Academic

Shin on Diversity & Colorblindness

By Lawrence Solum

Patrick Shin (Suffolk University Law School) has posted Diversity v. Colorblindness on SSRN.  Here is the abstract:

There seems to be broad social consensus that racial diversity is generally a good thing. Disagreements tend to focus on the constraints we should observe in bringing such diversity about. Evaluating the justification of such constraints requires understanding the kind of good that racial diversity is supposed to constitute. In this article, I draw on concepts familiar from philosophical discussions in value theory to analyze the value of racial diversity on the one hand and that of colorblindness on the other. Using several opinions from Parents Involved in Community Schools v. Seattle School District No. 1 to stake out some of the central positions, I argue first that the value of racial diversity is conditional or extrinsic, not intrinsic, but that we have both instrumental and non-instrumental reasons to regard it as something worth caring about. I further argue that the constraint of colorblindness is, strictly speaking, orthogonal to the value of racial diversity, because what colorblindness opposes is selecting for diversity, not diversity itself. The two values come into opposition, of course, in circumstances where such selection is the only feasible way of bringing diversity about. I consider the case for adhering to the constraint of colorblindness in such circumstances. I contend that the strongest positive argument for a deontological conception of colorblindness - viz., that it expresses a constitutional principle of equal respect - is obsolete. I further suggest that the strongest negative argument - viz., that selecting for diversity expresses disrespect for persons - ignores the possibility that such selection measures, when adopted in response to unjust social conditions, might more plausibly be regarded as an expression of a commitment to substantive principles of equality

Full post as published by Legal Theory Blog on December 10, 2008 (boomark / email).