Archibald Cox and the Diversity Justification for Affirmative Action

Discussions of the value of racial, ethnic and gender diversity are so commonplace today that anyone born after 1990 could be excused for thinking that these forms of identity diversity have long been associated with social policy, including affirmative action in employment and university admissions. But prior to 1978 there was virtually no discussion of the value of diversity; the justifications for affirmative action and other civil rights remedies focused on promoting equality and combating discrimination. This article reveals the origins of the diversity justification for affirmative action – the only defense that survives judicial scrutiny today. The conventional wisdom is that Justice Lewis Powell developed the diversity justification by relying on an amicus curiae brief filed in the Bakke case in 1978. Yet it was actually four years earlier that Justice Powell first encountered the diversity justification, in an amicus brief in the DeFunis case, which was subsequently dismissed as moot, and has thus been largely ignored. The author of that brief was the great American lawyer and legal scholar Archibald Cox, who was only available because he had been unexpectedly fired by President Nixon from his role as the Watergate Special Prosecutor in the “Saturday Night Massacre.” When he returned to Cambridge he agreed to write a brief defending affirmative action, by describing how and why race was utilized at Harvard to increase student diversity. That this is an argument that seems commonplace, even obvious, today is a testament to the persuasiveness of the Cox brief. In 1974 it was unique, and it caught Justice Powell’s eye as a better way to justify affirmative action than the other traditional arguments. In developing his description and justification for affirmative action at Harvard, Cox relied on a history of embracing diversity that began in the 1860s under the leadership of Harvard’s great transformative President, Charles W. Eliot. I here describe how Eliot’s commitment to diversity, including point-of-view and experiential diversity, but also, racial, ethnic and religious diversity, helped make Harvard the model of a great university. Eliot’s passion for diversity resonated at Harvard in the post-World War II period, as the university abandoned its despicable Jewish quota, which Eliot had opposed, and began reaching out and recruiting students from underrepresented groups. Cox relied on the architects of those post-war policies in drafting his description of the Harvard plan in the DeFunis brief. When the Cox diversity argument appeared again four years later in the Bakke case, under different authorship, Powell recognized it from four years earlier, and again embraced it. His opinion in Bakke quotes extensively from Cox’s description of Harvard’s diversity-based affirmative action program, holding it up as a model to emulate. Justice Powell’s description, taken from the Cox brief, has become the blueprint that nearly all selective colleges now follow, and was recently reaffirmed by the Court in the Fisher case. But what happened to Cox’s brief that paved the way, first describing the diversity justification for affirmative action as we know it today? It mysteriously disappeared.