Affirmative Action in Higher Education

Abstract

Affirmative action in higher education admissions was established to help achieve diversity in the student body and provide greater access to higher education for members of historically underrepresented minority groups. Landmark court cases debating affirmative action in higher education admissions have included the Regents of the University of California v. Bakke (1978), Hopwood v. Texas (1996), and the 2003 University of Michigan cases. However, the future of affirmative action in college and university admissions continues to be debated. Some race-neutral alternatives to affirmative action based on racial preferences that have been considered include class rank percentage plans and admissions plans based on economic preferences.

Overview

Background/History. Patitu and Terrell (1998) explained that the goal of affirmative action in higher education has been to "increase the number of people from underrepresented groups in higher education and to diversify colleges and universities" (p. 41). As a concept, affirmative action first emerged in 1961 in President John F. Kennedy's Executive Order 10925 as a means to end discrimination in government employment and contracting (Shuford, 1998). Executive Order 10925 called for government contractors to voluntarily enact affirmative action in the recruitment, hiring, and promotion of minorities (Kolling, 1998). The voluntary nature of the proposal proved ineffective and it was later enforced under the Civil Rights Act of 1964 (Kolling, 1998).

In implementing the Civil Rights Act of 1964, which prohibited discrimination on the basis of race, color, sex, or national origin, the federal government fought to have higher education institutions put affirmative action plans into place (Brubacher & Rudy, 1997). These plans were to apply to all aspects of public and private higher education operations, including student admissions, staff hiring, financial aid, and dormitory assignments (Brubacher & Rudy, 1997). Institutions who did not abide by the law faced withdrawal of federal funds granted to them (Brubacher & Rudy, 1997). Especially in recent years, affirmative action policies in college admissions have tended to be at the forefront of debate. Affirmative action policies in admissions sought "to bring to campuses people from various groups previously overlooked as sources for the student population" (Brubacher & Rudy, 1997, p. 400). More often than not these people included members of minority groups (Brubacher & Rudy, 1997).

The question of how to appropriately and legally institute affirmative action programs in college and university admissions became particularly pointed in 1978. In that year, the U.S. Supreme Court handed down its decision in the case of the Regents of the University of California v. Bakke (1978). In the case, the special admissions program that reserved sixteen out of one hundred slots for members of historically underserved minority groups at the University of California at Davis's Medical School was called into question (Kolling, 1998). The Supreme Court ruled that the program equated to a quota system, was unlawful, and should be struck down (Kolling, 1998). At the same time, the Court also ruled that some race-conscious admissions programs could be permissible "if the procedure entailed the same process of individualized comparison for all applicants without systematically excluding any group from consideration" (Kolling, 1998, p. 20). Overall, while higher education institutions could consider race or ethnicity in admissions, colleges and universities could not implement what were in effect quota systems (Brubacher & Rudy, 1997). Essentially, higher education institutions were not to discriminate against minorities but they also could not have policies that were akin to "reverse discrimination" (Brubacher & Rudy, 1997).

Two cases involving the University of Michigan in 2003 have also received a great deal of attention for the implications they have on the consideration of race in admissions. In the Supreme Court's decisions, the admissions policy of the University of Michigan Law School (Grutter v. Bollinger) was deemed acceptable while the undergraduate admission policy of the University of Michigan (Gratz v. Bollinger) was not. The Law School's policy was essentially deemed acceptable because it encapsulated a "holistic approach to admissions" (Eckes, 2004, p. 54) in which race was just one of many different characteristics considered to achieve a diverse student body.

In Fisher v. University of Texas (2013), the high court remanded a challenge to affirmative action back to a lower court for further consideration. The U.S. District Court upheld the university’s race-conscious admissions policy, but the Supreme Court ruled that the lower court had not applied the standard of "strict scrutiny" of such policies established in the Grutter and Bakke cases. The Supreme Court subsequently revisited the Fisher case in 2015. In 2016 the court ruled 4–3 in favor of the university, holding for the second time that race can be taken into account in public college and university admissions (Van der Veer Holt, 2016).

