Higher Admissions, page 5
For reasons that W. Allison Davis and Robert Havighurst identified back in 1948,1 this new goal was not in harmony with the adoption of standardized tests in admissions; there is a persistent, though shrinking, Black-white gap in average test scores, reflecting the gap in the lived experiences of the races in the United States. Admission purely, or primarily, by test score would produce less racially integrated student bodies, not the more integrated student bodies the selective universities had begun to want. For complex institutions like research universities, this did not represent an insuperable problem; as we have seen, these universities have always balanced multiple goals that are not perfectly aligned with each other, while moving generally forward. But the combination of standardized testing and affirmative action generated a vulnerability to lawsuits. A white plaintiff could claim that in turning him down while accepting Black applicants with lower test scores, a university had violated the Fourteenth Amendment to the Constitution or the Civil Rights Act of 1964, legal milestones that, in service to the cause of progress for Black Americans, forbade discrimination on the basis of race.
Just a few years after the advent of affirmative action, Marco DeFunis, a rejected white applicant to the University of Washington’s law school, sued the university. His was the first of a decades-long series of cases to come before the U.S. Supreme Court, all using test scores to make the argument that affirmative action is a form of antiwhite discrimination. The Court had great difficulty in making a decision; in 1974, it finally declared the case moot because DeFunis, who had been admitted to the University of Washington law school under the order of a lower court, was now close to graduation. The Court, which had issued a clear, unanimous ruling in the Brown v. Board of Education case on segregated schools in 1954, has never, through nearly fifty years of cases, been able to find its way to an unmistakable consensus position on affirmative action in admissions—including in its most recent decision striking down affirmative action. The justices are themselves products of the highly selective elite law school pipeline, even more so now than when the string of affirmative action cases began (eight of the nine current justices went to law school at either Harvard or Yale, and all nine served as clerks to federal judges). Even the fiery liberals among them can have a hard time seeing the system that produced them as unfair. In the DeFunis case, Justice William O. Douglas, a crusader who was rarely plagued by doubt, produced eleven separate drafts of an opinion, in the aggregate taking just about every position on affirmative action that one could possibly take: for racial quotas, for “colorblindness,” for abolishing tests, for admission by lottery.
The signals emerging from the DeFunis case were not encouraging for the civil rights community. Mainstream Jewish organizations, formerly reliably liberal, now saw affirmative action as a harbinger of a possible return of the old, hated Jewish quotas at universities, so they took DeFunis’s side. Alexander Bickel of Yale Law School, one of the country’s most prominent legal scholars, who as a young Supreme Court law clerk had drafted a crucial internal memo in support of the 1954 Brown decision, wrote an anti–affirmative action friend of the court brief on behalf of the American Jewish Committee. The sociologist Nathan Glazer wrote a book called Affirmative Discrimination. The opinion that Douglas finally published treated affirmative action as unconstitutional; the Fourteenth Amendment, he wrote, “commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized.”2
That was the background for the next, and until now the most important, Supreme Court affirmative action case—which, like so many other milestones in the history of American higher education, originated in California. In Bakke v. Regents of the University of California, Allan Bakke, a rejected white applicant to the University of California at Davis’s medical school, sued because the school had set aside sixteen places in its entering class of one hundred for minority applicants only. The case drew intense public attention. There were more “friend of the court” briefs filed than in any previous Supreme Court case. On the day it was argued—October 12, 1977—people lined up for hours in advance in the hope of getting a seat, as if the Bakke case were a Bruce Springsteen concert. Inside the Court, it quickly became clear that Lewis Powell, a Republican lawyer from Richmond, Virginia, was the swing vote, so he was assigned to write the opinion. The clerk Powell asked to draft his opinion in the case was Robert Comfort, who is now retired after a long career as a tax lawyer, first at a big firm and then at Amazon. “In Powell’s view, the best result was to preserve affirmative action in some form,” Comfort told me. “He told me that. He said, ‘I want to find a middle ground. My client, the country, needs for this to be the result. How do we get there?’ ”3
Powell disliked the system that the medical school had created, explicitly reserving places for minority applicants. “There was no chance of Powell supporting Davis,” Comfort said. “The way the places got set aside was, the student groups got together and horse-traded. Powell thought that was offensive—to let politics decide how to cut up the melon.” Four justices were willing to support the university’s version of affirmative action, and one of those who wasn’t, John Paul Stevens, was moving to the left and might have provided a fifth vote if the case had arrived a few years later. Powell’s biographer, John Jeffries, has written that even Powell, despite what he told Comfort, considered supporting Davis—until, in a conference, Thurgood Marshall, the Court’s only Black justice, said that some form of formal racial recompense would be necessary for the next hundred years. “The remark left Powell speechless,” Jeffries writes; it gave Powell “a sharpened sense of the vast gulf that separated him from the liberals.”4
So it fell to Comfort to find an argument for keeping affirmative action, while also banning the use of race in admissions as openly as Davis had. He burrowed into the stack of friend of the court briefs, looking for something that would help. “There were a lot of really bad briefs,” he said. “A lot of them were just terrible.” But one stood out—produced by Harvard, the same university that had successfully pioneered and promoted the adoption of standardized admissions tests a few decades earlier. “The Harvard brief offered the middle ground Powell was looking for.” And that was legally enshrining the principle of diversity, as an intellectually enriching quality that universities’ student bodies ought to have. The memo about the case that Comfort wrote for Powell said, “Educational Diversity—This seems to be the step in the analysis offering the best opportunity for taking a middle course.” Powell’s decision quoted extensively from Harvard’s brief. Harvard therefore wound up as the originator of admissions by standardized aptitude testing, and also of the diversity justification for affirmative action—and from within the institution, those two positions didn’t seem contradictory, because they had in common a large institutional ambition and an insistence on autonomy.
