Couching the constitutional inquiry in cases like Bakke and VMI in the context of integration also puts in perspective the diversity justification. Affirmative action policies are constitutional because they integrate state programs. Integration on the basis of race and sex also diversifies state programs. In contrast, attempts to justify sex-segregation in state programs by arguing the policy promotes diversity is irrelevant to an equal protection analysis. Voluntarily created all-female schools should be constitutional because they promote the equal citizenship of women without damaging the equal citizenship stature of men. This is true for voluntarily race-segregated programs for minorities; as well. Similarly, the diversity justification offered by Virginia merely highlights the inequality perpetuated by the exclusively-male policy. Equal protection does not protect the privileged citizenship stature of men at the expense of the equal citizenship rights of women. Moreover, the implicit suggestion that a male-only policy could pass constitutional muster if adopted with the actual purpose of promoting diversity undermines that part of the opinion that strikes down Virginia's second justification that the policy is necessary to create "citizensoldiers" out of the male cadets. VMI's policy is unconstitutional because it denies women equal citizenship. This rationale alone is sufficient to invalidate the policy and would also be sufficient to invalidate a similar white-only policy in a state program like VMI. In short, cases like Bakke and VMI are about integration, not diversity. Diversity is the red herring of equal protection analysis.
Diversity: The Red Herring of Equal ProtectionUF Law Faculty Publications
Citation InformationSharon Elizabeth Rush, Diversity: The Red Herring of Equal Protection, 6 Am. U. J. Gender & L. 43 (1997), available at http://scholarship.law.ufl.edu/facultypub/448