Role of Affirmative Action in Admissions. For all applicants, it is important for America's higher education institutions to be accessible and not be bastions of privilege. In discussing admission preferences for underrepresented minorities, Bowen, Kurzweil, Tobin, and Pichler (2005) also stressed that "a diverse student body provides educational benefits to all students" (p. 167). Students benefit from a diverse campus because they are "being prepared to be members of a global community, having their intercultural communication skills enhanced, becoming aware of and more sensitive to cultural differences, being exposed to views unlike their own, and being allowed to confront and discuss multicultural issues" (Patitu & Terrell, 1998, p. 46).

Additionally, Shuford (1998) noted that research findings support the contention that students benefit in many ways when there is institutional commitment to diversity. For instance, students' cognitive development and satisfaction with their college experience have found to be enhanced when diversity is a priority (Astin, 1993, as cited in Shuford, 1998).

The recent Supreme Court cases have found diversity to be "a compelling state interest in education" (Eckes, 2004, p. 48). Likewise, Massey (2004) outlined three compelling reasons to support affirmative action. First, Massey (2004) noted that community choice arguments would indicate that the lessening of discrimination can only occur when "'fairness' is guaranteed by building it into laws, procedures, guidelines, and organizational practices" (p. 792). Additionally, basic principles of what is fair and reasonable in a just society as well as the "price" most people are willing to pay for future benefits indicate strong support for affirmative action policies (Massey, 2004).

While many support the concept of affirmative action in higher education admissions, there are others who do not, and there have been varied arguments against it. For instance, some argue that affirmative action serves to discriminate against members of ethnic and racial groups it does not protect (Shuford, 1998). Others say it causes the lowering of standards and the admission of individuals who are less qualified than others (Shuford, 1998). There have also been arguments made that it victimizes the groups it intends to serve (Shuford, 1998).

Further Insights

Phases of Affirmative Action in Admissions. Nichols, Ferguson, and Fisher (2005) discussed Dickason's phases of affirmative action in college admission. The three phases include:

• Obligatory affirmative action,
• Voluntary affirmative action, and
• Tempered affirmative action (Dickason, 2001, as cited in Nichols, Ferguson, & Fisher, 2005).

Obligatory affirmative action describes the period (1960s to late 1970s) during which affirmative action was mandated by the federal government for any higher education institutions receiving federal funds (Dickason, 2001, as cited in Nichols, Ferguson, & Fisher, 2005). Voluntary affirmative action (1980 to 1995) was ushered in after the Bakke decision when institutions' admissions plans based on racial preferences began to be challenged (Dickason, 2001, as cited in Nichols, Ferguson, & Fisher, 2005). Finally, Nichols, Ferguson, and Fisher (2005) explained tempered affirmative action (current phase) as the time in which "contradictions existing in legal rulings and precedents and agencies outside of the college and university may dictate what measures are mandated to select students" (p. 25).

Implications of Recent Supreme Court Rulings. Regarding the current phase of tempered affirmative action, Gardner (2007) noted that "in the aftermath of U.S. Supreme Court decisions, lower court cases, and threatened lawsuits by anti-affirmative action groups, universities are opening minority programs to non-minorities" (¶ 2). Much of the drive to open up minority programs came after the 2003 Michigan decisions in which the Court ruled that race could be considered in creating a diverse environment but must not be the only factor considered and could not be reviewed in a "rigid or mechanical" way (Gardner, 2007, ¶ 4). According to the Supreme Court's ruling in Grutter, race-neutral alternatives must also be considered first before deciding to use race or ethnicity as a factor in admissions decisions (Przypyszny & Tromble, 2007). However, while schools should consider race neutral options to meet their goals, they do not need to try every such plan (Eckes, 2004).

