Book Description

“Diversity” is a recent construct in our equal protection jurisprudence, but during its relatively short existence it has garnered many critics. Even critical race scholars, the most vocal proponents of aggressive civil rights and equal protection enforcement, are skeptical about “diversity,” to say nothing of its many opponents. Critiques of “diversity” as vague, an alter ego of affirmative action, and an inferior method of achieving the remedial purposes of equal protection abound. These critiques, I posit, result from a lack of awareness of the realities of “modern diversity practice” and its aspirational aims, which are readily distinguished from old forms of affirmative action, and its associated remedial aims. The fundamental distinction between diversity and affirmative action is the difference between the desire to achieve some general good versus the need to remedy a discrete harm. This inability to distinguish between modern diversity practice and affirmative action conceptually is compounded in the law by the inadequacy of our equal protection jurisprudence to account for any non-remedial purpose expressed by the Equal Protection Clause. The primary aim of this article is to elucidate the “diversity interest” as recognized in our equal protection jurisprudence through the lens of modern diversity practice. Viewing the constitutional diversity interest from the perspective of modern diversity practice reveals a fundamental distinction between diversity and affirmative action that has confounded legal scholars and jurists alike. This distinction exposes the deficiency of our equal protection jurisprudence grounded solely in a remedial principle of equality to appropriately define or adequately accommodate the distinct aspirational aims of the new diversity interest. Modern diversity practice offers insight and analogy for how our equal protection jurisprudence should respond to this deficiency by embracing the broader equality aim of democratic pluralism.