09 Juli 2023

Harvard’s Diversity Chicken Comes Home to Roost

Harvard had a Jewish problem during the early twentieth century. Too many Jews were meeting the admissions criteria, taking seats away from the scions of good Anglo-Saxon families. Harvard’s mission was to serve as a finishing school for the future political, economic, and cultural leaders of Massachusetts and the United States. Too many Jews primarily interested in making money, according to common stereotypes, undermined that mission.

Harvard tried to keep out Jews and other unsuitable children of immigrants from Eastern and southern Europe by using intelligence tests. The persons who devised those tests assured the American elite that standardized examinations distinguished the natural intelligence of sturdy Anglo-Saxons from Jews and others whose inflated grades reflected obsessive studying. Alas, Jews and other immigrants figured out how to game the test. An admissions system based entirely on text scores and school grades would increase further the percentage of Jews and immigrant children at Harvard.

Diversity was the better solution to Harvard’s Jewish problem. Maybe Jews and other immigrant children were smart (“cunning“ and „shrewd” were other words found apt by many), but all they did was work and grade-grub. Protestant men were well-rounded leaders. You could go hiking in the woods or party with Protestants on weekends. Universities that were finishing schools for the elite wanted students who could appreciate the full richness of American society. The Protestant elite was convinced that all Jews did was study. How some managed to have children was a mystery to them. Evaluating the full person guaranteed classes made up predominantly of Protestants who would be political, economic, and social leaders and minimized the number of Jews who would do little more than become doctors, lawyers, engineers, and teachers.

Jewish quotas rooted in diversity reflected the racism of early twentieth century social science. John W. Burgess, the founder of contemporary political science, and other leading scholars of the time believed political capacity was rooted in race. „Aryans“ (until World War One) and „Anglo-Saxons“ (afterwards) were racially predisposed to constitutional republicanism. Societies led by white Protestant men protected liberty while maintaining popular sovereignty. Eastern and southern Europeans were inferior. They lacked the Protestant understanding of liberty and popular sovereignty. Nevertheless, as long as „Aryans“ and „Anglo-Saxons“ predominated, constitutional republicanism could survive the influx of some Jews from Eastern Europe and Catholics from Southern Europe in leadership positions. Persons of color lacked any capacity for constitutional republicanism. The best white stock could do nothing to improve those who had no racial predisposition to liberty and popular sovereignty. Society would survive Jews being admitted to Harvard, as long as their numbers were restricted, but there was no place in the finishing school for the American elite for members of races incapable of leadership positions in a constitutional republic.


Harvard developed a race problem in the late twentieth century. Scientific racism had long been discredited by a new generation of social scientists and World War II. Nevertheless, past and present societal and institutional discrimination consistently generated entering classes that were overwhelming white. The civil rights revolution made such discrimination unacceptable. Discrimination at Harvard was particularly unacceptable given the central role Ivy League institutions played training political, economic, and cultural leaders. Something had to be done to combat how the racial practices of the past were skewing the leadership class that Harvard sought to train.

Diversity was the solution to Harvard’s race problem. Just as Harvard justified giving a minus to Jews who were overrepresented at Harvard in comparison to their numbers in the general population, so Harvard began giving pluses to persons of color who were underrepresented at Harvard in comparison to their numbers in the general population. Whether intentional or not, members of overrepresented ethnic and racial groups, soon more often Asian-Americans than Jews, received lower than average scores on leadership and related traits, while members of underrepresented ethnic and racial groups received higher than average scores. Looking at the full person again got Harvard the class Harvard desired.

Diversity promised much to the white Protestant elites who celebrated the full person. Surveys showed that late twentieth and early twenty-first century elite children wanted to be educated at a college or university that was racially diverse. Admitted students valued diversity. Only those who were not admitted (and did not become alumni) complained. Diversity enabled Harvard to maintain privileging white Protestants. No one complained about geographical diversity, which largely privileged rural Protestants rather than Jews, Catholics and Asian-Americans who tended to live in cities. The same logic that justified a critical mass of African-Americans for diversity purposes, might also justify a critical mass of legacy children and children of donors. Elites were as diverse as members of historically disadvantaged groups.

Another side benefit of diversity was the structuring of political conflict. Much social science details how elites maintain power by highlighting issues that pit less advantaged citizens against each other. Race-based programs were an elite dream. As the pool of available positions open to all comers shrunk at elite universities and job sites across the country, many voters who were neither diverse on elite nor racial grounds blamed African-Americans for their failures in life. Telling applicants a person of color got the position they sought, rather than the boss’s nephew, was a surefire means of creating racial backlash and conservative Republicans.


