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Bret D. Asbury
Excertpted from: Bret D. Asbury, Loyalty, Diversity, and Colorblindness, 79 Tennessee Law Review 891 (Summer, 2012) (227 Footnotes)
On October 10, 2012, the Supreme Court heard oral argument on a challenge to the constitutionality of the University of Texas's consideration of race in undergraduate admissions. In the case on appeal, Fisher v. Texas, the Fifth Circuit upheld the legality of the University of Texas's narrow consideration of race as a factor in selecting some of the members of its entering class. Fisher represents the first instance in which the Court has grappled with the constitutionality of considering race in university admissions since 2003, when it upheld the University of Michigan Law School's narrow use of race-conscious admissions criteria in Grutter v. Today, for the first time in nearly a decade, the conflict between diversity and strict colorblindness in higher education is at the forefront of Supreme Court jurisprudence.
The Fifth Circuit's opinion in Fisher-like Grutter-represents a clear victory for advocates of race-conscious practices aimed at diversifying student populations. At the same time, Fisher stands as a setback for those who believe that strict colorblindness is not only desirable, but required under the Constitution. But not all is lost for advocates of strict colorblindness: Given the Supreme Court's ideological shift since 2003, current membership, and recent colorblindness jurisprudence, there is reason to believe that in deciding Fisher, it might revisit Grutter in order to reassess the constitutionality of the consideration of race in admissions.
This Article frames the sharply contrasting Fifth Circuit opinions in Fisher as being reflective of the currently predominant responses to the long-standing conflict between two important aspirations: diversity and colorblindness. It then argues that because pro-diversity norms are more deeply entrenched today-in education, the corporate world, and federal legislation-than in 2003, when Grutter was decided, the case for a limited privileging of race-consciousness aimed at increasing diversity over strict colorblindness is stronger now than it was nine years ago. Because efforts aimed at increasing diversity and strict colorblindness frequently cannot coexist, this Article argues, the Court must privilege one of these aspirations over the other in deciding Fisher. And, as shown below, an opinion privileging strict colorblindness has the potential to reverberate far beyond public university admissions and radically reshape the public and private sectors.
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The Fisher opinions authored by Judges Higginbotham and Garza offer divergent takes on the relationship between the often at-war societal aspirations of promoting diversity and colorblindness. In the abstract, even members of the Supreme Court's conservative wing recognize that at least some forms of diversity are, or can be, of value. Where conservatives and liberals tend to disagree most sharply is with respect to when, if ever, efforts aimed at increasing diversity may consider race as a criterion.
This Part argues that the diversity versus colorblindness debate is frequently a zero-sum game, meaning that it is at times impossible to promote diversity absent some consideration of race. It posits, borrowing from social science and humanities literature, that instances in which these two aspirations are at odds can be understood as being conflicts of loyalties. Loyalty literature shows that the resolution of conflicts between deeply held principles is always challenging and highly context-specific. Relying on this literature, this Part argues that, in light of the emerging national consensus in favor of diversity and in recognition of the extraordinary costs of strict colorblindness, when the two aspirations collide, entities that wish to privilege their loyalty to diversity should remain free to resolve the conflict by rejecting strict colorblindness.
A. Describing the Loyalty Framework
”Loyalty” can be defined in many ways. In its most basic sense, it describes the desire one has to be faithful to someone or something, for whatever reason. Inherent in any conception of loyalty is an assessment of right and wrong; we feel the pull to be loyal because we feel it is the right thing to do. As one commentator has observed, “[t]he ideal of loyalty is at the heart of common-sense He continues:
That morality highlights our special obligations to ourselves and one another and duties of personal loyalty to other people bulk large amongst these; they are the duties that we owe to other people in virtue of more or less intimate bonds, whether bonds of family, friendship, comradeship, collaboration, or whatever.
Loyalty can manifest itself in three ways, the simplest of which is the loyalty an individual has toward another individual. Person-to-person loyalty can take many forms-be it loyalty to a friend, colleague, sibling, parent, child, or anyone else- and can vary depending on the circumstances. One commentator has described this variance as follows: “[I]nside the family I might find my interests conflicting with my son's, but, outside the family, loyalty is likely to make me see his interests as ours or even as This perception of a unity of interests is characteristic of the strongest form of person-to-person loyalty.
