Diversity, race as proxy, and religion as proxy

[Volokh, Eugene]

        The argument is now shifting from a remedying discrimination
rationale to a "diversity of experiences, outlooks, and ideas" rationale.
We've of course discussed the latter point (though to be frank also the
former point) extensively on the list; but my basic reaction is that I'll
believe that people are really interested in "diversity of experiences,
outlooks, and ideas" when they start giving preferences to devout Christians
or other groups that certainly have their own diverse ideas, experiences,
and attitudes, and that are certainly underrepresented on many faculties.
See generally http://www.law.ucla.edu/faculty/volokh/diversit.htm (43 UCLA
L. Rev. 2059).

        How many U Del faculty members are Christians who regularly go to
church?  Are they underrepresented compared to their fraction of the public
at large (probably about 35-40% of the people in the normal faculty age
groups)?  Are you concerned that they might claim this underrepresentation
means intentional discrimination or at least illegal disparate impact?
Don't you want exposure to their "diverse points of view and diverse life
experiences"?  What affirmative steps is the university taking to make sure
that they are included?

        Needless to say, I'm not encouraging religious preferences, whether
in the name of diversity or not.  I think this example shows that even the
noble end of diversity of experiences, outlooks, and ideas doesn't justify
the means of discrimination.  But if I'm wrong, and the intellectual
diversity rationale is compelling enough to trump the Equal Protection
Clause, then it seems hard to see why the same wouldn't apply with regard to
religious preferences as well as race preferences.  (And, of course, the
presence of race preferences without the presence of religious preferences
would potentially make the policy unconstitutionally underinclusive with
respect to the interest in intellectual diversity.)

        Eugene

> -----Original Message-----
> From: Leslie Goldstein [SMTP:lesl at UDEL.EDU]
> Sent: Thursday, March 08, 2001 5:25 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Affirmative action redux
>
> I might buy it if we were talking about a hisotirically black school state
> college that was 90% black and the white admits were slightly below mean
> or median but not out of line from plenty of blacks admitted.  The arg
> would be that exposure to diverse point sof view and people form diverse
> life experiences is educational for the res t o f the student body.  In
> other words , I find your point of view as to what "merits" college
> admission unjustifiably narrow.  On hiring I might favor the white
> preference if it were in a majority-black country (say sub-saharan Africa)
> with a lenghty tradition of favoring blacks by ethnicity in govt. jobs.
> In other words, it all depends.
> Leslie
>
> "Volokh, Eugene" wrote:
>
>
>
>               OK, let's say that someone was defending his practice of
> giving a preference to whites in hiring.  "I'm disturbed by the
> assumption," he says, "that my employees are appointed EITHER on the white
> preference system OR on merit.  Remember, most of the time there is no
> 'best person for the job'; there are several well qualified candidates,
> any one of whom would probably do fine.  The other tests of qualifications
> are notoriously unreliable (ask anyone who's hired people whether they can
> confidently predict who can work out and who can't); so when I let in
> someone with marginally lower paper credentials because he's white, I'm
> not really compromising 'merit standards', so long as he's absolutely
> 'well qualified.'"
>
>               I think that most people wouldn't buy this.  They'd say:
>
>               (1)  The other tests of qualifications, even if they are
> imperfect, are fairly decent predictors, or else you wouldn't be using
> them for anyone.
>
>               (2)  Thus, when you depart from these tests in considering
> the applicant's race, you are indeed hiring someone who is less qualified
> -- even if only slightly less qualified -- because of the person's race.
>
>               (3)  You might be able to defend this decision to prefer
> people based on race even though they are somewhat less qualified, but you
> have to defend it on the merits, not by denying that you are indeed
> departing from merit principles and hiring the less qualified over the
> more qualified.
>
>               (4)  And if you think the other tests are flawed, you can
> fix them, but you can't keep using these flawed tests and at the same time
> use them as an excuse for race discrimination.
>
>               I'd say the same here.
>
>               Eugene
>
>       Judy Baer writes:
>
>       I'm disturbed by an assumption I find (perhaps wrongly) lurking in
> these
>       last posts: that one is appointed EITHER on affirmative action OR on
> merit.
>       Remember, personnel experts tell us that of the time there is no
> "best
>       person for the job;" there are several well qualified candidates,
> any one of
>       whom would probably do fine (as well as a pool of minimally
> qualified
>       candidates, and some who are unqualified.) Remember, also, that to
> make aff.
>       action and merit mutually exclusive is part of the reason we have
> this
>       problem.
>
>       Judy Baer
>       Texas A&M
>
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