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Stacy L. Hawkins

Excerpted from: Stacy L. Hawkins , A Deliberative Defense of Diversity: Moving Beyond the Affirmative Action Debate to Embrace a 21st Century View of Equality 2 Columbia Journal of Race and Law 75-115 (2012) (246 footnotes)


This Article argues that the constitutional diversity interest recognized by the Supreme Court in Regents of the University of California v. Bakke, Metro Broadcasting, Inc. v. FCC, and Grutter v. Bollinger presents an opportunity to modernize and harmonize our equal protection jurisprudence, but that this opportunity has been unfulfilled by the Court's incomplete and inapt treatment of the diversity interest to date. Viewing these cases through the lens of modern diversity practice both reveals the inadequacy of the Court's treatment of the diversity interest in these cases, and also offers a prescription for the cure.

Modern diversity practice refers to the comprehensive, enterprise-wide strategic diversity initiatives that were developed in the 1990's. Rather than a retrospective remedial focus, these diversity initiatives are driven and informed by prospective and strategic considerations such as improved business competence, increased operational performance, and good corporate citizenship. Modern diversity practice is distinguished herein from the diversity training and other limited diversity practices that were a part of equal opportunity/affirmative action programming as far back as the 1960's. It has long been argued by diversity practitioners that the diversity initiatives developed and deployed as a part of modern diversity practice are not repackaged affirmative action programming. Despite this claim, both critics and skeptics abound. Even critical race scholars, who are otherwise staunch proponents of remedial or corrective measures designed to redress the lingering effects of our country's long and tortured history of civil rights discriminations, have frequently criticized diversity.

Notwithstanding these critiques, from the perspective of a diversity practitioner, the distinction between modern diversity practice and affirmative action is more than a notion. More troubling than the scholarly critique, however, is the incomplete and tangled legal framework within which the Court has analyzed diversity. The Court's analysis of the diversity interest suffers first from confusion over the conceptual distinction between remedial affirmative action on the one hand, and the aspirational diversity interest on the other. This conceptual confusion is compounded by the analytical deficiency of our equal protection doctrine to accommodate a non-remedial interest. Viewing the diversity interest through the lens of modern diversity practice can help: (1) clarify the definition and scope of the diversity interest; (2) offer an analytic construct for equal protection properly suited to the diversity interest; and (3) provide a substantive response to the skeptics and critics alike. This paper aspires to all three objectives.

Modern diversity practice has evolved and established itself as distinct from affirmative action. Although comparisons of the two often focus on the practical distinctions between modern diversity practice and affirmative action, the core distinction is theoretical. Modern diversity practice is supported by three dominant theories: (1) the business case (improved business competence), (2) functional theory (increased operational performance), and (3) corporate social responsibility (CSR)/pluralism (good corporate citizenship). By contrast, affirmative action is supported solely by a remedial theory. Not coincidentally, a remedial theory has also dominated our equal protection jurisprudence. In construing the Equal Protection Clause, the Court has relied on a mediating principle to give content to the otherwise ambiguous language of the clause. This mediating principle operates as a theory of constitutional review. It is a critical analytical construct that provides the framework within which the equal protection analysis operates. It structures the Court's reasoning in evaluating the legitimacy of race-conscious government action (compelling interest), as well as the inquiries that determine the permissible constitutional contours of that race-conscious action (narrow tailoring).

The mediating principles that have dominated equal protection analysis are the anti-subordination and anti-discrimination principles. Notwithstanding their differing approaches to achieving equality, both principles are informed by a remedial theory of equal protection. These remedial mediating principles coincide well with our constitutional analysis of affirmative action. However, when the Equal Protection Clause is called upon to evaluate the merits of the diversity interest, these remedial principles prove wholly ineffective to the task of sorting out the constitutional legitimacy of that aspirational interest or defining its constitutional contours.

This Article is divided into five parts. Part II provides an overview of the history and theory of modern diversity practice with specific attention to the ways in which this history and theory are distinct from the history and theory of affirmative action. Part III offers an overview of the two mediating principles that provide the analytic construct within which our equal protection jurisprudence of race currently operates. Through an analysis of the Supreme Court's opinions in the three diversity cases (Bakke, Metro Broadcasting and Grutter), Part IV reveals the inadequacy of an equality norm defined solely in terms of a remedial principle of equal protection to effectively accommodate the constitutionally recognized diversity interest. Finally, borrowing from Justice Powell's abandoned strict scrutiny standard in Bakke, Part V offers a competing framework for evaluating the constitutional legitimacy of the diversity interest and defining its constitutional contours.