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Article

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Affirmative Action and Higher Education: The View from Somewhere, 23 Yale Law & Policy Review 25 (2005)

Abstract

Peter Schuck's new book, Diversity in America: Keeping Government at a Safe Distance, offers an admirably lucid and forthright account of the advantages and disadvantages of affirmative action in the United States. Schuck argues that "government-sponsored preferences" should be barred "except in the relatively narrow remedial situations that the courts now permit," but that affirmative action in private institutions should be allowed when it is transparent. Schuck candidly and carefully canvasses the arguments for and against his position, concluding that: [Affirmative action, although well intended, is hard to square with liberal ideals in general and the diversity ideal (properly understood) in particular. The social benefits are too small, too arbitrarily and narrowly targeted, and too widely resented to justify the costs that it imposes - its unfairness to other individuals, its propensity to corrupt and debase public discourse, its incoherent programmatic categories, and its reinforcement of the pernicious and increasingly meaningless use of race as a central principle of distributive justice rather than the other distributive principles, particularly merit, with which most Americans, white and minorities alike, strongly identify. History has not been exactly kind to Schuck's treatment of affirmative action in Diversity in America. The book was written at a time when the Supreme Court was hostile to most justifications for affirmative action, with the striking exception of the holding in Bakke that allowed institutions of higher education to use affirmative action to pursue the goal of "diversity." As a result Schuck naturally focused his analysis "on the diversity rationale for affirmative action." But the very year in which Diversity in America was published, the Court decided Grutter v. Bollinger. Although Grutter used the vocabulary of "diversity," it actually approved quite distinct justifications for affirmative action in higher education.

Date of Authorship for this Version

2005

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