“Perhaps no case in modern memory has received so much media coverage and scholarly commentary,” said a Supreme Court justice before announcing the high court’s decision in the most consequential affirmative action case in a generation. The year was 1978. Justice Lewis Powell delivered the Court’s opinion in Regents of the University of California v. Bakke.

Indeed, forty five years before the Supreme Court ruled in Students for Fair Admissions v. Harvard—the 2023 landmark case in which the Court would rule that the consideration of race in college admissions processes was unconstitutional—the country was gripped by a different affirmative action case. And it was the nuanced verdict in Bakke telling colleges and universities precisely how they were permitted to take race into account in their admissions policies that would not only shape the course of race-related policy decisions for decades, but also dictate the terms upon which the value of diversity was weighed in the public realm. Over time, the complicated legal parameters established by Bakke set the stage for educational institutions—and American society more broadly—to talk about and appreciate diversity in a narrow, limited way: the value of diversity in a particular setting is only to be measured by how it improves that setting for the individuals there. But that way of thinking ignores the central and arguably most important reason why diversity in all settings matters: a multiracial, pluralistic democracy cannot exist without it.

While the ruling in Students for Fair Admissions is distressing because it makes race-conscious admissions policies a thing of the past, it also means that Bakke is now history, along with its constricted logic.

So while the ruling in Students for Fair Admissions is distressing because it makes race-conscious admissions policies a thing of the past, it also means that Bakke is now history, along with its constricted logic. No longer do colleges and universities—nor anyone else, for that matter—need to contort their thinking on diversity to fit into the narrow box defined by Bakke.

Freed from the strictures of decades of affirmative action policy limitations, and at a moment in history when it feels as though the most basic of democratic principles and norms are teetering, it would be wise to revisit why American democracy cannot exist without a dedication to ensuring there is racial diversity at all rungs and domains in American society, but especially in one of its most vital democracy-sustaining institutions: schools.

How the Bakke Decision Set the Terms of Debate for Nearly Half a Century

Allan Bakke is a white man who, in 1973 and again in 1974, applied to and was rejected from medical school at the University of California at Davis, which at the time accepted one hundred applicants into its incoming class. Sixteen of the one hundred slots at the medical school were reserved for students from “disadvantaged” backgrounds—students admitted via this alternate route did not compete directly against other applicants. Bakke sued the medical school on the basis of racial discrimination because his test scores and GPA exceeded those of the sixteen minority students who were admitted to the University under its alternate admissions program.

The case captivated the public in 1977 and the New York Times called it “probably the most significant civil rights case in 24 years” (since Brown v. Board). On the table were two primary questions: first, whether the University discriminated against Bakke on the basis of race; second, whether race could play any role in admissions decisions. The atmosphere at oral arguments bespoke the high national intrigue. Per the New York Times:

Normally, Supreme Court arguments attract very little public attention, but this morning would‐be spectators were lined up in the plaza in front of the marble courthouse hours before the case was heard, hoping for one of the handful of unreserved seats. Inside, an unusually large number of blacks and young people were included in the capacity audience, together with a record number of some 90 newspaper and broadcast reporters. Across the street from the courthouse in Capitol Park, a small group demonstrated for a ruling against Mr. Bakke.

Before the decision was announced but after many months of public debate, the “moderate consensus” that emerged and that then-President Jimmy Carter’s administration gave voice to in its amicus brief was that affirmative action should exist to remediate historical discrimination, promote greater minority representation in the professional class, and support the benefits that accrue to all students from greater diversity, but that strict racial quotas (such as Cal Davis’s) were overly rigid and discriminatory and should be disallowed. And the initial reaction to the decision in 1977 made it appear as though that consensus had been reached. The Wall Street Journal called it, “The Decision Everybody Won,” as Allan Bakke was granted admission, but non-quota-based affirmative action was nevertheless upheld.

Without a single majority opinion, Justice Lewis Powell’s opinion became the controlling opinion in which he created a paradigm that would shape this area of the law for nearly a half century to come.

