By: Matthew Mah
Volume IX – Issue II – Spring 2024
I. Introduction
Jon Lindseth, emeritus member of the Cornell Board of Trustees and donor to the University, recently published an open letter to the Board of Trustees calling for Cornell to “abandon its misguided commitment to [Diversity, Equity, and Inclusion (DEI)] because it has yielded not excellence but disgrace.” [1] Lindseth blames DEI for lowering education quality, characterizing such policies as ones that promote groupthink and radicalization. He argues that the University prioritizes DEI over merit, leading to toxic environments and contradictions with “the four essential pillars of Cornell University”—open inquiry, academic freedom, viewpoint diversity, and free expression. [2] In a follow-up interview, The Cornell Daily Sun reported that “while Lindseth asserted that ‘DEI ends up promoting the lack of free speech,’ he was uncertain as to how. ‘I wish I knew why,’ Lindseth said.” [3] This lack of clarity is not limited to DEI critics. Multiple alumni and organizations have criticized Lindseth’s letter. [4] Responses stated that DEI policies ought to be sustained because “the utterly irrational scourges of racism and religion-based hate persist [...]” [5] and that “Cornell University’s founding principle of ‘any person, any study’ was [an unactualized] DEI statement.” [6] However, these responses have shortcomings. No reason is presented for why DEI policies are essential in combating these issues, nor is there an explanation of the relevance of interpreting a founding principle as a DEI statement. These responses are only convincing if the reader already believes DEI policies are good. For the skeptic or those seeking more rigorous justifications, these responses lack the necessary evidence or explanatory power for persuasion. Lindseth’s initial letter and any of his respondents fail to provide a coherent definition of DEI policies and the derived mechanisms that provide the asserted benefits or drawbacks. Responses to Lindseth did not provide a serious case for DEI policies beyond circular arguments. These arguments do not address the crux of Lindseth’s initial complaint, which was that on balance, DEI came at the expense of specific goods which outweighed its purported benefits, not that DEI provides no benefits.
Such ambiguity and misunderstanding are common in DEI debates. Many participants frequently gesture towards vague benefits and harms without providing verified causal explanations for their assertions. Furthermore, there is a lack of engagement and understanding between opponents. One should not blindly accept or inherit their beliefs; to truly support anything, we must wrestle and engage with their supposed shortcomings. This article is written for DEI supporters, as they represent the mainstream in universities. It attempts to articulate many of the common DEI criticisms in an attempt to provide readers with a holistic understanding of the DEI conversation. Given the growing backlash towards DEI initiatives, this understanding is becoming increasingly critical. Genuine advocacy necessitates engaging with those who disagree—those skeptical of the current implementation or premises of DEI policies—and persuading them of its importance. To engage and persuade with intellectual honesty, it is essential to understand the critics’ best arguments, those grounded in clear reasoning rather than those that simply deny the existence of the issues DEI seeks to address. It is only through engaging with the opposition that the truth can be discerned. The contentions raised in this article should serve such a purpose. The intention is not to advocate for a complete rejection of such policies, but rather to advance the conversation by presenting common arguments and enabling those who disagree to address their claims accordingly. This article will proceed by laying the necessary framework for this discussion—reviewing the origins of DEI, how it is defined by opponents and proponents, and the common justifications supporting these policies. Following this, the remainder will be dedicated to articulating common criticisms of these justifications.
II. Definitions
To explain criticisms levied against DEI policies, the framework itself must be defined. Yet, this task is deceivingly difficult. The definition of DEI initiatives varies significantly from source to source—it is a point of contention between supporters and opponents and within both respective factions. DEI experts and consultants, or supporters of DEI, define the three prongs in a variety of ways. In one set of definitions, diversity is “the representation of people from a variety of backgrounds [...] at all levels in an organization [...],” equity “focuses on fairness and justice [...]” and inclusion is “about whether people feel like they belong, and whether they feel heard or valued in an organization[...].” [7] DEI initiatives were created because marginalized groups lacked job opportunities and felt excluded in predominantly white corporate settings and their purpose—at the time of their creation—was to “create workplaces where more or all people can thrive.” [8] These interpretations generally speak in terms of broad concepts, emphasizing the ideals these initiatives aim for. However, these definitions and goals are not universally agreed upon—even amongst supporters. Some supporters acknowledged that while diversity is understood fairly well, “the terms ‘equity’ and ‘inclusion’ [have] an array of long, confusing, self-referential and sometimes inconsistent definitions.” [9] Such ambiguity and inconsistency fuel disagreement and hamper meaningful advancement. By contrast, critics of DEI initiatives often define DEI by the outcomes of implemented initiatives. According to critics, DEI—specifically, equity-based initiatives—necessarily entails “the redistribution of social and economic goods in accordance with subjective assessments of immutable privileges and disadvantages associated with whole demographics.” [10] Critics are generally skeptical about DEI initiatives and argue that the “privileged” or “disadvantaged” groups are defined on a stereotypical basis. They may believe that evaluations of which groups are privileged or not rely on subjective perceptions, but even if these assumptions are correct, the perceived inequalities are based on broad demographic generalizations that do not necessarily translate to individual circumstances or beneficiaries. Importantly, these differing perspectives are not necessarily mutually exclusive. It may be the case that a DEI opponent supports diversity, equity, or inclusion as a principle but disagrees with the current implementation of such policies. Of course, some critics who oppose the principles or goals in addition to the implementation of these policies remain. The arguments presented in this article will encompass the spirit of both criticisms—challenging DEI policies on their implementation and the merit of their premises. To do so, the common justifications supporting DEI policies must be considered.
