Different Minds Are Great: David Oppenheimer on the Diversity Principle

00:00 Andrew Keen: Hello, my name is Andrew Keen. Welcome to Keen on America, the daily interview show about the United States.

00:18 Andrew Keen: Hello everybody. We’re having a legal week. Yesterday we had the Martin Luther King Jr. Professor of Law, Brian Suseck, on the show. It was an interesting conversation. Brian has a new book out; it’s called The Opinionated University: Academic Freedom, Diversity, and the Myth of Neutrality in Higher Education.

00:39 Andrew Keen: He argues in the book that when it comes to DEI in particular—diversity—American universities should be more diverse and perhaps more biased. My guest today is another law professor, this time at UC Berkeley Law, just up the road from Suseck in Davis, California.

00:58 Andrew Keen: And David Oppenheimer has indeed a new book out: The Diversity Principle: The Story of a Transformative Idea. David Oppenheimer is a supporter of the diversity principle, and he’s joining us from the People's Republic of Berkeley. David, congratulations on the new book; it’s out this week.

01:17 Andrew Keen: I’m not sure if you’re familiar with Brian Suseck’s new book, The Opinionated University, but I’m guessing what you’re arguing in The Diversity Principle is, like Brian, that universities should be opinionated when it comes to diversity. Is that fair?

01:32 David Oppenheimer: Well, I’m looking forward to reading Brian’s book. And yes, I certainly agree that universities should be very diverse places. And that goes back to the early 19th century and the creation of the first modern research university, which was the University of Berlin, founded by Wilhelm von Humboldt in 1810, founded on a principle of diversity—which is why they admitted Catholics and Jews to what otherwise would have been an entirely Protestant university.

02:08 Andrew Keen: I’ve got to ask you, David, about the "D" word: diversity. It’s obviously a word that you’re all too familiar with; you’ve written a book about it. But there always seems to me to be something very subjective about diversity. Who defines it? What does it mean?

02:26 David Oppenheimer: Well, I’ve defined it for the purposes of this work as meaning that when we bring together people with different backgrounds and experiences, who have formed different viewpoints as a result of their backgrounds and experiences and how they’ve lived their lives...

02:46 David Oppenheimer: ...so that if you have people of different ages, different religions, different races and genders and ethnicities, people who are conservative, people who are liberal—that they make better decisions. They do better work. In a science lab, they make more significant discoveries. In government, they come up with better public policy. That in commerce, they make more money. And in that sense, diversity is simply difference.

03:19 Andrew Keen: "Diversity is difference" is in a sense a philosophy. Maybe it comes out of John Stuart Mill’s book On Liberty. Mill, of course, being in many ways the father of liberalism and maybe even the ideology of diversity. I know you make Mill and his book On Liberty central also in your argument.

03:40 Andrew Keen: Tell me about Mill and his place in the arguments in favor of diversity. Is he the philosopher, David, of diversity? I mean, you mentioned Humboldt in early 19th-century Prussia, but I’m not sure if Humboldt is quite as much of a philosopher as John Stuart Mill.

04:02 David Oppenheimer: Yeah, I think that’s fair. I think that Humboldt clearly influenced Mill, and On Liberty begins with an epigraph of Humboldt talking about diversity. But it’s clearly the work of John Stuart Mill and his co-author—his lover for 25 years and then finally his wife—Harriet Taylor Mill, who together wrote On Liberty.

04:26 David Oppenheimer: And it was very much a product of their diversity and their belief in diversity: their belief that when women are included among decision-makers; when universities are open to Unitarians, as they were, and to Catholics and Jews—all of whom were excluded from Oxford and Cambridge; when we respect the opinions of people from different nations and different walks of life...

04:54 David Oppenheimer: ...again, that we make better decisions, that we form opinions that are based on comparing them with other views and hearing from other people—people who are outsiders, people who are insiders.

05:08 David Oppenheimer: You know, there’s an aphorism that I learned as a kid: "Great minds think alike." Well, it turns out that it’s completely wrong. It’s not that great minds think alike; it’s that different minds are great. That great minds think differently, and it’s in the difference that they create their greatness.

05:28 David Oppenheimer: And that was something that Mill saw—or the Mills saw—with great clarity. There’s a wonderful speech that John Stuart Mill made as the Rector of St. Andrews College, now St. Andrews University in Scotland, where he talked about the importance of diversity to higher education. But all through their book On Liberty... I think if they were naming the book today, they would call it On Liberty and Diversity.

