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THE NEW YORK TIMES
By BILL KELLER
June 28, 2003
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.