Article: Stephen M. Rich, What Diversity Contributes to Equal Opportunity, 89 S. Cal. L. Rev. 1111 (2016).
The ideal of diversity so pervades American public life that we now speak of diversity where we once spoke of equality. Yet we seldom pause to consider the costs that have accompanied this shift. In Grutter v. Bollinger, the Supreme Court held that a public university’s use of racial preferences in student admissions will not violate equal protection if the challenged admissions policy is narrowly tailored to achieve the university’s compelling interest in student body diversity. Rather, however, than quieting public controversies about affirmative action, the decision has been a frequent target of legal and political attack. Grutter and the Court’s subsequent decisions in Fisher v. University of Texas at Austin have established the dominant legal conception of diversity, but they have also left many questions unanswered concerning the applicability of Grutter’s diversity rationale outside of the educational context. This Article rejects Grutter’s rationale, but not the relevance of diversity to the goal of equal opportunity. It demonstrates that Grutter’s rationale underserves equal opportunity 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. This Article uses the popular conception of diversity found in business settings and managerial literature as a foil for the legal conception. On the one hand, by conceiving of diversity as a business resource, managerial discourse advocates for exploitative uses of diversity, thereby widening the gap between diversity and equal opportunity. On the other hand, because the value of diversity as a business resource turns in part on the professional growth and achievement of individual workers, managerial discourse sometimes invokes the concept of diversity in order to promote new institutional practices that extend professional opportunities to all persons, regardless of social status. Managerial discourse thus reveals important dangers and possibilities inherent within the concept of diversity that have yet to be explored in legal discourse. This Article marshals those lessons to propose a reconstruction of Grutter’s diversity rationale to fulfill its potential as an instrument of equal opportunity, even outside of the educational context and even when an institution does not rely on affirmative action.