A Modest Proposal in Deference to Diversity

Abstract

In this article, Goodman proposes a True Diversity Experiment, which will evaluate the costs and benefits of a true diversity regime. This experiment will enable scholars, students, and policy makers, to more accurately measure whether or not it is time for affirmative action to end. Among the questions to consider are: do affirmative action's burdens outweigh its value? Has the goal of equal educational opportunity been realized? The timing of this experiment is important, particularly due to the recent changes to the U.S. Supreme Court and the decision in the Seattle Schools cases. Part One of this article explains the Grutter case, the implications of its reasoning, the various readings of the plurality opinions, and demonstrates how the proposal can be implemented in a way that is consistent with the Court's holding. Part Two presents a modest proposal that invites law schools from all tiers of the US News and World Report spectrum to engage in the True Diversity Experiment. This proposal suggests that critical mass and diversity be taken seriously, for a limited period of time, so that schools may observe and evaluate the benefits that flow from a diverse educational environment. The cornerstones of this proposal are Access, Environment, and Self-Interest. Part Three describes the main justification for the proposal, which is to prepare for sunset, whether that be in eighteen years or less, given the potential upcoming changes in the Court roster. This part also explores Professor Derrick Bell's notion of interest convergence, and analyzes how the True Diversity Experiment may lead to the identification of a new convergence point that solidifies the rationale for continuing diversity goals. In addition to exploring the benefits and burdens of diversity and affirmative action policies on Anglos and African Americans, Part Four also analyzes and briefly responds to Professor Richard Sander's critique of affirmative action for African Americans in law schools and concludes the article.