Public Law & Legal Theory
Ever since Justice Lewis Powell’s opinion in Regents of the University of California v. Bakke made diversity in higher education a constitutionally acceptable rationale for affirmative action programs, the diversity rationale has received vehement criticism from across the ideological spectrum. Critics on the right argue that diversity efforts lead to “less meritorious” applicants being selected. Critics on the left charge that diversity is mere “subterfuge.” On the diversity rationale’s legitimacy, then, there is precious little diversity of thought. In particular, prominent scholars and jurists have cast doubt on the diversity rationale’s empirical foundations, claiming that it rests on an implausible and unsupported hypothesis.
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 citations to articles that a law review publishes change after it adopts a diversity policy. Using a dataset of nearly 13,000 articles published over a sixty-year period, we find that law reviews that adopt diversity policies see median citations to their volumes increase by roughly 23% in the ensuing five years. 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 widespread implications. If diverse groups of student editors perform better than nondiverse groups, it lends credibility to the idea that diverse student bodies, faculties, and groups of employees generally perform better. We thus view these results as empirically supporting the much-derided diversity rationale—support that could prove critical as affirmative action confronts numerous threats.
Adam Chilton, Justin Driver, Jonathan S. Masur and Kyle Rozema, "Assessing Affirmative Action's Diversity Rationale", Public Law and Legal Theory Working Paper Series, No. 782 (2021).