III. Overview of Supporting Frameworks
DEI initiatives often share common goals. Diversity focused DEI initiatives typically aim to ensure fair employment opportunities for applicants and employees. [11] Proponents often support similar policies for their shared goals, but provide different rationales for why these policies should be pursued. Generally, the rationales falls into two frameworks: to increase diversity [12] or to act as redress for current or historic injustice. [13] Both frameworks support similar policies but have different shortcomings in their reasoning. These frameworks do not encompass all of the rationales used to support DEI initiatives, but represent the portions that will be covered in this article. Of course, this does mean that this article is limited in scope and not a perfect representation of the ongoing debate. It should be read as a focused exploration rather than a comprehensive analysis of all perspectives. Additionally, the distinction between the frameworks are based on imperfect generalizations and are made for the organization’s sake. The diversity-based and redress-based frameworks are often provided in tandem to justify DEI policies but are substantially distinct in their reasoning. This article will not be debating which frameworks are superior, but will be reviewing the underlying rationales and common criticisms of these justifications.
Two separate justifications with very different lines of reasoning exist within the diversity-based framework. While they are not mutually exclusive, proponents of the diversity-based framework rarely hold both lines of reasoning in the same esteem. One of these groups contends that diversity is good because of the competitive benefits derived from it. For example, those who hold this view may argue that diversity within universities or firms promotes better learning or business outcomes respectively. [14] This justification argues that diversity is essential in business today because it is associated with increased productivity, creativity, revenue, and more. [15] These benefits are linked to diversity by emphasizing how diverse work environments are “filled with employees of different backgrounds, skills, experiences[,] and knowledge [which necessarily] means that there will be an increase in innovative and creative ideas.” [16] These differences then provide a competitive advantage to diverse firms because flexible skill-diverse workforces are more adept at navigating market dynamics. [17] Similar reasoning is applied to universities or other institutions with DEI policies. The other group contends that diversity is an intrinsic good, requiring no justification as it is inherently valuable. Those in this group often assert as a premise that diversity is an infallible good but may buttress their claims with lines of reasoning borrowed from the first group if questioned why diversity is good. The redress-based rationale focuses on the disparities in life between two demographics—often but not exclusively black and white Americans—and characterizes these race-based gaps as the product of institutionalized racism from the past. [18] To correct these gaps and to rectify their lasting impacts, therefore, present action ought to be taken. This view presents diversity initiatives, often affirmative action, as forms of reparations that are justified because of the contemporary effects of historic injustice. [19] Both frameworks and their associated criticisms will be addressed in turn. The discussion now turns to addressing the arguments for the competitive benefits of diversity.
IV. The Diversity-Based Framework: Competitive Benefits
The arguments against rationales that justify DEI policy based on competitive outcomes—such as the business case for diversity—are well-documented. To illustrate this argument, this article will focus on specific critiques geared toward the business case for diversity, but the rebuttals presented apply to any rationale that justifies DEI policies based on alleged competitive outcomes. Most significantly, many of the statistics cited in support of the business case are interpreted incorrectly. The business case often relies on studies that find a correlation between the presence of a minority group and a desirable business outcome. For example, a frequently cited study claims that “companies in the top quartile for gender diversity on executive teams were 25 percent more likely to have above-average profitability than companies in the fourth quartile.” [20] While this statement is unproblematic by itself, it is often interpreted as a causal statement by supporters to justify diversity initiatives when it is presented as a correlative claim in the literature. [21] This does not necessarily mean that a casual relationship is impossible or that the business case is false; rather it suggests that a causal interpretation of the data is unfounded. Robin J. Ely and David A. Thomas, scholars who have published several publications defending diversity in organizations, acknowledge that the studies touted by the business case often “show correlations, not causality. In all likelihood, some other factor—such as industry or firm size—is responsible for both increases in the number of women directors and improvement in a firm’s performance.” [22] These authors also point out that subsequent peer-reviewed studies on diversity and corporate performance found no relationships between either; no links—causal or correlational—were found between broad gender or racial diversity and firm performance. Further scrutiny of the initial studies claiming a correlation between gender/racial diversity and business performance has revealed critical flaws—irreplicable results, claimed correlations where none exist, and basic methodological errors. [23] Indeed, the broad consensus from leading academics indicates that “companies do not perform better when they have women on the board. Nor do they perform worse.” [24] There is no strong evidence linking business performance to demographic diversity. [25] In some limited cases, positive correlations were found, but even if they were causal, they were found under specific circumstances and were unlikely to impact a firm’s bottom line. [26] These scope conditions are critical. If a hypothetical study suggested that diversity was financially beneficial under certain conditions, this does not prove that diversity is financially beneficial in general. The specific circumstances under which the study was conducted play a significant role in the data’s findings—not specifying these conditions may be an indication of an inaccurate or disingenuous interpretation of the data.
