Ever since the U.S. Supreme Court’s decision in the 1978 Bakke case — in which the court invalidated the racial quotas on admission at the medical school of the University of California at Davis — "diversity" has dominated American higher education’s thinking about affirmative action.
Ironically, the opinion that gave diversity that canonical status was supported by just one Justice, the late Lewis Powell, whose vote decided the case. While strict racial quotas were not permissible, universities had, in Justice Powell’s view, a compelling interest in the diversity of their student population, since that contributed to the educational experience an institution offered.
In 1961, when President Kennedy called for "affirmative action" by military contractors to end racial discrimination, he was not thinking at all about the value of diversity for military contracting work. He was responding to flagrant racist discrimination against African-Americans and demanding that the huge industry supplying the military change its discriminatory practices.
As the sociologist Frank Dobbin documents in his important 2009 book, Inventing Equal Opportunity, the actual details of what it meant to eliminate discrimination — as well as to implement the commands of the 1964 Civil Rights Act — were left to human-resources personnel in major corporations, who crafted the procedures and rules to which courts soon began to defer. When affirmative action came under attack in the 1970s and 1980s, as Dobbin shows, "human-resources experts pointedly argued that diversity training and work-family programs were not affirmative-action measures at all, but were there to increase productivity."
In short, diversity was good for capitalism and, according to Justice Powell, also for education. Justice for the victims of discrimination, or their descendants, largely dropped out of the national dialogue.
But does racial and ethnic diversity really enhance the educational experience, as Justice Powell opined?
That issue loomed large in the post-Bakke litigation over the University of Michigan’s admissions practices in the 1990s, so much so that Michigan created a useful website collecting the briefs and expert testimony in support of its side. Much of the dispute concerns what constitutes a positive effect on educational outcomes. Alas, a reasonable reading of the research, and the competing expert interpretations, is that racial and ethnic diversity may produce some positive education-related effects but is neutral with respect to many other equally important ones.
Facts are one thing, however, and rhetoric is another, and the rhetoric of "diversity" has been returning with a vengeance in recent years. Right-wing law professors in the United States have been lobbying the Association of American Law Schools for recognition of "political discrimination" against conservatives and libertarians, invoking precisely the post-Bakke rhetoric about "diversity."
Individuals do not choose their race, though we might hope they choose their political views, yet the post-Bakke consensus in higher education about diversity is now being exploited on behalf of a chosen political ideology. And while libertarians are about 1 percent of the electorate (and thus are dramatically overrepresented in legal academia where they account for between 5 and 15 percent of the faculty at most major law schools), social conservatives of the Ted Cruz stripe are, indeed, underrepresented in the professoriate.
The correct rejoinder, obviously, is that Ted Cruz’s worldview (with its denial of climate change and its fictions about Obamacare) involves a panoply of falsehoods that a scholarly community should not welcome. But perhaps that misses the force of the objection?
Conservative appeals to "diversity" should be understood in the spirit of the 19th-century arguments of John Stuart Mill in On Liberty, which, in turn, were indebted to the views of Wilhelm von Humboldt, who shaped the modern idea of a research university in Germany two centuries ago. In the view of Mill and Humboldt, even false views can be a stimulus to nondogmatic belief in the truth, since they force us to articulate and understand our reasons for holding our beliefs.
We should worry, of course, if conservatives’ diversity arguments suggest appointing promulgators of ignorance and falsehood to university faculties. But putting that aside, the Millian rationale also does not provide much support for traditional affirmative-action policies based on demographic markers like race and ethnicity, since Mill was concerned with diversity of ideas and opinions only, and the former have only a tenuous connection with the latter.
Should the diversity argument for increasing the representation of victims of vicious race-based discrimination really apply to libertarian ideologues, who are overwhelmingly white and economically advantaged? All of this should be a warning to traditional supporters of affirmative action that something has gone awry with diversity defenses of racial preferences.
Libertarians are not the only members of the academy trying to exploit the rhetoric of diversity.
Last year, Bryan van Norden, arguably America’s leading scholar of Chinese philosophy, took to The New York Times’s blog with a colleague to argue on diversity grounds for more coverage of non-Western philosophy in American departments: "The present situation is hard to justify morally, politically, epistemically or as good educational and research training practice."
This was corporate HR policy — plus a dash of Mill — brought to bear on one of the most abstract academic disciplines.
What went unnoted is that most Anglophone philosophy departments offer little or no coverage of most of Western philosophy of the past two centuries, from Hegel to Nietzsche to Habermas. Leading philosophy departments from Princeton to Oxford are, indeed, not very intellectually diverse, but their lack of diversity reflects no submerged racial or ethnic motivation: It reflects, instead, the evolution of a discipline — hugely shaped by refugees from Nazism, ironically — that moved closer to the natural sciences than the other humanities in its conception of method.
No one, to my knowledge, is complaining about lack of attention to "Chinese" physics in American physics departments, which suggests that here, again, diversity is being invoked opportunistically to avoid a substantive debate about the merits of alternative methods and substantive views, or the virtues of specialization in a particular method. As Thomas Kuhn famously observed many years ago, "normal science" often makes great progress when there is not diversity, but convergence on methods, assumptions, and problems.
With affirmative action now under real attack from the Trump Administration, perhaps it is time to revisit an older way of understanding the case for affirmative action in university admissions?
To start, the public should be disabused of its belief that college admissions have ever been primarily about rewarding "deserving" students. Institutions usually do look for some evidence of skills and ability adequate for completing a course of advanced study, but beyond that low threshold, admissions have always been driven by instrumental considerations related to social engineering.
For much of American history, the goal was to ensure the racial and ethnic purity of a ruling class requiring certification. Later, the goal was to ensure the flow of alumni dollars (affirmative action for alumni kids and athletes that produce winning sports teams). More recently, in the affirmative-action era, colleges aimed to produce a diverse work force along the most tangible markers of identity — initially gender, and now especially race and certain ethnicities. Most recently, in the era of U.S. News rankings, colleges and universities increasingly make admissions decisions based on yield and numerical credentials to ensure that their rank remains intact, lest the other objectives be defeated.
There was, once upon a time, another compelling argument for affirmative action that had nothing to do with "diversity." It was an argument of compensatory justice toward groups of people — most notably African-Americans — who had been exploited, brutalized, humiliated, and stigmatized for much of America’s history.
In the law, we often confer compensation on descendants of those who suffered wrongdoing, and instrumental social-engineering practices in campus admissions have done exactly that and made huge inroads in propelling African Americans, for example, into the professional classes. These practices have also produced a huge class of aggrieved white people, since compensatory justice in admissions is a zero-sum game: a gain for one group is a cost to another. That raises deep issues about socioeconomic reality in America that are hardly specific to affirmative action.
The justice argument for affirmative action, needless to say, offers nothing to libertarians or scholars of Chinese philosophy, but it might remind us why affirmative action arose in the first place and what grievous moral wrong it meant to remedy. As diversity arguments descend into absurdity, and racist creeps march in Charlottesville, perhaps it is a good time to remember what affirmative action should really be about?
Brian Leiter is professor of jurisprudence and director of the Center for Law, Philosophy & Human Values at the University of Chicago.