On Oct. 31, the Supreme Court will again take up the question of whether universities may consider race in making admissions decisions. This will be the seventh time they’ve grappled with the question, with cases against the University of Washington (1974), the University of California (1978), the University of Michigan (twice in 2003), the University of Texas (2013 and 2016), and now Harvard University and the University of North Carolina.
Harvard and UNC will be arguing that they should be afforded the academic freedom to continue to consider race as a factor in attempting to enroll a diverse student body.
One of the provocative claims that sits in the background is that the argument in favor of diversity has its roots in the despicable Jewish quota adopted by Harvard (and others) in the 1920s to limit the number of Jewish students.
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The Jewish quota was the brainchild of Harvard president Abbott Lowell, a notorious racist. He began his presidency at Harvard by removing the Black students from the dorms and dining halls, and was a principal spokesperson against Asian, Jewish, and Catholic immigration.
But the claim that he originated Harvard’s diversity policies to justify the quota is simply wrong, and the time has long passed to lay it to rest.
We are the coauthors of an amicus brief filed on behalf of law school deans that refutes this false claim. One of us coauthored (with Archibald Cox and others) the 1974 amicus brief in the DeFunis v. Odegaard case that led to Justice Lewis Powell endorsing the Harvard Plan for diversity admissions four years later in the Regents v. Bakke case. The other has been studying diversity and equality law for most of a long career.
We have traced the origins of diversity admissions to the reforms of the German universities in the 19th century by Wilhelm von Humboldt, the work of John Stuart Mill, and the embrace of Mill’s and Humboldt’s arguments on diversity by Harvard president Charles Eliot in the second half of the 19th century and early years of the 20th. It was the belief in the importance of diversity, and its ties to academic freedom, that led the University of Berlin, University of Oxford, University of Cambridge, and Harvard to begin admitting large numbers of previously excluded Jews and Catholics and eventually, at Harvard, Black Americans and, belatedly, women.
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In the first decade of the 20th century, Eliot was bragging to The New York Times about Harvard’s racial, ethnic, and religious diversity as well as its economic class diversity.
This all came to a screeching halt under the president who followed Eliot, Abbott Lowell. It was over Eliot’s objections that Lowell pushed through Harvard’s Jewish quota in the 1920s. Lowell wanted to rid Harvard of Black Americans and the children of Jewish and Catholic immigrants. He opposed education for women and had resisted Eliot’s creation of Radcliff College. He would have been aghast at the idea of Asian Americans attending Harvard.
It was to taunt Eliot and his liberal beliefs about diversity that Lowell cynically claimed the policy was intended to increase diversity by avoiding concentrations of Northeastern city dwellers (i.e., Jews).
Diversity was not the cause of the Jewish quota; at most it was the cynical excuse for it. Lowell used a term well-known at Harvard in its current meaning to end 40 years of pro-diversity policies that Eliot instituted and Lowell hated.
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Lowell was laughing at Eliot when he explained the Jewish quota as a diversity policy, and from his grave he is laughing again at those who naively believed him. He’d be delighted to know that his policies are now being cited in an effort to keep Black and Latino students out of Harvard.
Don’t be fooled by those using the Jewish quota of the mid-20th century or charges of discrimination against Asian Americans (also despicable when true, but which the lower courts convincingly found was not the case here) as an excuse to limit the inclusion of Black and Latino students at selective universities. We should be celebrating, not ending, the policies of diversity and inclusion that opened universities to Catholics, Jews, Blacks, Asians, Hispanics, women, and other outsiders.
David B. Oppenheimer is a law professor at the University of California, Berkeley. James N. Bierman is a former assistant dean of admissions at Harvard Law School and a lawyer in the District of Columbia.
