Talking Cultural Diversity

a discussion board for cultural and diversity issues by Thomas Kochman and Jean Mavrelis

The Benefit of Affirmative Action

By Thomas Kochman - 07.21.2009

Ross Douthat in his NY Times Op Ed column “Race in 2028” agrees with Sandra Day O’Connor’s concern that court ordered affirmative action not continue indefinitely, a point she made speaking for the court in GRUTTER v. BOLLINGER, a case involving The University of Michigan Law School that took race and ethnicity into account in its university admissions policy. As Douthat put it “Allowing reverse discrimination in the wake of segregation is one thing. Discriminating in the name of diversity indefinitely is quite another.”  

Yet Grutter v. Bollinger expressly says that race may only be taken into account if there is a “compelling interest” and then only if “each applicant is evaluated as an individual and not in a way that makes an applicant\’s race or ethnicity the defining feature of his or her application.”

The court also agreed that in the above case, “student body diversity is a compelling state interest that can justify the use of race in university admissions.” and constitutes a definite “plus” factor when evaluating individuals for admission “in the context of individualized consideration of each and every applicant.”

What Douthat dismisses from O’Connor’s argument is that affirmative action is not just, as he put it, a “system designed to ensure the advancement of minorities” but a means to achieve a kind of diversity that is not only necessary but beneficial in today’s multicultural world and one that would not otherwise be achieved if the only ones admitted to a university or elected to Congress, or seated on the Supreme Court were white men. To quote O’Connor, “These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today\’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”

Douthat’s view of the Sotomayor nomination, like the Republican Senators who vetted her at the hearings, focuses upon her ethnicity and gender as the sole and defining features in her selection, without regard to what those attributes might bring to the Court and how they might enrich Court deliberations. But, as the NY Times editorial noted, “every new justice changes the court, bringing his or her own distinctive life experiences, personality and perspectives on the law” and while none of these got a chance to play out at the hearings owing to “confirmation gamesmanship”, they are important and influential factors that we hope and expect will assert themselves once she takes her place on the court.

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