May 20, 2002
"Diversity Offers Everyone a Stake"--A Commentary by Prof. Jack Balkin
(This essay was first published in the May 17, 2002, edition of the Los Angeles Times.)
Diversity Offers Everyone a Stake: "Community" can be born in the colleges.
By Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment
On the surface at least, the legal question in Tuesday's decision upholding the University of Michigan Law School's affirmative action policy was whether diversity is a constitutional justification for race-conscious affirmative action. A majority of the U.S. 6th Circuit Court of Appeals said it was.
But what really was at stake in the case was the meaning of diversity itself. After the 1978 Bakke decision--in which a white student sued UC Davis after he was rejected for medical school--diversity became the focal point of debate about affirmative action in higher education. The Bakke ruling banned racial set-asides but allowed universities to use race as one factor in admissions decisions. Justice Lewis F. Powell's opinion in Bakke, which was cited in the Michigan case, however, obscured the fact that the concept of "diversity" was itself diverse. One type of diversity is demographic diversity: ensuring that a broad cross section of American society has a fair shot at the opportunities that a university education can provide. To achieve this, universities must pay attention to which groups have had the least access to educational opportunity; that's why the University of Michigan's policy focused particularly on blacks and Latinos.
The second kind of diversity is diversity as community. It means trying to ensure that people from the different groups in American society learn to live with and work with one another. This vision of diversity tries to forge bonds of trust, loyalty and community among the people who will be running the nation in the next generation.
The third kind of diversity is diversity of perspective. Universities try to expose their students to other classmates with different histories, experiences and ways of living. One reason for this is to build trust, understanding and community. But another reason is educational: You can learn a lot from people who don't see things the same way you do.
Both proponents and opponents of diversity often run these different considerations together, as Powell himself did in Bakke, and that can sometimes be confusing. Demographic diversity isn't the same thing as diversity of perspective, but it helps produce it. Diversity of perspective isn't identical to the production of a community of trust, but it helps achieve it.
These three kinds of diversity are distinct but mutually reinforcing. All three assist the democratic mission of universities: by allowing a broad cross section of society to participate in institutions that create future opportunities and create future leaders, by giving people from different social groups a sense that they are part of the same community and by allowing lots of different ideas to compete. None of these forms of diversity require rigid quotas. But as the 6th Circuit correctly understood, they may require a critical mass of minorities so that minority students don't feel isolated and put upon, afraid to trust others or to express their views. That would undermine all three types of diversity.
Diversity is about more than ideological differences; it's about forging community and securing democracy. The dissenting judges in the 6th Circuit took a narrower view, identifying diversity with ideology--whether people think differently. They overlooked the university's democratic mission.
In the long run, the fate of our country will rest on the development of a multiethnic and multiracial coalition of people educated in our universities who are willing to strive together rather than against one another. To achieve that end, all people must feel that they have a stake in our country and a chance at shaping its future. If blacks and Latinos are excluded from the opportunity to have opportunities, we won't have cooperation and we won't have community. And we won't have democracy either.
Jack M. Balkin is a professor of constitutional law and the 1st Amendment at Yale Law School. His most recent book is What Brown v. Board of Education Should Have Said (New York University, Press, 2001).