# 4.5.1: Affirmative Action

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## Affirmative Action

Affirmative action has been a contentious measure to address equity. The Legal Information Institution at Cornell Law defines affirmative action this way:

Affirmative action is defined as a set of procedures designed to; eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future. Applicants may be seeking admission to an educational program or looking for professional employment. In modern American jurisprudence, it typically imposes remedies against discrimination on the basis of (at the very least) race, creed, color, and national origin (Legal Information Institute).

Affirmative action programs were begun in the 1960's to provide people of color and women access to jobs and education to make up for past discrimination. President John F. Kennedy was the first known official to use the term, when he signed an executive order in 1961 ordering federal contractors to “take affirmative action” in ensuring that applicants are hired and treated without regard to their race and national origin. Six years later, President Lyndon B. Johnson added sex, race and national origin as demographic categories for which affirmative action should be used. Johnson gave a very famous speech about it in 1965:

You do not take a person who has been hobbled by chains, liberate him, bring him up to the starting line, and then tell him that he's free to race against all the others and still justly believe that you have been completely fair (Le, 2001).

Although many affirmative action programs remain in effect today, court rulings, state legislation, and other efforts have limited their number and scope. Despite this curtailment, affirmative action continues to spark much controversy, with scholars, members of the public, and elected officials all holding strong views on the issue (Cohen & Sterba, 2003; Karr, 2008; Wise, 2005). One area in particular that has been a subject of much debate, is college admissions.

### History of Affirmative Action in Court

One of the major court rulings on affirmative action, was the U.S. Supreme Court’s decision in Regents of the University of California v. Bakke (1978). Allan Bakke was a 35 year old white man who had twice been rejected for admission into the medical school at the University of California, Davis. At the time he applied, UC Davis had a policy of reserving 16 seats in its entering class of 100 for qualified people of color to make up for their underrepresentation in the medical profession. Bakke’s college grades and scores on the Medical College Admission Test were higher than those of the people of color admitted to UC Davis either time Bakke applied. He sued for admission on the grounds that his rejection amounted to reverse racial discrimination on the basis of his being white (Stefoff, 2005).

The case eventually reached the Supreme Court, which ruled 5–4 that Bakke must be admitted into the UC Davis medical school because he had been unfairly denied admission on the basis of his race. As part of its historic but complex decision, the Court thus rejected the use of strict racial quotas in admission as it declared that no applicant could be excluded based solely on the applicant’s race. At the same time, however, the Court also declared that race may be used as one of the several criteria that admissions committees consider when making their decisions. For example, if an institution desires racial diversity among its students, it may use race as an admissions criterion along with other factors such as grades and test scores.

In 2014 the Students for Fair Admission representing a group of Asian-American students rejected by Harvard, filed a lawsuit against the University. The students challenged Harvard's admissions process, arguing that Harvard caps the number of spots available to Asian students and claiming that the only way to truly ensure that Asian Americans stand an equal chance in admissions is if race is completely removed from the process. In 2019 a federal judge ruled that Harvard could legally consider a person’s race in the application process to create a more diverse student body, thus upholding affirmative action. The case was appealed by Students for Fair Admissions, and is expected to go before the Supreme Court.

### The Debate

Opponents of affirmative action cite several reasons for opposing it. Affirmative action, they say, is reverse discrimination and, as such, is both illegal and immoral. Opponents of affirmative action argue that the people benefiting from affirmative action are less qualified than many of the whites with whom they compete for employment and college admissions. In addition, opponents say, affirmative action implies that the people benefiting from it need extra help and thus are indeed less qualified. This implication stigmatizes the groups benefiting from affirmative action.

In response proponents of affirmative action give several reasons for favoring it. Many say it is needed to make up not just for past discrimination and lack of opportunities for people of color but also for ongoing discrimination and lack of opportunity. For example, because of their social networks, whites are much better able than people of color to find out about and to get jobs (Reskin, 1998). If this is true, people of color are automatically at a disadvantage in the job market, and some form of affirmative action is needed to give them an equal chance at employment. Proponents also say that affirmative action helps add diversity to the workplace and to the campus. Many colleges, they note, give some preference to high school students who live in a distant state in order to add needed diversity to the student body; to “legacy” students—those with a parent who went to the same institution—to reinforce alumni loyalty and to motivate alumni to donate to the institution; and to athletes, musicians, and other applicants with certain specialized talents and skills. If all of these forms of preferential admission make sense, proponents say, it also makes sense to take students’ racial and ethnic backgrounds into account as admissions officers strive to have a diverse student body. Further, proponents argue that claims of reverse discrimination are emotion-based not fact-based.

Proponents add that affirmative action has indeed succeeded in expanding employment and educational opportunities for people of color, and that individuals benefiting from affirmative action have generally fared well in the workplace or on the campus. In this regard research finds that African American students graduating from selective U.S. colleges and universities after being admitted under affirmative action guidelines are slightly more likely than their white counterparts to obtain professional degrees and to become involved in civic affairs (Bowen & Bok, 1998).

As this brief discussion indicates, several reasons exist for and against affirmative action. A cautious view is that affirmative action may not be perfect but that some form of it is needed to make up for past and ongoing discrimination and lack of opportunity in the workplace and on the campus. Without the extra help that affirmative action programs give disadvantaged people of color, the discrimination and other difficulties they face are certain to continue. The timeline of U.S. Supreme Court decisions pertaining to affirmative action provides an understanding of how the Court has shaped affirmative action policy and practice.

