On February 13, Richard T. Ford, professor of law at Stanford University, gave the annual Martin Luther King, Jr. (MLK) lecture in Sage Chapel. Ford’s topic was “Derailed by Diversity: Racial Justice after Affirmative Action”. In addition to the lecture, Ford attended a lunch at the Greater Ithaca Activity Center and an informal fire-side chat with students at the Cornell Law School.
The purpose of the MLK lecture series, as stated by Dean of Students Marla Love, is to “highlight the continuity between past and present, providing critical examination of King’s legacy and contemporary issues.”
MLK didn’t advocate for today’s idea of “diversity.” Rather, his most famous quote was:
“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.” MLK fought for a well-integrated, color-blind world, while some of his opponents advocated for black separatism. MLK focused on enhancing the rights of all individual members of society as a matter of justice for all.
Ford said, “Diversity has come to define the national, and even the global, discussion of racial justice… Diversity is not the same as racial justice. Instead, it is a substitute for racial justice… I am worried that diversity has made justice seem redundant to some Americans.”
Ironically, most of the people serving on the committee that selected Ford as this year’s MLK lecturer have “Diversity” in their job titles. These are the very people who decide what is the “right way” to talk about race at Cornell. Ford said, “I am worried that the diversity idea has promoted the notion that there are a limited number of right ways to be black or Latino or Native American; ways that would make sense to admission officers who have been told to focus upon diversity but not on racism.”
Ford’s talk may deter students planning demonstrations or disruptions in response to the anticipated Supreme Court rulings on affirmative action. Although Ford could not comment on the scope and reasoning of the unreleased Supreme Court decisions, Ford advised that Americans that did not like the final decision should recognize that the Supreme Court is not the ultimate arbiter of “social justice,” and that anyone is free to advocate for a different perspective. “It is worthwhile to review the limitations and costs of allowing the courts to define our social ideals and sense of justice.”
Any 2023 Supreme Court decision on college admissions will not satisfy everyone. This is no different than the law in the 1950s, during MLK’s early life, when his values and morals did not align with the laws and the court decisions that did not provide immediate remedies for black Americans. It took MLK’s extraordinary oratory and leadership to win over a majority of Americans to his views. The current political will of American society is very divided and it will take a long time for American society to evolve away from the leadership of the Supreme Court’s decisions. Whether future leaders of MLK’s caliber will emerge is an important question in this process.
MLK articulated a vision for all of American society with black Americans taking an equal role. MLK was very careful not to be perceived as advocating for a “heads-I-win-tails-you-lose” form of special pleading for black Americans. Ford notes that the diversity rationale for affirmative action has affected the black students on campus and led them to emphasize “the politics of despair.” Yet, Ford focused his lecture on “racial justice” rather than the broader topic of “social justice.” He was careful to leave the door open for future “reparations” and go beyond the present notion of “diversity” as the end goal for society.
Although Ford discussed the Bakke and Grutter Supreme Court decisions in detail, he did not comment on the temporal element of those decisions. The 2003 Supreme Court case of Grutter v. Bollinger upheld the University of Michigan Law School race-conscious admissions policy. However, the Court noted:
The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
The Supreme Court is likely to conclude that time is up for such transitional measures, and race conscious admission policies must end.
Further, Ford does not address that there are many wrongs for which the law provides no remedy. For example, although the evening began with a land acknowledgement, the Supreme Court has ruled that it is too late for Native Americans to get their land back. There are only about 4-7 million native americans in the US today, and the courts will not displace nearly 325 million Americans to remedy such a long-passed wrong. Similarly, the law will not guarantee reparations for all past harms suffered by minority groups. As Justice Powell noted in Bakke, courts would have to select which minority groups would get preferential treatment:
Those classifications would be free from exacting judicial scrutiny. As these preferences began to have their desired effect, and the consequences of past discrimination were undone, new judicial rankings would be necessary. The kind of variable sociological and political analysis necessary to produce such rankings simply does not lie within the judicial competence-even if they otherwise were politically feasible and socially desirable.
It would expand beyond just race-conscious admissions (quoting Justice Douglas):
Nor obviously will the problem be solved if next year the Law School included only Japanese and Chinese, for then Norwegians and Swedes, Poles and Italians, Puerto Ricans and Hungarians, and all other groups which form this diverse Nation would have just complaints.
During the Q&A, Ford was asked about mandatory DEI statements and how they would fare under the upcoming Supreme Court decisions. Ford replied that if a DEI statement is merely a commitment to equal opportunity under the law, (and not an ideological test) then DEI statements would continue to be lawful.
Ford is a founding member of the Academic Freedom Alliance, a non-profit group “dedicated to protecting the rights of faculty members at colleges and universities to speak, instruct, and publish without fear of sanction or punishment.” Cornell should be commended for inviting a speaker so critical of the on-campus orthodoxy regarding race, and allowing him to speak without protest or disruption.
Ford’s most important point was that it is up to each individual to decide for himself what to think about questions of diversity and justice. Nobody, including the Supreme Court and Cornell officials, can tell you what you must believe.