05:55 Andrew Keen: Although, of course, it was authored by John Stuart Mill. You talk about his wife, Harriet Taylor Mill—she didn’t get on the cover, although maybe she contributed to it. I wonder whether there’s a contradiction, David, or in a sense an interesting paradox at the heart of the diversity principle.

06:13 Andrew Keen: Mill, of course, was writing On Liberty against the tyranny of the majority. Is the diversity principle, for better or worse, premised on a degree of elitism—which Mill was, for better or worse? And his idea, his belief in diversity, was a kind of elitism or at least a fear of majoritarianism?

06:33 David Oppenheimer: Well, I think that when Mill talked about the tyranny of the majority, what he was talking about is the importance of hearing the voices of the minority, the importance of hearing lots of different voices.

06:47 David Oppenheimer: And one of the things that Mill wrote about was representative democracy using, instead of majority rule, plurality and participatory rule, so that we’d have proportional representation in the parliament and in how we confronted other people’s ideas.

07:08 David Oppenheimer: That notion of proportionality that allowed minority voices to be heard and to have a role in decision-making, I think, was at the heart of his political philosophy about majorities and minorities.

07:23 Andrew Keen: What’s the value—the philosophical value, David—of diversity? Mill began, of course, his life as the godson of Jeremy Bentham. His father was perhaps the father of utilitarianism. He moved away from that—in fact, had a nervous breakdown after his experience with his father and Bentham—and moved away in some ways from being a utilitarian, although he still had elements of utilitarianism in his thinking.

07:49 Andrew Keen: Is your argument in The Diversity Principle utilitarian? Are you suggesting that this idea creates more wealth, more happiness, more benefits, and it can be indeed measured? Or is there more of a—shall we say—an anti-utilitarian idealism in the book?

08:08 David Oppenheimer: Well, I don’t know that Mill would have argued that it creates greater wealth. But the science of diversity in the 20th and 21st century certainly does argue that. We see so many studies, for instance, of the "business case for diversity" showing that when boards of directors have greater diversity, when the C-suite has greater diversity, when companies involve diverse voices in decision-making, they’re more successful. They’re more profitable.

08:38 David Oppenheimer: There are lots of experiments in classrooms showing that a diverse classroom is one in which students generate better ideas and more ideas. And the same in a science lab—diverse science labs make more significant discoveries.

08:53 David Oppenheimer: So, I don’t know if I would attribute it to Mill, but I would very much agree that today, with what we know about the science of diversity, we can say that diversity is a wealth-creating machine, wholly aside from the idealism or the morality of including many voices.

09:14 Andrew Keen: Sounds to me, David, as if diversity is as American as apple pie. You talked about its origins being in early 19th-century German universities, and I know that you spend some time in the book talking about Charles William Eliot, an American academic, President of Harvard University in the last part of the 19th century.

09:35 Andrew Keen: When did the principle of diversity come to the United States? Did it come from Germany? Did it come from liberal philosophers like Mill? Or was it somehow already here?

09:47 David Oppenheimer: Oh, I think that it came very much from Germany, and it came from Eliot and a few other influential educators. It showed up at the University of Michigan and Johns Hopkins, and in some ways at Harvard.

10:04 David Oppenheimer: Although the pure Humboldt version was very much oriented toward building great graduate schools, Eliot believed in diversity as a way of encouraging the clash of ideas among college students, among undergraduates. And he rebuilt Harvard on that model.

10:25 David Oppenheimer: But by the end of the 19th and early 20th century, there were many colleges and universities in the United States that were encouraging the idea of diversity—that were opening to Catholics, to Jews, to immigrants, to poor kids.

10:43 David Oppenheimer: And then there were others where they were very much about being homogeneous. Princeton was famous for being a place that was very exclusive in the sense of not welcoming Jews, certainly not welcoming Black students, not welcoming Catholics.

11:04 David Oppenheimer: And there’s wonderful correspondence between Eliot and a Harvard graduate from the South, in which the graduate of Harvard says, "I want to send my son to Harvard, but I understand that he would be in a dorm with Black students and he’d be in an eating hall with Black students, and I couldn’t permit that." And Eliot wrote back and said, "Well, send them to Yale or Princeton or Johns Hopkins; he’ll be happy there."

11:32 Andrew Keen: Well, that must make the people at Harvard feel very good about themselves. I know you were at Harvard Business School...

11:38 David Oppenheimer: Law school.

11:40 Andrew Keen: Yeah, where were you as an undergraduate? I hope you had some access to diversity. Where’d you go to undergrad?

11:48 David Oppenheimer: I went to three different undergraduate colleges before starting my own with a group of people—an experimental college located in Berkeley, but not connected to the University of California, called the University Without Walls. And I got a very unusual, if experiential, undergraduate education. And then law school at Harvard.

