The rules governing "benign" forms of race-conscious government action are easy to state but very difficult to apply in practice. A great deal of the difficulty arises from the lack of precision associated with the use of terms of art, such as "diversity," "remediation," and "affirmative action." Each of these terms should have a concrete and separate meaning, but in reality often serve as mere synonyms. Lack of care in using this nomenclature is not limited exclusively to government officers of the executive and legislative branches, but also includes the federal courts.
The general public's strong antipathy toward remedial race-conscious government action provides a key reason for this lack of accuracy in labeling remedial government programs; remediation of past racial wrongs constitutes a remarkably unpopular rationale for race-conscious government action. By way of contrast, however, broad majorities support efforts to increase "diversity." This political dynamic provides a powerful incentive for government officials to intentionally mislabel remedial programs as resting on the diversity rationale. Unfortunately, however, labeling a remedial effort a non-remedial "diversity" program can and does lead to virtually automatic judicial invalidation of the program, notwithstanding the fact that a compelling interest in remediation might support the program. Indeed, in the plurality decision of Parents Involved in Community Schools v. Seattle School District, (1) the Louisville, Kentucky, public school district's ostensible "diversity" program appears to have suffered this fate--despite a compelling argument in favor of the program on remedial grounds, the Supreme Court invalidated it on diversity grounds. (2)
The federal courts should consider carefully whether demanding truth in advertising is a higher constitutional value than securing voluntary remedial efforts from local, state, and federal government entities to undo the continuing contemporary effects of past discriminatory behavior. The Supreme Court cannot reasonably demand more accuracy from government entities in describing the rationale for race-conscious action than the Court itself observes; the most recent decisions from the Supreme Court, including both Justice O'Connor's majority opinion in Grutter v. Bollinger (3) and Justice Kennedy's critical concurring opinion in Parents Involved, (4) fail to deploy the argot of equality with exacting precision. Race is a difficult topic to discuss, and plain talk about race is not easy for any government entity--including the federal courts. This state of affairs requires pragmatic realism, rather than empty formalism, in assessing the consistency of benign race-conscious government action with the equal protection mandate.
The question of permissible government use of "benign" racial classifications remains an important, but doctrinally muddled, area of constitutional law. A great deal of the confusion arises because of the imprecision with which government officials, including judges, use terms of art such as "diversity," "remediation," and "affirmative action." Although each of these terms could refer to distinct and severable motives for government action that take race into account, a pronounced tendency exists among courts, commentators, and various government officers to use them as synonyms. Moreover, the Supreme Court's own invocation of "diversity" as a basis for race-conscious government action has not reflected a consistent and coherent use of nomenclature. (5)
Such imprecision could have one or many root causes. Perhaps race is such a difficult and complex subject that straight talk about it simply is not possible, whether at the level of the local city government or at the Supreme Court. From this perspective, the nomenclature is intentionally imprecise and reflects an effort to render opaque that which, if transparent, might provoke unwanted attention or even public backlash. (6) As Professsor Peter Schuck puts the matter with respect to one key term of art, "[d]iversity, like equality, is an idea that is at once complex and empty until it is given descriptive and normative content and context." (7)
There is, in all of this, something of a puzzle. As Professor Fred Schauer has explained, we expect judges to engage in principled decision making and to give the actual reasons that undergird a particular judicial pronouncement that the law is thus. (8) As he puts the matter, "[t]he minimal sincerity conditions of ordinary conversational practice thus indicate that the giver of a reason is, at least at the moment of giving the reason, committed to no less than one result other than the result that prompted giving the reason." (9) Nevertheless, there is a substantial disconnect between the formal reasons given by Justice O'Connor in Grutter and Justice Kennedy in Parents Involved, and the rules that follow from those reasons. Both cases bless efforts to promote "diversity" even while adopting rhetoric strongly redolent of racial justice and the social imperative of affirmative action. (10)
Schauer acknowledges that reasons do not always explain outcomes, suggesting that "[p]erhaps there are things we can think but cannot write down." (11) He asks, "But why would a judge believe an outcome to be correct when it could not be explained by a reason?" (12) Schauer suggests that "[o]ne possibility is that there is a reason for the result, albeit a legally, socially, or morally impermissible one." (13) Schauer's examples of such reasons involve invidious racial discrimination, (14) but one could postulate any motivation that does not square with a judge's formal (and previously published) legal commitments, including, for example, a rule that states government may not attempt to remediate general social discrimination for which it bears no particularized responsibility. (15)
If a judge believed such remedial efforts to be appropriate in some contexts but not others, finding a principled line of demarcation might prove to be a difficult, if not impossible, judicial task. One response might be to maintain the formal rhetoric rejecting remediation of social discrimination, while at the same time giving a wink and a nod to thoughtful programs that have this purpose and effect notwithstanding being labeled efforts to promote "diversity." In taking such an approach, however, the Supreme Court, to borrow a phrase from Professor Bryan Fair, creates a jurisprudence "on a collision course with itself." (16)
In the context of benign race-conscious government action, the Supreme Court has identified only two "compelling" government interests that can justify such measures: the remediation of past racial wrongs and the promotion of diversity in contexts where it could be relevant, such as in higher education, or where a government agency's "operational needs" would be enhanced through a racially diverse work force. (17) A significant problem arises, however, in the imprecise use of "diversity" and "remediation" as justifications for race-conscious government action.
Politicians, for perfectly sensible reasons, tend to hold fast to "diversity" as a rationale for race-conscious government action, even when, in reality, remediation or some combination of remedial and diversity motives serves as the basis in fact for government action. (18) Both are compelling interests; both motives can support race-conscious government action. (19) The problem is that an overt remediation rationale is much more likely to precipitate a political backlash from white voters. (20) Accordingly, there is a natural political pressure to misidentify remedial efforts as diversity efforts. Indeed, if the federal courts insist on the perfect use of the argot of equality, voluntary efforts to remediate the contemporary effects of past racial discrimination will simply not exist and any such remedial efforts will have to be judicially initiated or not initiated at all.
In light of these political realities, perhaps the Supreme Court should permit governments to say one thing ("diversity") while actually doing another ("remediation"). If both of these interests truly are compelling, the Supreme Court should not demand that form transcend substance. As an alternative, government entities should be permitted to invoke both diversity and remediation as justifications for benign race-conscious government action and courts should sustain such programs if the agency can make a persuasive case on either ground. Circling back to the Supreme Court's recent decisions, if one were to renormalize Meredith v. Jefferson County Board of Education as a continuing effort at remediation, the Jefferson County, Kentucky, Board of Education should be able to win its case if it were willing to defend its student assignment program on purely remedial grounds (or perhaps some combination of remedial and diversity grounds). (21)
This Article begins, in Part I, with a brief overview of the current argot of equality: the rules that ostensibly govern the use of race-conscious government classifications--rules that, although easy to state, have proven difficult to apply in practice. Part II then examines the rationale most currently in vogue for adopting benign race-conscious government action: the diversity rationale. The problem with the diversity rationale, at least to date, is that it has come to serve as a de facto proxy for remedial concerns. (22) Clearly there is a place for considering diversity, including racial diversity, in designing and staffing government programs. In some contexts, such as a police force or prison staff, a diverse work force can achieve results that a non-diverse group of employees simply cannot. (23) But government entities have deployed routinely the diversity rationale in contexts where the government's main rationale for race-conscious action has very little to do with the identifiable benefits of including...