Breaking with Groupthink on Affirmative Action

America's major corporations often laud the importance of diversity in higher education. But are they doing so freely?

Harvard Professor Randall Kennedy argues in The American Prospect that the “diversity” rationale for affirmative action -- namely, that “better learning and decision-making arise in environments that are racially diverse” -- has defused the political opposition to it. Maybe. A closer look at Kennedy’s evidence, however, shows that diversity has not made affirmative action more popular so much as rationalize acquiescence in it.

Take Kennedy’s point that major corporations uniformly laud diversity.  Kennedy writes:

[I]n the 2003 University of Michigan affirmative-action cases . . .  65 major companies, including American Express, Coca Cola, and Microsoft, asserted that maintaining racial diversity in institutions of higher education is vital to their efforts to hire and maintain a diverse workforce.

Just because businesses support diversity, however, does not mean that they do so freely.  Businesses ordinarily have different philosophies when it comes to fostering an efficient workforce.  Some encourage vacations, others frown on them; some prize collegiality, others internal competition; some sponsor social activities outside of work, others don’t bother.  Likewise, other things being equal, you would expect some businesses to value diversity and others to be indifferent.

In reality, large corporations are of one mind: diversity is great!  It is surely not the undeniable value of diversity that inspires such unanimity.  In a diverse environment, for example, employees may hesitate to speak out lest they inadvertently offend their colleagues.  They might fail to criticize a presentation for fear of not being thought supportive enough, or they may evaluate subordinates less harshly than they deserve.  A culture of reticence may then pervade the workplace, which in turn may make cooperation more difficult.  For these reasons, it is just as possible that diversity undermines productivity as enhances it.

Though Kennedy does not say so, the reason that big businesses champion diversity is that they effectively don’t have a choice.  Title VII of the Civil Rights Act prohibits employers from discriminating based on race (among other categories). These days, however, employers virtually never intentionally discriminate against a particular group.  Anti-discrimination lawsuits nonetheless live on because the Supreme Court has fashioned techniques (the McDonnell-Douglas burden-shifting formula, the Griggs disparate impact theory, and others) whereby plaintiffs can prevail even without any direct evidence of intentional discrimination.  These techniques (elaborated in more detail by the EEOC here and here) do not permit companies simply to make color-blind hiring decisions.  On the contrary, if they wish to avoid expensive anti-discrimination lawsuits, they must (among other things) build a record of supporting minority hiring and promotion.  In other words, they have to celebrate diversity.

In this way, the diversity rationale becomes politically self-perpetuating.  If you need to prove your commitment to diversity, what better (and virtually costless) way to do so than to join a “friend of the court” brief defending the constitutionality of affirmative action before the Supreme Court?  Not surprisingly, that’s exactly what 65 companies did in the Michigan affirmative action cases.  In her majority decision, Justice O’Connor naively cited this very brief for the proposition that “major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”  Thanks to Justice O’Connor, when threatened by employment discrimination lawsuits, those companies can now retort that they are so committed to diversity that they intervened in order to save it against constitutional challenge.

Individuals and private associations face analogous pressures to celebrate diversity.  They may be free under the First Amendment to think and say what they want, but the social costs of being perceived as having unacceptable views on race are immense.  Hence, individuals often take an aggressively anti-racist position just to prove that they are not racist.  In his book, em>Private Truths Public Lies<, Timur Karan devises an ingenious model to explain why public opinion favors affirmative action even as most people privately detest it. To simplify, individuals will adjust their publicly expressed beliefs based on what they perceive public opinion to be.  The more public opinion shifted against racism in the 1960s and 70s, the more individuals who felt comfortable (or compelled) to support preferences, which in turn caused more and more individuals to add their support as well.  The “equilibrium” public opinion ended up being far more supportive of preferences than people would privately prefer.

Randall Kennedy correctly seems to assume that affirmative action is only grudgingly accepted.  Kennedy writes that the diversity rationale “minimizes . . . anger,” “frames affirmative action” in palatable ways, and “facilitates evasion of prickly subjects.”  In other words, diversity makes the discrepancy between private preference and public opinion more bearable.

Unfortunately, Republicans have become a party numerically dominated by whites at a time when, as Kennedy notes, whiteness has become uncool.  Is there any way for Republicans to become more socially acceptable?  Surprisingly, yes: Republicans could revert to the old-fashioned compensatory justice rationale for affirmative action. As Kennedy states, without elaborating, the rise of the diversity rationale “has not been costless.”  One of those costs is that African-Americans get shortchanged.  Colleges and employers can now create a “diverse” environment by promoting individuals of many different races, even though they have no connection to slavery or Jim Crow. Another cost is that those harmed by diversity-based affirmative action are disproportionately middle or working class.  It turns out that diversity does not hold back the wealthy and privileged.

For these reasons, Republicans have plenty of daylight wherein they can acknowledge the need to rectify the legacy of racism and slavery, yet oppose the excesses of the affirmative action that voters privately dislike.  Republicans, that is, can oppose affirmative action based on diversity, but support affirmative action as just compensation for native born African-Americans.  This is the position taken by Senator James Webb. If being pro-justice and pro-fairness is good enough for a Democrat, it should be good enough for Republicans.