Roundtable #5 | Affirmative Action in Higher Education
Foreword
Diversity is an exalted concept for many reasons, ranging from its practical relevance to operational performance, to its broad promise of social inclusion. It is this latter appeal that has rendered diversity, in the eyes of many, a veritable democratic ideal. In the landmark case that laid the groundwork for today’s diversity rationale, Regents of University of California v. Bakke, Justice O’Connor predicted that race-conscious admissions would be defunct in twenty-five years. Sixteen years into Justice O’Connor’s prognosis, and with no end to such policies in sight, a new case has landed on the Supreme Court docket: Students for Fair Admissions, Inc. v. Harvard. In this context, supporters calling for diversity and opponents alleging discrimination have both held their ground. This Roundtable explores how affirmative action became such an explosive national debate, beginning with Bakke, continuing through Harvard College, and projecting into the future.
Jessica Lin
Roundtable Editor, Summer 2020
Section 1: History of Affirmative Action in Higher Education: Regents of University of California v. Bakke
One of the Supreme Court’s most notable decisions on affirmative action in higher education is Regents of the University of California v. Bakke in 1978. Following the Court’s 1954 holding in Brown v. Board of Education, which deemed racial segregation in schools unconstitutional under the Fourteenth Amendment’s Equal Protection Clause, public higher education institutions were required to admit students of all racial and ethnic backgrounds. In order to remedy the lack of ethnoracial diversity in higher education, many universities adopted voluntary “affirmative action” policies that aimed to admit more students of color. [1]
At issue in Bakke was the policy of the medical school of the University of California at Davis to reserve 16% of seats in each entering class for ethnoracial minorities. After twice being denied admission, Allan Bakke, a white applicant, sued the university. Arguing that he was more qualified than some minority applicants admitted through the quota, Bakke alleged discrimination in violation of the Constitution’s Equal Protection Clause. [2]
In a 5-4 decision written by Justice Lewis F. Powell, the Court struck down the university’s quota system for “preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.” [3] The Court ruled that the University had violated both Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, and national origin in programs receiving federal financial assistance, and the Equal Protection Clause, which promises all those within a state’s jurisdiction the equal protection of the laws.
Arguably the most groundbreaking part of the case is Justice Powell’s approval of racial diversity as “one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body.” [4] Universities can only consider racial identity for the purpose of securing the educational benefits of a diverse student body, and only alongside other factors such as an applicant’s geographic location, talents, and extracurriculars. The Bakke judgment thus opened the door for universities to consider racial identity as a “plus” factor in university admissions through affirmative action programs that do not take the shape of quota systems.
In his judgment, Powell praises Harvard College’s admissions program for admitting students from underrepresented minority groups alongside students with unique athletic and academic skills, all in an effort to achieve diversity through a holistic review of numerous empirical and subjective factors. While championing diversity for its educational benefits, Justice Powell rejected the University of California’s historical discrimination justification for affirmative action, arguing that such a policy “aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals.” [5] This language implies that affirmative action programs for societal remediation give an unfair advantage to students who belong to underrepresented minorities, whereas affirmative action for the purpose of student-body diversification is a boon to all students. In repudiating remediation, however, the Bakke Court overlooks the ongoing institutional discrimination against underrepresented minorities that pervades the realm of education. Moreover, while Justice Powell deems societal remediation to be too amorphous a basis for affirmative action, the ethnoracial disparities that prevail in our society are far more apparent than the ill-defined notion of diversity sanctioned by the Court. Admission to a university can address these disparities by providing the additional resources and opportunities to place minority students on more equal footing with their peers.
To achieve justice, there must be equity which necessitates that disadvantaged members of the community are given more resources. As Justice Blackmun writes in his dissent “in order to treat some persons equally, we must treat them differently.” [6] The University’s quota system arguably advanced the cause of justice insofar as it created a separate admissions committee with evaluators who belonged to ethnoracial minorities. These committee members sought to evaluate minority applicants in the context of their educational and familial backgrounds, which are generally more resource-deprived than those of their white peers. [7] Moreover, as Justice Marshall writes in dissent, “because of a legacy of unequal treatment… we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence and prestige in America.” Affirmative action programs can help remedy the lasting effects of centuries of discrimination against ethnoracial minorities and help them achieve positions of prominence in society that have systematically been closed off to them.
Although Bakke upheld affirmative action programs that sought to diversity in higher education without the use of minority quotas, this case actually impeded progress on diversifying college campuses. In 1999, African-American students only represented 1.8% and Hispanic/Latino(a) students only represented 5.2% of Graduate Professional students at UC Davis—much less than the 16% represented before 1978 and admitted through the quota system. [8]
Bakke did not end the controversy over the merits of affirmative action programs. Rather, this case set a legal precedent for both supporters and challengers of affirmative action programs by permitting ethnoracial background considerations in university admissions in the interest of diversity in the student body, but not for the purpose of remedying social discrimination.
