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Still, legal analysis matters, even when it’s a fig leaf for politics. Americans look to the courts not only to resolve specific disputes, but also for more broadly applicable ideas about justice. The rationales offered by the courts can shape, expand, or limit our ideals. Indeed, as the apparently imminent demise of affirmative action nears, the legal basis for the policy, diversity, has come to define the national — and even the global — discussion of racial justice. And while the ideal of diversity has encouraged modest efforts to promote racial integration, the term “diversity” has also become a lazy stand-in for any discussion of the generations of race-based exclusion and exploitation that make race-conscious hiring and college admissions necessary. In this way, “diversity” has encouraged us to ignore and minimize past injustices and distorted our understanding of what justice requires today.
In the early 1970s, when an American talked about racial justice, she would use terms like “civil rights,” “integration,” or maybe even “Black Power.” Today she will speak of diversity. Everyone to the left of Marjorie Taylor Greene claims to value diversity: diverse neighborhoods, diverse workplaces, diverse police forces, diverse political parties, and, of course, diverse classrooms and campuses. Fortune 500 corporations, the Chamber of Commerce, and exclusive private social clubs all pledge to promote diversity.
That represents a certain type of progress. But diversity is not the same as justice. It is a substitute for justice. Like saccharine instead of sugar in diet soda, diversity serves some of the functions of justice, and also takes its place. Diversity has made justice seem redundant. Because it has become a regular part of our diet, it’s easy to forget what the real thing tastes like.
As we anticipate the end of the affirmative-action era, it might help to look back at how we arrived at our tense consensus about diversity, and why.
Justice Lewis F. Powell Jr., the author of what is, by jurisprudential convention, considered to be the controlling opinion (the court splintered 4-1-4, and Powell’s opinion provided the narrowest basis for the holding), opined that to be legally permissible, an affirmative-action plan would have to serve a compelling governmental interest and be narrowly tailored to further that interest. Crucially, he stipulated that an interest in remedying what he called the “amorphous” harm of “societal discrimination” was insufficient to justify race-based affirmative action. In other words, affirmative action would be unlawful if the reason a university adopted it was to correct the racial injustices of society. But, he added, affirmative action could be permissible if it was designed to achieve the pedagogical benefits that come with a diverse student body. That was the birth of the modern idea of diversity.
Although most progressives today avidly defend his logic in Bakke, Powell was not an advocate of racial equality. To the contrary, he was an unapologetic reactionary. Before his ascent to the bench, Powell wrote a memo to the U.S. Chamber of Commerce calling on big business to use its money and political influence to reverse what he saw as a rising tide of political activism coming not only from “extremists of the far left” but also from “the college campus” and “intellectual and literary journals.” Indeed, higher education was a major focus of Powell’s call to arms: He complained that “leftists,” such as the consumer advocate Ralph Nader and the criminal-defense lawyer William Kunstler, were “warmly welcomed” on college campuses and had indoctrinated students to criticize the free-enterprise system. He approvingly cited a commentator who bemoaned that colleges such as Yale were “graduating scores of bright young men who are practitioners of the politics of despair” and “despise the American political and economic system.” Powell — in a barely veiled attack on the value of academic freedom — also noted that colleges benefited from tax exemptions and from the largess of successful business people, and suggested that those ties could and should be exploited to shift the conversation on America’s campuses in a more conservative, business-friendly direction.
Diversity is not the same as justice. It is a substitute for justice. Like saccharine instead of sugar in diet soda.
Given the tone and focus of the “Powell Memo,” it’s not surprising that Powell seized the controversy over affirmative action as an opportunity to influence the ideological tenor of higher education. His 1978 opinion in Bakke effectively requires that affirmative action be justified not only by a compelling interest but also in a manner that defers to the political and economic status quo and is unlikely to feed the “politics of despair.” The vague idea of diversity fits the bill, whereas a more specific rationale focused on the need to account and correct for generations of racial exploitation and hierarchy does not. For Powell (and, alas, for us all) any justification of affirmative action that cites the long, ugly history of American racism is likely to be legally unacceptable — despite being both a more compelling and more specific reason than diversity.
In effect, Bakke functioned as a gag order on college administrators when it came to discussing race in higher education. Before Bakke, affirmative action was widely understood to be a response to the legacy of Jim Crow segregation and, by extension, slavery. It was an outgrowth of the civil-rights initiatives of the 1960s that were designed to complete the long-thwarted project of Reconstruction. Affirmative action was a small part of a much larger reckoning with America’s racial history. Diversity was part of the conversation, but it was only one of many reasons selective colleges employed affirmative action.
