Diversity May Be Justified

Anita Bernstein

Volume 64, Issue 1, 201-256

What about diversity as a rationale for affirmative action is compelling enough to justify the hurts it inflicts on individuals? Judges, legislators, public opinion, and implementers of diversity programs in education and the workforce have defended their initiatives either with vague, anodyne, ill-founded paeans or, more often, with silence about what the rationale achieves. They have offered no justification of diversity.

From the premise that any state action that generates (or even risks) harm must be supported with reason, this Article undertakes the task of justification. What makes diversity unique among the rationales for affirmative action, this Article argues, is its power simultaneously to achieve two social goods—the repair of subordination and the strengthening of pluralism—that rest on independent and mutually constitutive jurisprudential bases.

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