Radhika Goyal
Roundtable Contributor
Section 2: Development of the Diversity Rationale: Grutter v. Bollinger and Gratz v. Bollinger
The Bakke ruling firmly established that creating diverse student bodies in institutions of higher education serves a “compelling state interest.” In the majority opinion, Justice Powell defined the standards for constitutional admissions policies: admissions processes must be individualized, view race as a “plus” factor rather than a determinative factor, and refrain from quotas on specific races or ethnicities. This precedent laid the groundwork for how courts examine the constitutionality of higher-education affirmative action cases, and Grutter v. Bollinger and Gratz v. Bollinger subsequently expanded upon Bakke’s diversity rationale.
In 1997, Barbara Grutter, a white applicant denied admission to the University of Michigan Law School, filed a suit against the school, claiming that its admissions policies violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. In a 5-4 decision, the Supreme Court ruled that the Law School’s admissions processes were constitutional since they were sufficiently narrowly tailored for the purpose of creating a diverse class. Citing the guidelines outlined in Bakke, Justice O’Connor ruled that the admissions process did not place a quota on minority applicants and included a “highly individualized, holistic review” [9] of applicants, in which decisions were not solely based on one variable, such as race. In supporting the university’s goal to enroll a “critical mass” [10] of underrepresented students, the Grutter court expanded on Bakke’s previous justification for diversity in higher education.
In his Bakke opinion, Justice Powell cited the university’s “academic freedom” [11]—defined as “who may teach, what may be taught, how it shall be taught, and who may be admitted to study” [12]—as essential for promoting the First Amendment in the classroom. He argued that “the Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues” [13]. Grutter, on the other hand, focused on the nonconstitutional benefits of a diverse student body: fostering “cross-racial understanding and the breaking down of racial stereotypes” [14]. Thus, the Grutter Court broadened its understanding of the purpose of affirmative action: not only did these policies promote the pursuit of truth within the classroom, but they also advanced the sweeping goal of social harmony in the society at large.
Gratz v. Bollinger furthered the guidelines set in Bakke and echoed in Grutter. The Court ruled against the University of Michigan Office of Undergraduate Admissions when Jennifer Gratz and Patrick Hamacher, rejected applicants to the school, accused the University of following admissions policies that discriminated against applicants of certain races and ethnicities. In a 6-3 decision, the Rehnquist Court determined that the admissions processes did not pass the strict scrutiny standard as defined in Bakke. In her concurring opinion, O’Connor argued that the University’s two main forms of application review—a points system that rewarded 20 extra points to underrepresented minorities and an Admissions Review Committee—did not offer enough individualized deliberation [15]. Justice Thomas also argued that the university’s race-specific admissions policies violated Bakke’s holding that race could not be used as a determinative factor in admissions [16].
Justice Souter, however, dissented, stating that the University of Michigan’s admissions system, unlike that in Bakke, did not automatically set aside special “seats” for underrepresented minorities, but rather evaluated all applicants based on academic, extracurricular, and personal qualities and accomplishments [17]. Ginsburg also dissented, writing that the consideration of race in admissions does not violate the Equal Protection Clause, since “the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination” [18].
The dissent of Ginsburg in Gratz represents key conflicts in the modern affirmative action debate. Ginsburg pointed to the opaque nature of individual deliberation, suggesting that the admissions policies written on paper may not reflect actual review processes. She argued that a “fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguise” [19]. By highlighting the lack of transparency surrounding race-conscious admissions systems, Ginsburg identified a significant limitation on their assessment of affirmative action cases. Moreover, Ginsburg also pinpoints the core contradiction in the constitutionality of affirmative action—the Constitution is “color blind” and “color conscious” [20]. How do we reconcile the need to preserve the Equal Protection Clause, which prohibits the exclusion of one group based on race, while also addressing the role of race in denying, and potentially restoring, opportunities to individuals? Does affirmative action privilege certain groups, or does it make previously-exclusionary institutions more equitable?
Finally, Grutter highlights a key aspect of affirmative action that is often forgotten: such programs are only a temporary measure to help universities achieve a “critical mass” of minority students [21]. Many who oppose affirmative action argue that the ambiguous notion of a “critical mass” gives institutions too much power over the legitimacy and length of these programs. In this sense, affirmative action must be properly contextualized as but one band-aid for the larger problem of educational inequality. Without systemic change to our segregated K-12 education system, the guidelines of Grutter leave much room for affirmative action to last indefinitely.
Annie Tan
Roundtable Contributor
Section 3: SFFA v. Harvard and the Future of Affirmative Action
In September 2019, federal Judge Allison Burroughs echoed Grutter’s pro-diversity reasoning in upholding Harvard College’s race-conscious admissions program. In Students for Fair Admissions, Inc. v. Harvard, Students for Fair Admissions (SFFA) alleged that Harvard intentionally discriminated against Asian Americans in its admissions process. Harvard contested the group’s claims of discrimination, countering that the school treats race as just one of many factors to be considered in its holistic review process. Furthermore, it denied using race as a detractive or deciding factor for any applicant. [22]
The court’s support of Harvard harkens back to the decades-old Bakke case, in which Justice Powell exalted Harvard’s affirmative action plan. [23] Judge Burroughs took a slightly more critical stance, however, noting that Harvard could benefit from implicit bias training for admissions officers, clear guidelines on the use of race in admissions decisions, and attention to significant race-related statistical disparities in ratings. [24] Despite outlining room for improvement, she concluded that Harvard’s program passed constitutional muster. This reasoning mirrored the Supreme Court’s 1971 decision in Swann v. Charlotte-Mecklenburg Board of Education, in which the Court sanctioned school desegregation efforts while acknowledging that “the remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some.” [25] As in the case of dual school systems, Judge Burroughs emphasized that affirmative action is meant to be a temporary integrative policy, and that shortcomings are warranted amid the transitory process. “The rich diversity at Harvard and other colleges and universities and the benefits that flow from that diversity will foster the tolerance, acceptance and understanding,” Burroughs wrote, “that will ultimately make race conscious admissions obsolete.” [26] In the meantime, the fact that affirmative action may impose burdens on nonbeneficiaries would not invalidate such programs as a whole.
