Diversity, Democracy & Pluralism: Confronting the Reality of Our Inequality

Abstract

Legal scholars have been locked in a long-running debate over whether our equal protection doctrine is animated by a principle of anti-subordination or anti-discrimination. A corollary of this debate is whether we ought to attend to substantive or formal equality. The Court’s recent equal protection jurisprudence embracing the “diversity rationale” to justify race-conscious action has provoked objection from both sides of this debate, which seem to reject diversity as an exemplar of either the anti-subordination or the anti-discrimination principle. This either/or normative debate has obscured the fact that the Court has actually adopted a both/and approach to equal protection that has accommodated a more dynamic view of equal protection than has been accounted for in the literature. In addition, this debate has ignored other important constitutional considerations that inform the Court’s analysis in equal protection cases and that help respond to the concerns implicit in these objections, such as constitutional theory writ large or the proper scope of judicial review. This paper reconciles the Court’s embrace of the “diversity rationale” with both the anti-subordination and anti-discrimination principles. It does so by bringing together disparate strands of the literature on equal protection and in the process demonstrates that the “diversity rationale” not only vindicates a substantive anti-discrimination principle of equal protection, it also reflects our broader constitutional vision for pluralist democracy.

Keywords: equal protection, affirmative action, diversity, pluralism, race, anti-subordination, anti-discrimination, representation-reinforcement, contextualism