Nevertheless, even if these outcomes persisted in a more rigorous study, it would not necessarily prove that demographic diversity causes positive business outcomes. The causal mechanisms proposed by the business case for diversity are often akin to beliefs that “underrepresented candidates offer different skills, perspectives, experiences, working styles, etc. [which are responsible for driving] the success of diverse companies.” [27] A necessary premise for this assumption is that underrepresented candidates offer these unique contributions based on their demographic characteristics. In other words, intellectual diversity is equated with demographic diversity. Consequently, the causal mechanism described should attribute intellectual diversity—rather than demographic diversity—as the cause of positive business outcomes. Opponents of DEI policies suggest that the assumption that demographic diversity is intellectual diversity relies on stereotypes or statistical assumptions, suggesting that organizations can determine how someone may think and contribute solely based on their identities rather than their character. Because of this, many DEI supporters who advocate for diversity based on its inherent value or for redress-based rationales oppose this perspective—arguing that it reduces the minority sense of belonging at firms, since minorities may recognize that they are being used as tools to achieve a goal. [28] Beyond such complaints, the link between intellectual diversity and demographic diversity is fundamentally flawed. It may be the case that demographic diversity serves as a simple heuristic for determining how people may think differently, but this simplification is more imperfect than often assumed. The relationship between demographic diversity and intellectual diversity is “in the literature small to moderate” [29] with such a relationship leading to researchers predicting minimal to no boost to intellectual diversity for an increase in demographic diversity. This finding is corroborated by experiments that indicate the difference in cognitive performance between demographically diverse and homogenous crowds is minimal. [30] A variety of explanations exist to explain this trend—such as the potential for firms to select for minorities that are intellectually homogenous with the dominant demographic, pressures to assimilate, etc.—but the relevant conclusion is that demographic diversity is not isomorphic to intellectual diversity. Using the former as a heuristic for the latter is flawed without an impossible number of qualifiers and fine-tuning.
While these arguments used the business case for diversity as an example, the same patterns of misinterpreting correlative trends as causal and construing demographic diversity with intellectual diversity are consistently characteristic of almost all DEI justifications that rely on alleged competitive outcomes. Universities, for instance, frequently supported their race-based affirmative action policies by claiming benefits to student outcomes. In doing so, these institutions follow the same fallacious reasoning as businesses, going as far as to cite the same studies touting better business outcomes correlated with diversity. [31] We now turn toward another pillar upholding DEI policy: the acceptance of diversity as an inherent good.
V. The Diversity-Based Framework: Diversity as an Independent Good
Within conversations focused on the merit of diversity focused DEI policies, proponents often assert as a premise that diversity is an independent good. That is, diversity is a good by faith akin to “happiness” or “satisfaction.” The specific rationale to justify DEI policies is irrelevant as such because it is believed that the policies are beneficial since DEI policies boost an irrefutable good. This premise follows the form of a circular argument but will not be challenged. For this section, and despite our personal agreement or disagreement, it is assumed that diversity is an independent good. Arguments attacking faith-based premises are seldom convincing for people who agree with the premise. Thus, arguments directly addressing the premise that diversity is good are acknowledged but will be ignored in favor of focusing on the contradictory implications and flaws derived from providing this claim as the sole justification for DEI policies.
Contradictions arise when we examine how diversity is defined and quantified. Prototypically, diversity is defined as “the representation of people from a variety of backgrounds [...]” [32] However, this definition compels us to specify which specific backgrounds are relevant. Typically, discussions about DEI policy prioritize race, age, gender, and sexual orientation, [33] yet rarely specify which aspect of identity holds greater importance. When “diversity is good” serves as the sole justification for diversity initiatives, the natural response is to question in the pursuit of diversity, how do we determine what attributes—such as race, gender, or class—contribute more to diversity? This question is both natural and important because basing diversity efforts solely on its intrinsic value suggests that the goal should be to maximize diversity outcomes. It cannot be the case that all identities contribute the same amount of diversity value, as DEI initiatives would serve no purpose if the net diversity gain from every individual is equal irrespective of identities. Having any policy that prioritizes some aspect of identity over others assumes that the prioritized category contributes more to diversity than the unprioritized ones. The assessment of which identities to prioritize is inherently subjective, which is problematic because it implies that the beneficiaries of DEI policies—such as those belonging to racial minorities rather than those belonging to religious minorities—are arbitrarily decided; a notion largely rejected by proponents.