The second form of loyalty is loyalty to groups. Examples of group loyalty include loyalty to one's coworkers, teammates, or community. Groups can be defined in many ways, and the loyalty that members feel to a given group can vary considerably. As a result, recognizing manifestations of group loyalty is often more difficult than recognizing person-to-person loyalty. Mark Van Vugt and Claire Hart have described loyalty as a “complex, multifaceted construct, consisting of emotive, cognitive, as well as behavioral Due to the many possible manifestations of group loyalty, assessing the extent to which each member feels loyalty to the group can be challenging: “[G]roups may be cohesive in different ways and, within the same group, members may contribute to the cohesion of the group in different However, for our purposes, it is sufficient to recognize that group loyalty exists as a concept separate and apart from loyalty to an individual, and the compulsion to be loyal to a group can be quite strong.
The third form of loyalty is loyalty to principles. This form of loyalty is distinct from loyalty to individuals or loyalty to groups in that it is considerably more abstract. But generally speaking, “[O]ne is loyal to . . . principles if one sticks to them even when it is difficult to do Principles to which one might be loyal include religious tenets, a prescribed code, or a general sense of right and wrong. Loyalty to principles, like all other loyalties, is not exclusive. It follows that loyalty to principles and other loyalties can frequently come into conflict. What am I to do, for example, when my son, to whom I am loyal, violates an essential tenet of our faith or when he commits a crime I deem reprehensible without justification? Every individual is loyal to a number of principles, and these loyalties can at times conflict both with one another and with loyalties to individuals or groups.
When an individual's numerous loyalties-to individuals, groups, and principles-can exist harmoniously, having numerous loyalties poses no significant hurdle. One can be loyal to one's fellow union members during the day, for example, and loyal to one's family at night and on weekends. When loyalties conflict, however, the result is greater clarity; in resolving such conflicts, an individual must determine which of his or her loyalties is stronger. Because a given individual has numerous loyalties of varying strengths, the depth of his or her loyalty to any one person, group, or principle is often unclear, even to the individual. Resolving conflicts of loyalties is always a challenge, and choosing which of two conflicting loyalties to privilege is both highly individualized and situational.
Moreover, as George Fletcher explains, due to the strong connection between one's loyalties and one's notion of self, individuals frequently adhere to the stronger of their loyalties, even when, from an external perspective, it might be wrong to do so: “Loyalties generally lead people to suspend judgment about right and wrong . . . . In loyalty, as in love, there is not even an illusion of scientific neutrality and intellectual Thus, in attempting to resolve a conflict of loyalties, abstract judgments about what is “right” or “wrong” are secondary to determining to which of two conflicting interests one is more loyal.
B. Loyalty, Diversity, and Colorblindness
Applying the loyalty framework to Fisher, there are two overarching principles to which the Supreme Court has historically adhered and to which stare decisis dictates that it remain loyal: diversity and colorblindness. These principles are not always at odds, of course, and when they align, remaining loyal to both does not pose a challenge. But when the two conflict, as in Fisher, the Court must necessarily privilege one over the other. Though it could be, this privileging need not be absolute-one can privilege diversity over colorblindness in some settings and vice versa in others. And for the reasons discussed in the previous Section, resolving a given conflict is not an exercise of scientific neutrality or intellectual impartiality, but rather a highly individualized and often unpredictable process. What follows is a discussion of the potential implications of a Fisher opinion privileging strict colorblindness in the mode of Judge Garza. As argued below, such a result could lead to a host of perhaps unforeseen consequences that would radically alter both the public and private sectors.
1. The Incompatibility of Diversity and Colorblindness
The argument for strict colorblindness is fairly straightforward. As Justice Harlan observed in his dissent in Plessy v. Ferguson,
Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied [sic] by the supreme law of the land are involved.
Justice Harlan's view has been endorsed by a number of members of the current Supreme Court, celebrated by past Justices, and widely praised in academic literature. Few today would object to Harlan's basic premise that all citizens should, as a general matter, be equal before the law. To be sure, the colorblind ideal has been and continues to be subject to a great deal of criticism, but it remains a widely-held and important national aspiration.