For instance, a 1969 publication of the Stanford Medical School cited the need to remedy societal discrimination: “The Medical College Admission Test … may be inaccurate in indicating the basic ability and motivation of a minority student who has been subjected to social … barriers.” The chairman of the medical school’s minority-search committee reported that the school sought to increase minority enrollment in order to better support underserved minority communities (also an unacceptable reason for affirmative action under Bakke): “The health problems of the ghetto have become serious. We know from past experience that the [typical white] medical student has failed to meet the challenge …. [We need minority enrollment] to increase the number of black and brown physicians, not [just] to integrate Stanford with the most qualified minority students in the country.”
Bakke repudiated those sensible reasons for considering the race of applicants. Instead, the diversity rationale of the Bakke opinion treated race and ethnicity synonymously. Both the amici curiae brief submitted by Columbia, Harvard, Stanford, and the University of Pennsylvania (the “Harvard brief”) on which Powell relied and the Powell opinion itself use the term “racial” and “ethnic” almost interchangeably. But racial minorities — particularly African Americans — had very different histories in the United States than did white ethnic groups. The collapse of racial and ethnic difference meant that “diversity” would tend to focus only on cultural difference and would ignore or play down the history of racism and the relevance of status hierarchy.
Consistent with Powell’s longstanding project of reshaping intellectual life on campus, deterring an honest discussion of racism seems to be much of the point of diversity talk. Diversity has required colleges to finesse, if not obscure, the salience of racial injustice. It encourages us to focus on something pleasant — multicultural enrichment — rather than on racism; it is a topic fit for corporate retreats and alumni cocktail parties, where etiquette demands one avoid controversial topics. Diversity transforms what should be an indictment of social practices of exclusion into a plea for “tolerance,” as if the issue were how to manage uncouth upstarts rather than how to correct centuries of deliberate subordination and violent exploitation. This mangles the historical record and softens the diagnosis of social injustice.
Affirmative action is hard to understand and harder to defend without reference to racism. The mandate that diversity and only diversity can justify affirmative action has given us some stilted and unconvincing arguments for why it’s needed. Consider, for example, this sentence from the Supreme Court’s opinion in the 2003 case Grutter v. Bollinger, in which Sandra Day O’Connor reaffirmed the diversity rationale for affirmative action and also reinforced Bakke’s repudiation of the use of affirmative action to remedy “amorphous” societal discrimination:
By virtue of our Nation’s struggle with racial inequality, [minority] students are both likely to have experiences of particular importance to the Law School’s mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.”
Note how even as skilled a wordsmith as O’Connor, aided by a team of the most ambitious recent law-school graduates in the nation, could not avoid indirectly referring to racial injustice. So we are told that some students are likely to have unspecified “experiences” relevant to the law school’s mission and that they are less likely to be admitted if those “experiences” are ignored. Couldn’t we name those experiences? If we can’t, it will be very hard to explain why they are important enough to justify what the court has insisted would otherwise be a violation of equal protection of the law. And so it is that affirmative action — so modest an antiracist effort that it was pioneered by the Nixon administration — has remained embattled. Diversity has kept affirmative action on life support but deprived it of the opportunity to thrive.
Of course, the idea that race entails a distinctive worldview or outlook has a long history. W.E.B. Du Bois advanced it most convincingly in his masterpiece, The Souls of Black Folk (1903), and it became a staple of a certain type of Black nationalism that focused on Afrocentric aesthetics, fashions, and norms. But before Bakke, this somewhat peculiar idea of racial difference as a kind of cultural difference was one of many theories about the salience of race; one could accept it or not with little practical consequence for law, policy, or one’s commitment to racial justice. After Bakke, it became a mandatory point of reference for anyone interested in racial equity, acquiring a centrality that it had never had before and does not merit.
Diversity is only one of many reasons a selective college might care about the racial composition of its student body. But, for all practical purposes, Bakke enshrined diversity as the only reason a college could consider race. As a consequence, colleges had to highlight differences in racial perspectives, norms, and experiences to justify affirmative action. The diversity rationale effectively required them to incorporate a substantive theory of racial difference into their admission processes. Colleges needed not only to assert that minority students would bring distinctive ideas and perspectives to the seminar table; practically speaking, they also needed some account of the distinctive perspectives that such students would bring (but one that did not emphasize racism!). And so a subtle and pernicious implication hovered over post-Bakke college life: Minority students needed to justify their presence on campus by highlighting their own cultural distinctiveness.
Quickly enough, the diversity message filtered down from the lofty chambers of the Supreme Court to more quotidian domains. For instance, in the early 2000s, Kaplan’s Graduate School Admission Advisor nudged the applicant who may not have thought of it herself: “Does your ethnic or cultural perspective give you a different take on the world?” Kaplan’s guide Get Into Law School: A Strategic Approach promised on its cover “insider advice from top admissions officers” and included a chapter directed at “Minority Students” that instructed:
the U.S. Supreme Court ruled in Bakke that race can be a factor in striving for a diverse student body. Therefore … If you participated in a minority students organization, list it in your application … if there is something unique or of special interest as regards your race or ethnicity, whether it relates to your personal or professional development or illustrates how you would add a unique or different perspective to the student body, include it in your personal statement.
