Diversity, Democracy & Pluralism: Confronting the Reality of Our Inequality

• Citation: Vol. 66 No. 3
• Publication year: 2015

Diversity, Democracy & Pluralism: Confronting the Reality of Our Inequality

Stacy Hawkins

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Diversity, Democracy & Pluralism: Confronting the Reality of Our Inequality

by Stacy Hawkins^*

"[I]f liberty and equality . . . are chiefly to be found in democracy, they will be best attained when all persons alike share in the government to the utmost."

Aristotle¹

"The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that . . . the trust should be placed not in a few, but a number of hands."

James Madison²

I. Introduction

African-Americans were inspired by the election of Barack Obama as the first African-American President of the United States.³ Women were energized by even the prospect of electing the first female President

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of the United States.⁴ Latinos expressed pride in the confirmation of Justice Sonia Sotomayor to the United States Supreme Court.⁵ And a movie was made immortalizing Harvey Milk, the first openly gay politician elected to public office in the United States.⁶ This list of celebrated "firsts" goes on and on.⁷ All too often in the twenty-first century, we have either celebrated diversity among our civic leaders as a novelty,⁸ or otherwise decried their lack of diversity.⁹ In the past

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generation, as the demographic diversity of the nation has rapidly expanded,¹⁰ racial and ethnic minorities have remained shut out of participation in the civic life of our nation.¹¹ This disparity between the pluralism of our population and the pluralism of our polity challenges our fundamental democratic ideal of "government of the people, by the people, for the people."¹² This Article attempts to answer the question of whether our Constitution's promise of "equal protection of the laws"¹³ offers any guarantee against this yawning racial and ethnic gap between the governing and the governed. If all persons alike do not get to share in the promise of liberty and equality described in the introductory quotes to this Article, some people-racial and ethnic minorities in particular-will be forever consigned to the margins of this ongoing social experiment in democracy called America.¹⁴ The conclusion reached is that this untenable reality is not consistent with the vision of our Constitution's guarantee of either equal protection or pluralist democracy.

To its great credit, in 2003, the United States Supreme Court took direct aim at this failure of our democracy by holding in Grutter v. Bollinger¹⁵ that achieving meaningful diversity in higher education

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could justify the use of race-conscious admissions plans, notwithstanding the Court's general inclination toward constitutional colorblindness, precisely because the diversity of our civic leaders, cultivated in the nation's public colleges and universities, would instill in the hearts and minds of the American people a sense of legitimacy in those leaders.¹⁶ The Court justified this "diversity rationale," at least in part, by observing that "[e]ffective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized."¹⁷ Many critics have assailed this diversity rationale as an illegitimate basis for permitting race-consciousness under the prevailing equal protection principle of antidiscrimination.¹⁸ Although progressive legal scholars have come to the able defense of the race-conscious admissions program sanctioned by the Court in Grutter, most have done so without defending the diversity rationale itself, but by rejecting the antidiscrimination principle wholesale in favor of an antisubordination principle of equal protection.¹⁹

This debate between the antisubordination and antidiscrimination principles of equal protection, the "mediating principles" of equal protection, has been long-standing.²⁰ The antisubordination principle

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can be thought of as the remedial principle of equal protection, and the antidiscrimination principle can be thought of as the aspirational principle.²¹ However, antisubordination is also commonly associated with a command of substantive equality and race-consciousness, and antidiscrimination is associated with a command of formal equality and colorblindness.²² Generally, the debate between antisubordination and antidiscrimination presumes that these two principles, and their preference for race-consciousness and colorblindness respectively, are mutually exclusive and jurisprudentially irreconcilable.²³ This debate further assumes that a single, dominant, fixed, and inviolate principle of equality informs our equal protection guarantee.²⁴

The diversity rationale, however, with its acknowledgement of aspirational colorblindness and its acquiescence to substantive race-consciousness, confounds the presumptions about, and the understanding of, the equal protection doctrine reflected in this debate. The diversity rationale defies the conventional view by combining the aspirational ideals of the antidiscrimination principle with the substantive-equality view commonly associated with the antisubordination principle. In doing so, it reveals that the Court's equal protection jurisprudence is not confined to the narrow terms echoed in the scholarly debate, but reflects a dynamic, evolving, and responsive approach to equal protection that can accommodate, and has accommodated, both of these visions of equality over time.

Much of the critique over the legitimacy of the diversity rationale specifically, and the animating principle of equal protection doctrine more generally, ends with this debate. However, there are additional constitutional considerations that structure the Court's equal protection analysis generally, and that should inform our understanding of the diversity rationale specifically as a coherent part of that analysis. This

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Article contemplates those additional constitutional considerations and how they reinforce the legitimacy of the diversity rationale, even as it situates the Court's equal protection doctrine in a broader jurisprudential framework. Rather than the one-dimensional analysis that is reflected in the literature, the Court's equal protection analysis is marked by four simultaneously reinforcing constructs that together form an integrated framework within which the Court's equal protection jurisprudence is developed and the diversity rationale ought to be understood. This Article seeks to fill the gap between the narrow critique of the diversity rationale found in the existing literature and the robust jurisprudential framework from which the diversity rationale has emerged, and by which it is legitimized.

These four constructs, often treated in the literature separately,²⁵ include not only the mediating principles that dominate the scholarly debate around equal protection,²⁶ but also a theory of democracy,²⁷ a theory of judicial review,²⁸ and a method of constitutional

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interpretation.²⁹ These four constructs operate collectively to inform the Court's consideration of equal protection issues and shape the contours of the Court's equal protection jurisprudence. These constructs can be organized according to their function as either a conceptual tool for discerning the meaning of the Equal Protection Clause³⁰ (the mediating

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principles and the theory of democracy) or as a methodological tool limiting the interpretive power of the judiciary (the method of constitutional interpretation and the theory of judicial review).³¹ This Article will address the meaning and import of each of these constructs individually, as well as their collective operation to create the robust analytical framework within which the Supreme Court's equal protection jurisprudence is developed and from which the diversity rationale has rightly emerged.

This Article is divided into five parts. Parts II and III address the interpretive constructs that aid the Court in assigning meaning to our Equal Protection Clause. Parts IV and V address the limiting constructs that restrain the exercise of the Court's interpretive power over the Equal Protection Clause. Part II addresses the mediating principle as the primary interpretive construct for divining the meaning of the Equal Protection Clause and the locus of the scholarly debate concerning the legitimacy of the diversity rationale. Contrary to the popular debate that frames this issue as one of either formal antidiscrimination or substantive antisubordination, Part II reveals that the Court's equal protection doctrine actually reflects an evolution of the animating principle from formal antisubordination to substantive antidiscrimination. Notwithstanding the competing scholarly claims that the diversity rationale negates the aspirational antidiscrimination principle of formal colorblindness or that it abandons the substantive equality aims of antisubordination, the diversity rationale does neither. Rather, the diversity rationale represents a principle of substantive antidiscrimination that attends to the present realities of inequality through substantive race-consciousness while also vindicating an aspirational equality ideal.

Part III explores pluralism as the theory of democracy animating our Constitution at large and its ostensible extension to the Equal Protection Clause.³² Using pluralism as an interpretive lens for understanding

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and applying the Equal Protection Clause reveals why effective participation in the American polity by the growing number and variety of racial and ethnic minority groups is essential to legitimizing our pluralist democratic ideals in the hearts and minds of America's increasingly multi-racial and multi-ethnic citizenry. The diversity rationale embraced by the Court in Grutter reflects this multicultural strand of democratic pluralism.³³ Notwithstanding Grutter's attention to the educational context, Part III will...