At the same time, the aspiration to promote diversity and increased access for formerly excluded individuals and groups is also frequently articulated and forms the basis for a separate set of deeply held beliefs. Indeed, one commentator has observed that “a plurality, and probably a majority of the Supreme Court” has recognized “that diversity can constitute a compelling state Devotion to principles of both diversity and colorblindness raises certain challenges, for while it may be true in theory that “the value of racial diversity and a commitment to colorblindness are orthogonal rather than directly opposed,” as a practical matter, diversity and colorblindness frequently conflict. This is because “in the actual circumstances of our society, meaningful racial diversity can be achieved in certain contexts only by directly selecting for Accordingly, “even though a commitment to colorblindness is not logically inconsistent with regarding racial diversity as valuable, it can create a practical impediment to bringing it
Accepting that strict colorblindness is a worthy ideal, one must recognize that it does not come without costs. Put plainly, for a number of institutions, colorblind gatekeeping processes would fail to produce diverse populations. In the law school admissions context, in which the Court decided Grutter, for example, the most recent data available show that in 2008-2009, there were only fifty-seven African-American law school applicants who had a grade point average of 3.5 or above and an LSAT score of 165 or above, which represents the consensus threshold for race-neutral consideration for admission among the most elite (top ten) law schools. Basing acceptances on just these two numbers-by far the two most significant in law school admissions-would net each elite law school an average of 5.7 African-Americans in their entering classes, which range from roughly 150 to 560 students. In reality, however, the few African-American students admitted to such schools under a colorblind regime would most likely flock to the most elite of them, meaning “it would be mathematically impossible for many other selective law schools to enroll even one black student with numeric scores in the highest This means that “if a selective law school wants to admit a racially and ethnically diverse class, then it may be impossible for the school to limit itself to minority students whose grades and test scores are equal to those of other admitted
Although this is perhaps an extreme illustration, colorblindness is an impediment to diversity in a number of other realms, including undergraduate college admissions, the corporate sector, and government diversity efforts. Taking colorblindness seriously means never considering race under any circumstances; diversifying a student body, work force, board of directors, or a historically predominantly white industry such as financial services without at least some regard for race and ethnicity poses a significant, if not impossible, challenge.
The reasons for this challenge should be obvious. How, for example, can a university committed to increasing the diversity of its student body not consider race? Sure, it could remove the racial identity check-box on the application, but as Devon Carbado and Cheryl Harris have shown, “excising race from admissions is far from simple” because personal statements and letters of recommendation often contain racial or ethnic signifiers. Whether these signifiers are direct or implicit, they can and often do convey the applicant's cultural identity. To be sure, admissions officers could be instructed to attempt to ignore even the clearest racial signifiers, but “the fact that an admissions officer understands that she is not supposed to take race into account, does not mean that she is in a cognitive position to do Thus, short of barring personal statements and letters of recommendation, race and ethnicity will continue to influence the thinking of admissions officers regardless of what the Supreme Court mandates because “preventing the explicit consideration of race is not the same thing as preventing any consideration of
Similarly, given that an interview is a customary component of earning a job, a corporation or law firm seeking to diversify its workforce, as many currently are, would be hard-pressed and perhaps foolish to attempt to do so without considering the race of its applicants at least to some extent. The same goes for companies seeking to diversify their boards of directors, and the recent amendments to Regulation S-K explicitly acknowledge that diversity, including racial diversity, is a relevant consideration for at least some public companies.
The other recent legislation discussed above similarly conflicts with strict colorblindness. How, for example, can a federal government contractor “make a good faith effort to include minorities . . . in their or can a medical care provider create a “community-based governing or advisory board that reflects the diversity of the communities in a strictly colorblind manner? The answer of course is that they cannot-again, the practical reality is that a steadfast commitment to colorblindness is in many, if not most, settings a practical impediment to bringing about diversity.
