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Diversity May Be Justified

57 Pages Posted: 13 Aug 2012  

Anita Bernstein

Brooklyn Law School

Date Written: August 13, 2012


What about diversity is compelling enough to justify the hurts it inflicts on individuals? Judges, legislators, public opinion, and implementers of diversity programs in education and the workforce have defended their initiatives either with vague, anodyne, ill-founded paeans or, more often, with silence about what the rationale achieves. They have offered no justification of diversity.

From the premise that any state action that generates (or even risks) harm must be supported with reason, this Article undertakes the task of justification. What makes diversity unique among the rationales for affirmative action, the Article argues, is its power to simultaneously achieve two social goods — the repair of subordination and the strengthening of pluralism — that rest on independent and mutually constitutive jurisprudential bases.

Keywords: affirmative action, antisubordination, Bakke, discrimination, diversity, Fisher, Grutter, justification, pluralism

Suggested Citation

Bernstein, Anita, Diversity May Be Justified (August 13, 2012). Hastings Law Journal, Vol. 64, 2012; Brooklyn Law School, Legal Studies Paper No. 290. Available at SSRN:

Anita Bernstein (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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