Assessing Affirmative Action's Diversity Rationale

55 Pages Posted: 1 Jun 2021 Last revised: 25 Jan 2022

See all articles by Adam Chilton

Adam Chilton

University of Chicago - Law School

Justin Driver

Yale University - Law School

Jonathan S. Masur

University of Chicago - Law School

Kyle Rozema

Washington University in St. Louis - School of Law

Date Written: May 29, 2021

Abstract

Ever since Justice Lewis Powell’s concurring opinion in Bakke made diversity in higher education a constitutionally acceptable rationale for affirmative action programs in 1978, the diversity rationale has received vehement criticism from across the ideological spectrum. Critics on the right have argued that efforts to attain diversity will necessarily lead to lower quality results, as “less meritorious” applicants are selected in place of people with ostensibly stronger qualifications. Critics on the left have charged that diversity is a “subterfuge” and an empty formulation. On the diversity rationale’s legitimacy, then, it would seem that there is precious little diversity of thought. In particular, prominent scholars and jurists have frequently cast doubt on the diversity rationale’s empirical foundations, claiming that it is a mere hypothesis, and an implausible, unsupported one at that. This critique has made its way into the pages of the United States Reports, and it threatens the foundations upon which affirmative action rests.

To assess the diversity rationale, we conduct an empirical study of student-run law reviews. Over the past several decades, many leading law reviews have implemented diversity policies for selecting editors. We investigate whether the citations to articles that a given law review publishes change after the adoption of a diversity policy. Using a dataset of the citations to the nearly 13,000 articles published by leading law reviews in over a 60-year period, we find that law reviews that adopt diversity policies see the median citations to their volumes increase by roughly 23 percent in the five years after adoption. In addition to exploring the effect of diversity policies on median citations, we also explore the effect of diversity policies on mean citations. When doing so, our estimates are consistently positive, but they are largely not statistically significant at conventional levels.

These findings have implications well beyond the law review setting. If diverse groups of student editors perform better than non-diverse groups, it lends credibility to the idea that diverse student bodies, diverse faculties, diverse teams of attorneys, and diverse teams of employees generally would all perform better. We thus view these results as empirically supporting the much-derided diversity rationale—support that could prove critical as the continued viability of affirmative action today confronts numerous threats.

Keywords: diversity, affirmative action, Bakke, Powell, Fisher, Grutter, Gratz, Supreme Court, equal protection, law reviews, editors

Suggested Citation

Chilton, Adam and Driver, Justin and Masur, Jonathan S. and Rozema, Kyle, Assessing Affirmative Action's Diversity Rationale (May 29, 2021). Forthcoming, Columbia Law Review, Vol. 122, No. 2, 2022, Yale Law School, Public Law Research Paper Forthcoming, U of Chicago, Public Law Working Paper No. 782, Available at SSRN: https://ssrn.com/abstract=3856280 or http://dx.doi.org/10.2139/ssrn.3856280

Adam Chilton

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

HOME PAGE: http://www.adamchilton.org

Justin Driver

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Jonathan S. Masur (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773.702.5188 (Phone)

HOME PAGE: http://www.law.uchicago.edu/faculty/masur/

Kyle Rozema

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
1,093
Abstract Views
4,421
rank
28,295
PlumX Metrics