Race and Affirmative Action in Higher Education

by

Julie J. Park, Katie K. Koo

• LAST REVIEWED: 30 June 2014
• LAST MODIFIED: 30 June 2014
• DOI: 10.1093/obo/9780199756810-0101

Introduction

Affirmative action is one of the most highly contested policies in US higher education. Affirmative action refers to the ability of colleges and universities to act “affirmatively” with the goal of increasing racial diversity within their institutions. In order to do this, universities have race-conscious admissions policies, meaning that they may consider an applicant’s race as one of numerous factors in weighing whether to admit a student or not. Race-conscious admissions policies stand in contrast to “race-blind” or “race-neutral” policies, which do not consider an applicant’s race as a factor in any portion of the admissions process. In general, race-conscious admissions policies at the undergraduate level generally affect only selective and highly selective institutions, a fraction of colleges and universities. However, other types of affirmative-action-related programs (e.g., affirmative action in hiring faculty, scholarships for minority students) exist at a broader range of institutions and are affected by the continued legality of race-conscious admissions. Affirmative action has notable symbolic significance. A key component of the debate is whether universities should be able to take race into account in the admissions process, which reflects a broader controversy over whether color-blindness or some measure of race consciousness is the more appropriate way to address the continued underrepresentation of certain minority groups in higher education. Thus, the affirmative-action debate has garnered a significant amount of media and public attention since the 1970s. Due to numerous court cases, the legal permissibility and justification for affirmative action remains in flux. Different states, such as California and Washington, have also passed anti-affirmative-action ordinances. Some confusion exists over what affirmative action is and is not. Affirmative action is often associated with quotas or set-asides; that is, reserving a certain number of seats for a particular group in an admissions pool. However, such measures have been illegal since the 1970s. Points systems that assign a specific amount of points related to an applicant’s race/ethnicity are also illegal. However, under current Supreme Court rulings, holistic review of applicants that considers the influence of race as one of numerous factors is generally legal except in states that have passed affirmative-action bans. Finally, the implementation of affirmative action also varies from institution to institution due to the unique contexts of different college campuses. Various universities choose to weigh different criteria given their needs and range of applicants.

History and Key Court Cases

Current affirmative-action policy stems from policies developed to improve and regulate diversity in the broader workplace. Skrentny 1996 provides a historical overview of the complicated politics that led to affirmative action, including the supporters, opponents, and unexpected beneficiaries of affirmative action. Anderson 2005 describes the fairness and troubled history of race relations in America in regard to affirmative action. Affirmative action is subject to “strict scrutiny,” wherein courts evaluate affirmative-action programs by considering whether they meet two key legal tests. First, the court must agree that there is “compelling governmental interest” for the program to take race into account. Second, the court evaluates whether the program is “narrowly tailored”; in other words, whether the objectives of the affirmative-action program could be met through other race-neutral means. Thus, affirmative-action cases outside of the field of higher education, such as Aderand v. Pena and U.S. v. Paradise, have implications for how the principles of strict scrutiny are justified. The Bakke case put affirmative action on trial in university admissions offices across the country. Ball 2000 overviews how the Supreme Court, the White House, the Department of Justice, and other special-interest groups were torn asunder by the issues Bakke presented. Prior to Bakke, the common justification for affirmative action was the idea that it was a remedy or response to past discrimination that limited opportunity for disenfranchised groups. This rationale is often referred to as the “past discrimination,” “historic discrimination,” or the “remedial rationale.” However, the remedial defense was challenged in Bakke. While the majority of the Supreme Court opposed the remedial defense as a sufficient justification, basic race-conscious admissions policies were upheld due to “Powell’s Compromise,” in which Justice Lewis Powell argued that race could be considered as a “plus” factor for an applicant due to the compelling educational interest that universities have in recruiting and retaining a diverse student body. Marín and Horn 2008 comments on the legacy of Bakke and the implications of the case for other court cases. Since Bakke, affirmative action has been tested numerous times in major court cases, including Hopwood v. Texas, Grutter v. Bollinger, Gratz v. Bollinger, and Fisher v. Texas. The diversity defense was upheld in Grutter v. Bollinger, and Gurin, et al. 2004 is a compilation documenting efforts coordinated by the University of Michigan in the Grutter and Gratz cases. The Grutter and Gratz decisions attracted a record number of amicus briefs, which are archived on the University of Michigan Admissions Lawsuits website. The briefs are a valuable resource for anyone wishing to explore the numerous stakeholders in the cases, from the CEOs of Fortune 500 companies to MTV. Besides affirmative action being contested in the court system, various state ballot initiatives have also challenged affirmative action. Pusser 2004 provides a detailed narrative of the efforts that resulted in the passage of Proposition 209, which banned affirmative action in California public institutions.

• Anderson, Terry H. 2005. The pursuit of fairness: A history of affirmative action. New York: Oxford Univ. Press.

  Beginning with the roots of affirmative action, the author describes African American demands for employment in the defense industry, the desegregation of the armed forces after World War II, and past presidential executive orders that are related to affirmative action, as well as the Bakke case and the University of Michigan cases.

• Ball, Howard. 2000. The Bakke case: Race, education, and affirmative action. Landmark Law Cases & American Society. Lawrence: Univ. Press of Kansas.

  The book examines the law and politics surrounding the Bakke case, one of the most important civil-rights cases of the 20th century.

• Grutter and Gratz: Amicus Briefs. University of Michigan Admissions Lawsuits.

  This website provides the amicus (friend of the court) briefs filed in the University of Michigan affirmative-action cases. Numerous organizations filed amicus briefs in support of both sides.

• Gurin, Patricia, Jeffrey S. Lehman, Earl Lewis, Eric L. Dey, Sylvia Hurtado, and Gerald Gurin. 2004. Defending diversity: Affirmative action at the University of Michigan. Ann Arbor: Univ. of Michigan Press.

  This book chronicles the University of Michigan’s efforts to defend affirmative action by providing evidence that there are educational benefits associated with diversity.

• Marín, Patricia, and Catherine L. Horn 2008. Realizing Bakke’s legacy: Affirmative action, equal opportunity, and access to higher education. Sterling, VA: Stylus.

  This book provides a historical examination of Bakke and the more recent Supreme Court rulings on affirmative-action cases. The book also addresses the philosophical base of higher education and the origin of admissions policy and practice, and it examines the impact and role of the Bakke decision in higher education since the early 1980s.

• Pusser, Brian. 2004. Burning down the house: Politics, governance, and affirmative action at the University of California. SUNY Series, Frontiers in Education. Albany: State Univ. of New York Press.

  Pusser’s book chronicles the end of affirmative action in California due to the passage of Proposition 209.

• Skrentny, John D. 1996. The ironies of affirmative action: Politics, culture, and justice in America. Morality and Society. Chicago: University of Chicago Press.

  This book provides a comprehensive history of the politics that led to affirmative action, as well as some of the historical tensions and contradictions of the policy.