Monday, March 21, 2011

JuridicsUSA: The National Jurist: Advocates (ranks) law schools on 'diversity' norm

Volokh Conspiracy (Mar19,2k11)

Posted: 19 Mar 2011 01:51 PM PDT

posted on VC by Ilya Somin

In the National Jurist, Rebecca Larsen has an article ranking law schools on the basis of “diversity.” At Balkinization, lawprofJason Mazzone makes some cogent criticisms of here approach.

Larsen ranks schools on the basis of the percentage of students and faculty who are African-American, Hispanic, or Asian, with a bonus if that percentage is significantly higher than the percentage of these groups in the state population. Under this system, most of the schools that get the highest possible rating (“A+”) turn out to be historically black schools where the student body is overwhelmingly black. Ironically, many of these schools are actually not especially diverse if that concept is understood as having a wide range of different groups represented by a “critical mass” in the student body, the theory adopted by the Supreme court in Grutter v. Bollinger as a justification for affirmative action. For example, one of the schools with an A+ rating is Howard University, where the student body is 78% African-American. Why should Howard be considered any more diverse than a school that is 78% white?

If, as Larsen says, the purpose of pursuing diversity is to ensure that a broad range of “viewpoints” is represented in the classroom, thereby giving students “a better education and classes more reflective of the world,” her ranking system makes no sense. From that standpoint, a school that is 78% black or 78% Hispanic is no better than one that is 78% white. Howard and other historically black schools should not be blamed for their lack of diversity. Indeed, as I have argued elsewhere, relative homogeneity within some schools promotes the laudable goal of diversity across institutions. But we should not pretend that such schools have unusually high diversity.

Moreover, it makes no sense to focus only on the representation of three groups defined by crude racial categories. Rather, a true diversity ranking would have to take account a wide range of ethnic, religious, political and other groups. Swedes, Utah Mormons, and Bulgarians all have different and unique cultures that could contribute to viewpoint diversity. But under Larsen’s approach, their presence actually lowers a school’s diversity ranking because it increases the percentage of the student body that counts as “white” rather than “minority.”

Larsen’s system makes somewhat better sense if the real goal is not diversity but compensatory justice for groups that have suffered historic discrimination in the US. Blacks, Asian-Americans, and to a much lesser extent Hispanics qualify on that basis. This compensatory justice rationale for affirmative action is, in my view, much more defensible than “diversity,” though certainly not a completely unproblematic one But the two rationales are different from each other and call for widely divergent policies. If Larsen and the National Jurist are actually promoting compensatory justice for [previously] victimized minority groups rather than diversity, they should say so explicitly and drop the diversity rhetoric, which is an extremely poor fit with their ranking system.

It seems to me that where I inserted in brackets the word "previously" [last ¶ above] that a sunset provision of some sort awt to be affixed to any legislation adopting the Somin Principle as
analysed and advocated in principle here.  Otherwise, you make the discrimination to which objection is made appear to be eternal, and thus the principle of compensatory justice becomes eternal, undoing the balance of the prima facie legislative framework, for which the compensatory arrangement is a corrective -- but not permanent, nor absolute, nor unremediated whatsoever by the subsequent adjustments.  Thanks to Dr Somin for his work on these matters. -- Lawt

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