Upon closer scrutiny, however, the justices were highly divided, and the implications of the ruling for affirmative action were more complicated than they first appeared. Without a single majority opinion, Justice Lewis Powell’s opinion became the controlling opinion in which he created a paradigm that would shape this area of the law for nearly a half century to come. Powell summarized the finding in the announcement of the decision, “In my view, the only state interest that fairly may be viewed as compelling on this record is the interest of a university in a diverse student body.”

In the actual decision, Powell meticulously laid out the logic pattern that ultimately led him to conclude that the only permissible reason that a college or university could craft an admissions policy that considered race was to further the academic interest an institution has in diversity. First, he discounted and made impermissible, several key potential rationales for pursuing diversity. Powell argued that:

  • Remedying historical racial discrimination was not a permissible reason to pursue race-conscious admissions because it is too broad a goal and “imposes disadvantages upon persons … who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered”;
  • Increasing the low percentage of minorities represented in the medical profession was not a permissible reason to pursue race-conscious admissions at a medical school because “preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake”; and
  • Improving health outcomes for underserved communities was not a permissible reason to pursue race-conscious admissions at a medical school because it is not clear that “preferential classification is likely to have any significant effect on this problem.”

Thus, Powell circumscribed all future race-conscious admissions practices as only permissible when they furthered the First Amendment right that institutions have to create “an atmosphere which is most conducive to speculation, experiment and creation,” which gave them the power to construct diverse classes that are most likely to achieve those ends. In short, Powell’s decision meant that schools could only take race into account in their admissions decisions as one factor among many that would help them achieve the racial diversity that improves the quality of learning for individuals on campus. Any other rationale for promoting racial diversity, and thus any admissions scheme tailored to an alternate rationale, was thenceforth impermissible.

Powell’s reasoning also, perhaps unwittingly, furthered the perception of education in the United States of America as a private good, rather than a public good, to be pursued doggedly by individuals in the education marketplace to gain an upper hand in the quest for a successful and prosperous future. This view is in stark contrast to the idea of education as a primarily public good, which prepares citizens to contribute both civically and economically to a vibrant, democratic society. As scholar David Labaree puts it, this view of the purpose of education as a primarily public good is buttressed by the notion that “we all depend on this political competence of our fellow citizens, since we put ourselves at the mercy of their collective judgment about the running of our society.” Labaree has also pointed out that while the public purpose of public education was taken for granted for many years, the “private good” view of education has picked up steam in the modern era, such that it “has reshaped education into a commodity for the purposes of status attainment and has elevated the pursuit of credentials over the acquisition of knowledge.”

For forty-five years, colleges, universities, and the public limited their discussion of the benefits of racial diversity to the academic benefits for students in classrooms and on campuses—not because they found it to be the most compelling benefit of diversity, but because it was the only reason the Supreme Court said was legal.

In order to keep the tool of affirmative action plausible for these institutions, scholars went to work focusing their research on the academic benefits of diversity for individuals and their learning environments, while advocates focused their talking points and messaging on diversity’s academic virtues. They thereby also elevated diversity as a key factor in differentiating the quality of various academic institutions, contributing to the dog-eat-dog world of elite academic admissions, which has become perceived as the portal to individual success and achievement in America. These efforts have driven the narrative for decades.

The commitment to diversity in higher education, even if it was overly focused on the educational benefits it would bring, has not all been for naught. It has shed light on the ways that an individual’s education is enhanced by exposure to multiple backgrounds, perspectives, and viewpoints, as well as the understanding that diversity as a purely numbers game does not suffice—genuine inclusion requires a commitment by all people to not merely tolerate difference, but seek to learn from it.

In restricting the focus of the purpose of diversity in education, we have, at our own peril, forgotten all the other reasons we must have diversity and a commitment to embracing it in our institutions and especially our schools.

