The South African Sources of the Diversity Justification for U.S. Affirmative Action.

For over forty years the only justification for race-conscious affirmative action in university admissions accepted by the United States Supreme Court is the purpose of enrolling a diverse student body. Even then, diversity is a legitimate justification only if it is part of a larger goal of multiple forms of diversity, and only in the absence of alternatives that are less race-conscious. This was the position taken by Justice Powell in the Bakke case, where he concluded that in the clash between the First Amendment’s protection of university’s academic freedom and the Fourteenth Amendment’s protection of applicants against racial discrimination, academic freedom prevailed. I have previously described how Justice Powell adopted this view from a highly original argument advanced by the great American lawyer Archibald Cox, not in the Bakke case but in a case accepted by the Court four years before Bakke, which was subsequently dismissed as moot. In this essay I will argue that Cox’s diversity argument – and thus Powell’s diversity opinion – was first asserted in 1957 in South Africa in an attempt to prevent the apartheid government from imposing segregation on the two South African universities that then admitted Black students and allowed integrated classrooms.