Diversity: its costs and challenges

The value and virtues of diversity have for decades been the topic of heated national and local debates. Accordingly, this post does not intend to explore all of the arguments and permutations of those debates. Instead, this post seeks recast one of the primary arguments against promoting diversity—the costs of diversity efforts. Specifically, this post intends to exam this so-called cost from a different perspective. The traditional argument against diversity as it relating to its cost basically goes as follows: promoting diversity and thereby hiring or accepting less qualified candidates perverts this country’s notions of merit by advancing weaker candidates in the name of some amorphous notion concerning a value associated with diversifying a certain group, profession, or other targeted arena or area.

Indeed, the arguments for and against diversity are far from rare in academic circles, particularly legal ones. These debates are typically couched in terms of affirmative action and specifically, whether accommodations should be made for students and academics that do not have the same predictors of success that other candidates possess. For opponents of diversity, or at least affirmative action, traditional modes or barometers of success, such as standardized exams, represent the so-called “coin of the realm” for the means to predict merit and likely success. Supporters of affirmative action and diversity question the value of such tests or traditional means of measuring merit. Situated as such, the advocates of diversity unfortunately seem to argue against what appear to be objective means to measure achievement. These advocates seem to oppose or at least question a core value--the American way to measure performance and even a person’s worth.

What do the advocates of diversity appear to offer instead— amorphous critiques with few objective means at predicting achievement? These advocates of diversity ask supporters of the dominant narrative, or at least traditional advocates of merit, to change their perspective or change the axis of the debate. The advocates of diversity argue that adding diversity adds perspective to many debates and promotes robust exchange of ideas and varying views on a host of subjects that would likely not be available absent a diversity of perspective and representative voices. The opponents of diversity, when they do acknowledge value of diverse ideas, typically argue that diversity of representation does not necessarily reflect a diversity of views. Furthermore, when some diversity occurs, the opponents argue, said diversity does not necessarily result in the robust exchange that so many suggest comes with diversity. These opponents typically end the exchange by noting that the cost of promoting weaker candidates not only undermines our system of merit, but also hurts all in society by creating weaker institutions and ultimately costing all of us significant opportunities.

What this advocate of diversity finds challenging is what happens when diverse candidates are actually more qualified than their contemporaries. Do these diverse over-achievers gain from a wealth of riches? Is there a collective clamor for their services? Or is something else at play? Instead of being properly classified as opponents of diversity, do most individuals in society, and law professors in particular, benefit from a more subtle phenomenon—being supporters of affirmative affinity. What I mean by this somewhat provocative term is that even the most liberal of individuals that value diversity often are part of institutions that do not come close to resembling the statistical make up the society where they exist. In other words, most legal academics, which include the most liberal and progressives amongst us, live and work in places that do not represent the grand goals of diversity. They live and work in enclaves that do not remotely resemble the diversity that exists in this society. Could it be that there are just too many costs to diversity? It is easy to use merit to justify not appointing a so-called weaker candidate, but does that explain why diversity in legal academia resembles the diversity one would see at dinner party during the 1960s? Each school has its obligatory African-American professor, for instance, and sometimes even more than one. Yet there still exists a dearth of African-American male students and faculty at most schools. What is even more astonishing, as I have examined in some of my recent empirical work, is that roughly half of American law schools fail to have any Latino or Latina faculty? This is so despite this group representing the largest racial and ethnic minority in this country and the numbers of representatives of this group are in law schools in greater numbers than ever before. Is there such a lack of qualified candidates? I think not! What is going on then? We as Latino and Latina professors are told to publish, to teach well, and to not cause any reason for fear or doubt. For the most part, most of us excel in these areas. Yet even a cursory review blog’s such as Brian Leiter’s blog on lateral hires, seem to indicate a lack of significant mobility for certain groups (though it is not always easy to identify members of groups, such as Latinos and Latinas, just by reviewing names). What I have found more telling in an article I recently wrote, Freeriders and Diversity in the Legal Academy, 83 Ind. L. J. 1235 (2008), was that half of American law schools, and half of the elite schools of this country are devoid of Latina and Latino representation. Moreover, my studies have found that the bulk of Latino and Latina faculty members are at third and fourth tier schools, and schools with one representative, tend to have several representatives.

While the subject of diversity is one I have spent countless hours writing about and lecturing on, I will not spend too much more time on the subject other than to perhaps provoke some debate or at least have some individuals think about the cost of diversity in a different light. I start my ending by noting that while I was pleased to read about diversity in traditional blog sites such as the Faculty Lounge, even these entries struggle with this issue. For instance, in a series of post by Professor Kimberly Krawiec, http://www.thefacultylounge.org/2009/09/wrapping-it-up-the-struggle-to-explain-why-difference-makes-a-difference-sotomayor-and-the-value-of-diversity-the-final-in.html, the author raises the issue of diversity in corporate boards, and provides important insights. Yet as Professor Krawiec notes, many interviewed on the subject struggle with finding a basis or value to achieving diversity. Such struggles are not new, and said value, whatever it may be, will likely continue to be debated.

I suggest here that instead of attempting to put a value on diversity, a task that will leave many weighing other values that appear to be far more important, perhaps we should think about the cost of affirmative affinity. In other words, when segments of our society remain suspect, or perhaps at least create some hesitation because they happen to be of different backgrounds and write on issues that make some feel uncomfortable, should we recast that debate? Should we simple openly acknowledge that the cost of hiring such a person is too high, particularly when it is so much easier to appoint someone we can better relate to, we can better empathize with, and seems more like us. Is it just too costly for us, our institution, and this academy to promote individuals that may challenge current norms?