Let’s not throw the DEI baby out with the bathwater

Conservative attacks on diversity, equity and inclusion accelerated sharply following the Supreme Court’s 2023 decision ending the use of race in admissions in higher education. Writing for the majority, Chief Justice John Roberts declared that the educational benefits of diversity are not “sufficiently coherent” to pass constitutional muster.   

In the last two years, critics have blamed DEI for just about everything, from the collapse of the Francis Scott Key Memorial Bridge to the scale of the Los Angeles wildfires. President Trump even suggested that DEI hires at the Federal Aviation Administration may have caused last year’s fatal midair collision between an American Airlines jet and a military helicopter. 

From the moment he returned to office, Trump has waged an all-out assault on “illegal and immoral discrimination programs, going by the name ‘diversity, equity, and inclusion.’” His administration has closed DEI offices and programs across the federal government, pressured private companies to follow suit, and weaponized federal funding and civil rights investigations to compel colleges and universities to abandon “racial preferences” in admissions, financial aid and hiring. At least 22 states have piled on with their own anti-DEI legislation. 

In “The Diversity Principle: The Story of a Transformative Idea,” David B. Oppenheimer, a clinical professor of law at the University of California, Berkeley, challenges Roberts’s view by tracing claims over the last two centuries that diverse groups outperform homogeneous ones in “solving problems, making discoveries, teaching and learning from each other and improving democratic discourse.”

The Supreme Court began to focus on the educational benefits of diversity in 1978, he reminds us, when Allen Bakke, a White man, alleged he had been denied admission to the University of California at Davis medical school in favor of less qualified minority applicants.  

In Regents of the University of California v. Bakke, four justices wanted to strike down the university’s quota system as a violation of the 1964 Civil Rights Act. The four liberal justices voted to uphold the system as a means to remedy the effects of societal discrimination.

Relying heavily on a brief authored by former Solicitor General Archibald Cox in an earlier case, Justice Lewis Powell held that universities have a First Amendment interest in assembling diverse student bodies to foster the “robust exchange of ideas” central to their mission.  

Although Powell’s reasoning stood alone, later decisions adopted it, making the “diversity principle” the constitutional foundation for affirmative action. Over time, it became the basis for DEI programs in business, government and the military as well as higher education. 

Powell’s critics think the educational-benefits rationale is a more “fragile basis” than the need to remedy past discrimination for a policy as important and controversial as affirmative action.

In our view, both Justice Powell and his critics were right.

As Oppenheimer demonstrates, numerous studies indicate that diversity enhances group performance. He also points to research showing that “surface-level diversity that is easily identifiable (such as racial and gender diversity) is beneficial,” in part because members of homogeneous groups may be less willing to voice dissenting views.

In what came to be known as the “business case” for diversity, studies by McKinsey & Company and others found a strong positive relationship between diversity at the executive level and higher corporate earnings. As recently as 2022, 80 percent of Fortune 500 companies cited the expectation of improved performance as their principal justification for diversity-related hiring.

Oppenheimer acknowledges, however, that “not every study supports the proposition that diversity produces value.” A 2024 study, for example, argues that better financial performance leads to greater diversity, not the other way around. 

In higher education, diversity of all kinds — including race, gender, sexual orientation, socioeconomic, geographic and viewpoint — can benefit students’ learning. But we also agree with the four liberal justices in Bakke that the need to remedy societal discrimination offers a stronger constitutional basis for affirmative action and DEI programs.

Critics of DEI bristle whenever anyone asserts that racism in the U.S. is systemic. But as Oppenheimer demonstrates, the evidence that past and present discrimination produces “interrelated and compounding disadvantages” is overwhelming. Disparities in housing, education, health care and wealth have built up over decades.

The home ownership rate for Black Americans, for example, is 43.6 percent; for whites, it is 70.3 percent. The gap is the result of decades of discrimination. Between the 1940s and passage of the 1968 Fair Housing Act, Blacks found it extremely difficult to secure mortgage assistance from the federal government, especially in white neighborhoods. Getting loans from private lenders was even harder and for a much longer period. 

Since homeownership is the primary means for most American families to build intergenerational wealth, Black families have fewer resources to start businesses or purchase homes in neighborhoods with good schools.

DEI initiatives seek to level the playing field — to make up for the many disadvantages that underrepresented minorities continue to face. In our judgment, the rationale for affirmative action offered by Lyndon Johnson in 1965 remains persuasive: “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others,’ and still justly believe that you have been completely fair.”

Nonetheless, as Oppenheimer acknowledges, “there can be serious problems with DEI programs.” Diversity training can be “ineffective, or even counterproductive.” Requiring applicants for faculty positions to submit diversity statements can be “performative, or even McCarthy-like loyalty oaths.” And, in our view, heavy-handed approaches to DEI can contribute to a stifling progressive orthodoxy.  

But we concur with Oppenheimer that tearing down DEI is not the answer. The better approach, as Bill Clinton once said of affirmative action, is to “mend it, not end it.”   

Glenn C. Altschuler is the Thomas and Dorothy Litwin Emeritus Professor of American Studies at Cornell University. David Wippman is emeritus president of Hamilton College.

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