After the Michigan decisions, colleges and universities grew concerned that financial aid programs and other programs they had in place based on race would fall under attack as an extension of the Court's rulings (Gardner, 2007). Adding to the concern, organizations such as the Center for Equal Opportunity (CEO), the Center for Individual Rights (CIR), and the American Civil Rights Institute (ACRI) rose to challenge such programs (Gardner, 2007). The organizations were mainly targeting small, very focused race-exclusive programs that used race or ethnicity as the sole criterion for acceptance or rejection (Schmidt, 2003). The Massachusetts Institute of Technology (MIT) was among the first institutions to open up their race-exclusive programs, which for MIT included two summer programs (Schmidt, 2003). Carnegie Mellon, Cornell, Indiana, Iowa State, and Saint Louis Universities, and the University of Missouri at Columbia were among other higher education institutions to have their race-exclusive programs challenged.

Ballot Initiatives. Following the Michigan decisions, there have also been increased efforts to establish ballot initiatives to ban the consideration of race and gender in college and university admissions in various states (Fliegler, 2007). Bans on the consideration of race or ethnicity in college and university admissions had already passed in California in 1996 (Proposition 209) and in Washington in 1998 (Initiative 200) (Gardner, 2007). The California statewide ban on affirmative action seemed to be fueled by a ban on the consideration of race, religion, gender, ethnicity, or national origin at University of California campuses the previous year (Moreno, 2003). In the fall of 2006 in Michigan, which ironically was the setting for the 2003 University of Michigan Supreme Court decisions that upheld the consideration of race in admissions, a ban on the consideration of race and gender in college and university admissions was also passed (Fliegler, 2007). Statewide bans on affirmative action were also passed in Nebraska (2008), Arizona (2010), New Hampshire (2012), and Oklahoma (2012).

Two recent Supreme Court cases dealing with the consideration of race or ethnicity in public elementary and secondary school admissions were also closely watched for any implications for higher education institutions. The decisions of the Court in the cases seemed to echo the legal sentiments of the 2003 Michigan cases that higher education institutions could consider race or ethnicity in admissions as long as their approaches were narrowly tailored (i.e., race or ethnicity could be considered as part of the individualized review of applicants but must not be a deciding factor in admissions) (Przypyszny & Tromble, 2007). Przypyszny and Tromble (2007) noted, "It appears that fostering a diverse student body remains a compelling interest for the careful use of racial classifications in higher education admissions" (p. 2). However, as the outcome of the Michigan cases highlighted, in addition to race or ethnicity, higher education institutions should consider other factors, such as socioeconomic status and family background, to ensure a diverse student body (Przypyszny & Tromble, 2007).

Viewpoints

Alternatives to Affirmative Action in Admissions. Despite the recent rulings on affirmative action in higher education admissions, there continues to be debate about the best way to ensure diversity on college and university campuses (Sterrett, 2005). Specifically, the future of affirmative action policies and programs continues to be questioned in higher education and scholars and researchers have pondered the issue of how diversity on college and university campuses might be maintained in the absence of affirmative action. In considering alternatives, one way by which some have weighed the success of alternatives is whether they achieve the same levels of diversity as under affirmative action (Long, 2003). In cataloging current race-neutral alternatives employed by higher education institutions across the country, the U.S Department of Education (2003) asserted that the early results of such programs to achieve diversity in the student body are actually promising.

Kahlenberg (2003) offered that the debate over affirmative action is focused on three approaches:

• Racial preferences,
• Class rank/percentage plans, and
• Economic preferences.

The latter two approaches fall under the realm of race-neutral alternatives. First, some contend that only race-conscious affirmative action or racial preferences can help achieve and maintain diversity. For instance, Moreno (2003) argued that "there is not an adequate substitute for race-based affirmative action at this time, neither class-based nor merit-based options will maintain the level of racial and ethnic diversity that has been achieved on today's college and university campuses" (p. 20). Long (2003) also seemed to support racial preferences in arguing that in order to maintain the same levels of diversity as under affirmative action class rank/percentage plans must draw from racially segregated high schools. The author explained that if high schools are desegregated or "mixed by race, the effect on college diversity is unclear" because, for instance, minority students may not perform as well in comparison to their White classmates and be poorly represented among top students or, even if they are well-represented in the top segment, may not apply to college in the same numbers (Long, 2003, p. 32). In general, Long (2003) stressed that class rank/percentage plans have not been found to maintain the same levels of diversity as under affirmative action.