12:12 David Oppenheimer: I spent my last year of law school at Berkeley, because Harvard and Berkeley had what I think of as a "foreign exchange program." And the difference between being a student at Harvard in the 1970s and being a student at Berkeley in the 1970s was like being on two different continents.

12:30 Andrew Keen: Yeah, and of course living in Cambridge and Berkeley in that period was also very different. David, it goes without saying, it’s hard to argue with this stuff when you present it in the way you’re doing it—and people not wanting their kids to associate with Blacks or Jews or women or whatever.

12:47 Andrew Keen: But is there an argument? I mean, what’s the most credible argument against the diversity principle? Who do you respect who are ambivalent, even in the 19th or even in the 20th century, about this idea of diversity? I mean, it goes without saying that we’re not going to give any credibility to racists or others. But is there an argument against diversity that’s credible?

13:11 David Oppenheimer: There are two counter-arguments that I think we need to take seriously. In the end, I reject them, but I don’t reject them as being unthinking or not worthy of addressing.

13:25 David Oppenheimer: One is the view, I think, of Justice Thomas—that racial diversity has the idea behind it that Black people are somehow all alike, hold sufficiently similar views that we can simply put a Black person or a few Black people in the room to get a "Black point of view," and that that’s demeaning and that it’s unfair, it’s unrealistic, it’s its own form of liberal racism.

14:00 David Oppenheimer: I think that’s the Thomas view; it’s for many conservative Americans their viewpoint. I think they’re wrong. I think that one—you don’t need to stereotype people to say that growing up Black in America gives you a different set of experiences.

14:24 David Oppenheimer: And that if those experiences are not represented in a discussion—particularly a discussion about social issues, particularly a discussion about race or all of the things that flow from race—that we have lost something important.

14:38 David Oppenheimer: And this is a point that Mill was making in the mid-19th century. And if Justice Thomas were here in the room, I would say to him that his brilliant concurring opinion in Black v. Virginia—a case about whether the burning of a cross by the Ku Klux Klan should be regarded as political speech...

15:02 David Oppenheimer: ...and the other members of the court, all of whom were white, saying, "Oh yeah, this is a form of political speech." And Justice Thomas writing this eloquent opinion about how, from his experience as a Black man, he understands that the burning of a cross is not political speech, that the burning of a cross is an act of terrorism.

15:26 David Oppenheimer: That was very much a product of his lived experience as a Black person in America.

15:33 Andrew Keen: I take your point, David, but let’s use an example: the famous Princeton graduate Michelle Obama. She was the daughter of working-class parents, I think from Chicago. So she probably would count in terms of bringing a different way of thinking to Princeton and then Harvard Law School, where she went.

15:52 Andrew Keen: But she married Barack Obama, of course, and became the First Lady. They have a couple of kids. Some people would argue—I’m guessing probably Thomas would argue—why should the kids of Barack and Michelle Obama get some sort of privileged access to universities if they applied to Berkeley or Stanford or Harvard Law School? Why should they get privileged? What do they bring that anyone else—white, brown, or black-skinned—doesn't bring?

16:20 David Oppenheimer: Well, first of all, let me assure you that every college in the country, seeing an application from one of the Obama children, would have given them all kinds of pluses and benefits and wanted them to come and attend their college or university.

16:39 David Oppenheimer: So, the desirability of admitting them as students has nothing to do with race. And the very few wealthy or celebrated Black Americans whose children are applying to universities are getting a benefit from their parents being wealthy or being celebrities that has absolutely nothing to do with race.

17:05 David Oppenheimer: But as soon as the Obama children are not recognized as the celebrities that they are because of their parentage, they are treated very differently.

17:16 David Oppenheimer: You know, I have a good friend from law school who was the head of the Bar Association in San Francisco and then the head of the State Bar, a senior partner at one of the top law firms in the country, dresses beautifully, dresses like a million bucks—which is probably what he earns about every month in the work that he does as a very senior, highly-regarded lawyer.

17:42 David Oppenheimer: But he will tell you that when he walks into a department store in San Francisco, he gets followed around because the security people can’t see past the fact that he’s a Black man and they’re worried that he’s going to be a shoplifter. That he gets stopped all the time by the police who want to know, "Why is he driving such an expensive car?"

18:05 David Oppenheimer: The experience of being Black in America is to be excluded, is to be an outsider in a whole variety of ways. But finally, this book is not primarily—and the idea of diversity is not primarily—about affirmative action.

