Archibald Cox made an untimely decision in 1977 as he sat at Harvard Law School’s remote office. 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. Cox decided to explore the possibility of diversity as a solution.

The court’s liberal justices would probably agree to uphold affirmative action on the grounds that it could right historical wrongs. However, conservative justices were skeptical of the idea. Cox argued that students could be prepared to lead a pluralistic life if they were exposed to racial diversity.

He succeeded with his strategy. One.-Bakke was a case in which the vote margin was significant. In Bakke’s decision, the court approved affirmative actions, and cited diversity as its only justification. Emily Bazelon is my co-author and has just published a piece 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.

We talk today about our journeys and the next steps.

David: Thank you for sharing your amazing story. Let me know if you think this is 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 are more concerned 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.

The Supreme Court taking the fairness argument out of the discussion was like asking universities for help with their fights. It is impossible to have a deep knowledge 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 Studies show that people who are part of diverse communities learn better and have more productivity. 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. Although he did argue that Black students continue to be subject to discrimination, he didn’t say so. Instead, he talked about historical discrimination. This argument was made bluntly by Justice Thurgood Marshall “They owe us.”

There is another defence of this policy. It states that Black students are still at disadvantages due to a lack in family wealth, which has been caused by racism and ongoing biases. This evidence shows that a Black student scoring 50 points less on the SAT than a similar-skilled white student actually is more qualified. It’s like running with the wind in your face. It’s about fairness. Cox might have made this better.

Emily: Yes. Yes. “whether Negroes have ‘arrived’” — in other words, whether they no longer deserved the springboard of affirmative action. Marshall offered examples showing that Black people are not deserving of affirmative action. “most certainly” This sense was not possible. The Court had just three Black lawyers. He also cited economic inequalities between racial groups as you see them now.

Cox should be credited for acknowledging that arguments based on structural racism have become more popular than ever since the 1970s. Conservative justices stated that fairness arguments could not be used if evidence supports the claim. defendant A case could have been discriminating rather than addressing a larger systemic issue.

David: That’s a good point. I do think today’s defenders of affirmative action have made a tactical mistake. The Bakke decision shaped their whole 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 finds against race-One obvious answer to based programs is class-Affirmative action based on the law. Is that possible to make a difference?

Emily: It might also have an impact on politics. You can find polls show considerably more public support for boosting students’ chances of admission because of their economic circumstances than because of their race or ethnicity.

Klasse-High-select universities could be more effective in social mobility by using measures that are neighborhood or family poverty level based. In the Ivy League for instance, only children of parents who are among the top one percent in income distribution have access to the Ivy League. 77 times as likely to attend As those whose parents fall in the lowest 20 percent of income bracket.

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