Diversity within the U.S. public education system is an ongoing topic of dissent and debate. Brown v. Board of Education of Topeka, KS was a landmark case decided in 1954 that overturned the “separate but equal” ruling of Plessy v. Ferguson in 1896. Affirmative action in American education began from the 1960’s Civil Rights Movement and President John F. Kennedy’s first issuance of the order in 1961. That executive order was to ensure equal opportunity employment “without regard to their race, creed, color, or national origin” for government jobs. Affirmative action has impacted federally funded higher education institutions’ policies regarding the employment of faculty and staff, as well as student admissions. The commitment to increased diversity has sparked dissention from some individuals and groups who feel they are disadvantaged by affirmative action policies resulting in many legal cases. These cases have challenged and shaped the way affirmative action is used and interpreted within the field.
In the case of Regents of Univ. of California v. Bakke (1978), the U.S. Supreme Court heard the complaint of Bakke, a white, male student who was denied admission in both 1973 and 1974 to the University of California Davis (UC Davis) Medical School despite a high-achieving academic record. At the time UC Davis had two admissions programs – general admissions and special admissions. Under the special admissions process, 16 places in the incoming class were reserved for students who were considered as economically or educationally disadvantaged or a member of a minority group. Bakke argued that the special admissions program was a violation of the Equal Protection Clause of the Fourteenth Amendment. While the Court ruled in favor of Bakke stating that racial, quota-based admissions processes were unconstitutional, it found that diversity in higher education was a compelling state interest and some applications of affirmative action within admissions are constitutional so long as they are narrowly tailored.
In the case of Grutter v. Bollinger (2003), the U.S. Supreme Court heard the complaint of Grutter, a white, female student who was denied admission to the University of Michigan Law School (UM) who claimed she was rejected on the basis of her race. Grutter argued this was discrimination and a violation of the Fourteenth Amendment. UM stood by its commitment to diversity and explained that its admissions procedure did not restrict the types of diversity that were considered in admissions to only race and ethnicity. It adopted a holistic view of admissions and only considered race as a “plus” not as a determinant. The court ruled that UM’s use of race in admissions decisions and commitment to obtaining the educational benefit from a diverse student population was constitutional.
In the case of Fisher v. University of Texas at Austin (2016), the U.S. Supreme Court heard the complaint of Fisher, a white, female student who was denied admission to the University of Texas at Austin (UT Austin) undergraduate program in 2008. Fisher claimed that the consideration of race in admissions disadvantaged her and was a violation of the Equal Protection Clause of the Fourteenth Amendment. In 2008, UT Austin’s admissions policy offered admission to all Texas high school students who graduated in the top 10% of their class, required by the Texas Top Ten Percent Law. The remaining spaces in the entering class, approximately 25%, were filled by considering the applicant’s “Academic Index” and their “Personal Achievement Index.” The Personal Achievement Index was a holistic review of the student containing many factors, one of which was race. UT Austin defended that race-neutral programs had not achieved the University’s diversity goals. The Court ruled that UT Austin’s admissions policy was constitutional with the University’s continued obligation to review their standards to ensure that race is no greater a factor in admission than necessary. It was likely that the Top Ten Percent Law was more of a factor in Fisher’s rejection than the consideration of race.
As for the future of affirmative action in higher education, consideration of race in admission decisions has been lawfully banned in many states. Justice O'Connor has expressed her belief that race-conscious admissions policies have an expiration date. She is unwilling to support a permanent justification for racial preferences. Race-neutral policies could be the goal, but current strategies do not appear to be as effective at achieving diversity in student populations. Although affirmative action and related rulings provide guidelines for universities to achieve a diverse student populations reflective of the U.S. population, there is still much work to be done within higher education to achieve equity and diversity.
This post was co-authored by Ms. Lindsay Stack and Dr. David Nguyen. Ms. Stack is a Hall Director at the University of North Dakota and a masters student in the UND Higher Education program.