The Ten Percent Plan. One of the most talked about class rank/percentage plans in the nation is that in place in Texas. The "10 percent plan" in Texas grew out of the Fifth Circuit Court of Appeals ruling in Hopwood v. Texas (1996) where it was ruled that an admissions procedure by the University of Texas Law School to grant admission to Blacks and Hispanics until a desired number of such students was reached was unconstitutional (Sterrett, 2005). In the Hopwood case, Cheryl Hopwood and three other applicants to the University of Texas Law School filed suit against the University for reverse discrimination (Moreno, 2003). They had been denied admission to the law school and contended that they were more qualified than some minority applicants who had been admitted (Moreno, 2003). The 1996 decision in the case by the Fifth Circuit Court of Appeals found in favor of Hopwood and the other plaintiffs (Moreno, 2003). As a result, public higher education institutions in Texas as well as Louisiana and Mississippi were barred from considering race or ethnicity in admissions (Moreno, 2003). The Texas attorney general interpreted the ruling to apply to all public universities in the state and deemed any policies designed to increase minority representation unconstitutional (Sterrett, 2005). After the Hopwood ruling, the numbers of Black and Hispanic freshmen at Texas public higher education institutions began to drop (Sterrett, 2005). In response, the Texas legislature enacted the "10 percent plan."

Economic Preferences. Reference to class-based or economic preference admissions policies was made in the 1978 Bakke case (Shuford, 1998). Evaluating the three approaches of racial preferences, class rank/percentage plans, and economic preferences based on seven criteria (i.e., fairness, diversity results, effect on graduation rates, legality, political support, replicability, and cost and feasibility), Kahlenberg (2003) argued that only plans based on economic preferences are the best approach. Similarly, other scholars have argued that admissions plans utilizing economic preferences are able to avoid some of the shortfalls of class rank/percentage plans (Roach, 2003). At the same time, others stress that economic preference plans alone will not be able to produce the same levels of diversity as under race-conscious affirmative action because race and class are not one and the same (Roach, 2003). Additionally, Shuford (1998) pointed out that a class-based affirmative action policy could only be easily justified in admissions decisions and not hiring decisions.

Other Alternatives. Long (2003) noted that the reconstruction of admissions criteria has also been discussed in order to maintain or even increase diversity. Specifically, some institutions are changing the way admissions factors are viewed and are giving extra weight to various factors (e.g., membership in particular organizations) that seem to be related to membership in a minority group. Indeed, some have urged the broadening of the concept of diversity, for instance, "to include individuals who have experienced educational disadvantage as a result of poverty, geographic location, physical disability, [and] sexual orientation" (Kolling, 1998, p. 30). Some institutions have also begun to abandon the SAT, which some researchers have contended has a racial bias, as an admissions requirement (Cross, 1994, as cited in Patitu & Terrell, 1998; Young, 2003). There is indication that Hispanics and African Americans have historically not performed as well on standardized tests as Asians and Caucasians (Moreno, 2003). Maruyama, Burke, and Mariani (2005) also offered that another alternative to affirmative action for colleges and universities is pre-collegiate partnership programs. These programs target underrepresented minority students well before high school and strive to motivate them to graduate from high school and to make them competitive in the college admissions process (Maruyama, Burke, & Mariani, 2005).

Terms & Concepts

Class Rank/Percentage Plans: Admission plans in which the top high school students in a state are automatically granted admission to the state's public university system; California (admission granted to the top 4 percent of high school students), Florida (admission granted to the top 20 percent of high school students), and Texas (admission granted to the top 10 percent of high school students) have such plans in place.

Desegregated: In the context of race/ethnicity, open to all races

Economic Preferences: (Also: "class-based" or "economic affirmative action") Admission plans in which a student's academic record is reviewed with consideration to his or her economic background; factors such as socioeconomic status, first-generation status, and the performance record of the student's high school are considered.