When the Supreme Court of the United States first ruled on the constitutionality of race-conscious university admissions policies, four justices took the historical disadvantage route rather than Harvard’s road to diversity. The issue in Regents of the University of California v. Bakke (1978) was whether the medical school at the University of California, Davis could set aside sixteen seats for students of color. Justices William Brennan, Byron White, Thurgood Marshall, and Harry Blackmun found this policy constitutionally unproblematic. Brennan’s opinion observed that “whites as a class” were “not saddled with such disabilities or subjected to such a history of purposeful unequal treatment or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” Relying on what in the United States is called “intermediate scrutiny,” a form of judicial review that resembles what the rest of the world describes as “proportionality,” Brennan asserted that the medical school “could conclude that the serious and persistent underrepresentation of minorities in medicine . . . is the result of handicaps under which minority applicants labor as a consequence of a background of deliberate, purposeful discrimination against minorities in education and in society generally, as well as in the medical profession.” White, Marshall, and Blackmun played variations on these themes in their opinions. None cared much for diversity.

Justice Lewis Powell, who provided the crucial fifth vote on a court of nine justices, proved a better Harvard man. His opinion rejected both of Brennan’s central arguments. Powell insisted that the Court apply the highest level of scrutiny, strict scrutiny, to all race classifications. In his view, because “the white majority is composed of various minority groups most of which can lay claim to a history of prior discrimination, . . . no principled basis” existed “for deciding which groups would merit heightened judicial scrutiny.” Race classifications under strict scrutiny were constitutional only if they were necessary or narrowly tailored means to compelling government ends. Powell then rejected historical disadvantage as a ground for racial classification. Institutions were not allowed to “aid persons perceived as members of a relatively victimized groups at the expense of other innocent individuals” unless the institution was remedying that institution’s past discrimination. Harvard could remedy Harvard’s past discrimination, but not discrimination in Alabama that explained why persons of color applying to Harvard from Alabama had lesser credentials than white applicants from that state.

Diversity came to the rescue. Powell concluded that “a diverse student body” was a compelling interest given that “the nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples.” The Davis quota was not a necessary means for achieving diversity. With specific reference to Harvard’s practices, Powell concluded the use of race was acceptable as a “plus” as long as institutions did not have quotas and had a capacious notion of diversity, but racial quotas were unconstitutional. Lest anyone be confused about who was diverse and who was not, Powell noted, “A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer.” Farm boys from Idaho were white Protestants. The Bostonians were disproportionately Jewish then and are disproportionately Asian-American now.


The Supreme Court for the next forty-five years worked within the Powell/Harvard diversity framework, even as Brennan’s historical disadvantage framework was probably driving decisions. The most important judicial ruling, Grutter v. Bollinger (2003), sustained the University of Michigan Law School’s use of race to obtain a “critical mass” of African-American, Native-American, and Hispanic-American students. Following Powell, Justice Sandra Day O’Connor called for the same strict scrutiny to be applied when states laws explicitly benefitted persons of color and when state laws explicitly burdened persons of color. Diversity remained a compelling interest. The use of race was a necessary means as long as there were no quotas and the university relied on a capacious notion of diversity. White Protestant farm boys remained privileged. Remarkably although conservatives told anyone who would listen that affirmative action stigmatized African-Americans who benefitted from racial preferences, no one claimed geographical preferences or, for that matter, legacy and donor preferences, stigmatized white Protestants.

The dissents in Grutter pointed out rather persuasively that the majority was making an historical disadvantage argument under cover of a diversity argument. Justice Clarence Thomas noted that the University of Michigan Law School would enroll more students of color by being less selective and that the institution’s interest in being ranked in the top ten could not possibly be a compelling interest. Chief Justice Rehnquist observed that the number of students who constituted a critical mass for different racial groups varied substantially, suggesting that critical masses provided compensation for past discrimination rather than demonstrated diversity within the racial group. Five justices nevertheless signed on to O’Connor’s ostensive diversity rationale, and in the United States whatever five justices sign on to is the constitutional law of the Supreme Court. Diversity survived. Societal disadvantage was pushed further into the constitutional margins.

O’Connor’s conclusion in Grutter that “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today” captures the likelihood that historical disadvantage was masquerading as diversity. We might hope that historical disadvantage can be reduced over time, even as Justice Ruth Bader Ginsburg pointed out that the harms caused by two hundred years of slavery and more than one-hundred years of second-class citizenship are unlikely to be cured in relatively short periods of time. Time does not alter the need for diversity. If universities think they should presently enroll a critical mass of approximately ten viola players to diversity the orchestra and one hundred African-American students to diversify the entire student body, the orchestra and student body are likely to have the same diversity needs for critical masses twenty-five years from now.


Chief Justice John Roberts’s majority opinion in Students for Fair Admissions v. Harvard College (2023) exploited the problematic use of diversity in past cases. Roberts cheerfully accepted Powell and O’Connor’s claim that all uses of race had to satisfy strict scrutiny. He then turned to the benefits Harvard claimed were produced by diversity. The Chief Justice’s pointed out that such goals as “training future leaders,” “preparing graduates to adapt to an increasingly pluralistic society,” better educating its students through diversity,” and “producing new knowledge stemming from diverse outlooks” were not “sufficiently coherent for the purposes of strict scrutiny.” Perhaps, but the more persuasive underlying point is that shorn of historical disadvantage, figuring out why a university has a compelling interest in the diversity benefits of, say, having students from all fifty states is challenging to say the least. Harvard fared no better on necessary means. Harvard classified students into six broad racial categories, but, as Roberts pointed out, diversity would hardly be achieved if every Hispanic-American student at Harvard had a mother who was a lawyer and four grandparents living in Madrid. Finally, the Chief Justice noted that although Grutter had indicated race-preferences had to be abandoned at some point, Harvard had not indicated any sunset principle for that university’s admissions policies. “Race-based admissions programs,” Roberts stated, “eventually ha[ve] to end.” The end in the United States was when Roberts finished reading his opinion.