The message got through. Consider the number of references to cultural difference in a small sample of personal statements written by successful applicants to Harvard Law School in the 1990s and early 2000s: “My primary motivation for receiving a law degree surfaces from my personal experiences with the struggles of the Latin American immigrant.” “My experience with other cultures give me sensitivity to the voices of today’s international America.” “As the child of Paraguayan immigrants, I too occupy a borderland.” “By the time I entered college, I had mastered the language of three communities: the … Spanish spoken by my mother at home; the profanity-laden slang of our poor, all-Black Washington D.C. neighborhood; and the textbook English enforced in the private schools I attended.” “As an expatriate I developed a keen awareness of cultural diversity by actually being a part of different cultures.” “If accepted, I will bring to Harvard Law School a very rich and diverse background.”
No doubt some of those narratives are sincere, though surely some are designed to improve the applicant’s chance of admission. Many are probably an inextricable combination of the two: the work of ambitious students who have internalized the now-expected equation of racial difference with inherited cultural difference and incorporated it into their self-conceptions.
Bakke and its progeny shaped how selective colleges discussed and treated race generally, and this in turn affected the narratives available to think about race and altered the incentives surrounding the expression of racial identity. Because those affected were disproportionately wealthy, socially elite, and culturally influential (the applicants, students, and faculty of selective colleges), they in turn profoundly influenced the understanding of racial identity in American society as whole.
Not only did Bakke play down or exclude a host of ideas about the salience of race; the idea of diversity itself had troubling implications that were magnified as it gained prominence. At best, diversity involves the laudable cosmopolitan quest for multiple perspectives in scholarship and the expansion of limited college curricula. Bakke’s emphasis on “diversity” reinforced an idea of cultural difference developed in ethnic studies and the arts and humanities faculties — an idea that had cultural and symbolic concerns at its core. They included the emergence of multiculturalism in the academy in the 1980s and later in popular conversation, particularly the “canon debates” in the humanities. Those debates emphasized cultural difference and the existence of autonomous cultural practices as a challenge to the dominance of the culture, ideas, and values of the United States and Western Europe. They foregrounded the recognition demands of distinct groups, insisting that liberal societies accommodate cultural difference and acknowledge non-Western peoples. The debates naturally began to focus on the aesthetic and social merit of various distinctive cultural groups.
Multiculturalism provided invaluable insights into American race relations. But it has also contributed to an obsession with insular identity categories. As Todd Gitlin noted in the 1990s:
The newcomer [to the university] … finds exclusive identity groups for partying, dancing, listening to music in a familiar style. She finds the Black Sociology Association and the Asian Business Association …. [P]repackaged identities multiply … [and] when everyone else seems to have found a group to eat with, party with, hang out with, and date, the newcomer feels the pressure to find one as well … Even students who feel uneasy about the prefabricated categories feel peer pressure to identify with one … The group allays what is already an adolescent anxiety about finding a place. But the spread of identity-group culture heightens that anxiety in the first place.
This emphasis on identity could lead to an exaggeration of racial difference, a denial of transracial commonality, and a subsequent inattention to the kinds of economic inequality and political marginalization that don’t track racial divisions. The predominance of diversity rhetoric has elevated the idea of racial difference as a type of cultural difference — once the fringe position of an Afrocentric counterculture — to the default understanding of race in America. At its worst, this tendency denies the cosmopolitan character of American society to an almost pathological extent. Consider these two examples, divided by decades but united in spirit and substance. In the 1970s, Janice E. Hale-Benson, then a professor of education at Wayne State University, wrote a book called Black Children: Their Roots, Culture, and Learning Styles. In it she posits principles such as that Black children “tend to prefer inferential reasoning to deductive or inductive reasoning.” More:
Afro-American people tend to approximate space, numbers, and time rather than stick to accuracy.
Afro-American people in general tend not to be “word” dependent. They tend to be very proficient in nonverbal communications.
Black people think in terms of approximation of time, rather than punctuality. An “in house” expression is “C.P.T.” — meaning “Colored People’s Time”! … Meetings that begin on C.P. Time usually begin about 20 minutes after the appointed time.
Were this not the work of an African American scholar, one might consider it that of a white supremacist, full of the most demeaning and hurtful stereotypes. Would anyone who accepted those ideas bother to train Black people to be scientists, accountants, or lawyers? How does a theory that asserts that Black people are not “word dependent” explain the great Black writers of the Harlem Renaissance or the eloquence of Black political activists, poets, and novelists? And what employer would want to hire someone alleged to be culturally incapable of punctuality?