Some proponents recognize this subjectivity, and instead of weighing diversity values between groups, diversity is measured in relation to equity—a complex term with multiple, often contradictory, definitions. [34] For this portion, it is defined as “equality of outcome.” In other words, groups that are underrepresented provide greater diversity than those represented at parity or greater, so these underrepresented groups are prioritized in firm admission (hiring, college acceptance, etc.). In practice, this solution fails to address the issue of subjectivity because it is infeasible to account for every identity during hiring, necessitating subjective decisions about which identities to prioritize. There is no reason for the identities considered to be limited to race, gender, sexual orientation, or other currently considered factors. Factors such as conventional attractiveness, language spoken, and socioeconomic status are also significant aspects of someone’s identity which are not often considered by DEI initiatives. There are an infinite number of such factors, but only a limited amount are considered. Which should be judged and at what point are the number of identities considered satisfactory? The point of this line of questioning is not to argue that because it is extraordinarily difficult to capture diversity accurately, it ought not be pursued, but to point out that an important consideration is that considering diversity as an innate good compels proponents to answer what categories to prioritize and why. The answer is unclear, and once more, subjective, leading to the same aforementioned foibles.
Similarly, even if it is universally accepted that diversity is an inherent good, how does it weigh compared to other innate values? It is not the case that diversity can always be pursued without cost. For example, in a brief filed by the plaintiff in Students for Fair Admissions (SFFA) v. Harvard, the data compared admittance rates and academic decile by race for prospective applicants to Harvard. Academic deciles are Harvard’s measure of academic preparedness and are a weighted average of a prospective applicant’s SAT scores, SAT II scores, and high school GPA. [35] The higher the academic decile, the better an applicant’s relative academic profile is. In the eighth highest academic decile, Asian candidates had a “5.1% chance of admittance, compared to 7.5% for white, 22.9% for Hispanic, and 44.5% for black applicants.” [36] The contrast is further emphasized by directly comparing Asian and black applicants. For Asian applicants in the tenth (top) academic decile, there was a 12.7% chance of admittance. For black applicants in the same decile, there was a 56.1% chance of admittance. The admittance rate only reached 12.8% for black applicants in the fourth decile. This indicated that, on average, black applicants to Harvard in the bottom 40% of applicants have a better chance of being admitted than Asian students in the top 10%. [37] The purpose of these examples is to highlight that in their pursuit of diversity, Harvard chose to sacrifice some level of their own definition of academic preparedness in their incoming student body. This is not to say that the students occupying the lower academic deciles are inferior or less deserving, simply that by academic metrics, they performed worse than their peers and were selected despite this. Undergraduate universities have other considerations besides the academic preparedness of their incoming student body, but this pattern illustrates that diversity is weighed against other considerations and that this process is subjective as there is no objective calculus for determining its weight.
Accepting the premise that diversity is good begs several substantive questions which cannot be answered non-subjectively. Because of this, even if everyone accepted the premise of diversity as an inherent good, it would not meaningfully ameliorate the DEI debate. The subjective assessments derived limit the significance of stating “diversity is good.” It is possible to conceive of a person who agrees that “diversity is good” but subjectively values it less than the smallest necessary tradeoffs for the implementation of DEI policies. The fundamental disagreements shift, but the question remains focused on what value should be placed on diversity and what it is worth compared to other goods. Thus, this justification does not provide concrete support for DEI policies.
VI. The Redress-Based Framework
The redress-based rationale justifies DEI policies by equating them to tools that correct for historic injustices. This rationale is supported, but not solely, by two implicit premises which will be addressed: (1) That we know who are the victims of the legacies of historic injustice/discrimination, and can effectively differentiate and weigh different magnitudes of injustice and (2) that the redress implemented aids the recipients meaningfully. It is important to acknowledge that if these premises were challenged or weakened, this justification may not fall apart entirely. Proponents may argue that as long as some people deserving of aid receive it, the programs are justified. Nevertheless, at the very least, the limitations of these premises do represent a substantive decrease in its argumentative force and certainty of its purported benefits. In addition, the potential negative side effects of externalities associated with DEI policies become more concerning if its benefits are more limited than anticipated. For this section, affirmative action will be the primary example for data, but the criticisms outlined apply to many similar DEI policies. We now turn to assessing these two premises, highlighting potential pitfalls in their assumed validity.
How do we formally measure who are the victims of historic injustice or discrimination? Currently, the primary method of assessing discrimination is the disparate impact standard—which posits that unequal outcomes are considered evidence that discrimination has occurred. [38] Proponents of DEI argue that in general, possible explanations for unequal outcomes are genetic or environmental factors. Since genetic factors are invariably bigoted, proponents correctly reject this explanation. Consequently, environmental factors—particularly societal discrimination—must be responsible for the disparities. Therefore, disparate outcomes are explained by discrimination and must be rectified with DEI initiatives. However, this argument has several critical flaws. While societal discrimination is an environmental factor, numerous non-discriminatory environmental factors exist. Cultural and religious differences, for example, vary across ethnic groups and are largely determined by one’s environment. [39] Different customs have a profound effect on what individuals value—leading to different ideas of success. [40] Expecting these differing groups to achieve the same outcomes in all aspects of Western ideas of success is, thus, self-contradictory. Given this, the belief that differences should average out at the group level is fallacious. This belief assumes homogeneity between contemporary groups and that performances should be equal across them as such. But, as previously stated, there are numerous differences in choice between groups. To illustrate this point, consider a fictional hypothetical where Asian Americans are extremely interested in the chocolate manufacturing industry for cultural or religious reasons. Because of their overwhelming desire to pursue chocolate manufacturing, their demographic representation in other fields decreases while they become increasingly overrepresented in chocolate manufacturing. Over time, Asian Americans become underrepresented in most fields while exceedingly overrepresented in chocolate manufacturing. In this hypothetical, the difference in representation is not caused by discrimination, but by free choice. Importantly, this rebuttal does not disprove the benefits of DEI. Even if unequal outcomes are influenced by societal discrimination in a smaller amount than anticipated, efforts to limit discrimination remain just.
