No one working in or around a US university can think of assembling a class, a set of interviewees for a job, a special issue of a journal, or a scholarly panel without making sure it is suitably “diverse.” Not only admissions officers but students, faculty, and administrators share a commitment to diversity. Even some conservatives have appropriated the concept, calling for ideological diversity at universities to ensure that their own voices are heard.
Yet in the courts, diversity is being subjected to a withering attack, one that most informed observers expect to be fatal now that Justice Anthony Kennedy has been replaced by Justice Brett Kavanaugh. According to existing Supreme Court doctrine, diversity is the only rationale sufficiently strong to justify educational institutions’ use of race in admissions. That doctrine was most recently upheld in a 4–3 decision written by Kennedy in 2016. Kavanaugh is unlikely to sustain his predecessor’s opinion, and diversity will probably lose its favored constitutional position in the near future.
Meanwhile, a highly publicized lawsuit, supported by Donald Trump’s Department of Justice, alleges that Harvard University uses diversity as a cover for admissions discrimination against Asian-Americans. The core of the claim is that if admissions were based strictly on grades and test scores, Asian-Americans would make up more than 30 percent of the student body, rather than 22.2 percent, as they did in 2017. The plaintiffs allege that Harvard gives Asian-American applicants systematically lower scores on its “personal” measure—a measure on which African-American and Latino candidates on average score higher.
The suit also points out that Harvard first made diversity a goal in admissions in order to reduce the number of Jewish students accepted in the 1920s. Although this anti-Semitic origin has been known since it was reconstructed from Harvard president A. Lawrence Lowell’s archives by a doctoral researcher in the 1970s,1 most liberals have long considered it not a reason to impugn diversity but an unfortunate historical contingency that has since been overcome by developments that have made diversity desirable. The current lawsuit challenges this interpretation by suggesting that diversity is as restrictive for Asian-Americans today as it once was for Jews.
Diversity became a central value in higher education through a judicial fiat that gradually became a widely held belief. Its origins lie in a 1978 Supreme Court decision, Regents of the University of California v. Bakke (1978). The case was brought by an unsuccessful white medical school applicant who claimed that affirmative action violated equality under the Civil Rights Act and the equal protection clause of the Fourteenth Amendment. His challenge was part of the fascinating—and in many ways horrifying—revisionist backlash against the integrationist jurisprudence of the Warren Court. In a series of close decisions, conservative majorities of the Burger…
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