Such ideas should have died a well-deserved death long ago. Indeed, the insights of ethnic studies and multiculturalism at their best, which brought the profound intellectual and professional achievements of African Americans into the center of liberal education, should have nailed the coffin closed. But in 2020 the National Museum of African American History and Culture published a document, entitled “Aspects and Assumptions of White Culture,” that was the photo-negative image of Hale-Benson’s account of Black culture. The document claims that “individualism,” “the scientific method,” “rationalism,” the work ethic, and the “written tradition” are all elements of “white culture” that have been imposed on (or “internalized” by) people of color. Thankfully, the museum acknowledged its mistake and removed the document from its website. But its presence, even for a short time, in a museum dedicated to African American history speaks to the ascendancy of the idea that racial identity is primarily a type of cultural difference. Bakke and the diversity rationale helped to promote this idea to its central place in the popular understanding of race.
Ironically, Powell’s effort to undermine the “politics of despair” that so troubled conservatives in the 1960s and 1970s may have fueled the politics of identity that enrages conservatives today. Bakke didn’t eliminate the politics of despair but only gave it a new focus. The difference is that the despair Powell attacked arose from a critique of social and political institutions and practices — institutions and practices that can be changed through collective political activism — whereas the despair generated by identity politics is more personal and more fatalistic.
Without Bakke’s requirement that affirmative action be justified in terms of diversity, other ideas about the value of racial inclusion would have been available.
None of this had anything to do with fairness to white or Asian American applicants to selective colleges. The Supreme Court could have tempered the cruder forms of affirmative action — invalidating racial quotas, for example — without limiting higher ed to the diversity rationale. We can’t know what the racial landscape at America’s selective colleges, to say nothing of the nation as a whole, would look like had Powell not imposed diversity on our conversations about race. But without Bakke’s requirement that affirmative action be justified in terms of diversity, other ideas about the value of racial inclusion would have been available. It’s a good bet that the moral imperative to correct societal discrimination, for example, would have proved at least as compelling as diversity. For the past 40 years we might have had as much attention devoted to identifying and correcting institutionalized bias as we have had to promoting diversity. Perhaps, in a nation where racial inclusion was not justified exclusively in terms of diversity, it would not have taken until 2020 for a significant number of Americans of all races to embrace the simple conviction that Black Lives Matter — and to be horrified that this needs to be insisted upon.
But the Supreme Court isn’t in charge of our sense of justice, whatever some of its members pretend. It long ago squandered the moral authority it acquired during its proudest moments, in the 1950s and 1960s, when it taught much of the nation something about justice. We will all have to obey the letter of whatever law the five or six members of this court decide to concoct. But we can and should refuse the casual dishonesty and moral cowardice that will certainly accompany it.
No doubt, the court’s “originalists” will say that the logic of the equal-protection clause of the 14th Amendment demands the end of affirmative action, ignoring the origins of that amendment as part of the project of post-Civil War Reconstruction. Perhaps they will again distort to the point of parody the convictions of civil-rights advocates to support their diktat, as Chief Justice John G. Roberts Jr. did in 2007’s Parents Involved in Community Schools v. Seattle School District, when he cited the arguments advanced against state-sponsored racial segregation in Brown v. Board of Education to support the proposition that a public school could not consider race to integrate its student body. Hiding behind those rationalizations, they will claim that a law written to secure equal treatment for former slaves compels them to forbid a modest gesture in the direction of racial justice. The transparent dishonesty of such contentions won’t stop them from imposing their will on the rest of us. But the reactionary faction currently in control of the Supreme Court does not have the power to control the meaning of our constitutional traditions — unless we cede it to them.
We cannot look to the justices of the Supreme Court for justice. For that, we need to look to the judgment of history and to the court of popular opinion, where there is at least a chance of a fair hearing and an honest discussion. The recent outpouring of support for demonstrations against racially targeted police violence suggests that many — perhaps even most — Americans have begun to acknowledge the depth and breadth of racial injustice in our society and the moral imperative of resolving it. Those of us who want a more durable approach to racial inclusiveness — both at selective colleges and elsewhere — must refuse another gag order passing for constitutional jurisprudence and take the discussion of racial justice away from the courts. In higher education this would require an unflinching acknowledgment of the nation’s long history of white supremacy and how its colleges and universities perpetuated and benefited from it. And it would suggest a broad rethinking of the admissions criteria that disfavor people of color and make race-based affirmative action necessary in the first place. Let old men and women in black robes peddle in substitute justice. We must demand the real thing.