Affirmative action has been a hot topic for decades. Since its tumultuous inception almost 50 years ago, affirmative action has been applauded, argued, and scoffed at as an answer to racial inequality.
In 1961, President John F. Kennedy was among the first to use the term “affirmative action” as a method to prevent further racial discrimination despite civil rights laws and, essentially, to temporarily level the playing field. Executive Order 10925 required that government contractors “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.”
But it was President Lyndon B. Johnson who developed and enforced it for the first time in 1965 with the passage of Executive Order 11246.
“This is the next and more profound stage of the battle for civil rights,” Johnson said to a Howard University graduating class in 1965. “We seek…not just equality as a right and a theory, but equality as a fact and as a result.”
Since then, the debate over affirmative action has grown more and more contentious and problematic as the public—with divided opinions—have weighed in on a complex issue.
Robert A. Schaeffer, the public education director of
FairTest, the National Center for
Fair & Open Testing, believes that many issues relating to race are highly controversial because critics have been able to define policies as “preferences” rather than “balancing” the playing field.
“Many Americans are convinced that affirmative action creates biases in favor of certain groups,” says Schaeffer. “Particularly in economic tough times, it is not difficult to fan resentment against any plan that seems to advantage [some] while disadvantaging others.”
Schuette v. Coalition to Defend Affirmative Action
In recent months, the battle over affirmative action once again gained momentum in light of the latest Supreme Court rulings. In April, the Supreme Court upheld a constitutional amendment Michigan voters approved in 2006, banning preferential treatment based on race, gender, ethnicity, or national origin in admissions to the state’s public universities.
By a vote of 6 to 2, the court concluded that it was not up to the judges to overturn the 2006 decision by Michigan voters to bar consideration of race when deciding who gets into the state’s universities and made it clear that states are free to prohibit the use of racial considerations in university admissions.
“This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it,” Justice Anthony Kennedy wrote in an opinion joined by Chief Justice John Roberts and Justice Samuel Alito. “There is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters.”
Justice Sonia Sotomayor, on the other hand, blasted the majority, who she said attempts to “sit back and wish away” evidence that racial inequality exists.
“The stark reality is that race still matters,” Sotomayor wrote in her 58-page dissenting opinion joined only by Justice Ruth Bader Ginsburg. “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”
It is unclear how the decision might move other states. Eight states, including Nebraska, Arizona, and Washington, now have bans on affirmative action. The ruling could encourage other states to join the handful that already have such prohibitions, such as California and Florida.
But what’s worrisome to proponents of affirmative action is the precedent that may have been set with the court’s ruling, potentially, further energizing opponents of racial preferences, who have already outlined plans to put Michigan-style constitutional amendments on the ballot in Utah, Ohio, and Missouri.
A survey conducted by ABC News and The Washington Post last year found that 79% of whites and 71% of non-whites oppose the consideration of race and ethnic preferences in college admissions, suggesting that any affirmative action ballot measures are likely to be voted down.
Moving forward, Roger Clegg, president and general counsel of the Center for Equal Opportunity believes that the court’s decision means that colleges in states that have banned racial preferences must follow those laws and other states without bans should reexamine with current plans.
“It also means that colleges in other states must take into account the fact that their continued use of racial preferences, which is unpopular, should consider getting rid of that policy since it may be banned in their states, too,” Clegg adds.
Quite the contrary, says Michael Olivas, director of the Institute for Higher Education Law and Governance at the University of Houston Law Center. “It hurt the choices that Michigan colleges wanted to make, and this violated their academic freedom.”
But it need not be a regressive process, Olivas continues. In Maryland, voters approved resident tuition for the undocumented in a ballot measure, and Colorado voters turned down a Michigan-type measure.
“They are neither good nor bad in and of themselves, except we should not make such important decisions for colleges by this means,” Olivas adds.
The groups that challenged the Michigan affirmative action ban pointed out the basic unfairness of giving preferences in admission to some groups while banning similar treatment of African Americans, Latinos, Native Americans, and women.
“Michigan higher education leaders and most major civil rights groups reinforced our arguments,” says Schaeffer, who provided expert assistance to the groups challenging Michigan’s ban. “However, the judicial system held that voters could impose whatever distinctions they determined to be reasonable.”
Impact on Minority Enrollment
What is not clear is the ruling’s impact on minority enrollment. While the US Supreme Court affirmed Michigan’s constitutional amendment banning race-conscious admissions, states that forbid affirmative action in higher education, like Florida and California, as well as Michigan, have seen a significant drop in the enrollment of black and Hispanic students.
In April 2014, The New York Times published an article examining how minorities have fared in states with affirmative action bans, including California, Florida, and Michigan. At UC Berkeley and UCLA in California, for example, the graphs showed that 49% of the state’s college-aged residents are Hispanic, though only 11% and 17% of freshmen are Hispanic at those two schools, respectively.
