By: Samuel Turner

Affirmative Action in higher education admissions has been a hotly contested topic for decades now, and the controversy surrounding race-based admissions policies does not seem to be going away any time soon. Most recently, Harvard has been at the center of the affirmative action discussion, and the constitutionality of affirmative action seems more at risk now than ever.1

The idea of affirmative action began as a reaction to the civil rights movement.2After years of segregation, the student bodies of many universities were overwhelming white.3To address this, administrations began implementing programs to assist minority students with integration into universities.4Nowadays, affirmative action is primarily used to facilitate and maintain a diverse student body at many of the countries top universities.5Since its inception, the concept of affirmative action has been highly controversial, and Harvard is just the latest of a number of universities to be subjected to litigation as a result of their race-based admissions policies.

In 1978, in the first of a string of cases tackling the issue of affirmative action, the Supreme Court held in Regents of University of California v. Bakkethat a public university may not discriminate on the basis of race in its admissions policies, even when the policy benefits minority groups.6The University of California had a policy that mandated a certain number of seats in a class go to minority students.7In 2003, the Supreme Court addressed the topic again in Grutter v. Bollinger.8In Grutter, the Supreme Court held that University of Michigan Law School’s admissions policies, which considered race as one of many factors while evaluating applicants, were constitutional because they were “narrowly tailored” and not the primary determining factor of admission.9The Supreme Court continued its support of race-based admissions policies in 2016 in Fisher v. University of Texas.10In Fisher, it held that the University of Texas’ admissions policy, which considered race as part of a holistic-applicant selection process, did not violate the Equal Protection Clause because it was narrowly tailored to assist the governmental interest of diversity in education.11The result of this body of case law has established that race may be a factor considered in college admissions, but it must not be the only factor, and must serve to further the diversity of the university.

Despite Bakke, Grutter, and Fisher, the constitutionality of affirmative action is far from settled. The current Harvard case, in which a number of Asian students are suing the university alleging that its race-based admissions policy severely disadvantaged Asian students in the application process, is beginning to pick up steam.12A trial has been set to begin on October 15, 2018, and has garnered nation-wide attention.13In addition, other elite universities, such as Penn State, where race-based admissions policies are practice, are watching closely.14In education institutions where far more applicants are denied rather admitted, and seats in freshman classes are increasingly competitive to obtain, reliance on race-based admissions policies seem to be one of the only ways to maintain a diverse student body, but that could change very soon.15

Outside of Ivy League admissions offices and the Supreme Court, affirmative action is not as well received.16Opponents of affirmative action policies in college admissions say that the concept promotes a type of reverse racism, negatively affecting students that are not a part of historically minority populations.17A common solution proposed is to ignore race entirely, and instead focus on other aspects of an applicant: academic achievement, socioeconomic status, history of higher education in the applicant’s family, and geography.18By doing so, they say that the affect of a more diverse student body is attainable, without bringing race into the equation.19Many states, including California, Texas, and Arizona, have passed their own legislation limiting, or even outright banning, any consideration of applicants’ race in admissions policies.20

However, proponents assert that affirmative action is not only helpful in establishing a diverse student body, but a requirement in doing so.21 At many elite colleges, the number of legacy applicants (applicants whose close family members attended the school), are white.22Conversely, many applicants at a socioeconomic disadvantage are white.23Proponents say this demonstrates why admissions policies that do not consider race, and instead consider other factors, will continue to perpetuate a less diverse student body.24By focusing on legacy and economically disadvantaged applicants, the campus demographic does not change. And some statistics seem to suggest this is correct: After UC Berkeley stopped considering applicants’ race in admissions, the number of minority groups admitted dropped significiantly.25Additionally, some believe that it is impossible to separate race from policies that explicitly exclude it as a factor.26It can be argued that an applicant’s race informs the majority of their other evaluable traits, including their socio-economic status, history of higher education in their family, and their geographical location. As Ruth Bader Ginsberg said in Fisher, “only an ostrich could regard the supposedly neutral alternatives as race unconscious.”27

In sum, affirmative action is a complex topic. But the numbers and statistics seem to point to one conclusion: despite the controversy and potential adverse-effect on non-minority students, narrowly tailored race-based admissions policies seem to increase diversity on campuses. While far from perfect, and with much room for adjustments, affirmative action has been critical in achieving and maintaining diversity at college campuses across the country, and the Supreme Court’s historical position on the subject is narrow, but strong. However, with a changing ideological composition on the Supreme Court, a more conservative executive branch, and new cases raising new questions, the future of affirmative action is far from certain. Colleges and Universities should start thinking about ways to continue to bolster and strengthen diversity on their campuses in a potentially post-affirmative action America.

 

 

  1. https://www.voanews.com/a/judge-harvard-affirmative-action-case-can-go-to-trial/4592412.html
  2. https://harvardlawreview.org/2017/12/the-harvard-plan-that-failed-asian-americans/
  6. Regents of Univ. of Cal. V. Bakke, 438 U.S. 265
  8. Grutter v. Bollinger, 539 U.S. 306
  10. Fisher v. Univ. of Tex., 136 S. Ct. 2198
  1. https://education.findlaw.com/higher-education/affirmative-action-and-college-admissions.html

 

 

Published by Law Journal for Social Justice at Arizona State University

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