The dissents made persuasive arguments about the importance of historical disadvantage, but that was reasoning outside the Harvard/Powell/O’Connor framework for thinking about race and university admissions that had structured judicial decision making for the past forty years. Roberts tossed such analysis off in a sentence or two. The precedents foreclosed anything but strict scrutiny. The precedents foreclosed discussions of historical disadvantage. Race-based admissions policies as now practiced, Roberts concluded, are inconsistent with these precedents property understood, not the precedents that Brennan and others might have established. Whether race-based admissions policies shorn of historical disadvantage ever met Powell’s standards is a fair question.

Students for Fair Admission is a potential blessing. Diversity was always a problematic justification for race-based admissions programs. Diversity’s origins are anti-Semitic. Contemporary practice seems to discriminate against Asian-Americans. Human beings do not vary on diversity. All of us are unique. No school would admit a critical mass of Nazis even though doing so would diversify the student body. Diversity’s demise might foster a better appreciation of historic disadvantage. Our institutions ought to be more racially diverse because African-Americans are underrepresented and the best explanation of that underrepresentation is historical disadvantage. That historical disadvantage is sufficiently pervasive as to justify treating any African-American applicant as presumptively impacted by past prejudice and any African-American graduate as a visible role model for African-American children who need to know that political, economic, and cultural leaders may look like them. Consider, as Justice Ketanji Jackson noted in her dissent, that no African-American can claim to be a seventh generation graduate of many schools, because many schools in the United States did not enroll African-Americans until the 1960s.

The Roberts Court decision will more likely be a curse. The United States Supreme Court has made the pathway for disadvantaged minorities more difficult. The pathway the Chief Justice left open is problematic. Roberts declared that schools could still consider how disadvantage impacted a particular student. Elites who have access to college guidance services will no more be left out of this comparative victimization sweepstakes than they were pushed to the side in contests over diversity. Almost everyone in the United States at present thinks they suffer undeserved disadvantage. Justice Samuel Alito is particularly notable for writing opinions and giving speeches explain why elites such as himself are the most disadvantaged minorities in the United States. The end result will be the maintenance of a citizenry obsessed by the traits that disadvantage them at times rather than a people committed to building a less disadvantaged future for everyone.

SUGGESTED CITATION  Graber, Mark A.: Harvard’s Diversity Chicken Comes Home to Roost, VerfBlog, 2023/7/09, https://verfassungsblog.de/harvards-diversity-chicken-comes-home-to-roost/, DOI: 10.17176/20230709-231047-0.


  1. M G So 9 Jul 2023 at 14:59 - Reply

    A comparative angle might be interesting on this issue. Would BVerfG jurisprudence allow the Bucerius Law School to consider race/religion in their application process?

  2. N.W. Mo 10 Jul 2023 at 18:14 - Reply

    This is a very good and comprehensive review of the history of affirmative action. I am wondering though if anyone looked into its effects? Presumably, if a student who benefits from AA is admitted with lower grades than the rest of the class, it might be much harder for him/her to deal with the classes or even graduate? I am also not convinced by the argument that AA could somehow fix historical disadvantage. Historical disadvantage is something that many nations, religions, groups etc can lay a claim to. To the extent that one can claim and prove that his current position is a result of that disadvantage and not personal behavior and choices, I am still not convinced that it can be fixed by anything but hard work hard and use all of your abilities to pull forward. Many European nations were involved in endless wars that lasted hundreds of years (e.g. with the Ottomans), Jews have suffered the Holocaust, Uighurs are being kept in concentration camps as we speak, yet I seriously doubt that anybody is going to think about the reparations in the form of college admissions to compensate for these horrific events. Furthermore, the US put Japanese citizens in internment camps during WW2, so isn’t it particularly vile that AA has been used to exclude precisely Asian students? Education systems serve a specific purpose: preparing young people for the job market. Best candidates go to the best schools, it is pretty straightforward. Once this meritocracy based system is dismantled for the one that seeks to repair historical disadvantage, the door is wide open for arbitrariness and discrimination. Imo, the end result of „repairing historical disadvantage“ would be the same as the one achieved by „diversity“. Maybe the way forward for the US is to reform the primary education first and improve the schools in predominantly minority neighborhoods in order to ensure that all the kids get the access to quality education instead of trying to fix historical racism by more racism, this time against the Asian students. I also find it incredibly damaging to teach young minds that they should only look up to those people who “look like them“. It is the least important thing about a person. They should look up to those who demonstrate values and behaviors worth of admiration. The much demonized “colorblindness“ is imo the only way to construct a normal society and, I have to be honest, I have not heard a single compelling argument