history of affirmative action law and its relation to college admission, The

For more than 30 years, affirmative action efforts have been present on college and university campuses, as have been the controversies that surround them. Introduced in 1965, affirmative action was seen as a method of addressing the discrimination that persisted in the United States despite civil rights laws and constitutional guarantees. It focused particularly on jobs and education, and required that "affirmative action" be taken to ensure that minorities have the same opportunities for school admission, scholarships, financial aid, salary increases, and career advancement (Brunner 2001 ). To this day, it remains a hotly contested issue in higher education, and recent court decisions once again are affecting how students will be selected for admission to institutions of higher education.

The Early Cases

The year is 1892, and Jim Crow laws are prevalent in the United States. During this time period, "Jim Crow" was the term commonly applied to refer to laws that delegated separate facilities for blacks (Lofgren 1987). Consequently, late that spring, when Homer A. Plessy purchased a ticket on the East Louisiana Railroad for a trip from New Orleans to Covington and refused his racial assignment because it did not provide a sleeping berth, he was arrested. Plessy then was arraigned before Judge John H. Ferguson in the Criminal Court for Orleans Parish. A legal battle ensued that led to the Louisiana Supreme Court upholding the law as constitutional. Plessy persevered and sought review of his case by the U. S. Supreme Court. In 1896, the U.S. Supreme Court ruled in Plessy v. Ferguson and upheld racial segregation, stating that the railroad could segregate white sleeping car passengers from black sleeping car passengers. The ruling also required that the railroad provide sleeping accommodations for blacks that were equal to similar accommodations for whites. The now famous "separate but equal" doctrine was proclaimed for the first time by this ruling and was utilized extensively by southern states to justify racially segregated public schools for many years to follow (Loevy 1997).

More than half a century later, in September 1950, our attention turned to elementary schools in Topeka, Kansas, that remained segregated by law. Oliver Brown attempted to enroll his seven-year-old daughter in Sumner, the local white elementary school. He was summarily dismissed by the school administration. Deeply upset by the school's administrative decision, Brown sought legal advice. The Legal Defense Fund agreed to take on Brown's case, but realized through experience that it would be better to have more than one plaintiff in a suit challenging racial segregation. Twenty people eventually joined the challenge to the Kansas law, but because Brown's name came first alphabetically, the lawsuit bore his name. Brown v. Board of Education was filed in federal court by the Legal Defense Fund on February 28, 1951 (Howard 1999).

In May 1954, the U. S. Supreme Court handed down the landmark decision in Brown v. Board of Education, calling for the desegregation of all public school systems in the nation "with all deliberate speed" (Loevy, p. 17, 1997). In its unanimous ruling, the court stated "that separate facilities were, by definition, unequal and, therefore, unconstitutional" (Loevy, p. 17, 1997). With this ruling, the court implied that all forms of segregation were illegal, thereby setting the stage for the civil rights legislation of the 1960s (Loevy 1997).

The Civil Rights Act of 1964

The concept of affirmative action was first presented in President Kennedy's 1961 executive order. This order called for government contractors to voluntarily support affirmative action efforts by recruiting, hiring and promoting minorities. Unfortunately, these efforts were not always taken on voluntarily and resulted in the passage of the Civil Rights Act of 1964 (Kolling 1998). Title VI of this act mandated the desegregation of public elementary, secondary and postsecondary educational institutions. These institutions needed to provide equal educational opportunities to all students without regard to race or they risked losing their federal financial assistance (Bickel 1998).

Higher education institutions became the focus of integration efforts in Adams v. Richardson (1973), a case that charged that the Department of Health, Education and Welfare (HEW) was behind in its enforcement of Title VI. Within the context of this litigation, HEW published guidelines mandating a unitary higher education system. The requirements for affirmative action included:

the goal that the proportion of black high school graduates entering state institutions of higher education should equal the proportion of white high school graduates entering such institutions, including graduate and professional school; allocation of financial aid; and implementation of remedial education programs to reduce the disparity between the graduation rates of white and blacks (Bickel, p. 7, 1998).

Student Affirmative Action Issues

The 1970s remained a busy time for litigation involving affirmative action, and contained the only two cases involving student affirmative action issues, DeFunis v. Odegaard (1974) and Regents of the University of California v. Bakke (1978) ever to be reviewed by the U.S. Supreme Court.