18:21 David Oppenheimer: And affirmative action, after 2023, is no longer permitted in college admissions in this country. But what we’re talking about is the benefits of diversity in a whole variety of settings: in classrooms, in business, in science, in government.

18:43 David Oppenheimer: And that’s not a conversation about affirmative action; that’s a conversation about recognizing the value of trying to reach out to those who are excluded and include them.

18:57 Andrew Keen: Yeah, and I want to come to America in a second because I think the diversity principle, of course, is something that certainly the Republicans these days seem to reject and the Democrats are ambivalent about—it’s not politically very popular.

19:10 Andrew Keen: But you mentioned that there were two credible arguments against the diversity principle. The first was Clarence Thomas’s. What’s the second?

19:19 David Oppenheimer: I can’t remember what I was thinking about.

19:22 Andrew Keen: There isn’t a second! Clarence nails it and...

19:24 David Oppenheimer: No, there’s a second and I will come back to it when I can think about what it is. But at the moment, I got focused on the stereotype and Thomas argument.

19:39 Andrew Keen: Well, David, maybe you can think about that and it can come up later. Let’s talk about the broader political principle. You know, your book is obviously written as a kind of polemic, even if it’s written by a law professor.

19:53 Andrew Keen: The Diversity Principle: The Story of a Transformative Idea suggesting that diversity is a good thing is certainly not the most popular idea within the Republican Party and within Trump’s MAGA movement. Is there a broader political context here? Are you arguing in favor of a diverse America and against the idea of "America First," or at least a "White America First" ideology?

20:18 David Oppenheimer: Well, I think that much of the greatness of our country comes from our diversity and comes from our continuing flow of immigrants from all over the world who have built this country.

20:34 David Oppenheimer: So, I think there’s room for everyone. I think that we benefit from having the views from the MAGA Republicans and from the right, from the conservative academics and from people of all points of view. They all belong in the discussion; they all belong in the room.

21:00 David Oppenheimer: But yes, I do think that this country—which has created more wealth than any other country in the history of the world, and that has been, you know, a beacon of democracy and freedom, that has built a system of higher education and a system of science that’s the envy of the world...

21:23 David Oppenheimer: One of the things I do professionally is that I help direct a center on comparative equality law that looks at how different legal systems address issues of inequality, and I do a lot of traveling outside the U.S. as a result.

21:40 David Oppenheimer: And everywhere I go, students are coming up to me and saying, "I want to study in the United States. I really want to study in Berkeley." And that’s because of the remarkable system of universities that we’ve built, and in particular the remarkable science system that we’ve built.

22:00 David Oppenheimer: So to the extent that those systems are stronger because of diversity, we should be building them; we should be supporting diversity.

22:10 Andrew Keen: I wonder whether a rereading of On Liberty in the 2026 would be instructive in the sense that Mill was warning us against majoritarianism. And of course, the whites in America are a small majority, but they’re still a majority.

22:26 Andrew Keen: And they’re really trying to impose perhaps an anti-diversity ideology on the rest of the country. So is Mill’s On Liberty not just something that comes up in your history of diversity, but is an instructive document today to make sense of what’s happening in America, to warn us against majoritarianism?

22:47 David Oppenheimer: Yeah, I think that every college student, maybe every high school student, everyone involved in a political life, everyone who feels that it’s important to have a role in our democracy, should read On Liberty.

23:04 David Oppenheimer: I think it’s still very instructive in terms of how to think about the role of diverse opinions and to understand where they come from and to hear the voices of others, and to be concerned when people all agree about something—that we have to listen all the more carefully to those who disagree.

23:28 Andrew Keen: Your book is peppered with legal examples. You’re a professor of law, of course; it’s not surprising. You bring up Thurgood Marshall, the great African American jurist; Ruth Bader Ginsburg, member of the Supreme Court; Pauli Murray, a very influential thinker more on the gender equality side.

23:49 Andrew Keen: Tell me a little bit about all these characters and why they’re important in terms of the diversity principle.

23:55 David Oppenheimer: Well, Pauli Murray is the one who really stands out for me because she’s not very well-known and yet she had an enormously influential role in 20th-century civil rights law.

24:09 David Oppenheimer: Born in 1910 into the segregated South, which she resisted in every way, early recognition of the intersection between race and gender and how that affected her, and she came up with the term "Jane Crow" to describe the system of discrimination against Black women.

24:32 David Oppenheimer: An important influence in terms of the road to nonviolent civil disobedience that was taken by Dr. King; an important influence on Thurgood Marshall when he was the General Counsel of the NAACP Legal Defense Fund, and in the cases leading up to Brown v. Board of Education, where she persuaded him to move the argument in the direction of the diversity principle and the importance of diversity for Black children.

