As Archibald Cox sat in a remote office at Harvard Law School in 1977, he made a fateful decision. Cox was the former Watergate prosecutor who had been hired to defend universities’ use of affirmative action before the Supreme Court, and he was searching for a winning argument. He decided that the solution might involve the idea of diversity.
The court’s liberal justices would probably agree to uphold affirmative action on the grounds that it could right historical wrongs. But the conservative justices seemed wary of this idea. To appeal to them, Cox added the argument that racial diversity could prepare students to live in a pluralistic society.
His strategy worked. By a one-vote margin in a case known as Bakke, the court endorsed affirmative action, citing diversity as the only acceptable justification. My colleague Emily Bazelon has just published a story in The Times Magazine explaining how Bakke saved affirmative action — but also laid the groundwork for the potential banning of it by the Supreme Court later this year.
Today, she and I discuss how we got here and what comes next.
Bakke’s trap
David: I learned so much from your story, Emily. Tell me if this sounds right: Diversity isn’t a persuasive justification to many Americans — which helps explain why affirmative action can’t win a ballot initiative even in California. People care more about fairness. They believe an equally or more deserving applicant shouldn’t be rejected for the amorphous benefits of diversity.
Emily: I’m pretty sure you’re right about the argument that’s convincing to more people. And I think it’s a real problem for defending affirmative action in court.
When the Supreme Court took the fairness argument off the table, it was like asking universities to fight with one hand tied behind their backs. Without a rich understanding of why universities were building diverse student bodies, the public isn’t likely to see the process as legitimate.
I’ll add one wrinkle. Research shows that students learn more in diverse groups and employees are more productive. I’d say that since the 1970s, many people across ideological lines have come to see racial diversity as a social good, even if it often isn’t attained. It’s the means — whether to allow race-based preferences — that remains deeply contested.
David: I’m surprised that the defenders of affirmative action, starting with Cox, didn’t try harder to make a fairness argument. He did not argue that Black students were continuing to face the effects of discrimination, even though they were. He instead talked about historical discrimination. You quote Justice Thurgood Marshall making this argument bluntly: “They owe us.”
But there is also another defense of the policy: that Black students face big, ongoing disadvantages, stemming from a lack of family wealth (caused by racist government policies) as well as continuing biases. If you buy this evidence, then a Black student who scores, say, 50 points lower on the SAT than an otherwise similar white student is actually more qualified. It’s like running with the wind in your face. It’s about fairness. Could Cox have tried harder to make this case?
Emily: Yes. In the months the justices deliberated over Bakke, Marshall, the inimitable civil rights champion, wrote a memo about “whether Negroes have ‘arrived’” — in other words, whether they no longer deserved the springboard of affirmative action. Marshall gave examples to show that Black people “most certainly” had not arrived in this sense: The court itself had had only three Black law clerks. And he cited the economic disparities among racial groups, as you are now.
In fairness to Cox, arguments based on structural racism are more familiar now than in the 1970s. And the conservative justices were clear that they thought the fairness argument applied only if there was evidence that the defendant in a case was discriminating, as opposed to addressing a systemic problem.
David: That’s a good point. I do think today’s defenders of affirmative action have made a tactical mistake. They allowed the narrow Bakke ruling to shape their entire narrative. They didn’t make the best case for affirmative action in the political arena — and public opinion often influences the Supreme Court.
But let’s end by looking forward. If the court rules against race-based programs, one obvious response is class-based affirmative action. How might that change things?
Emily: Well, for one thing, it might have a political impact. Polls show considerably more public support for boosting students’ chances of admission because of their economic circumstances than because of their race or ethnicity.
Class-based measures (like considering family wealth or neighborhood poverty level) could also make highly selective universities better engines of social mobility. Right now, in the Ivy League, for example, children whose parents are in the top 1 percent of the income distribution are 77 times as likely to attend as those whose parents are in the bottom 20 percent of the income bracket.
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Politics
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Prosecutors investigating Donald Trump’s handling of classified documents are seeking his lawyer’s testimony, suggesting evidence of a crime.
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Mike Pence plans to fight a subpoena seeking his testimony in a federal investigation into Trump’s actions leading up to the Capitol riot.
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Nikki Haley is running for president. She’s the first Republican to challenge Trump for the nomination.
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Senator Dianne Feinstein, 89, a trailblazing California Democrat first elected in 1992, won’t seek re-election.
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Three unidentified flying objects recently shot down may be harmless. Investigators have not yet found evidence that they were tied to Chinese surveillance.
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ARTS AND IDEAS
An ode to the library
Libraries aren’t about silence anymore. They’re about versatility. The modern library helps people stay warm in the winter, or cool down in the summer. It provides safety, entertainment, education, even hydration. You’re always invited, no reservation needed.
Last fall, The Times sent photographers to local libraries in seven states. They found toddlers trying to catch bubbles on the loose, grateful seniors enjoying deliveries of crime novels and teenagers strumming guitars together.
See the photos, and share your own memories.