Diversity became such a consequential concept—for forty-five years, it was the one legally permissible way to address the contradiction between standardized admissions tests and racial integration at selective universities—that it has attracted a great deal of close attention. No one has devoted more time to it than David Oppenheimer, a veteran civil rights lawyer and teacher at Berkeley law school. Like a lot of civil rights lawyers, Oppenheimer spent much of his career feeling frustrated with diversity being the legal foundation on which something as important as integrating elite higher education had to rest. There were other possible justifications for affirmative action, and this one seemed to understand the benefit of more Black students on campus as being mainly that they would enrich the experience of the white students. Oppenheimer, a quiet man who doesn’t have the manner one associates with a crusader but who is hard to deter once he gets the bit in his teeth, decided to embark on a quest to find out where the word had come from. Maybe, he thought, if he could find its source, something crucial about race, education, and the law in America would be revealed.
Oppenheimer was struck by how ubiquitous the concept of diversity had become. It was the basis of subsequent Supreme Court decisions on affirmative action for forty years, a guiding principle in the admissions and hiring policies of essentially all universities, and also a goal widely adopted, at least rhetorically, in corporations, in the arts, in the military—nearly everywhere. Oppenheimer assumed that the nonlegal world had gotten the term from the legal world, but what was its origin in the legal world? It had never previously appeared in any court decision or piece of legislation that he could find.5 He discovered that in the DeFunis case, Harvard had submitted two different friend of the court briefs to the Supreme Court, and the one that had focused on diversity somehow hadn’t wound up in the official court record or in any of the standard legal databases. The principal author of the brief was Archibald Cox, a Harvard law professor who had recently been fired from the Nixon administration during the Watergate “Saturday night massacre.” When Cox returned to Cambridge, Harvard’s new president, Derek Bok, asked him to write the brief. A few years later, during the Bakke case, Harvard persuaded the University of California to let Cox, rather than its own lawyer, argue on its behalf in the Supreme Court.
Only one person who worked on the brief with Cox is still alive: James Bierman, a Washington lawyer who was a twenty-eight-year-old associate dean of admissions at Harvard Law School when Cox asked him to produce a first draft. In those days, Bierman told me, a typical Harvard Law School class had only four or five Black students out of four hundred. For most of its history, Harvard Law School had not been highly selective. A third of each entering class would flunk out.6 After the Law School Admission Test (LSAT) was introduced in 1948 and applications soared, admissions became much tighter, and test scores became a direct barrier to an increased Black presence. Bierman said, “We had to do something deliberately, because of racism in this country. Discrimination has been taking place for as long as people have been alive, or even in utero. You have an applicant pool where the objective numbers for Blacks and whites do not look the same. How do we justify accepting someone with a lower LSAT score?”7 He took language from a report that the Harvard undergraduate admissions office had produced in 1960 about how it selected students, which didn’t mention race but did mention the goal of creating a student body that would include people of different talents and backgrounds—including a hypothetical “Idaho farm boy.” (One of Harvard’s former deans of admissions was himself a former Idaho farm boy.) This took Harvard off the hook of having to apply a single academic standard to all applicants, and it was easy to add racial diversity to the list of qualities the university was looking for. In Comfort’s memo to Justice Powell about the Bakke case, next to the passage where Comfort brought up diversity, there is a handwritten notation by Powell: “This is [a] position that appealed to me in DeFunis.”8
After uncovering all this, Oppenheimer was still unsatisfied. Surely the principle of diversity must have deeper, and specifically racial, roots. As he kept looking, he came across what he considers the Rosetta Stone of diversity, the key to understanding the principle as we have understood it in recent decades. It is a slim pamphlet, published in 1957, called The Open Universities in South Africa. At the time, South Africa had two universities that admitted Black students, but the apartheid government was preparing legislation that would force them to segregate. The top officials of the University of Cape Town, which was one of the integrated universities, organized an opposing campaign—the pamphlet was part of that. South Africa’s integrated universities, the pamphlet said, “believe that racial diversity within the university is essential to the ideal of a university in a multi-racial society.” It went on, “Nowadays it is almost axiomatic that a university should be more diverse in its membership than is the community in which it exists. The diversity itself contributes to the discovery of truth, for truth is hammered out in discussion, in the class of ideas.”9 The pamphlet not only identified diversity as a justification for racial integration, it also placed the issue in the context of universities’ historical claim to academic freedom and protection from political interference.
