Justice Thomas' masterful dissent in Whole Woman’s Health v. Hellerstedt skewers the Court's arbitrary use of tiers of review.
Fisher v. University of Texas turns on whether Texas’s preferential treatment of certain minority groups is necessary to achieve “diversity.” Diversity in the academic world is now one of its central organizing principles, although diversity remains an instrumental good, not a good in itself. Racial and ethnic diversity, it is said, helps students learn about different points of view and prepares them to live and lead in a multiracial and multicultural society. This new orthodoxy creates a relentless focus on race and ethnicity in admissions, and at times even more so in faculty hiring.
A few days before Fisher was argued but not in connection with the case, Ezra Klein of Vox amassed data suggesting that the greatest cleavages society were not between racial and ethnic groups, but between members of different political parties. A high percentage of members of both parties, for instance, expressed horror at thought of a daughter or son marrying outside the faith. Large majorities of both parties would be likely to hire a member of their party over that of another. As Ilya Somin has noted, such partisanship has troubling implications for democracy. Partisans will be more likely to dismiss opposing views reflexively, making beneficial decision making far less likely.
Thus, assuming we accept diversity as essential in higher education, it would seem that we need at least as much political diversity as diversity with respect to race and ethnicity. Students would learn about different political and ideological viewpoints if exposed to those espoused by Republican as well as Democrats, by conservatives as well as liberals. Indeed, political diversity provides a more direct way of gaining access to different viewpoints than relying on race and ethnicity, which are at best proxies for viewpoints. Society as whole would benefit because citizens would learn not to reflexively dismiss viewpoints. .
Yet higher education has largely shown no interest in political or ideological diversity. 96 percent of campaign contributors at the faculty of the Ivy League donated to Obama in the last cycle. My own study of elite law school professors showed a striking imbalance in donations and a recent analysis of the views of law professors showed that they approximated on average that of a liberal democratic and were more ideologically one sided than any other sector of the legal profession.
I am not arguing here that diversity should in fact be the reigning ideal of higher education. Other organizing principles, like a single focus on merit, have their own claims. But if indeed diversity is as important as all our university presidents, including my own, endlessly repeat, political and ideological diversity is at least as important as diversity measured by race and ethnicity.
Because of their ideological imbalance, universities are in danger of themselves becoming partisan institutions. Universities can demonstrate their neutrality by applying their diversity principles to provide for political diversity as to racial and ethnic diversity.