justice
O'Connor defends at all. What she supports is a less
fashionable, more uplifting notion of diversity as a way to
fortify democracy. When it works, diversity accomplishes
this in two ways. One is by diminishing the corrosive
racial stereotypes that separate us. (Justice Thomas has
certainly dispelled any myth that all blacks bow to the
N.A.A.C.P.) The other is by legitimizing the institutions
that govern us. This was the real import of the brief filed
by retired military leaders in support of Michigan, arguing
the importance of a racially diverse officer corps. Justice
O'Connor extends this to her own profession, the importance
of diversity in creating a judiciary credible to those it
serves. I would extend it to mine, too.
What most diversity critics, right and left, yearn for is
clarity - clarity of logic, clarity of principle. What they
encounter in diversity, and in Justice O'Connor's defense
of it, is well-intentioned compromise, a political
construct. And, by the way, if you have any doubt that she
found the sweet spot where the American political consensus
abides, just look at how quickly the Bush White House,
despite its usual fetish for moral clarity, wrapped itself
in her verdict.
Sometimes - as in its broad and blessedly civilized ruling
Thursday protecting gay Americans from the invasions of a
censorious state - the Supreme Court upholds high
principle. And sometimes the best it can do is give us the
muddle of real life.
"A cynic," protested The Wall Street Journal, "might
conclude that yesterday's decisions mean universities can
still racially discriminate, as long as they're not too
obvious about it." Yes, just so. The editorial might have
added that this is pretty much what the first President
Bush did when he appointed a black jurist of questionable
distinction to the Supreme Court, insisting all the while
that it had nothing to do with race.
http://www.nytimes.com/2003/06/28/opinion/28KELL.html?ex=1057815756&ei=1&en=6e1c354bb61555ea
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