Justice Thomas’s dissent in Grutter v. Bollinger — which dismissed diversity as an “aesthetic” — highlighted the Supreme Court’s least-discussed rationale for affirmative action in higher education: the claim that visible diversity in elite institutions bolsters those institutions’ “perceived legitimacy.” This Article takes seriously that claim, and Thomas’s critique, as distinctively aesthetic arguments about the role of appearances in public life. By distinguishing the perceived legitimacy argument from others made on behalf of affirmative action, the Article traces for the first time its origins, scope, and unacknowledged popularity. By identifying the aesthetic logic of the Court's argument and drawing on philosophy’s long theorizing about how aesthetic objects are created and judged, this Article is able to explain one of the most heavily criticized aspects of Grutter and its companion case, Gratz: their apparent preference for obfuscation in the use of race in university admissions.
The Aesthetics of Affirmative Action,
Available at: https://scholarship.law.columbia.edu/law_culture/14