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Shaped by Challenges: Affirmative Action in Higher Education Admissions

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.

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Reader Comments (11)

Great post, Lindsay! I especially appreciated the last paragraph that gave a look at where the issue stands today and where it might go in the future. I wonder if there have been any cases involving a student of a minority identity filing a complaint against affirmative action policies. Certainly it seems like it's students from the majority who have taken issue the most with the policy.

February 17, 2017 | Unregistered CommenterAndy Hieber

Currently, I think Affirmative Action in admission processes is a hot topic in Higher Education. It is good for universities to have diverse student bodies, but affirmative action should help students and not hinder others. It will be engaging to see where Affirmative Action goes in the future for students. It was intriguing to see how certain states have banned raced based decisions in admissions process.

February 17, 2017 | Unregistered CommenterDylan Ruffra

The last paragraph of this post strikes me as particularly insightful and significant. In today's changing world, are Affirmative Action policies going to stick? Or are more states going to move towards eliminating them? What impact will that have on minority populations? I'm not sure there are comparable policies that would achieve the same goals Affirmative Action policies have.

February 21, 2017 | Unregistered CommenterKatie Fulmer

Lindsay, this is a great topic! As someone who teaches students in and out of the classroom I find that students are powerfully affected by the inclusion of students from not only different races but other forms of marginalization; class, gender, and sexual orientation. It seems universities as well as the courts are in a flux about affirmative action with no real answers. Is it time to look for other ways that can institutions in higher education can achieve diversity among the student demographic?

March 1, 2017 | Unregistered CommenterHeather Helgeson

This is a great post, Lindsay! It is interesting to see how affirmative action policies have developed over time. From the perspective of a majority student, I can see how they could feel like they are being excluded, yet from the perspective of someone in higher education, I feel it is important to have a diverse group of students in our institutions. I really enjoyed the last paragraph about the future of affirmative action. It will definitely be interesting to see how universities address this issue, as more and more states are banning race-conscious admissions.

April 5, 2017 | Unregistered CommenterMegan Leonard

Great job, Lindsay! You included a ton of vital information regarding affirmative action. As you mentioned, affirmative action has been hotly debated for quite some time. The cases you describe and discuss are extremely relevant for higher education institutions to consider during the application process. Many potential students feel they are being discriminated against, although, as several of the other comments state, it is important for educational institutions to be diverse and inclusive of people from different backgrounds. Unfortunately, the debate on affirmative action will most likely not disappear any time soon, as people will complain if they feel they've been wronged.

April 7, 2017 | Unregistered CommenterTara Lulla

Such a hot topic right now - especially on the subject of whether or not race should be a factor in college admissions decisions. I like that you talked about the case of Fisher v. University of Texas at Austin because it has caused so much debate in the field of higher education. Honestly, I feel like this case is just one of many to come as Affirmative Action initiative increase. Great post!

April 15, 2017 | Unregistered CommenterSetareh Campion

Campus diversity enriches the learning process and the lives of our students. Achieving diversity is not necessarily an easy task for some universities. Of the many things that play a role in where students decided to attend, geography may be one of the top. Diversity in California looks much different than diversity in North Dakota. Drawing students, and employees, from different background takes a consorted effort and college may not always have the time and resources for distance recruitment. This is not to say that we should not try though. Good Job!

April 26, 2017 | Unregistered CommenterTina Monette

I am curious what the take-away is that the two cases provided relate two students who are white. Considering the environment when President Kennedy first issued the order, compared to our current climate, have we drifted away from the original intentions of the law? What will happen, with the current trend predicted, when racial minorities become the majority in higher education and being white will place you in the minority?

May 3, 2017 | Unregistered CommenterAbbey Lane

Affirmative Action is a very intriguing topic. I am constantly wondering how this is enforced adequately. Watching the videos on deaf students trying to get a job at a coffee shop may provide an example of how affirmative action plays out in the real world. I just feel like we say we are following it, and then we don't.

May 5, 2017 | Unregistered CommenterIsaac Hale

I think affirmative action in higher education will be a topic that always remains a conversation amongst professionals. I also think that given the recent changes in government and legal systems, we may be seeing quite a change in how this is achieved (or not achieved). I definitely appreciate your insights for the future of affirmative action in higher education, and this is a really strong post.

May 5, 2017 | Unregistered CommenterShannon Sniegolski

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