Irrespective of how discrimination is generally measured, some demographic groups are known as the victims of historic injustice. Is it the case that these demographic groups reap the benefits of DEI policies? After all, it is possible that despite inaccuracies in measuring discrimination, the impact of inaccuracy is limited because the relevant groups still benefit from the implementation of DEI policies. To answer this, consider who are the recipients of DEI policies in practice using affirmative action as an example. In 2004, Henry Louis Gates Jr.—chair of the Department of Afro-American Studies at Harvard—told the London Observer, “The black kids who come to, say, Harvard or Yale, are middle-class already. Nobody else gets through.” [41] Gates further asserted that a significant portion—potentially up to two-thirds—of black students were either children of West Indian/African immigrants or biracial couples. [42] A 2007 longitudinal study conducted by the University of Pennsylvania and Princeton University found similar results: compared to their percent share of the overall American population, black immigrants were overrepresented at selective colleges and universities compared to the percent black immigrant population (27% of black students were of immigrant origin [43] while black immigrants are approximately 10% of the American black population). [44] This overrepresentation was higher within more selective rather than less selective schools. [45] This finding indicates that recipients of diversity initiative benefits are not always individuals whose ancestors or they themselves have directly experienced distinct systemic oppression in the United States.
Regardless of the recipients, it would be improper to not acknowledge an important benefit derived from affirmative action and DEI policies, representation. Positive role models provide significant benefits to the youth and advancing people of a specific background may have positive impacts on youth with similar backgrounds when they see someone of a similar race achieve great things. This effect was documented by researchers with the election of Barack Obama. Researchers found that “when Obama’s stereotype-defying accomplishments garnered national attention [...] they had a profound beneficial effect on Black-Americans’ exam performance.” [46] This exemplifies the reality that some benefit is derived from affirmative action policies. This does not mean such policies should necessarily be supported because the question is how this benefit compares to alleged negative externalities (e.g., claims of decreased academic competence).
The assumption that diversity initiatives are always helpful for recipients is misleading. To illustrate this argument, consider how affirmative action may function. In terms of more objective measures—such as standardized test scores—universities may lower the standards of admissions for desired groups to improve their chances of admissions. This would increase the pool of potential applicants from this select group and subsequently, increase their population on campus. While standardized scores may not be perfect measures of an applicant’s talent, universities do consider these examinations as measures of an applicant’s preparedness. [47] But if students from a specific group are consciously admitted with lower preparedness, are these students not destined—on average—to inhabit the lower half of the bell curve at elite universities? Why are students who entered with lower scores compared to their peers expected to miraculously outcompete their predicted performance? It may be to a student’s detriment that they are admitted to a top school with a large boost instead of a less elite institution where they were admitted with less of a boost or no boost at all. This theory is known as “mismatch” and reasons that affirmative action harms those it’s intended to help by placing them at schools where they fall below the median level of ability. U.C.L.A. law professor Richard H. Sander argues that “a student who gains special admission to a more elite school on partly non-academic grounds is likely to struggle more, whether that student is a beneficiary of a racial preference, an athlete, or a ‘legacy’ admit. If the struggling leads to lower grades and less learning, then a variety of bad outcomes may result in higher attrition rates, lower pass rates on the bar, problems in the job market.” According to Sander, these negative effects outweigh the benefits of the prestige associated with a better school. That is, the connections and weight of U.C.L.A. in the job market do not outweigh the cost of struggling academically. [48]
Sander’s claim draws on data from the Bar Passage Study commissioned by the Law School Admission Council in 1989. Law school is an imperfect but serviceable environment for studying mismatch effects. Law students are uniformly tested before and after admission and graduation—first on the LSAT and then on the bar. Accepted underrepresented minorities at law schools typically exhibit lower median GPA and LSAT scores compared to other applicants. This difference in metric requirements is referred to as an “URM boost.” This boost is more pronounced at more prestigious law schools, reaching 498% at the top 14 law schools, compared to a 7% increase for all schools (the percentage represents the difference in admissions chances between URM and non-URM candidates, controlled for LSAT, GPA, gender, ED application, non-traditional status, and application date.) [49] The Bar Passage Study sought to contextualize the academic achievement of black and Hispanic students throughout their law school education and performance on the bar. In 1991, over 27,000 incoming law students completed questionnaires for the study and permitted researchers to track their performance. Participants answered if they got into their first-choice law school, whether they enrolled at their first choice, if so, whether they enrolled at their first choice, and if not, reasons for not attending their first choice. Among the 2,000 black participants in the study, 689 were admitted to their first choice. Of these 689, 512 matriculated, while the remaining 177 attended their second choice, which was likely a less prestigious institution as this choice was due to financial or geographic factors in general.
