What Diversity Contributes to Equal Opportunity

73 Pages Posted: 20 Jun 2015 Last revised: 8 Jul 2015

See all articles by Stephen M. Rich

Stephen M. Rich

University of Southern California, Gould School of Law

Date Written: July 7, 2015

Abstract

The ideal of diversity so pervades American public life that we now speak of diversity where we once spoke of equality. This Article rejects the dominant legal conception of diversity found in equal protection jurisprudence but not the relevance of diversity to the project of equal opportunity. In Grutter v. Bollinger, the Supreme Court endorsed diversity as a compelling governmental interest capable of justifying the use of racial preferences in public university admissions. However, rather than quieting public controversies about affirmative action, the decision has been a frequent target of legal and political attack, and its narrow focus on educational diversity leaves many questions unanswered concerning the value of diversity and the applicability of its rationale for status-based action outside of the educational context. This Article demonstrates that Grutter underserves the law’s equality values by deferring to institutional constructions of diversity’s benefits, naively equating the achievement of numerical diversity with the accomplishment of those benefits, and failing to distinguish between exploitative and egalitarian uses of diversity. These deficiencies obscure diversity’s potential to reimagine the relationship between equal opportunity, individual achievement, and institutional design. The Article uses the managerial conception of diversity as a foil for the legal conception. One the one hand, proponents of diversity management in the business context seek to exploit workforce diversity for financial gain, and they reject the emphasis of affirmative action programs and civil rights enforcement on the achievement of integration for its own sake. On the other hand, however, proponents of diversity management sometime marshal the diversity ideal also in order to promote new institutional practices that extend to underrepresented persons equal opportunity for individual growth and advancement. The Article proposes a reconstruction of the diversity rationale to fulfill its potential as an instrument of equal opportunity, within and beyond the educational realm and in circumstances including, but not limited to, the implementation of affirmative action programs.

Keywords: constitutional law, equal protection, diversity, race, employment discrimination, education, affirmative action

Suggested Citation

Rich, Stephen M, What Diversity Contributes to Equal Opportunity (July 7, 2015). Southern California Law Review, Forthcoming, USC Law Legal Studies Paper No. 15-20, Available at SSRN: https://ssrn.com/abstract=2620545

Stephen M Rich (Contact Author)

University of Southern California, Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States

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