Today’s affirmative action oral arguments against UNC and Harvard packed a lot into the five hours. Unfortunately, very little of this content involves legal or factual analysis. But what it lacked in judicial content, it more than made up for in cloak-and-dagger policymaking and casual racism.
From misrepresenting Justice O’Connor’s remarks that she hoped for a country that would not require affirmative action by 2028 in the sunset clause to reasoning that affluent black people do not face discrimination, the court’s greatest successes in catalog against diversity. one after the other without a miss.
It was really At midnight white grievances.
The moment I filled out my personal BINGO card, “diversity of viewpoints” entered the conversation. At one point, Consovoy McCarthy partner Cam Norris noted that “Harvard is not diverse at all” because only 9 percent of its entering students identify as conservative. A classic of the genre!
There is a murky logic to this argument. To the extent that schools champion affirmative action as a tool to promote “diversity” as opposed to, say, “redressing past discrimination,” underrepresentation of any slice of the American pie makes the place a little less “diverse.”
On the other hand, it’s stupid. At its core, the diversity of viewpoints argue that “not believing in climate change” is tantamount to confronting the barriers society throws at people based on race, gender, or sexual orientation. In the famous admonition to judge people by their content, not the color of their skin – diversity of viewpoints requires that we also not judge people by their content. This is an appropriation of the rhetoric of justice to give more opportunities to the right on the grounds that they are right.
But it is an effective hack. Justice Thomas once complained that he had no idea what diversity was because it “seemed to mean all things to all people.” It’s not entirely wrong… if you start to cynically dilute the concept to the point of absurdity.
That’s the whole point.
Conservative law professors want “diversity of viewpoints,” which is kind of racist
Joe Patrice is Above the Law’s senior editor and co-host Thinking like a lawyer. Don’t be shy email any tips, questions or comments. Follow him Twitter if you’re interested in law, politics and a healthy dose of college sports news. Joe also serves as a Managing Director of RPN Executive Search.