Policy Reflection: Should We Affirm Affirmative Action?
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“Life is a marathon, but minority runners often start the race from further back than do whites.”
Do you agree or disagree with this quote? How about in the context of higher education?
It is no secret that increasing diversity in higher education is a goal for many educational institutions. Affirmative action is one of the main avenues for institutions to strive to achieve this goal. Affirmative action refers to policies that stem from the idea that certain disadvantaged groups should receive preferential treatment based on race and sex. It has been a long-time practice in the higher education admissions process to use affirmative action to help those disadvantaged groups progress educationally and professionally. There are varying views on whether we should consider affirmative action as a form of discrimination, as well as whether it is an unfair practice.
Those in favor of affirmative action believe that it helps to ensure that minorities and women have equal access to a college education. Advocates make the argument that this practice benefits campuses and universities because all students will learn “to interact with and respect people who are different from you, skills that are essential to living and working in a diverse world.”
Those opposed to the practice see things much differently—broadly speaking, they see affirmative action as unfair. Opponents believe that an institution that admits a “less qualified” minority applicant over Caucasian and Asian-American applicants harms the latter individuals. Some in opposition argue that college admissions offices should base admittances solely on merit alone. Others advocate instead to factor parental income or class in admissions rather than race (“to remedy disadvantage . . . [preferences should] be given on the basis of disadvantage”), so that poor non-minority applicants do not suffer harm. Another argument used by opposition is that affirmative action harms minority students themselves in the context of race relations because non-minority students may assume that the minority students are at a school because of affirmative action—even if the minority students would have gotten in without the practice. Some also believe that affirmative action is insulting to disadvantaged groups because researchers have already debunked a correlation between someone’s race and their intelligence.
Issues surrounding affirmative action within education have floated around courts for years. In the 1978 Regents of the University of California v. Bakke decision, the plaintiff claimed that a medical school’s affirmative action policy of reserving 16 of 100 spots for qualified minority applicants violated the Equal Protection Clause. The court decided that considering race as an admissions factor was acceptable but that having racial quotas in admissions policies was unacceptable. Roughly twenty years after the Bakke decision, we saw an interesting progression through the courts in Grutter v. Bollinger. In Grutter, the University of Michigan Law School rejected a white woman in 1997, who then sued the school, claiming that the school’s admissions policy to consider race gives an unfair advantage to racial minority applicants with lower grades and test scores. In 2001, the court ruled the admissions policy as unconstitutional, but almost a year later, the Sixth Circuit Court of Appeals reversed that decision. The Supreme Court in 2003 ultimately ruled that the school giving minority applicants “preferential treatment” during the admissions process was acceptable. In the same year as the Supreme Court’s Grutter decision, the Gratz v. Bollinger court decided that the University of Michigan’s admissions “point system”—in which the school automatically granted minority applicants 20 points solely based on race (100 points resulted in an acceptance)—could include race as a factor but could not be an overriding one.
Still in effect today, and after much back and forth between 2006 and 2014, the Supreme Court upheld a ban on publicly funded colleges in Michigan from giving “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin[]” during the admissions process. Currently, Michigan is one of at least ten states that has implemented such a ban. In 2008, Nebraska banned considering race not only during the college admissions process but also for public employment. The refrain on considering race has also permeated the admissions procedures by schools. As of February 2019, Texas Tech School of Medicine agreed to no longer consider race or national origin during its admissions process. Interestingly enough, the agreement does not entirely bar race from being a factor. Instead, the school can consider an applicant’s race if the Department of Education gives approval based on a principled and reasonable explanation.
After some states banned affirmative action in education, thoughts arose about whether minority applicants were still gaining admission to colleges at a similar rate compared to when there were no bans. At many schools, minority student enrollment decreased after some states banned affirmative action. California saw a very sharp decrease in the enrollment of black and Hispanic students at the University of California, Berkeley, and the University of California, Los Angeles, when the state banned the practice in 1998. After Michigan’s ban in 2008, and despite the statewide proportion of freshmen-aged black individuals increasing, the two most prominent public universities saw a decrease in black student enrollment. After banning the practice in 1997, Texas state flagship universities saw a decrease in minority students. In 2005, Texas readopted affirmative action, which led to an increase in minority student enrollment at these same universities. Other states that saw a similar decrease after banning the practice include Washington and Florida. According to the statistics, affirmative action does seem to impact the number of minority students that college admissions offices admits.
Recently, affirmative action continues to engross courtroom time. On October 15, 2018, a lawsuit by Students for Fair Admissions (SFFA) against Harvard University went to trial, which the SFFA had filed in 2014. A representative for a group of Asian American applicants who were denied admission to Harvard argued that the rejections were a result of Harvard’s affirmative action policy, which resulted in reverse discrimination—discrimination based on gender, race or age towards members of a majority or advantaged group, such as Caucasians or Asian-Americans. On October 1, 2019, a district court judge held that Harvard’s admissions process was constitutional despite not being perfect. The judge opined that the courts would not “dismantle a very fine admissions program that passes constitutional muster, solely because it could do better.” The decision has solidified affirmative action’s survival in admissions. However, if the SFFA claim is granted certiorari by the Supreme Court, we may see a different outcome if the case presents itself to conservative-leaning and originalist justices.
Affirmative action in college admissions is still a widely practiced policy in most states and schools today. With differing beliefs and court decisions, it is unclear if we should consider affirmative action as discriminatory, unfair, both, or neither. Did specific schools such as the University of Michigan misuse affirmative action, or is this practice systematically unfair and discriminatory as some believe in its on-going practice? This controversial topic currently leaves us with uncertainty as to what the answers truly are.
Michael Hewson is a second-year student at Cornell Law School, and in 2017, he obtained a B.A. in Psychology from Queens College, CUNY. Currently, Michael is an online associate for The Issue Spotter and serves on several student organization e-boards.
Suggested Citation: Michael Hewson, Policy Reflection: Should We Affirm Affirmative Action?, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Feb. 13, 2020), https://live-journal-of-law-and-public-policy.pantheonsite.io/policy-reflection-should-we-affirm-affirmative-action/.