52. What Kind of Diversity Does the Constitution Support? (Pt. 1)
Part 1: From the classroom to the courtroom
Across the affirmative action cases, the concept of “diversity” morphed: from intellectual curiosity to institutional legitimacy to systemic necessity.
In this three-part series, we’ll trace how that transformation unfolded:
Part 1 explores the shift from Bakke’s classroom-based rationale to Grutter’s broader societal argument.
Part 2 examines who actually benefits from diversity programs, and whether the utilitarian defense of affirmative action devalues the very students it aims to uplift.
Part 3 looks at the legal and philosophical tension between individual rights and group equity, and how that tension has shaped the Court’s treatment of the Equal Protection Clause.
Let’s begin where it all started: with Justice Powell’s lonely but enduring opinion in Bakke and how it became the foundation not just for what kind of diversity is allowed, but what kind of diversity is constitutional.
From the Classroom to the Courtroom: What Kind of Diversity Counts?
In 1978, the Court was fractured. Allan Bakke, a white applicant rejected twice from UC Davis Medical School, challenged the university’s admissions program, which reserved 16 of 100 seats for minority applicants. He claimed this was racial discrimination. The Court agreed—sort of.
No single opinion commanded a majority. But Justice Lewis Powell’s solo concurrence became the controlling one. He rejected quotas but upheld the idea that race could be one “plus factor” in admissions. His key point was this: diversity in education is a compelling government interest, not because it redresses past harm, but because it enriches classroom dialogue.
Powell envisioned universities as marketplaces of ideas. A racially diverse student body, he argued, would expose students to unfamiliar perspectives, challenge their assumptions, and ultimately produce better citizens. The value of diversity was intellectual, even interpersonal—not remedial.
This was a crucial shift. Rather than grounding race-conscious admissions in compensatory justice—repairing centuries of slavery, segregation, and exclusion—Powell rooted them in educational theory. That made the rationale more palatable to a divided Court and to a society still uneasy about race-based remedies.
But it also left something essential out.
Bakke’s Silence on Systemic Racism
Powell’s version of diversity was attractive because it sidestepped the question of responsibility. It didn’t ask institutions to reckon with the historical forces that made diversity so difficult to achieve. It didn’t acknowledge the fact that students of color often arrived at universities shaped by unequal K–12 education, residential segregation, under-resourced schools, and generational wealth gaps. It didn’t speak the language of justice; it spoke the language of exchange.
This vision still shapes public debates today. Critics of DEI (Diversity, Equity, and Inclusion) programs frequently frame them as “ideological” overreaches. They reject the idea that institutions should be tasked with correcting past injustice. Instead, they advocate a “merit-based” approach that assumes a level playing field. Powell’s opinion, though more measured, echoes this discomfort with the language of structural harm.
So when Grutter came to the Court in 2003, the question wasn’t just whether Bakke was still good law. It was whether the country and the Court was ready to expand the meaning of diversity.
Grutter’s Pivot: Diversity as Infrastructure
Justice Sandra Day O’Connor’s majority opinion in Grutter v. Bollinger reaffirmed Powell’s core holding: that diversity is a compelling interest and that race can be used as one factor in holistic admissions. But her reasoning subtly but significantly shifted the ground beneath that holding.
O’Connor didn’t just talk about the classroom. She talked about the world beyond it.
She cited briefs from the U.S. military, Fortune 500 companies, and leading law firms. These institutions argued that they needed racially diverse leadership to function effectively in a multiracial democracy. The implication was clear: elite education is a pipeline to power. If access to that pipeline is racially exclusive, then society’s leadership will remain racially skewed and its legitimacy undermined.
In this way, O’Connor elevated diversity from a pedagogical benefit to a civic necessity. Diversity wasn’t just about what students learned from each other. It was about who they became and who they represented.
This was a broader, more pragmatic defense of affirmative action. But it also made the justification more vulnerable.
A Broader Rationale, A Narrower Path
To satisfy strict scrutiny, any race-conscious policy must be “narrowly tailored.” O’Connor reiterated that this meant no quotas, no point systems (as in Gratz), and a genuine commitment to individualized review.
In other words: Grutter expanded the “why” of diversity, while constricting the “how.”
This tension between a sweeping social rationale and a restrictive doctrinal framework would eventually become unsustainable. And critics seized on it.
If the goal is truly systemic—diverse institutions, not just diverse classrooms—then why not make race more central, more decisive? And if the Constitution forbids racial classifications, then how can even “soft” preferences survive?
The Court never quite resolved this contradiction. It just balanced on it. Until it couldn’t anymore.
Why This Shift Still Matters Today
The legacy of Grutter lives on in today’s fights over “diversity” as a concept. In statehouses across the country, lawmakers are banning DEI offices, restricting how teachers can talk about systemic racism, and targeting what they call “critical race theory,” a term often used as shorthand for any race-conscious explanation of inequality.
In that political environment, Grutter looks almost radical. It both acknowledged the continuing relevance of race and suggested that America’s most powerful institutions depend on acknowledging it.
And yet, the opinion’s legal design—narrow tailoring, holistic review, sunset clause—reflected a deep unease with embracing race too explicitly. That ambivalence set the stage for Students for Fair Admissions two decades later.
But before we jump to that ruling, we need to ask a harder question:
If affirmative action is justified because it benefits institutions—businesses, governments, militaries—then what does that mean for the students of color who are admitted under these policies?
That’s where we’ll go in Part 2: Diversity for Whom? The Paradox of Pragmatism.