In some settings, however, gatekeepers have successfully employed race-neutral means to increase racial and ethnic diversity. But as shown below, it would be a mistake to set policy based on these rare exceptions. Automatic admission schemes such as the University of Texas's Top Ten Percent Law provide a useful example. Although the Top Ten Percent Law resulted in greater numbers of underrepresented minorities at UT, the plan is in many ways, as Judge Higginbotham notes, “at war” with the diversity the Court embraced in Grutter. By focusing narrowly on geographic diversity, which acts in part as a proxy for race, the plan ignores other types of diversity and “restricts the University's ability to achieve the maximum educational benefits of a truly diverse student More importantly, by granting default admission to some, such plans eschew individual consideration of many candidates regardless of their racial or ethnic identity, which flies in the face of the type of diversity championed by the Supreme Court in Grutter. As Justice Ginsburg notes in her dissent in Gratz, “‘percentage plans depend for their effectiveness on continued racial segregation at the secondary school level’ and ‘encourage parents to keep their children in low-performing segregated schools, and discourage students from taking challenging classes that might lower their grade point “In short,” as Judge Higginbotham explains, “while the Top Ten Percent Law appears to succeed in its central purpose of increasing minority enrollment,” it does so only “at a high cost and is at best a blunt tool for securing the educational benefits that diversity is intended to
Despite these shortcomings, it is tempting, particularly for advocates of strict colorblindness, to cite the Top Ten Percent Law and the resulting increase in the percentage of minority enrollment at UT as proof that universities can address at least some diversity objectives without resorting to race-conscious admissions. While perhaps superficially true in this narrow instance, this position cannot serve as an adequate basis for mandating colorblindness more broadly for two reasons. First, despite a general consensus to the contrary, the Top Ten Percent Law is not truly race-neutral, as “underrepresented minorities [are] its announced target and their admission a large, if not primary, Although the automatic admission of thousands of students pursuant to the plan is indeed colorblind, the Top Ten Percent Law owes its existence to a direct and explicit consideration of race. It is unclear from a strict colorblindness perspective why it might be unconstitutional for the University of Texas to consider race, yet constitutional for the Texas legislature to do the same.
Second, the University of Texas has the luxury of being a world-class institution located in a large, diverse state. It is unclear, however, how institutions that draw a significant portion of their students from out-of-state, state institutions in less diverse states, or highly selective institutions that currently attract and admit applicants from throughout the country could replicate the Top Ten Percent Law to increase institutional diversity through automatic, race-neutral admissions procedures. Even less clear is how employers and other non-academic institutions could similarly diversify their populations based on a set of automatic entry criteria without compromising their other objectives.
Another purportedly colorblind approach aimed at increasing diversity is to refrain from asking applicants' racial identity, but permit them to disclose in the application process any hurdles they have overcome in life that they believe the admissions committee should consider. But for the reasons discussed above, and in light of the relatively greater significance that race tends to play in the life narratives of underrepresented minorities, such an approach would inevitably invite racial and ethnic disclosures, thereby permitting administrators to consider race indirectly. As others have noted, the line between direct and indirect consideration of race is blurry at best, and it would seem that both are fundamentally incompatible with strict colorblindness-to the extent the Constitution prohibits one, it should prohibit the other. In short, notwithstanding the limited, ambiguous examples to the contrary, true colorblindness and most efforts aimed at promoting diversity cannot coexist.
2. The Implications of Strict Colorblindness
The implications of this observation have the potential to reverberate far beyond public university admissions processes like the one in Fisher. Should the Supreme Court, echoing Justice Harlan, determine that our Constitution is truly colorblind, it follows that all considerations of race by government actors are unconstitutional. But the reach of a full-throated endorsement of strict colorblindness need not end there. Though Fisher and Grutter arose out of admissions regimes of public institutions-which are subject to federal antidiscrimination laws per the Fourteenth Amendment-a Supreme Court decision underscoring the constitutional necessity of colorblindness and construing the consideration of race in Fisher to be a proscribable form of “discrimination” could reverberate far beyond regulating admissions processes at state schools and other direct state action.
Under Title VI of the Civil Rights Act of 1964, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial To the extent that race-conscious procedures are deemed “discrimination,” any entity that pursues diversity through race-conscious measures and receives any federal financial assistance could potentially place its funding at risk. This includes private universities that receive federal research grants or federal financial aid assistance or enjoy tax-exempt status, schools, companies, or law firms that contract with or do any work for the federal government, and small businesses seeking any form of assistance through the United States Small Business Administration. In the face of such a threat, one can assume that many of such institutions and organizations would curtail, if not eliminate, their pro-diversity efforts.
Moreover, under a theory of strict colorblindness, all consideration of race in hiring could be construed as violating 42 U.S.C. § 1981, which relates to the equal rights of “[a]ll persons within the jurisdiction of the United States . . . to the full and equal benefit of all laws” and is applicable to both the “impairment by nongovernmental discrimination and impairment under color of State Justice Ginsburg raised the possibility of the petitioner's argument being read in this way during the Gratz oral argument. Under this theory, reading colorblindness into the Constitution would mean that any employer, private or public, that considered race in its hiring practices could find itself in violation of § 1981 and possibly subject to sanctions under Title VII. Pursuant to this interpretation, even employers who do not receive direct assistance from the federal government would need to think twice before implementing or continuing race-conscious efforts aimed at promoting diversity.