In Florida, 27% of the state’s college-aged residents are Hispanic at Florida State and the University of Florida, yet both universities showed that only 18% of their freshmen was Hispanic.
While the decision didn’t address the constitutionality of race-conscious admission policies, Justice Sotomayor cited student-demographic data as proof that the ban, which went into effect in December 2006, has adversely affected minority enrollment and diversity at the University of Michigan (UM) in Ann Arbor.
“A white graduate of a public Michigan university who wishes to pass his historical privilege on to his children may freely lobby the board of that university in favor of an expanded legacy admissions policy,” she wrote. “Whereas a black Michigander who was denied the opportunity to attend that very university cannot lobby the board in favor of a policy that might give his children a chance that he never had and that they might never have absent that policy.”
According to the policy brief, “Restructuring Higher Education Opportunity?: African American Degree Attainment after Michigan’s Ban on Affirmative Action,” which Justice Sotomayor cited in her dissenting opinion, the proportion of African Americans who obtained a bachelor’s degree at UM dropped by about one-third after the ban on race-conscious admissions went into effect.
Additionally, The New York Times article revealed that the enrollment of black freshmen at UM between 2006 and 2011 dropped from 7% to 5%, despite the number of black college-aged persons in Michigan increasing from 16% to 19%.
While Justice Sotomayor argued that the ban on race-conscious admissions might have had a negative effect on the number of minority students who enrolled, it has not necessarily stopped colleges from looking at alternative procedures to maintain and promote diversity.
A 2012 study by The Century Foundation, a nonpartisan group, found that at seven of 10 major schools where racial preferences could not be used, race-neutral alternatives helped maintain or even raise minority representation.
For example, Texas’s Top Ten Percent Rule—which guarantees admission to the University of Texas (or any state-funded university) to any high school senior graduating in the top 10% of his or her class—helps ensure diverse college student bodies. A combination of measures, including affirmative action based on class, increasing financial grants, and de-emphasizing standardized tests are just a few promising race-neutral options that have allowed minority enrollment to return to pre-ban levels.
“From FairTest’s perspectives, all these initiatives are worthy of consideration,” says Schaeffer. “But none fully replace affirmative action as a tool for addressing past and present discrimination.”
Fisher vs. University of Texas at Austin
Last June, the justices had a chance to make another big statement on affirmative action with its decision in Fisher vs. University of Texas at Austin (UT Austin). The case was filed by Abigail Fisher, a young woman from Texas who applied to the university but was rejected. Fisher, who is white, then filed a lawsuit, arguing that she had been a victim of racial discrimination because minority students with less impressive credentials than hers had been admitted.
The Supreme Court did not immediately decide the fate of Fisher. Instead, the justices voted 7-1 to return the case to the lower courts to determine whether the use of race is “necessary” and have “the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”
“Strict scrutiny must not be strict in theory but feeble in fact,” Justice Kennedy wrote. “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”
Only Justice Ginsburg dissented in the decision to send the case back.
“I would not return this case for a second look,” Ginsburg wrote in her dissent. “The University reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student-body diversity.”
The ruling upheld Gratz v. Bollinger and Grutter v. Bollinger, two cases fundamental in defining universities’ rights to consider race as an admissions factor. Though many argue that the court’s decision preserves the principle that affirmative action is permissible in some circumstances. That, according to Olivas, depends upon the narrow tailoring that the remand requires.
“UT Austin is allowed to use race (by Grutter), and the top ten percent plan—which I helped write—is race-neutral, so Fisher was not harmed. She was simply not admissible,” Olivas argues. “The plan allows in over 50% whites, in a state where whites are only 30% of the [high school] population. It does not harm them, nor does the modest affirmative action policy.”
It can be said both decisions illustrate the court’s skepticism about race-conscious government programs. The Schuette v. Coalition to Defend Affirmative Action ruling alone took five separate opinions totaling 102 pages written over six months—a sign of how divided the court remains on the issue and the role the judiciary should play in protecting racial and ethnic minorities.
To most, the recent Supreme Court’s decision upholding Michigan’s affirmative action ban was far from a shock, but many believe the ruling could symbolize a steady march to the end of the use of race in higher education.
But, for now, the most recent Supreme Court decision only impacts public colleges and universities in the state of Michigan. The voter-approved Constitutional amendment clearly bars them from considering race, gender, ethnicity, or national origin in admissions and related decisions.
“For higher education institutions in other jurisdictions that are not operating under similar bans [some states, such as California, have their own prohibitions], affirmative action policies that comply with the court’s Hopwood [v. Texas] and Grutter decisions remain legally permissible,” says Schaeffer. “However, many who closely observe the Court believe that further restrictions on affirmative action are likely as the result of Fisher and other cases, currently moving through the judicial system.”
Terah Shelton Harris is a freelance writer based in Alabama.