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Moving Forward? Diversity as a Paradox? A Critical Race View

41 Pages Posted: 11 Feb 2008 Last revised: 17 Dec 2008

Harry G. Hutchison

Centre for the Study of Law & Public Policy at Oxford; Regent University - School of Law

Date Written: December 15, 2008


Understanding Justice Sandra Day O'Connor's contribution to the Nation's jurisprudence on race, education and the Constitution requires an inspection of a number of cases and a number of issues. It is clear that Justice O'Connor and the Supreme Court have concluded that serious efforts aimed at the elimination of the effects of societal discrimination should be exchanged for diversity rhetoric. At the same time, a Critical Race inspection of the historical and sociological evidence demonstrates that the purported contribution of public schools and public universities to our democracy have been inescapably fused with racist oppression and apartheid-like exclusion, and thus contribute to social stratification. This grim history cannot be rescued by diversity rhetoric.

While diversity as a prolepsis - the present anticipation - of the cosmopolitan era fails to capture everyone, it now seems clear that Justice O'Connor's recent explication of race and education (Grutter) favors the magisterium of diversity rhetoric combined with deference to the educational judgment of administrators who have contributed directly or inadvertently to America's public education crisis. But of course, she is not alone. Whatever side one takes in the various disputes which lie at the heart of the intersection of race and education, a distinct possibility surfaces: there is an ossifying contradiction between the interest of members of disadvantaged groups and what commentators claim on their behalf. Given the current state of play within the joints, race conscious decision making may produce ironic results that justify Derrick Bell's charge that the benefits of constitutional democracy in government are not adequate to protect [disfavored groups] from the coercive power that can be exercised [or authorized] by a majority. It is likely that elite decision-making everywhere, purportedly animated to solve the problem of racial isolation, can better be understood as serving the often concealed majoritarian function of promoting popular preferences and empowering bureaucrats at the expense of minority interest.

Keywords: race, diversity, education, inequality, equal protection, discrimination, civil rights

Suggested Citation

Hutchison, Harry G., Moving Forward? Diversity as a Paradox? A Critical Race View (December 15, 2008). Catholic University Law Review, Vol. 57, No. 4, Summer 2008, pp. 1059-1098; George Mason Law & Economics Research Paper No. 08-03. Available at SSRN:

Harry G. Hutchison (Contact Author)

Centre for the Study of Law & Public Policy at Oxford

Belsyre Court, 57 Woodstock Road
Oxford 0X2 6HJ
United Kingdom

Regent University - School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States

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