49 Pages Posted: 11 Jul 2010 Last revised: 12 Jul 2010
Date Written: 2006
This article argues that Grutter v. Bollinger’s reliance on the diversity rationale for affirmative action in higher education was proper because diversity is better suited to the political purpose of preserving minority political gains than the preferred scholarly theories of historical remediation or current discrimination; considering the political impact of a decision and its rhetoric – the way it frames public discourse – is the appropriate province of the judiciary where the interests of discrete and insular minorities are at issue.
Diversity has political utility for the reasons that most scholars criticize it: because diversity is a malleable and indefinite concept which may describe white students as well as it does people of color. While shifty notions like diversity are viewed with skepticism in the legal academy, they are well suited to political ends like coalition building. The article also exposes the political flaws in the justifications for affirmative action that scholars prefer and shows how their use in the political arena might do damage to minority political gains by catalyzing potentially destructive political conflict. Finally, the article takes a close look at Justice O’Connor’s majority opinion in Grutter and argues that it is a self-consciously political ruling that has the effect of framing the political and legal discourse in a manner that affirms the limited political power people of color enjoy.
Keywords: Affirmative Action, Education Law, Diversity, Constitutional Law
JEL Classification: K19
Suggested Citation: Suggested Citation
Morales, Daniel I., A Matter of Rhetoric: The Diversity Rationale in Political Context (2006). Chapman Law Review, Vol. 10, 187, 2006; Univ. of Wisconsin Legal Studies Research Paper No. 1120. Available at SSRN: https://ssrn.com/abstract=1638164