### The Impact of Affirmative Action

The impact of banning Affirmative Action in California public universities led to the implementation of a Comprehensive Review in 2002 at the University of California for admitting students, which serves to apply weight to other admission factors, i.e., “students experiences and personal circumstances” and not just SAT scores and GPA (Johnson et al., 2008, p.1). Johnson et al. (2008) also point out that the post-Proposition 209 declines are also significant because

1. “the percentage of UC-eligible African American high school graduates rose from 2.8% to 6.2% (California Postsecondary Education Commission, 2004)” and
2. “the number of African American applications to UC campuses has increased by 65% since 1997 (UCOP, 2007b; UCOP 2007c). (Johnson et al., 2008, pg.1).

These statistics show that there was a decrease in African American students at UC campuses despite them meeting criteria. Chacon (2008) points out that:

the implementation of Proposition 209 has done nothing to address the disadvantages faced by underrepresented minorities in California’s primary and secondary education system. Instead, Proposition 209 simply has taken away one tool, however "artificial," that could have remediated some of those inequalities (Chacon, 2008).

Further, she writes that some Proposition 209 proponents advocate for “class-conscious strategies” because they claim the issue is not race (Chacon, 2008); others claim that considering race is “polarizing” and worsens when we do things like place high regard for race in policies like affirmative action (Chacon, 2008).

Students of color have disproportionately inequitable educational experiences. For example, Solorzano and Ornelas (2004) point out that whites made up 49% of AP courses in the state’s “top 50 high school” while Latinos only comprised 16% and Blacks 5% (Johnson et al., 2008, p. 5). Such a statistic might show how Blacks and Latinos are less in AP classes and are therefore considered less competitive for admissions slots and that race, not just class, is a factor. But as the second point about how the implementation of Proposition 209 does not address equity in K-12, it therefore ignores the root of the problem. This is epitomized by the claim that considering race in policy is “polarizing” because it would likely be polarizing if one is not an advocate for educational access for all and instead hopes to maintain the status quo. It is true that affirmative action enables other criteria for admissions, but there is still the same expectation for students to perform as well as those at the same school as those who were not admitted under affirmative action. Further, affirmative action is consistent with Brown v. Board of Education in providing access to education that students of color may not have otherwise due to the lack of preparation they faced from institutional racism (such as tracking) present in their schooling. Affirmative action recognizes the inequities and potential of students of color.

##### Sidebar: Abigail Fisher v. Affirmative Action

Abigail Fisher, a white woman, fought against affirmative action in court in 2013 and 2016 for her spot at the University of Texas, Austin, citing that the reason she didn’t get admitted was because it favored students of color over her. Ultimately, Fisher lost her case. Cases like hers and others are highlighted in this 2022 PBS update, "The evolution of affirmative action cases, from Bakke to Fisher" which provides links to the cases and to where-are-they-now with some of those who brought affirmative action to court.

### The 2023 Ruling

In a historic decision, the U.S. Supreme Court effectively ended the use of Affirmative Action in college admissions in 2023. The cases, Students for Fair Admissions v. President & Fellows of Harvard College and Students For Fair Admissions v. University of North Carolina — argued whether the Supreme Court should overrule Grutter v. Bollinger, the 2003 case that held that race may play a limited role in college admissions. In practice, race often functions as a tiebreaker when universities are deciding among many well-qualified students. By a vote of 6-3, the justices ruled that the admissions programs used by the University of North Carolina and Harvard College violate the Constitution’s equal protection clause, which bars racial discrimination by government entities.

The majority opinion concluded that a colorblind criteria must be used in admissions. Justice Clarence Thomas stated that the decision "sees the universities' admissions policies for what they are: rudderless, race-based preferences. ... Those policies fly in the face of our colorblind Constitution."

The opposing justices noted that erasing part of an applicants identity will eliminate the gains made towards equity in college admissions thereby "subvert(ing) the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society," as stated by Justice Sotomayor.

Read the entire decision here: https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf

## References

• Bowen, W.G., & Bok, D.C. (1998). The Shape of the River: Long-term Consequences of Considering Race in College and University Admissions. Princeton University Press.
• Chacon, J.M. (2008). Race as a diagnostic tool: Latinas/os an higher education in California, Post-209. California Law Review. 96(5). 1215-1258.
• Cohen, C., & Sterba, J.P. (2003). Affirmative Action and Racial Preference: A Debate. Oxford University Press.
• Johnson, R.N., Mosqueda, C., Ramon, A.-C., and Hunt, D.M. (2008). Gaming the system: Inflation, privilege, & the under-representation of African American Students at the University of California. Research Report from Ralph J.Bunche Center for African American Studies at UCLA, 4(1).
• Karr, J. (Ed.). (2008). Affirmative Action. Greenhaven Press.
• Le, C.N. (2001). Affirmative Action and Asian Americans. Asian-Nation: The Landscape of Asian America.
• Reskin, B.F. (1998). Realities of Affirmative Action in Employment. Washington, DC: American Sociological Association.
• Solorzano, D. G., & Ornelas, A. (2004). A critical race analysis of Latina/o and African American advanced placement enrollment in public high schools. High School Journal, 87(3), 15–26. https://doi.org/10.1353/hsj.2004.0003
• Stefoff, R. (2005). The Bakke Case: Challenging Affirmative Action. Marshall Cavendish Benchmark.