First-Generation Status: Indicates whether a student is the first in his or her family to attend college.

Race-Exclusive Programs: College programs that only serve students of certain racial or ethnic backgrounds.

Race-Neutral Alternatives: Admissions plans and related initiatives in which diversity in the student body is a goal but preference is not granted based on race or ethnicity in admissions; race-neutral alternatives may encompass, for example, class rank/percentage plans, admissions plans based on economic preferences, and initiatives to target underserved high schools in college recruitment efforts (U.S. Department of Education, 2003).

Racial Preferences: (Also: "race-conscious affirmative action") Admission plans in which advantage is given to members of racial or ethnic minorities

Segregated: In the context of race/ethnicity, separated or set apart by race

Bibliography

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Kahlenberg, R. (2003). Economic affirmative action in college admissions: A progressive alternative to racial preferences and class rank admissions plans. New York: Century Foundation.

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Suggested Reading

Brown, S., & Hirschman, C. (2006, April). The end of affirmative action in Washington state and its impact on the transition from high school to college. Sociology of Education, 79 , 106–130. Retrieved November 6, 2007 from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=21129480&site=ehost-live

Corcoran, J. (2003). Affirmative action must survive. University Business, 6 , 9. Retrieved November 6, 2007 from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=9981668&site=ehost-live

DeVille, K. (1999). Defending diversity: Affirmative action and medical education. American Journal of Public Health, 89 , 1256–1261. Retrieved November 6, 2007 from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=2107175&site=ehost-live

Ford, D. Y., & Whiting, G. W. (2016). Considering Fisher v. University of Texas–Austin. Gifted Child Today, 39(2), 121–124. Retrieved January 11, 2018, from EBSCO Online Database Education Source. http://search.ebscohost.com/login.aspx?direct=true&db=eue&AN=113829457&site=ehost-live&scope=site

Garrison-Wade, D., & Lewis, C. (2004, Summer). Affirmative action: History and analysis. Journal of College Admission, 184, 23–26. Retrieved November 6, 2007 from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=13707942&site=ehost-live

Guinier, L. (2003, Spring). Social change and democratic values: Reconceptualizing affirmative action policy. Western Journal of Black Studies, 27 , 45–50. Retrieved November 6, 2007 from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=10693273&site=ehost-live

Hebel, S. (2003, March 21). 'Percent plans' don't add up. (Cover story). Chronicle of Higher Education, 49 , A22. Retrieved November 8, 2007 from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=9399723&site=ehost-live

Horn, C., & Flores, S. (2003). Percent plans in college admissions: A comparative analysis of three states' experiences. Cambridge, MA: Harvard Civil Rights Project.

Kaplin, W. A., & Lee, B. A. (1995). The law of higher education. San Francisco, CA: Jossey-Bass.

Pavela, G. (1998, Fall). What's wrong with race-based affirmative action?. New Directions for Student Services, 83, 33–40. Retrieved November 6, 2007, from http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=9182216&site=ehost-live

Reed, K. (2013). Two arguments for race-conscious admissions policies. American Journal of Education, 119 , 341–345. Retrieved December 4, 2013, from EBSCO online database, Education Research Complete http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=87374023

Schmidt, P. (2003, July 18). Affirmative-action fight is renewed in the states. Chronicle of Higher Education, 49 , A19. Retrieved November 6, 2007 from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=10379763&site=ehost-live

Schmidt, P. (2007, April 20). Justice O'Connor sees 'muddy' future for affirmative action. Chronicle of Higher Education. Retrieved November 8, 2007, from http://chronicle.com/weekly/v53/i33/33a02802.htm

Swink, D. (2003). Back to Bakke: Affirmative action revisited in educational diversity. Brigham Young University Education & Law Journal, 1, 211–256. Retrieved November 6, 2007 from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=9562305&site=ehost-live

Young, J., & Johnson, P. (2004). The impact of an SES-based model on a college's undergraduate admissions outcomes. Research in Higher Education, 45 , 777–797. Retrieved November 6, 2007 from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=14676762&site=ehost-live