The concept of merit has always been multidimensional, favoring some groups over others. The irony of present-day opposition to affirmative action is that the practice remains widely unquestioned insofar as it benefits well-connected students and athletes. For instance, the three-week Harvard trial had unearthed the existence of dean’s or director’s interest lists, which include the children of donors who received special consideration in admissions. [27] Moreover, as reflected in Harvard’s own rating categories, sports are systematically accorded more weight in admissions than any other extracurricular activity. Indeed, an applicant’s athletic rating and their extracurricular rating are two separate categories among the four that Harvard considers. [28] In contrast to the limelight that race-conscious admissions has attracted, there is no similar public outcry against affirmative action for these disproportionately wealthy and white applicant groups. Part of this relative quietude is that family income and athletic prowess, unlike race, are not protected characteristics under the Constitution’s Equal Protection Clause or the Civil Rights Act of 1964, the latter of which was invoked by the SFFA in this particular case. [29] Essentially, race-conscious admissions is the only type of affirmative action that raises a legal question. That the Harvard case has animated public debate so singularly, however, suggests another cause for the opposition: only race-based affirmative action shifts preferences away from the traditional elite. According to a Harvard-retained expert, eliminating the use of race in admissions would reduce the number of black and Hispanic admits by eight and five percentage points, respectively. [30] As it is, affirmative action is the door stopper helping keep the gates to college campuses open to all.
Despite September’s win for proponents of affirmative action nationwide, Harvard’s battle wages on in an appeal from the SFFA. If the case makes its way to the Supreme Court, the solid conservative majority now seated there could sound the death knell for affirmative action in higher education and beyond. Under a different admissions system, Harvard has found that race-neutral alternatives would be demonstrably inadequate to achieve the sort of meaningful diversity that is most lacking at elite institutions like itself. [31] As vestiges of historic racial discrimination persist in this country, it is time to reaffirm diversity as a touchstone of democratic society, and affirmative action has proven successful in facilitating just that.
Jessica Lin
Roundtable Editor
Bibliography
[1] Christine J. Back, JD S. Hsin, ““Affirmative Action”” and Equal Protection in Higher Education,” Congressional Research Service, 5 (2019).
[2] Adam Harris, The Supreme Court Justice Who Forever Changed Affirmative Action, The Atlantic (2018), online at https://www.theatlantic.com/education/archive/2018/10/how-lewis-powell-changed-affirmative-action/572938/ (visited May 7, 2020).
[3] Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Chris Skelton, Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978), Justia US Supreme Court, online at https://supreme.justia.com/cases/federal/us/438/265/ (visited May 7, 2020).
[8] Fall Enrollment At A Glance, University Of California, online at https://www.universityofcalifornia.edu/infocenter/fall-enrollment-glance (visited May 7, 2020).
[9] Grutter v. Bollinger, 539 U.S. 306 (2003).
[10] Ibid.
[11] Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978).
[12] Ibid.
[13] Ibid.
[14] Grutter v. Bollinger, 539 U.S. 306 (2003).
[15] Gratz v. Bollinger, 539 U.S. 244 (2003).
[16] Ibid.
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Ibid.
[21] Grutter v. Bollinger, 539 U.S. 306 (2003).
[22] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 261 F. Supp. 3d 29 (D. Mass. 2017).
[23] Regents of the University of California v. Bakke, 438 U.S. 316 (1978).
[24] Harvard College, 261 F. Supp. 3d 127.
[25] Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 28 (1971).
[26] Harvard College, 261 F. Supp. 3d 129.
[27] Hartocollis, Anemona. “The Affirmative Action Battle at Harvard Is Not Over.” The New York Times. The New York Times, February 18, 2020. https://www.nytimes.com/2020/02/18/us/affirmative-action-harvard.html.
[28] Harvard College, 261 F. Supp. 3d 20.
[29] Id. at 4.
[30] Anderson, Nick. “What Gives You an Edge in Harvard Admissions? Check the Trial Evidence.” The Washington Post. WP Company, October 17, 2018. https://www.washingtonpost.com/local/education/what-gives-you-an-edge-in-harvard-admissions-check-the-trial-evidence/2018/10/17/c8004068-d17d-11e8-8c22-fa2ef74bd6d6_story.html?noredirect=on.
[31] Harvard College, 261 F. Supp. 3d 92.