Nonetheless, in restricting the focus of the purpose of diversity in education, we have, at our own peril, forgotten all the other reasons we must have diversity and a commitment to embracing it in our institutions and especially our schools. Perhaps most critically we have forgotten this: our democracy cannot work without it.

What Has Been Missing: All of the Other Reasons That Diversity Matters

A healthy and functioning democracy requires that all citizens have the full and unequivocal right to participate in said democracy equally. In the case of the United States, the world’s longest-running democracy, this has been an evolving project, a centuries-long experiment in increasing democratic participation. The country has, over time, expanded legal rights—such as the right to vote—to various populations, via constitutional amendments, legislation, and judicial interpretations of the Constitution and its amendments.

The Reconstruction amendments, and the Fourteenth Amendment, in particular, with the express purpose of extending equal rights to former slaves and free Blacks, stands as a pillar of our democracy’s articulation of the individual rights of citizens.

Section 1 of the Fourteenth Amendment reads, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In 1868, when the Fourteenth Amendment was ratified, it was clear that Black people in the United States did not enjoy equal participation as citizens in almost any realm of civic life—economic, political, or social. Separate studies from the National Bureau of Economic Research shed light on some of the vast disparities in that era. For instance, in 1870, the white–Black per capita wealth ratio was an astonishing 23:1 and the literacy rate gap between Blacks and white Americans born between 1800 and 1860 (and still alive in 1870) was approximately seventy percentage points. The Forty-First Congress (1869–71) featured a total of three Black legislators out of 317 (less than 1 percent).

In 1977, when Bakke was decided, it was still clear that Black people in the United States did not enjoy equal participation as citizens.

A little more than a century later, in 1977, when Bakke was decided, it was still clear that Black people in the United States did not enjoy equal participation as citizens. While significant progress had been made, particularly in enshrining rights in law, in practice, African Americans were underrepresented politically at the state and federal levels; African Americans had significantly lower median incomes and were more likely to be unemployed than white Americans; and African Americans had lower educational attainment and poorer health outcomes than white Americans. In 1978, the scaled score Black–white achievement gap on mathematics on the National Assessment of Educational Progress (NAEP) was 31 points for 9-year olds (approximately 0.92 standard deviations) and 41 points for 13-year-olds (approximately 1.16 standard deviations). In 1977, the white–Black per capita wealth ratio was approximately 6:1. The Ninety-Fifth Congress (1977–78) featured a total of fifteen Black legislators out of 535 (less than 3 percent).

Albeit at different levels, all of these disparities remain today.

The only way to address such gaping disparities is to take affirmative steps that address historical racism and discrimination. Without acknowledging that the deliberate policy choices of the past led to the conditions of the present, and taking concrete steps to remediate this racism and discrimination, the governments and institutions that perpetuated these harms fail to create the conditions for equal participation in citizenship. Therefore, when governments and institutions recognize that access to opportunity is greatly disproportionate, they have an obligation to promote diversity such that all groups can benefit equally. And yet, in 1977, Justice Powell declared that the pursuit of diversity to remediate historical discrimination was impermissible, he took a gigantic lever off the table for African-Americans seeking equal access.

When Alan Bakke was seeking admission to medical school in 1973, just under 3 percent of all U,S, physicians were Black (today that number is 5.4 percent). Not only is the medical profession one of the most highly compensated (nine of the top ten highest paid jobs in the United States by median pay require a medical degree, according to Forbes), but even among physicians, the median income for Black male doctors is $50,000 less than for white male doctors. Moreover, it is well documented that the health of Black Americans suffers due to the lack of representation in the medical field. A recent study in the Journal of the American Medical Association found that a greater representation of Black primary care providers in the workforce “is associated with improved survival-related outcomes for Black individuals.” Thus, not only would increasing the number of Black doctors in training improve access to the highest paying jobs, it would also improve health outcomes for Black Americans, who suffer some of the worst outcomes of all Americans. And yet, in Bakke the Supreme Court decreed increasing professional representation—even in a field such as medicine, where the outcomes are so clearly connected to key economic and social indicators for historically discriminated-against citizens—is not a permissible reason to pursue diversity.

