Diversity

Affirmative action—federal policies and court decisions requiring employers and federal contractors and local and state governments to try to employ persons from the four ethno-racial groups and women in numbers proportionate to their presence in the labor force—was instituted in the late 1960s. It has been controversial ever since. Alongside of affirmative action in employment, colleges and universities instituted programs to increase the number of black and Hispanic students, though blacks comprised the main group of interest. These programs were not (for the most part) legally required but were instituted voluntarily, or in response to black student protest. Taking account of race required reducing the weight of academic achievement in admissions decisions. Both in the case of affirmative action in employment and in admissions to colleges and universities, greater diversity as such was initially neither the objective nor the justification: Getting higher numbers of black students than could be admitted on the basis of academic grades was the objective, and making up for past discrimination was the justification. But in a key U.S. Supreme Court case from 1978, Regents of University of California v. Bakke (438 U.S. 265), diversity as a value in education became the sole legitimate legal basis for special consideration in admissions on the basis of race. Institutions—primarily in the South—that had once discriminated against blacks were already required by federal intervention and court order to institute quotas and preference for blacks. Most institutions in the North and West, however, had no such history.

The University of California, Davis, medical school, which was sued for impermissible discrimination against whites on the basis of race in the Bakke case, could not claim that its quota for underrepresented minorities was making up for past discrimination; as a young medical school, it had never discriminated. Nevertheless it had a quota for underrepresented minorities. Four justices asserted that race could not be taken into account, four asserted it could because of societal discrimination against blacks, and one justice, Lewis Powell, joined the latter four with his own justification for preference for underrepresented minorities: Student diversity would improve the educational environment by introducing the views of underrepresented groups into the educational process. This was the argument made in an amicus brief filed in the case by Columbia, Harvard, and Stanford Universities, and the University of Pennsylvania. The brief described Harvard's admissions process as giving a plus for race to help create this diverse environment.

Various weaknesses in this argument for consideration of race have been pointed out, such as that there is no necessary connection between race and ethnicity and the views students bring to the classroom, but student diversity has since became the sole legal basis for preference. Educational institutions—undergraduate, graduate, and professional—began to lean heavily on diversity as their justification for a preference to which they are uniformly committed, for a range of reasons that would not pass constitutional muster. Important and large-scale research has been conducted to demonstrate the benefits of racial and ethnic diversity in higher education.

In 2003 the Supreme Court was forced to return to the issue of racial and ethnic preference in higher education because federal circuit courts were divided on the issue. In Grutter v. Bollinger (539 U.S. 306), which challenged race preference in admissions to the University of Michigan Law School, the centrality of diversity as the justification for affirmative action was enshrined in a new decision. The Court was very much in the same divided posture as in 1978: for four justices, to take race into account was unconstitutional; in opposition, four liberal justices defended this policy on wide grounds; and a single justice, Sandra Day O'Connor, joined the four liberal justices for the single reason, spelled out at length, that diversity aided the educational process:

The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer. The Law School's assessment that diversity, will, in fact, yield educational benefits is substantiated by respondents and their amici. … These benefits are not theoretical but real, as major American businesses have made clear that the skills necessary in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. [Here Justice O'Connor refers to briefs by 3M Company, General Motors Corporation, and other corporations.]… What is more, high-ranking retired officers and civilian leaders of the United States military assert that, "[b]ased on [their] decades of experience," a "highly qualified, racially diverse officer corps … is essential to the military's ability to fulfill its principle [ sic ] mission to provide national security." (Grutter v. Bollinger, pp. 330–331)

When the military-industrial complex, as well as the leaders of major U.S. universities, embrace diversity as a valued objective, it is clear that a great deal happened in the twenty-five years between Justice Powell's somewhat surprising choice of this single justification of affirmative action and Justice O'Connor's wide-ranging argument in its favor. America had changed. Affirmative action might still be opposed by a majority of Americans (state referenda in California and Washington had rejected it). Diversity, however, had been embraced by all.