A new study by four legal scholars has provided some of the first empirical evidence in support of the diversity rationale for affirmative action in higher education. It’s sure to stir heated debate as lawsuits challenging race-conscious college admission policies continue to be filed and heard.
The study, Assessing Affirmative Action’s Diversity Rationale, to be published in Columbia Law Review is authored by Adam Chilton, Professor of Law and Walter Mander Research Scholar at the University of Chicago Law School; Justin Driver, Robert R. Slaughter Professor of Law at Yale Law School; Jonathan Masur, John P. Wilson Professor of Law, David and Celia Hilliard Research Scholar at the University of Chicago Law School; and Kyle Rozema, Associate Professor of Law at Washington University Law School.
Decades after the Supreme Court ruling in Regents of the University of California v. Bakke, Justice Lewis Powell’s diversity rationale for affirmative action in public education remains a hotly contested topic. In his opinion in the Bakke case, Justice Powell offered this justification for why a diverse student body is “a constitutionally permissible goal for an institution of higher education” – “[t]he atmosphere of speculation, experiment, and creation so essential to the quality of higher education is widely believed to be promoted by a diverse student body.”
Powell’s rationale continues to be the legal foundation upon which public colleges and universities can engage in affirmative action admission policies, but the grounds for believing that diversity enhances education and that students benefit intellectually from being exposed to peers from different racial and ethnic backgrounds have never been established empirically.
Advocates for race-conscious admissions accept the diversity rational as an article of faith. Opponents view it as an object of ridicule. Neither side has been able to cite much evidence in its favor.
Until now. Using an ingenious methodology and sophisticated statistical controls, the researchers examined the effects of using diversity policies to help select student law-review editors on the impact of the articles selected for publication by the student editors before and after the policies went into effect. What they found adds credibility to the Powell rationale.
The authors first identified the law reviews of the top 20 law schools in the country, which included California Law Review, Columbia Law Review, Cornell Law Review, Duke Law Journal, Georgetown Law Journal, Harvard Law Review, Michigan Law Review, Minnesota Law Review, New York University Law Review, Northwestern University Law Review, Southern California Law Review, Stanford Law Review, Texas Law Review, UCLA Law Review, University of Chicago Law Review, University of Pennsylvania Law Review, Vanderbilt Law Review, Virginia Law Review, Washington University Law Review, and Yale Law Journal. Collectively, these leading journals of legal scholarship exert substantial influence in framing and exploring the major legal issues of the day.
For those 20 flagship law reviews, the authors identified every instance where a diversity policy for the selection of the student editors was adopted, amended, or repealed (up to 2018). Through that process, they found 25 changes in policies intended to enhance the diversity of student editors at 16 law reviews, and they determined the year in which the changes were made.
The diversity policies themselves took various forms. In some instances, a specific number of spots for minority editors was established. In others, requiring the minority composition of the law review to be proportional to the minority composition of the student body was the approach. Various law reviews used different kinds of formulas to create a more diverse composition of their editors.
The researchers then collected all the full-length research articles published between 1960 and 2018 (several kinds of articles were excluded – e.g., student comments or notes, book reviews. essays, and symposium collections). This yielded a massive data set of 12,889 articles selected and edited by 1,020 different sets of law review editors over nearly six decades.
To measure the scholarly impact of the articles, they determined how often each article had been cited by others, using HeinOnline, a searchable internet database containing information on law review publications. HeinOnline provides a unique webpage for all law review articles listing every citation it’s received.
While one can quibble with citations as a measure of scholarly importance or impact, it is the standard metric used in academia for such purposes. And in this case, using citations as a proxy for quality or influence is a particularly reasonable choice, given the emphasis placed on them by law reviews themselves.
The results? Law reviews saw the median citations to their volumes increase by roughly 23% in the five years after adoption of a policy that increased the diversity of student editors. Specifically, citations increased by a median of 13.4 compared to an average citation rate of 59.5.
Through a series of subsequent analyses, the researchers were able to demonstrate that the results were not the artifact of some other type of difference, such as a shift to topics that are routinely cited more often in law reviews or a change in the proportion of articles written by faculty from the home university of the law review vs. those written by “outside” scholars.
The authors concluded, “Our study thus implicates the core rationales the Supreme Court has relied upon in upholding affirmative action… In Grutter, Justice O’Connor noted that ‘student body diversity promotes learning outcomes, and ‘classroom discussion is livelier, more spirited, and simply more enlightening and interesting when the students have the greatest possible variety of backgrounds.’ Most recently, Justice Kennedy concluded in Fisher I that ‘the attainment of a diverse student body … enhance[s] classroom dialogue ….’ Our results lend support to Justice O’Connor and Justice Kennedy’s predictions about the potential gains from promoting diversity.”
Still to be determined, of course, is whether student diversity exerts similarly positive effects on undergraduate experiences, where many of the legal skirmishes over race-conscious admissions occur. Do racial differences within student groups increase competing viewpoints that improve the collective experience? Do they lead to different kinds of conversations taking place in classrooms, dorms and apartments, and dining facilities? Do they result in more thorough debates about controversial topics?
For their part, the authors think so, and they make a direct bid to the Supreme Court to consider the implications of their study when considering “whether diversity is a compelling governmental interest, with the legality of affirmative action in higher education hanging in the balance:”
“When the Court faces this question, will it be swayed by the antipathy that has been heaped upon the diversity rationale? Will it content itself with mere unsubstantiated theorizing? Or will it look to empirical evidence? We have found evidence that policies designed to increase the diversity of groups in an academic setting can lead to an improvement in group performance. If the Supreme Court does indeed consider renouncing the diversity rationale—thereby forcing universities, law schools, and even student-run law reviews to forego the benefits of diversity—it would do well to con- template the evidence we offer here.”