Oppenheimer discovered that T. B. Davie, who held the title of principal at the University of Cape Town, had gotten a grant from the Carnegie Corporation to travel to the United States and talk to prominent educators about the material that wound up in the pamphlet. Davie visited Harvard Law School and met with the dean there, Erwin Griswold. Oppenheimer located a diary that Davie kept during his trip, in which he wrote that he and Griswold had discussed the importance of racial diversity. Albert Centlivres, the chief justice of South Africa and the chancellor of the University of Cape Town, also got a travel grant from Carnegie. Through that he met Supreme Court Justice Felix Frankfurter, who then quoted at length from the Open Universities pamphlet in an opinion he wrote in a free speech case in 1957. Frankfurter was a former Harvard Law School professor, still very much in touch with his former colleagues. Oppenheimer also found a letter mentioning racial diversity that another Harvard law professor, Paul Freund, had written in 1959. So he assumes, without having found an indisputable smoking-gun connection, that long before the DeFunis and Bakke cases, Cox, as a Harvard law school faculty member, had been exposed to the idea of racial diversity as something universities should care about.
Oppenheimer’s search left him far more kindly disposed to diversity than he had been at the beginning. He now sees it as a way of placing affirmative action at the center of a long project, dating back centuries, of protecting universities’ sacred place in the world, so that they have, in the words of South Africa’s Open Universities pamphlet, “the rights to decide what may be taught, how it may be taught, who may teach, and who may study.”10 Diversity’s constant use as a central principle by many other institutions today, not just by universities, underscores how influential universities can be outside their own campuses—they’re the ones who introduced it. In the immediate aftermath of the Supreme Court’s Bakke decision, Oppenheimer says, there wasn’t much attention paid to this crucial word—its inherent power has been demonstrated only over time. And with the Court’s 2023 decision in cases involving, again, Harvard, and also the University of North Carolina, its future is in question, inside and outside universities.
Oppenheimer, and a wide range of universities and other institutions, may have been convinced of the importance of diversity, but the entire country never was. One can tick off a series of objections to it as the core principle around which remedies for something as deeply rooted and pervasive as racism in America have to be organized. Back in 1978, most of institutional Black America would have preferred that the Supreme Court had simply endorsed the University of California’s policy of reserving places for minority applicants. The Amsterdam News’s headline after the decision was “We Lost.” Powell’s decision insisted that any use of race in admissions be subject to strict scrutiny, meaning, legally, that unlike all of the other standard admissions preferences, it would be presumed to be unconstitutional unless universities could offer an extraordinary justification. Many white liberals’ rhetoric at the time about affirmative action assumed that because the Jim Crow system had recently been eliminated, racism would soon disappear as a problem in American life, so affirmative action could be a temporary fix, a bridge to take the country from its racist past to its nonracist present. A Supreme Court sanction for explicitly racial admissions would have been an acknowledgment of racism as an ongoing present-day reality. It would also have made the conflict between test scores and the creation of a more integrated student body much less sharp. Diversity as the only permissible justification for affirmative action amounted to an invitation to future lawsuits and other attacks, because it didn’t make it clear that programs explicitly favoring Black people, unlike programs explicitly favoring other categories of people, are okay.
Universities that use standardized tests and also have affirmative action policies hate being statistically specific about the extent of their commitment to affirmative action, but that’s partly because of the direction in which the Supreme Court has pushed them. (One study published in 2009 estimated that at selective private colleges, the effect of being Black on one’s chance of admission is the equivalent of adding 310 points to one’s combined SAT scores; at the University of California in 2019, Black admitted students had average SAT scores 156 points lower, and admitted Latino students 214 points lower, than those of admitted Asian students.11) The plain truth is that affirmative action was a direct result of the civil rights movement and was aimed at racially integrating universities. The diversity justification for it dances around that obvious fact and so generates a good deal of cognitive dissonance. As Jamal Greene, a professor at Columbia Law School, writes in his recent book How Rights Went Wrong, “The Supreme Court’s distaste for overt race-conscious admissions plans doesn’t, of course, mean that those plans don’t exist. It just means that instead of acknowledging structural racial inequality and tailoring their programs to the metes and bounds of that special social problem, schools—with the Court’s blessing—pursue racial justice in the shadows.… All American schools that take race into consideration claim to do so because it’s crucial to their ‘diversity’ efforts. This isn’t quite hogwash, but it’s close.”12
Standardized tests were not intentionally designed to exclude Black applicants, and they don’t generally underpredict Black applicants’ grades as they begin college, but the more they become dispositive in admissions, the lower the Black presence becomes. Berkeley’s dropped by 50 percent the first year that an anti–affirmative action initiative was implemented in California. Harvard’s, according to one person who has worked with the plaintiffs in the case that the Supreme Court decided in 2023, would drop by two-thirds. Affirmative action has always been, in fact, racially motivated. And affirmative action has produced the intended result: far more substantially racially integrated elite universities, and far more substantial racial integration of the world into which elite university admission leads.