Sander’s analysis suggests that the negative consequences of mismatch outweighed the benefits for two primary reasons: (1) black law students were 135% more likely than white students to not graduate and (2) the students who voluntarily opted for their second-choice school had better outcomes on their bar exams than students who chose to attend the more elite option. He explains that the greater attrition rate is attributed to black law students clustering towards the bottom of the grade distribution leading to academically strong black students who would have easily graduated from less competitive schools to fail. Sander claims that these low grades also impact bar performance. Black students are nearly six times as likely as white students to not pass state bar exams after multiple attempts with half of this gap being “traceable to the effects of blacks with good credentials getting low grades at higher-prestige schools [and] nearly a quarter [being traceable] to low-prestige schools admitting blacks with lower credentials than almost any of the other students in the system.” [50] Beyond academic performance, affirmative action by schools tends to hurt minority students in the job market. “Employers weigh law school grades far more heavily in evaluating job candidates than most legal academics have assumed” [51] and racial preferences in law schools may give blacks more prestigious degrees but also systematically lower their GPAs. Sander asserts that for most black law graduates, the harm caused by preferences for their grades outweighs the benefits of having a more prestigious degree. Only Black students graduating from the top ten law schools seem to derive potential net benefits from this trade-off, as racial preferences end up closing more doors than they open for the majority. [52]
In 1996, California enacted Proposition 209, a measure that eliminated “state and local government affirmative action programs” [53] in several sectors including public education—providing another case study on the difference in outcomes between a system with and without diversity initiatives. Economists from Duke conducted an analysis of data for all applicants and enrollees within the University of California system before and after Prop 209. After Prop 209, graduation rates for underrepresented minorities increased by 4.4% and the population of underrepresented minorities shifted from the more selective campuses of the UC system, towards its less selective ones. The removal of affirmative action improved the average academic preparation of minorities enrolled in the UC campuses writ large but the less-selective campuses had the greatest improvements. The economists attributed this increase to their belief that some universities are better-suited to produce positive outcomes for less prepared students—presumably less-selective ones—while other universities—presumably more-selective ones—are better-suited for more prepared students. The authors state that if the popular belief that more selective universities were better for all, an affirmative action ban should not improve the graduation rate of minority students since the minority student population at more selective schools decreased. The authors concede that an alternative explanation for the increase in minority graduation rate is that the under-represented minority population became more academically prepared in general, so graduation rates were likely to rise regardless of which UC campus they were at. However, after further analysis, the authors attributed 18% of the improvement in minority graduation to mismatch alleviation with the caveat that the effect is more pronounced than the statistic would suggest since matching is far more significant for students of lower academic preparedness. [54]
VII. Conclusion
Although many of the arguments presented relied on examples of the implementation of specific diversity focused DEI programs, the arguments are not strictly limited to the narrow programs discussed. Where applicable, these programs were referenced to illustrate a point, but the spirit of the argument is independent of any implementation. Moreover, this article is not intended to provide a moral claim to reject diversity and the arguments should not be interpreted in this vein; rather, they suggest that common contemporary arguments promoting diversity demonstrate exploited weaknesses in various ways. Given society's inherent inclination towards "fairness" and representation, it is probable that a compelling ironclad argument supporting diversity exists—one that would sway even skeptics; reason compels. However, to uncover this argument, it is crucial to understand the current criticisms levied against diversity-promoting arguments and ensure that future discussions avoid these shortcomings. For DEI supporters to generate universal support, opposing arguments must be addressed honestly and opponents must be convinced. This article ought to serve as a resource for these advocates, providing an overview of the common weaknesses in diversity supporting arguments touted by critics/
Endnotes
[1] Jon A. Lindseth, “Open Letter to Cornell Board of Trustees,” Ivy Excellence Initiative, February 14, 2024, https://ivyexcellence.org/news/open-letter-cornell-board-of-trustees.
[2] Lindseth, “Open Letter to Cornell Board of Trustees.”
[3] MacCorkle, “Lindseth Refutes Criticism Over Anti-DEI Letter.”
[4] Christina MacCorkle, “Lindseth Refutes Criticism Over Anti-DEI Letter,” The Cornell Daily Sun, February 9, 2024, https://cornellsun.com/2024/02/06/lindseth-refutes-criticism-over-anti-dei-letter/.
[5] Lucas Reyes, “LETTER TO THE EDITOR | Cornell Should Remain Committed to Overcoming Prejudice,” The Cornell Daily Sun, January 30, 2024, https://cornellsun.com/2024/01/29/letter-to-the-editor-re-jon-a-lindseths-open-letter-to-the-cornell-board-of-trustees/
[6] “LETTER TO THE EDITOR | DEI Is Part of Cornell’s Founding Principles,” The Cornell Daily Sun, February 2, 2024, https://cornellsun.com/2024/02/02/letter-to-the-editor-dei-is-part-of-cornells-founding-principles/.
