RACE AND HIGHER EDUCATION Why Justice Powell’s Diversity Rationale for Racial Preferences in Higher Education Must Be Rejected by

Most selective universities in the United States, and the entire higher education establishment at One Dupont Circle in Washington, D.C., have asserted that universities must have, and do have, the right to use racial preferences in their admissions policies. The assertion of this right is based on the diversity rationale that U.S. Supreme Court Justice Lewis F. Powell articulated in his opinion in the Bakke case of 1978. The present report covers the legal and constitutional issues surrounding the diversity rationale in American higher education; the position taken by the higher education accreditation agencies on the question; survey research of faculty and student opinion on affirmative action in higher education; and empirical research testing the hypothesis that campus racial diversity is correlated with beneficial educational outcomes. We argue herein that Justice Powell’s diversity rationale must be rejected in each and every one of these areas of investigation. In Part I, we show that a majority of the U.S. Supreme Court failed to reach agreement about the constitutional justification for racial preferences in university admissions in its Bakke opinion. Bakke, therefore, cannot be cited as a court precedent supporting the diversity rationale. This is, if anything, even more true today than it was in 1978 when Bakke was decided, because since 1978 the U.S. Supreme Court has rejected the justifications for racial preferences in university admissions that were accepted and advocated by four of the Justices who joined in Part V-C of Justice Powell’s opinion in