There are two major arguments for race-based affirmative action. The first and more straightforward one might be called the “level playing field,” or “reparations” argument: that American institutions have historically denied opportunities to blacks and ought to try to remedy this injury by giving them a leg up in the present day. This is the justification John F. Kennedy had in mind when he famously coined the term “affirmative action” in 1961, and it is the justification that the most ardent supporters of the practice still have in mind in 2016.
The second argument—that affirmative action is a means of promoting “diversity,” which benefits everyone, not just students from disadvantaged groups—was developed by academics and bureaucrats decades after the civil rights movement as racial preference systems were broadened to include non-black minority groups—and as dramatic demographic changes made the 1960s black-white binary seem like an increasingly anachronistic way of describing America’s racial order.
The diversity justification was widely perceived as less radical than the “level playing field” justification, as it skirted potentially explosive discussions about the justifiability of “reparations” in favor of a more anodyne glorification of ethnic and cultural differences. And in a series of convoluted decisions beginning with Bakke in 1978, the Supreme Court held that securing “the educational benefits that flow from a diverse student body” was the only legitimate reason for universities to employ racial preferences in admissions.
The diversity rationale has always struck many on the Left as a feeble legal and philosophical underpinning for racial preferences. “Once race-conscious admissions stopped being about equity and reparation, the only argument for it was the enrichment of white students,” wrote Sigal Alon in the Nation last year. “That was never going to hold up.”
But as the Stanford Law School professor Richard Thompson Ford notes over at Vox, the notion of affirmative-action-as-diversity-promotion has undermined core conservative racial arguments as well, by “[amplifying] the more divisive forms of multiculturalism.” This is evident in the proliferation of diversity centers across college campuses for every conceivable identity group, the near obsessive campus celebration of cultural differences (along with taboos against perceived violations), and revisions to the Western canon aimed at accommodating the “diverse identities” of minority students.
All of these features of academic culture that conservatives have resisted flow directly from the logic of the Court-endorsed diversity imperative, which trickled down from the black-robed philosopher kings to Department of Education bureaucrats to campus institutions. A “reparations” logic for affirmative action would have posed its own difficulties for conservatives, to be sure. But it would not have lent as much moral and legal heft to the burgeoning academic diversity project in place since the 1980s.
Conservatives are dismayed by the Supreme Court’s recent ruling in Fisher v. Texas, which upheld the use of race in admissions, and understandably so—the Kennedy-led majority handed their side a resounding defeat, affirming that university officials have broad leeway to consider race as they please. But they may be able to take (modest) solace in the thinking behind the Court’s decision: According to Ford’s close reading, the Court (tacitly) acknowledged that affirmative action is about “racial justice,” rather than diversity alone.
“Though Kennedy did not say so explicitly, Fisher makes little sense unless you read the opinion as acknowledging that affirmative action is not the moral equivalent of Jim Crow,” Ford writes. (The notion that all forms of racial preference are equally invidious was a key underpinning of the Court’s “diversity” logic from Bakke). And while Kennedy continued to appeal to the supposed educational benefits of diversity, he also cast doubt on the meaningfulness of that rationale by declaring that it was effectively impossible for a court to say when the “right” amount of diversity had been achieved. “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission,” the opinion reads. Could the reparation of racial injustice be among those characteristics?
Hot-button Supreme Court decisions are like presidential debates in the sense that what is actually said is less important than how the words are parsed by opinion-makers. And the Fisher decision is sure to be taken apart piece by piece in law reviews, in the media, and in lower courts in the coming months and years.
It’s possible that the resulting consensus will be that Fisher merely amplified Bakke, doubling down on the diversity argument. In that case, the campus diversity industry will have even more wind at its back, and campus administrators will feel even more discretion to pursue postcard-friendly cosmetic diversity (and all the PC rituals that go with it), untethered from any meaningful conception of fairness.
But Ford is one of the leading experts on affirmative action jurisprudence, and it is also possible that his reading—that the Court was subtly trying to steer the conversation away from diversity promotion and toward a more open discussion of affirmative action as a kind of reparative policy—will prevail. That would open the door for conservatives to question more aggressively a number of aspects of the academic diversity religion. And it might help them make arguments (Why should the children of immigrants get affirmative action? What about the descendants of interned Japanese-Americans? What about students of any race who were economically disadvantaged?) that could help refine and restrict race-based preferences in admissions over the long run, even if the Court wasn’t prepared to do so this year.