Finally, the focus on what diversity can do for individuals on elite campuses, as opposed to what diversity can do for society at-large, by promoting greater access to the full rights of citizenship and forming a stronger democracy, has furthered the notion that pursuing education in America is an individual competition as opposed to a collective project. Unlike in many other countries, in the United States, acceptance to medical school is seen as a lottery ticket for an individual, rather than a strategic investment in a segment of the population to ensure a widespread societal benefit: public health.

By taking these reasons off the table, Bakke removed them from our thinking and erased them from the public discourse.

And so while grappling with how institutions and governments should go about pursuing diversity is a legitimate concern for the Court, Bakke’s logic of why institutions should do so—to bestow a certain benefit to individuals on a certain campus—dispenses with all the other legitimate reasons to pursue diversity. By taking these reasons off the table, Bakke removed them from our thinking and erased them from the public discourse. To be sure, the benefit that an individual college student gets from being on a diverse campus is a noble and worthy pursuit, but what also matters—and perhaps what matters more—are the public benefits of remediation of historical discrimination, ensuring more equal representation in the workforce, reducing race-based gaps in wealth and income or in health outcomes, achieving more equal participation in the political process and governance, and myriad other public benefits that accrue from pursuing diversity in all educational settings.

Absent these benefits that accrue from diversity in education in all its settings, America cannot continue with its evolving project, nor can it claim that all its citizens have the full and unequivocal right to participate equally in its democratic institutions and processes. And so, to get America back on the course of progress, educational institutions in particular must reconstruct and reimagine the purpose and goals of their pursuit of diversity.

An Expansive, Post-SFFA View of the Pursuit of Racial Diversity

In last year’s higher education affirmative action case, the Supreme Court banned colleges and universities from taking race into account in the individual admissions decisions of applicants. In so doing, the Court ended the decades-long enterprise of higher education institutions that walked the tightrope of using race as one factor among many in individual admissions decisions for the only permissible purpose of furthering those institutions’ stated goal of improving their academic environment through diversity.

There is no doubt that the Court’s decision has taken away a powerful tool available for ensuring diversity at colleges and universities.

There is no doubt that the Court’s decision has taken away a powerful tool available for ensuring diversity at colleges and universities; but at the same time, these institutions are now freed from the narrow justifications proscribed by Bakke and can once again embrace the full range of reasons for pursuing diversity. Colleges and universities should seize the opportunity to express their desire to promote diversity on their campuses not just because it benefits their institution and the learning experience, but also because it is their duty to remediate historical injustice and further racial progress in the United States. How they do that, factoring in race for individual admissions cases notwithstanding, is up to them. But naming these ambitions is the first step in taking concrete action to pursue them.

Several higher education and elite K–12 institutions have already laid the groundwork for potential paths forward. In 1997, the Texas state legislature passed SB 588, which required schools in the University of Texas (UT) system to automatically admit the top 10 percent of students at all public high schools in Texas. Many lawmakers of color, such as Gonzalo Barrientos, advocated for the bill on the basis of needing a remedy for the plummeting numbers of students of color in the UT system following a ban on affirmative action in the state. And while “top percent” plans have been found to be less useful in promoting racial diversity than race-conscious admissions policies, they nonetheless generally have a positive effect on rates of admissions and attainment for students of color.

Some elite K–12 schools have been more successful. In Boston, Massachusetts and Fairfax, Virginia, boards governing elite schools in those systems have openly and affirmatively stated a desire to achieve greater racial diversity in their schools and implemented innovative approaches to achieving that diversity. In Boston, students compete against other students in their same socioeconomic tier for a set number of spots, and in Fairfax, students compete against other students in the same middle schools for admissions. Neither process uses individual racial characteristics as a factor in admissions.

