Academic journal article Harvard Law Review

The Virtues of Heterogeneity, in Court Decisions and the Constitution

Academic journal article Harvard Law Review

The Virtues of Heterogeneity, in Court Decisions and the Constitution

Article excerpt

In recent decades, the project of integrating long-segregated American society has stalled, if not lurched into reverse. Though the impermissibility of de jure segregation remains well established, de facto segregation has metastasized, in many cases overwhelming gains made during the Civil Rights Era. (1) When the Supreme Court closed the door on the interdistrict busing at issue in Milliken v. Bradley, (2) Justice Marshall's dissent began with the mournful prophecy that "[o]ur Nation ... will be ill served by the Court's refusal to remedy separate and unequal education, for unless our children begin to learn together, there is little hope that our people will ever learn to live together." (3) In far too many cases, Justice Marshall's warning has been proven true. (4)

One controversial set of solutions to racial separation and inequity in the United States falls under the heading of affirmative action. Though rarely defined in one sweeping phrase, (5) affirmative action is fairly understood as a programmatic effort to increase the representation of traditionally underrepresented groups within a limited set of opportunities --for example, jobs, housing units, or spots in an academic cohort. (6)

This approach has often been characterized as a kind of reparation --a class-level compensation to traditionally excluded groups to account for those past harms. (7) But there are other justifications. (8) Perhaps the most notable is the "diversity rationale": the idea "that individuals and institutions benefit in some way if they represent as many diverse viewpoints as possible, including racial diversity." (9) Thus, "[i]nstead of the presence of blacks or other racial minorities constituting a necessary punishment in expiation of past sins, the diversity rationale makes their presence a positive good." (10)

Affirmative action in perhaps its most contentious form uses status as a member of a traditionally underrepresented race as a decisionmaking factor. It has on this ground been interpreted by the Supreme Court as a form of racial discrimination and subjected to strict scrutiny accordingly. (11) Operating within that mode of analysis, the Court has struck down integrationist projects undertaken voluntarily by local school districts, (12) though it has been slightly more forgiving in the context of higher education. (13) Yet recent developments in the executive branch suggest that even previously upheld higher-education programs may now be imperiled. (14)

In weighing integrationist programs, from primary to higher education, the Supreme Court has often spoken of the Constitution as a document that can support only the most limited integrationist efforts--as a document that values individual rights so much that they can almost never be subordinated to systematic attempts to promote diversity in a given institution. (15) This view is often closely linked to the idea that "[o]ur [Constitution is color-blind" (16)--that it prohibits virtually all racial classifications, (17) or at least all but those "necessary to remedy past discrimination." (18) Though others read the Constitution as expressing an "antisubordination principle"--that is, "the conviction that it is wrong for the state to engage in practices that enforce the inferior social status of historically oppressed groups" (19)--the general consensus is that the anticlassification principle has predominated "over the past half-century." (20)

This Note suggests that something important about the Constitution's values has gone unsaid in this debate: that the Constitution, in addition to at least opposing identity-based subordination, itself expresses tremendous faith in heterogeneity. So while the Constitution may in general be a "charter of negative rather than positive liberties," (21) in the specific context of integration, there is a separate point to be made about its commitment to systemic diversity and the broad-based blessings that flow from it, especially in light of the relative rarity with which the Court has defended integration as a freestanding good rather than only a reparation for past harms. …

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