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

26 Pages Posted: 2 Aug 2021 Last revised: 10 Jul 2022

See all articles by David B. Oppenheimer

David B. Oppenheimer

University of California, Berkeley - School of Law; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: July 28, 2021


This essay reveals that the “diversity justification” for affirmative
action has its roots in part in the South African anti-apartheid
movement of the 1950s, and that when Justice Powell wrote the
controlling opinion in the Bakke case, placing diversity at the center
of our discourse on race in America, he was relying on arguments
developed in the anti-apartheid movement that the right to admit a
racially diverse student body was a key element of academic freedom.
When examined in this light, Justice Powell’s opinion was more
concerned with academic freedom than racial justice.

Though Powell’s opinion – which provides the only basis for
race-conscious affirmative action in higher education currently
permitted under US law – has been the subject of exhaustive study and
criticism, it was only recently revealed that the diversity argument
Justice Powell articulated was largely cut and pasted from a brief
crafted by the great American lawyer and Harvard Law Professor
Archibald Cox. Cox drew on a hundred years of Harvard history,
beginning with curricular reforms and an ever-expanding search for
diversity begun by Harvard’s transformational President Charles
Eliot, who in turn borrowed liberally from the work of John Stuart Mill
and Harriet Taylor Mill, and from ideas generated in the nineteenth
century reforms of the German university under the leadership of
Wilhelm von Humboldt. Critical among these reforms was the decision
to admit Catholics, Jews and other nonconformists to Oxford,
Cambridge and the University of Berlin. Eliot’s quest for diversity,
including racial, religious and ethnic diversity, carried through
Harvard’s bitter fights over exclusion and inclusion through the
twentieth century, with contributions from Oliver Wendell Holmes,
Learned Hand, Felix Frankfurter, Erwin Griswold, Thurgood
Marshall and Derrick Bok (among others) in what amounted to a
multi-generational discussion about the relationship of diversity and
academic freedom.

The South African anti-apartheid movement played a role in
Cox’s argument because his mentors Frankfurter and Griswold
befriended their counterparts at the South African Supreme Court and
the University of Cape Town just as the South Africans confronted and
resisted the beginning of apartheid. 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, they developed the argument that a university
had the freedom to select its students without interference and should
select them with an eye on promoting racial diversity in a multi-racial
society. Frankfurter and Griswold admired the argument and imported
it to the United States, where it fit hand-in-glove into Cox and Bok’s
goals for Harvard. When Cox (at Bok’s request) drew on Harvard’s
history in writing the brief that persuaded Justice Powell to embrace
the diversity rationale, they gave us our anti-apartheid inspired
diversity justification.

Although Justice Powell regarded his Bakke opinion as the most
important he wrote in his years on the Court, it has been regarded by
many as an unfortunate pragmatic compromise that came out of
nowhere and has no intellectual heft. Today, as the Court considers
whether diversity – or any other justification – is sufficient to allow
affirmative action, it is important to recognize the rich legal,
intellectual and political history that underlies the Bakke opinion.

Keywords: Affirmative Action, Apartheid, Civil Rights, South Africa, Racism Remedies

Suggested Citation

Oppenheimer, David B., The South African Sources of the Diversity Justification for U.S. Affirmative Action. (July 28, 2021). 34 California Law Review Online 13:32 (July 2022), Available at SSRN: or

David B. Oppenheimer (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States
5106433225 (Phone)

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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