Institutions can and should also consider the ways in which they were historically complicit in slavery and racism, and train their efforts on how they can remediate some of those harms. Brown University has been a leader in this regard, first releasing its “Slavery and Justice Report” in 2006, documenting the University’s ties to the institution of slavery. Georgetown University launched a “reconciliation fund” in 2019 to benefit the descendents of slavery by awarding $400,000 to community-based projects on an annual basis, in recognition of the University’s deep ties to slavery. Even institutions with no known connections to slavery most likely have a history of exclusion of racial minorities in their history and should consider how they can act in ways that further racial justice.

Higher education must consider its role in preparing students such that the next generation has a more representative workforce in all parts of the economy.

Moreover, higher education must consider its role in preparing students such that the next generation has a more representative workforce in all parts of the economy. Just under 5 percent of lawyers in the United States are Black. Approximately 7 percent of teachers in the United States are Black. Less than 5 percent of scientists and engineers are Black. Relatively few universities make bold and strategic commitments to changing these numbers. Efforts such as “bridge programs” specifically targeted to students of color, strategic mentoring initiatives, or recruitment strategies have been shown to make a difference, such as those run out of the University of Maryland’s Center for Minorities in Science and Engineering, and complement other solutions to diversifying talent pipelines following the end of affirmative action.

Ultimately, the tide may be turning in another way as well: elite institutions may be losing some of their cache, as tuition costs at these colleges and universities become stratospheric, and technology makes a high-quality education more accessible outside of these historically venerated institutions. This could, in turn, deemphasize the individualism and “private good” mindset about higher education and lead to a focus on how to make post-secondary education work for the public good.

The Critical Role of K–12 Schools in Pursuing Diversity and Expanding Democracy

In perhaps the most widely lauded Supreme Court case in American history, Justice Earl Warren wrote in his unanimous opinion in Brown v. Board of Education,

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

In his opinion, Warren unequivocally puts his thumb on the scale for education as a public good, not a private commodity. His value proposition for school integration was, in part, that school integration would improve our public education system and ultimately strengthen our democracy. As the late Supreme Court Justice Thurgood Marshall said in Milliken v. Bradley, “Unless our children begin to learn together, there is little hope that our people will ever learn to live together.”

It’s not just that public schools are the best place to recreate a national unity out of our diverse constituent parts, it’s that we cannot heal our democracy without attending to the diversity of our basic institutions, and chiefly our public schools. Over the past decade, and especially since January 6, 2021, countless commentators have offered up solutions to our democracy problems; rarely do they consider how we might fix the ailments that drive our polarization in the first place.

Marshall’s aspiration embodied the ideals of the “common school,” the precursor to public schools, where all students, regardless of family status, learned together, at the public’s expense. And yet the country has rarely lived up to this ideal.

The Supreme Court itself bears much blame for why our public schools have not been integrated bastions of diversity since the barriers of legalized discrimination were toppled during the Civil Rights Era. At the same time that the Court limited affirmative action programs in higher education to projects that aimed to bolster the educational benefits of diversity, the Court, at the K–12 level, maintained America’s highly unequal school funding scheme in Rodriguez v. San Antonio, and permitted suburbs to opt out of regional integration efforts in Milliken v. Bradley.

So, at a time when the country has become more diverse than ever—since 2014, white students have no longer been the majority of students in public school—the country’s public schools are increasingly segregated by race and by class.

Although the Supreme Court has failed to recognize the importance of diversity to our democracy in its cases about education, that does not mean that America and Americans have no recourse. School districts, schools, and ordinary citizens can, and must, choose to be active participants in the collective democratic cause by prioritizing public schools, emphasizing the public good in education, and holding themselves accountable for promoting diverse settings.

In so doing, we are promoting participation in a common project by the children who will end up being the adults that set America on its future path. It’s doing what has never been done before—establishing a common frame for understanding the multifarious American experience as a democracy with equal opportunity for all. It is hard work. And it’s why diversity matters.