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'Diversity': From Left to Far Left

By Charles Fried

Monday, January 3, 2000; Page A19

The central theme of the annual meeting of the Association of American Law Schools (AALS), which begins this week in Washington, is "A Recommitment to Diversity." The only plenary panel consists of the head of Bill Clinton's civil rights division, a gay rights and disability rights activist, a former lawyer for the Mexican American Legal Defense Fund and a critical race theorist.

All estimable people, and in a sense quite diverse, but in case you didn't get the point the program announces, "In the last several years, an assault has been launched against diversity efforts. Court decisions . . . as well as statewide referenda . . . have limited affirmative action and diversity efforts. These actions go to the very heart of the diversity goals of the AALS."

Of course the term "affirmative action" means racial preferences, and "diversity" means diversity as defined by the racist census categories enshrined in much of our preferential and set-aside legislation and programs. As the roster of speakers and topic announcement make clear, diversity certainly does not mean -- though this is supposed to be a meeting of scholars and intellectuals -- diversity of ideas or points of view, unless your idea of diversity is the full gamut of opinions from left to far left.

The AALS approach is striking because meeting at the same time in the same city, the law teachers sections of the Federalist Society and the National Association of Scholars -- both routinely dismissed as "right-wing" and "conservative" -- have mounted discussions of related topics that are genuinely and studiedly diverse in the only sense relevant to academic discourse: diverse in the points of view presented.

But these groups are prohibited from meeting in the same hotel as the AALS or publicizing their panels in its literature (as is the Christian Law Society). On the other hand the avowedly leftist Society of American Law Teachers is welcomed to the party with full courtesies.

I believe that the subject of race is as difficult as any facing our nation, but it has many sides. As Ronald Reagan's solicitor general, I called for several of the Supreme Court decisions that doubtless will be denounced at this week's pep rally, but I also have written that racial preferences in many of our institutions of higher learning in the first generation after Brown v. Board of Education were justified and that their rapid elimination now would be disastrous if it led to a resegregation of the elite institutions of the nation. I was criticized by both sides for saying so.

The debate is lively out there. William Bowen and Derek Bok have written a thoughtful book calling for the continuation of preferences and pointing to data showing the good that preferences have done. Critics have taken issue with their data and their conclusions. Lani Guinier has written to celebrate Texas's "10 percent solution" and the way in which it promises genuine diversity without recourse to the government's ruling by race.

Adding to the complexities is the fact that the numbers of groups with a plausible claim to preference are growing so large that an affirmative action program soon could become a universal partition of the nation along ethnic lines. Meanwhile increasing rates of intermarriage are making the definition of who belongs to what group more arbitrary.

Of course university administrators, like political leaders, must choose a policy, implement and defend it. But instead of treating these issues as topics for genuine inquiry and public discussion, the AALS reacts as if it were rallying the German professoriate to resist Hitler's "assault" -- to use its own word -- on the academy. Except here the assault is by democratically appointed judges and justices and by the voters in California and Washington.

Just as the one-sided nature of the legal academy in the '70s and '80s had little influence on the development of the law and the trends in the courts, so also this rally organized by the American Association of Law Schools may be doomed to a similar irrelevance.

Intellectuals have influence only if they have fresh ideas to respond to fresh realities, and the fortress mentality reflected in this pathetic performance of the AALS cannot possibly produce anything new. Those who highhandedly would design a program such as this and propose it as a serious academic exercise hope somehow to exert influence. Instead they discredit themselves and condemn their voices to irrelevance.

The writer, solicitor general in the Reagan administration, is a professor at Harvard Law School.

© Copyright 2000 The Washington Post Company

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