25:05 David Oppenheimer: An important role played in saving the sex discrimination portion of the 1964 Civil Rights Act, where she intervened with Lady Bird Johnson, the First Lady, to get her to ensure that the sex discrimination prohibition was kept in the law.

25:24 David Oppenheimer: As a lawyer at the ACLU, urged the hiring of Ruth Bader Ginsburg against the judgment of most of the men at the ACLU, who saw her as being sort of meek and shy. And then the co-author with Ginsburg of important legal briefs about why sex discrimination is a violation of the U.S. Constitution.

25:49 David Oppenheimer: At the height of her legal career, she left the law to become an Episcopal priest, and a few years ago was recognized by the Episcopal Church as a saint. A remarkable, remarkable life.

26:06 Andrew Keen: Yeah, we’ve done a show, at least one show, on her. She is a remarkable woman. You mentioned Ruth Bader Ginsburg. Some progressives still, even though she’s no longer around, are not very happy with her for not retiring in time; resulted in many of the problems with the current Trump administration, certainly when it comes to the Supreme Court.

26:27 Andrew Keen: When it comes to diversity, David, is the biggest issue these days old and young people? We have an upcoming show with the Yale historian Samuel Moyn; he has a very interesting new book out, upcoming, called Gerontocracy in America: How the Old are Hoarding Power and Wealth and What to Do About It.

26:48 Andrew Keen: It seemed as if Ruth Bader Ginsburg in a sense hoarded power until it was too late. How does the role of age play? We’ve talked about gender; we’ve talked about race—those go without saying. But is age as important as gender or sexuality or race?

27:06 David Oppenheimer: Well, I think so. Of course, maybe that’s because I’m old. I think the argument that my generation is hoarding wealth and power is an interesting argument, and...

27:21 Andrew Keen: Well, I don’t think it’s hard to argue against that, David, is it? I mean, it seems fairly self-evident.

27:26 David Oppenheimer: Right, but I’d be very interested in seeing what Moyn has to say about what we should do about it. Certainly, it’s part of the diversity principle that having age diversity helps us to make better decisions.

27:46 David Oppenheimer: And certainly, you know, my students have all kinds of insights that I don’t have because they have grown up in really a very different time than I did. On the other hand, there’s something to be said for wisdom. I like to tell my students that we learn from our mistakes, and that’s why I know so much.

28:10 David Oppenheimer: But the question of age is absolutely one of the questions about diversity in terms of looking at, measuring, and appreciating how people of different ages will see problems in a different light and that if they are all included in a decision-making process, you’re likely to get a better decision.

28:34 Andrew Keen: We’ve talked about the 19th-century and 20th-century diversity principle, a lot of it rooted in arguments about race, gender, sexuality. But in the 21st century, it seems to me, David, that these arguments are being extended to other species and then indeed to machines.

28:51 Andrew Keen: When does diversity end? We’re living in an age of AI where smart machines are now increasingly competing with human beings for wisdom—seem in many ways smarter. Lots of people talk about animal rights. Where does diversity end when it comes to humans, machines, other species?

29:10 David Oppenheimer: What an interesting question, to which I do not have an answer. I think of diversity in the light that we’re discussing it in terms of making better decisions, in terms of improving discourse as a human function.

29:34 David Oppenheimer: And obviously diversity is part of biodiversity as well. And yes, as I think about it, I suppose that we may get new and different opinions generated by artificial intelligence, although I also think that those are ultimately human opinions that are being generated. But I don’t think I have very much to add.

30:04 Andrew Keen: It’s interesting you bring up the environmental angle. I think there’s a recent case in which a river has been treated as a person. So maybe we can extend it: machines, other species, and the environment.

30:16 Andrew Keen: So, it’s a lot to think about. David, I appreciate your honesty in not having an answer to some of my more obnoxious questions. It’s a fascinating conversation. The Diversity Principle: The Story of a Transformative Idea—for better or worse, I think it’s certainly a very influential idea and a very controversial one. The book is out this week. David Oppenheimer, thank you so much for your wisdom and your willingness to address questions which you may not be ready for. Thank you.

30:46 David Oppenheimer: Thanks for having me.

30:51 Andrew Keen: Hi, this is Andrew again. Thank you so much for listening or watching the show. If you enjoyed it, please subscribe. We’re on Substack, YouTube, Apple, Spotify—all the places. And I’d be very curious as to your comments as well on what you think of the show, how it can be improved, and the kinds of guests that you would enjoy hearing or listening to in future. Thank you again.