[7] The Westmoreland Diversity Coalition, The Westmoreland Diversity Coalition (Greensburg, PA: The Westmoreland Diversity Coalition, 2020), https://www.wdcoalition.org/dei/.
[8] Nicquel Terry Ellis, “What Is Dei and Why Is It Dividing America?,” CNN, March 11, 2024, https://www.cnn.com/2024/03/09/us/what-is-dei-and-why-is-it-dividing-america/index.html.
[9] Paolo Gaudiano, “Simple, Backlash-Free Definitions Of Diversity, Equity And Inclusion,” Forbes, October 26, 2023, https://www.forbes.com/sites/paologaudiano/2023/10/23/simple-backlash-free-definitions-of-diversity-equity-and-inclusion/?sh=7e67700b410b.
[10] Noah Rothman, “What They Really Mean by ‘Equity,’” Commentary Magazine, January 27, 2021, https://www.commentary.org/noah-rothman/what-they-really-mean-by-equity/.
[11] “Affirmative Action Frequently Asked Questions,” Department of Labor, 2024, https://www.dol.gov/agencies/ofccp/faqs/AAFAQs.
[12] William G. Tierney, “The Parameters of Affirmative Action: Equity and Excellence in the Academy,” Review of Educational Research 67, no. 2 (1997): 165, https://doi.org/10.2307/1170625.
[13] Thomas Sowell, Affirmative Action Around the World: An Empirical Study (New Haven, CT: Yale University Press, 2005).
[14] Kuldeep Bhatnagar et al., “The Business Case For Diversity, Equity And Inclusion,” Forbes, May 11, 2023, https://www.forbes.com/sites/forbesbusinessdevelopmentcouncil/2023/05/11/the-business-case-for-diversity-equityand-inclusion/?sh=31ae09d72838.
[15] “5 Advantages of Diversity in the Workplace,” Indeed, 2024, https://www.indeed.com/hire/c/info/benefits-of-diversity.
[16] Bianca Miller Cole, “8 Reasons Why Diversity And Inclusion Are Essential To Business Success,” Forbes, February 20, 2024, https://www.forbes.com/sites/biancamillercole/2020/09/15/8-reasons-why-diversity-and-inclusion-are-essential-to-business-success/?sh=1a833d201824.
[17] Gary Hamel, “Bureaucracy Must Die,” Harvard Business Review, November 6, 2014, https://hbr.org/2014/11/bureaucracy-must-die.
[18] “READ: Jackson Dissent in Supreme Court’s Affirmative Action Ruling ,” The Hill, June 29, 2023, https://thehill.com/homenews/4073556-read-jackson-dissent-supreme-court-affirmative-action/.
[19] Wonyoung So and Catherine D’Ignazio, “Race-Neutral vs Race-Conscious: Using Algorithmic Methods to Evaluate the Reparative Potential of Housing Programs,” Big Data & Society 10, no. 2 (July 2023), https://doi.org/10.1177/20539517231210272.
[20] Sundiatu Dixon-Fyle et al., “Diversity Wins: How Inclusion Matters,” McKinsey & Company, May 19, 2020, https://www.mckinsey.com/featured-insights/diversity-and-inclusion/diversity-wins-how-inclusion-matters.
[21] Tracey McKee, “Diversity: Why It Matters,” Brownicity, October 10, 2023, https://brownicity.com/blog/diversity-why-it-matters/.
[22] Robin J. Ely and David A. Thomas, “Getting Serious About Diversity: Enough Already with the Business Case,” Harvard Business Review, August 27, 2021, https://hbr.org/2020/11/getting-serious-about-diversity-enough-already-with-the-business-case.
[23] Alex Edmans, “Is There Really A Business Case For Diversity?,” Medium, February 15, 2022, https://medium.com/@alex.edmans/is-there-really-a-business-case-for-diversity-c58ef67ebffa.
[24] Katherine Klein, “Does Gender Diversity on Boards Really Boost Company Performance?,” Knowledge at Wharton, May 18, 2017, https://knowledge.wharton.upenn.edu/article/will-gender-diversity-boards-really-boost-company-performance/.
[25] Edmans, “Is There Really A Business Case For Diversity?”
[26] Robin J. Ely and David A. Thomas, “Getting Serious About Diversity: Enough Already with the Business Case.”
[27] Oriane Georgeac and Aneeta Rattan, “Stop Making the Business Case for Diversity,” Harvard Business Review, June 15, 2022, https://hbr.org/2022/06/stop-making-the-business-case-for-diversity.
[28] Georgeac and Rattan, “Stop Making the Business Case for Diversity.”
[29] “What Is the Relationship Between Demographic Diversity and Cognitive Diversity?,” Military Leadership Diversity Commission, December 2009, https://diversity.defense.gov/Portals/51/Documents/Resources/Commission/docs/Issue Papers/Paper 04 - Relationship Between Demographic Diversity and Cognitive Diversity.pdf.
