53. What Kind of Diversity Does the Constitution Support? (Pt. 2)

Part 2: Diversity for whom? The paradox of pragmatism

Photo by Daria Nepriakhina 🇺🇦 on Unsplash

In the previous post, we traced the evolution of the constitutional justification for affirmative action: how Bakke treated diversity as a benefit to classroom discussion, while Grutter reframed it as a civic and institutional good. Instead of merely enhancing individual learning, diversity became something the nation needed—to produce future military leaders, Fortune 500 executives, and judges who reflect the communities they serve.

That broader rationale helped Grutter survive strict scrutiny. But it came at a cost. Because once the Court justified race-conscious admissions as a benefit to society, a harder question emerged:

Who is diversity really for?

When Inclusion Becomes Instrumental

Justice O’Connor’s majority opinion in Grutter leans heavily on what institutions get from racial diversity. The military gains cohesion. Corporations gain better public image and decision-making. Law schools gain legitimacy in the eyes of the public.

The student of color, in this model, is no longer just a person seeking opportunity. She’s part of a broader ecosystem—an “input” into the production of diverse leadership and stable institutions.

There’s a pragmatic brilliance in this. It builds coalitions. It brings powerful stakeholders to the table. It sidesteps the guilt politics of reparations and replaces it with the logic of mutual benefit. Everyone wins.

But it also flattens the individual. The Black or Latino student isn’t there because she deserves to be, or because she has endured systemic inequality. She’s there because the rest of the room learns more from her presence.

This is the paradox of Grutter: it saves affirmative action by making it sound less like justice and more like HR policy.

Learning From or Learning With?

Consider the language that often accompanies diversity initiatives today. Colleges emphasize “exposure to different perspectives.” Employers tout “cultural competence.” Military leaders stress the need for “representative leadership.”

There’s truth in all of this. But it’s worth asking: is the student of color there as a subject—or a symbol? A peer—or a pedagogy?

Justice Ginsburg saw this problem coming. In her Gratz dissent, she pushed back against the mechanical application of race but defended its honest, transparent use. She reminded the Court that racial inequality in education wasn’t just historical—it was ongoing. Diversity, in her view, shouldn’t just help others learn about Black and brown students. It should help those students access opportunities historically denied to them.

That insight has become central to today’s criticisms of Diversity, Equity, and Inclusion (DEI) programs.

The Backlash to DEI—and What It Reveals

In the past few years, DEI programs have come under aggressive political attack. Republican-led legislatures have introduced bills to defund college DEI offices. State agencies have banned diversity statements in hiring. Conservatives argue that DEI enforces a progressive orthodoxy and undermines merit.

But if you read between the lines, part of the discomfort comes from the same utilitarian framing that Grutter relied on. DEI is often marketed as a tool for “inclusive excellence,” a way to make institutions perform better. It’s a product pitch: diversity is good for business, good for branding, good for innovation.

That’s not wrong. But it can feel hollow. And it creates a vulnerability: if diversity must prove its usefulness, what happens when people stop seeing the benefit?

That’s the risk of tying equity to efficiency. The moment the majority no longer feels served by diversity, the rationale begins to wobble. And with no compensatory frame to fall back on—no acknowledgment that affirmative action also addresses injustice—the program becomes politically precarious.

Students or Symbols?

Let’s go back to the admissions context.

In Grutter, diversity was justified in part because it helped white students understand the world. That’s not inherently a problem. Cross-racial understanding is a real and valuable thing.

But it shouldn’t be the main thing.

If a student of color is valued primarily because of how she expands someone else’s worldview, then she’s not a beneficiary—she’s a means to someone else’s educational end. That’s not diversity. That’s tokenism.

This critique has gained new traction in the post-Grutter landscape, especially as racial gaps in wealth, test scores, and K–12 opportunity persist. If those gaps aren’t addressed directly, then diversity in higher ed can begin to feel like window dressing: a few students of color in elite spaces to make the institution look good, while deeper structural inequities remain untouched.

And when opponents of affirmative action say, “This isn’t fair,” they’re often reacting to this very contradiction—without acknowledging the systemic forces that created it.

What Happens When the Majority Benefits More Than the Minority?

Here’s the irony: affirmative action policies survive longest when they serve the interests of those in power. The military defends diversity not because it’s just, but because it improves unit performance. Corporations support DEI not because it addresses racism, but because it boosts profits and public image. Even universities often pitch diversity as something that enhances the white student’s experience.

In that light, the student of color becomes a kind of narrative device: her presence is proof that the system is working.

But real inclusion demands more. It demands acknowledging the history and present of exclusion—not just celebrating a diverse freshman class, but confronting the unequal conditions that shape who gets to apply in the first place.

So Where Does That Leave Affirmative Action Today?

In Students for Fair Admissions v. Harvard (2023), the Court rejected the diversity rationale that had survived since Bakke. Chief Justice Roberts wrote that race-conscious admissions treat students not as individuals, but as representatives of their race. That’s precisely the concern Ginsburg and others warned about: that without a grounding in justice, diversity arguments begin to sound like stereotyping.

It’s not enough to justify affirmative action because it benefits everyone. That may be politically convenient, but it’s constitutionally fragile.

If race matters because race has mattered—because racism shaped opportunity—then that needs to be said aloud. Courts may flinch at talk of reparative justice, but avoiding it doesn’t make the problem disappear. It just makes the rationale easier to tear down.

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Next up in Part 3: Between Individuals and Groups—The Constitutional Balancing Act.