Saturday, June 20, 2015
In a recently posted paper (forthcoming in the Southern California Law Review), Stephen Rich argues for a way to reconstruct the legal conception of diversity—narrowly endorsed in Grutter v. Bollinger, 539 U.S. 306 (2003) only for the use of an applicant’s race for public university admissions —to better advance equal opportunity in workplace settings and beyond. More from the abstract:
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.
In the paper, Rich argues, among other things, that, a diversity rationale should distinguish between “exploitative and egalitarian uses of diversity” and should endorse only “measures that provide equal opportunities for individual achievement and advancement to all persons, regardless of their social status.” To this end, it shouldn’t matter that an institution’s “diversity” efforts also advance its own self-interest, even if that “spur[s] an institution to pursue diversity voluntarily.”