[30] Stephanie de Oliveira and Richard E. Nisbett, “Demographically Diverse Crowds Are Typically Not Much Wiser than Homogeneous Crowds,” Proceedings of the National Academy of Sciences 115, no. 9 (February 9, 2018): 2066–71, https://doi.org/10.1073/pnas.1717632115.
[31] “Why Diversity in Colleges & Universities Matters,” Purdue Global, March 29, 2023, https://www.purdueglobal.edu/blog/student-life/why-diversity-in-colleges-universities-matters/.
[32] The Westmoreland Diversity Coalition, The Westmoreland Diversity Coalition.
[33] Rachel Minkin, “Diversity, Equity and Inclusion in the Workplace,” Pew Research Center, May 17, 2023, https://www.pewresearch.org/social-trends/2023/05/17/diversity-equity-and-inclusion-in-the-workplace/.
[34] Martha Minow, “Equality vs. Equity,” American Journal of Law and Equality 1 (September 1, 2021): 167–93, https://doi.org/10.1162/ajle_a_00019.
[35] Ryan King, “Supreme Court Affirmative Action Case Showed ‘Astonishing’ Racial Gaps,” New York Post, June 29, 2023, https://nypost.com/2023/06/29/supreme-court-affirmative-action-case-showed-astonishing-racial-gaps/.
[36] King, “Supreme Court Affirmative Action Case Showed ‘Astonishing’ Racial Gaps.”
[37] King, “Supreme Court Affirmative Action Case Showed ‘Astonishing’ Racial Gaps.”
[38] “Section VII- Proving Discrimination- Disparate Impact,” Civil Rights Division | Federal Coordination and Compliance Section | United States Department of Justice, February 8, 2024, https://www.justice.gov/crt/fcs
[39] “U.S. Teens Take After Their Parents Religiously, Attend Services Together and Enjoy Family Rituals,” Pew Research Center’s Religion & Public Life Project, September 10, 2020, https://www.pewresearch.org/religion/2020/09/10/shared-beliefs-between-parents-and-teens/.
[40] J. Frank Yates and Stephanie de Oliveira, “Culture and Decision Making,” Organizational Behavior and Human Decision Processes 136 (September 2016): 106–18, https://doi.org/10.1016/j.obhdp.2016.05.003.
[41] Sean O’Hagan, “The Biggest Brother: Interview with Henry Louis Gates, Black America’s Foremost Intellectual,” The Guardian, July 20, 2003, https://www.theguardian.com/books/2003/jul/20/society.
[42] Sara Rimer and Karen W. Arenson, “Top Colleges Take More Blacks, but Which Ones?,” The New York Times, June 24, 2004, https://www.nytimes.com/2004/06/24/us/top-colleges-take-more-blacks-but-which-ones.html.
[43] Douglas S. Massey et al., “Black Immigrants and Black Natives Attending Selective Colleges and Universities in the United States,” American Journal of Education 113, no. 2 (February 2007): 243–71, https://doi.org/10.1086/510167.
[44] Mohamad Moslimani et al., “Facts About the U.S. Black Population,” Pew Research Center’s Social & Demographic Trends Project, January 18, 2024, https://www.pewresearch.org/social-trends/fact-sheet/facts-about-the-us-black-population/.
[45] Massey et al., “Black Immigrants and Black Natives Attending Selective Colleges.”
[46] David M. Marx, Sei Jin Ko, and Ray A. Friedman, “The ‘Obama Effect’: How a Salient Role Model Reduces Race-Based Performance Differences,” Journal of Experimental Social Psychology 45, no. 4 (July 2009): 953–56, https://doi.org/10.1016/j.jesp.2009.03.012.
[47] Kate Rix, “What the LSAT Is and How to Prepare,” U.S. News, January 31, 2024, https://www.usnews.com/education/best-graduate-schools/articles/what-the-lsat-is-and-how-to-prepare. n
[48] Richard H. Sander, “A Systemic Analysis of Affirmative Action in American Law Schools,” Stanford Law Review 57, no. 2 (November 2004): 367–483, http://www.jstor.org/stable/40040209.
[49] “Do Underrepresented Minority (URM) Applicants Have a Law School Admissions Advantage?,” LSAT and Law School Admissions Blog, September 2, 2021, https://blog.powerscore.com/lsat/do-underrepresented-minority-urm-applicants-have-a-law-school-admissions-advantage/.
[50] Sander, “A Systemic Analysis of Affirmative Action in American Law Schools.”
[51] Ibid.
[52] Ibid.
[53] “Proposition 209 Prohibition Against Discrimination or Preferential Treatment by State and Other Public Entities,” Legislative Analyst’s Office, November 1996, https://lao.ca.gov/ballot/1996/prop209_11_1996.html.
[54] Peter Arcidiacono et al., Affirmative Action and University Fit: Evidence from Proposition 209, November 2012, https://doi.org/10.3386/w18523.