All of which is to say of the recently enacted federal legislation promoting diversity discussed above. Based on a reading of strict colorblindness into the Constitution, these portions of the Dodd-Frank Act, Affordable Care Act, and others would virtually impossible to implement if race could no longer be considered in furthering their diversity objectives (that is, assuming they would not be struck down entirely). In sum, selecting for diversity is antithetical to strict colorblindness, and to the extent that the Supreme Court determines that the Constitution requires colorblindness in all realms touched upon or otherwise regulated by federal law, race-conscious diversity efforts would whither. Should the Supreme Court endorse strict colorblindness by deeming all considerations of race to be “discrimination” in deciding Fisher, it could drastically impact a wide swath of society and result in a marked decrease in diversity within thousands of organizations, both public and private.
3. Resolving the Conflict
The above examples illustrate the binary that exists in numerous settings between two nationally important objectives: institutions can either aggressively pursue diversity or endorse strict colorblindness-but in most instances, not both. Accepting this premise, the obvious issue is how the Supreme Court should resolve Fisher, in which Judge Higginbotham's pro-diversity deference to the UT administration's assessment of how it should consider race in structuring its entering class stands in stark contrast to Judge Garza's cogent articulation of the importance of adhering to strict colorblindness. In resolving this conflict of loyalties, it is important to note two things specific to Fisher and Grutter.
First, based on the examples above, it appears that Judge Garza is correct that the admissions processes at issue in Gratz (which was struck down) and Grutter (which was upheld and served as the basis for the process at issue in Fisher) are not distinct from a strict colorblindness perspective. Judge Garza asks in his special concurrence:
If two applicants, one a preferred minority and one nonminority, with application packets identical in all respects save race would be assigned the same score under a holistic scoring system, but one gets a higher score when race is factored in, how is that different from the mechanical group-based boost prohibited in Gratz?
From a strict colorblindness perspective, there is no difference-in both instances, race is a dispositive consideration.
But the recognition that strict colorblindness conflicts with even the narrowest considerations of race is not alone dispositive; the question of whether it should ever be permissible to privilege diversity over colorblindness remains. Thus, the second point worth considering relates to the unusual fact pattern in Fisher. Recall that UT's race-neutral Top Ten Percent Law consistently produced a not insignificant amount of diversity in UT's entering class, but not enough in the estimation of UT administrators to stop them from considering race as a small factor for some applicants. This fact presents the Court with an opportunity to resolve Fisher without directly abandoning either its diversity or colorblindness aspirations. Were it to strike down UT's use of race in admissions while lauding the diversity it has been able to achieve through the Top Ten Percent Law, as at least one commentator has suggested it might, the Court could ostensibly reaffirm the importance of both principles while privileging neither.
Resolving the case in this way would undoubtedly be less extreme than holding that race-consciousness is per se unconstitutional and might seem to avoid resolving the conflict that this Article has argued lies at the core of Fisher. But in reality it would represent a privileging of colorblindness at the expense of diversity. An opinion barring UT's extraordinarily narrow use of race would be in alignment with Judge Garza's observation in Fisher that
[t]here are no de minimis violations of the Equal Protection Clause, and when government undertakes any level of race-based social engineering, the costs are enormous . . . . Changing the color of the group discriminated against simply inverts, but does address, the fundamental problem: the Constitution prohibits all forms of government-sponsored racial discrimination.
In striking down UT's use of race-which contributes to the admission of only a small fraction of its students -the Court would send the message that entities are no longer permitted to determine for themselves, in good faith, the point at which they have reached a critical mass of underrepresented minorities such that they need no longer consider race. Though attempting to uphold both diversity and colorblindness as co-equal aspirations the simple resolution described above does not successfully sidestep the debate. While University of Texas can admit a relatively diverse class without considering race via the Top Ten Percent Law, other entities are not able to do the same, meaning that there is no way for them to produce the diversity they seek in a race-neutral fashion.
The most likely effect of a Supreme Court opinion strongly endorsing colorblindness and supporting Judge Garza's position-that the consideration of race in admissions amounts to “race-based social engineering” and that race-conscious decisionmaking by public universities is nothing more than “government-sponsored racial discrimination,” which the “Constitution prohibits” -would be a diminution in the enthusiasm and resources devoted to race-conscious efforts aimed at promoting diversity in settings far beyond public university admissions. To the extent that use of race at UT as “a factor of a factor of a factor of a is held to be an unconstitutional form of discrimination, it follows that the practices of many current entities, public and private, that consider race are presumptively illegal. To be sure, it is possible that some entities might be able to find race-neutral end-arounds in order to continue promoting diversity or persist in employing prior race-conscious efforts at diversification despite the increased threat of litigation begat by a pro-colorblindness Fisher holding. But due to the fundamental tension between fostering diversity and colorblindness, the more likely result of even a narrow opinion striking down UT's use of race would be a significant hampering of race-consciousness, leading to a reduction in diversity.
It is for this reason that Fisher is so crucial a case and why it is essential that the Court reaffirm the principles of Grutter, which permit limited, individualized, good faith deviations from the colorblindness ideal. The alternative, justified by a belief that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of would, regardless of how it is written, equate the perfectly reasonable step of considering race in an effort to promote diversity with invidious discriminatory acts aimed at racial subordination. Were the Court to go down this path and go on to endorse strict colorblindness, it would mark a radical shift away from the pro-diversity norms that have arisen in recent decades and are today as strong as they have ever been. To the extent diversity is an aspiration worth pursuing, the law must permit entities to consider race in a manner they deem fit in pursuit of their legitimate objectives. This belief should not be controversial.
Unfortunately, the current Supreme Court contains at least four Justices who are likely to disagree. A fifth, Justice Kennedy, dissented in Grutter, voting to strike down the University of Michigan Law School's use of race in admissions, which served as the basis for the UT plan under consideration in Fisher. This means that the future of race-conscious efforts aimed at promoting diversity could well hinge on the hope that Justice Kennedy might change his mind. But an examination of two of Justice Kennedy's opinions suggests that he recognizes the important space that consideration of race occupies in the path toward greater inclusion and equality.
In his dissent in Grutter, Kennedy declares, “There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions There is reason to believe that the UT plan under consideration in Fisher might satisfy this criterion. Moreover, in his opinion in Parents Involved, in which he rejected diversification plans that placed students in schools based on binary racial designations, Justice Kennedy endorsed the use of “a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component” as an alternative and asserted that such an approach “would be informed by Grutter.” How Justice Kennedy will vote in Fisher remains to be seen, but there is at least some possibility that he will recognize the differences between the affirmative action plans in Grutter and Fisher and vote to uphold the latter.
But the real hope is that Justice Kennedy, or perhaps one or more members of his conservative colleagues, will recognize the significant costs of endorsing strict colorblindness. As this Article has shown, the Court cannot simultaneously promote serious commitments to both diversity and colorblindness. Given this choice and the cataclysmic costs of a Supreme Court holding that UT's consideration of race amounts to unlawful discrimination, the case for remaining loyal to the principle of diversity is strong, and it is clear that anyone who values diversity and recognizes the reality of the current state of affairs must reject the rhetorical and aspirational appeal of strict colorblindness. The alternative, a steadfast, unwavering loyalty to colorblindness, would render many or perhaps most race-conscious efforts aimed at diversification illegal and result in a significant diminution of the diversity thousands of entities have struggled to achieve over the last forty years.
As Justice O'Connor has observed, “Our Constitution is a covenant running from the first generation of Americans to us and then to future generations. It is a coherent succession. Each generation must learn anew that the Constitution's written terms embody ideas and aspirations that must survive more ages than In our current generation, diversity is an aspiration in both the private and public sectors, and its promotion in most instances conflicts with colorblindness. Notwithstanding the importance of precedent, our jurisprudence is both backward- and forward-looking, and the Court should remain reflective of current attitudes and preferences. Here, in deciding whether to remain loyal to principles promoting diversity or strict colorblindness, it is incumbent upon the Court to recognize that where the latter is an abstract ideal, the former is a national imperative.
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. Associate Professor, Drexel University Earle Mack School of Law. A.B., Princeton University; J.D., Yale Law School.