In 1970, the number of available spaces in all U.S. law schools allowed enrollment of approximately 35,000 students of the 70,000 who applied for admission. Marco DeFunis, Jr. was a white Jewish male of Spanish-Portuguese origin and, according to the government's definition of race, was considered simply as white. After being turned down twice for admission to the University of Washington Law School (UWLS), both in 1970 and 1971, DeFunis decided to file suit in DeFunis v. Odegaard (1973), (Sindler 1978). At issue in this lawsuit was UWLS's practice of considering minority applications separately from the other applications. The lawsuit also alleged that the law school attached less importance to minorities' predicted first-year averages (PFYA), a numerical score achieved by combining Law School Admissions Test (LSAT) scores and undergraduate grade point averages (Kolling 1998).

The Washington State Supreme Court upheld UWLS's admission practices because it found it served a number of interests for the state of Washington. Particularly, these interests were "in promoting integration in public education...in producing a racially balanced student body at the law school," and in alleviating "the shortage of minority attorneys" (pp. 1182-1184). On appeal to the U. S. Supreme Court, the case was dismissed on the ground of mootness. DeFunis had subsequently been admitted to the law school and was about to graduate. Although declaring the case moot, the U.S. Supreme Court did remand the case back to the Washington State Supreme Court where the earlier decision was reinstated and reaffirmed (Kolling 1998).

Allan Bakke became interested in going to medical school and becoming a doctor after a tour of duty in Vietnam. He had already obtained a master's degree in mechanical engineering and was 32 years old by the time he made his first applications to medical school. Bakke applied to two medical schools in 1972 and was rejected by both. In 1973, he applied to 11 medical schools including the University of California, Davis Medical School (UCDMS) and again was admitted to none of them. He re-applied to UCDMS in 1973 for early admission for their fall 1974 class and once more was rejected. Bakke, a white anglo, filed a lawsuit in June 1974, Regents of the University of California v. Bakke, against UCDMS, claiming the special admission minority program had reduced the number of places for which he could compete (Sindler, 1978). The medical school's program reserved 16 places out of 100 for disadvantaged members of certain minority groups, regardless of the size or composition of the pool (O'Neil, 1987).

The California Supreme Court ruled that the UCDMS affirmative action program was unconstitutional, and the use of racial preferences was prohibited by the Equal Protection Clause of the Fourteenth Admendment (Kolling 1998). The California court ordered Bakke's admission to the medical school. The only remaining ruling would be from the U. S. Supreme Court, which reached a judgment, despite being greatly divided on the issue. Four of the Supreme Court Justices ruled against the program purely on the grounds that it violated Title VI of the 1964 Civil Rights Act. Four others upheld the program and gave encouragement to race-conscious programs when utilized for benign or advancement purposes. The final vote was cast by Justice William Powell. In his opinion, he condoned some race-consciousness, but was adamantly against universities utilizing rigid numerical formulas to advance diversity (O'Neil, 1987). He referred to Harvard University's undergraduate program as a positive example of how race could be taken into account without relying on fixed numbers. Harvard considered race or ethnic background a plus factor as long as it did not protect the applicant from being compared with other candidates for admission (Kolling, 1998).

The 1990s - More Changes for Affirmative Action

The 1990s brought more defeats for affirmative action on a number of fronts. In July 1995, the Regents of the University of California voted to end all affirmative action programs at all of their campuses. University administrators were no longer allowed to use race, religion, gender, ethnicity, or national origin as criteria for admission to the university or any program of study, beginning in 1997 for graduate schools and in 1998 for undergraduate admission (Wilbur & Bonous-Hamarth, 1998). The regents' vote seemed to fuel the ballot initiative that outlawed state-sponsored affirmative action the next year. In November 1996, California voters passed Proposition 209 by a narrow margin. This proposition abolished all public-sector affirmative action programs in the state in employment, education and contracting.

Another legal case that delivered a blow to affirmative action was decided in Texas during this time period. An anglo female, Cheryl J. Hopwood, along with three other applicants, filed suit in 1992 against the University of Texas Law School for reverse discrimination after being denied admission. Hopwood argued that she had been unfairly denied admission because she was more qualified than other minority applicants who had been admitted and that she was subjected to unconstitutional racial discrimination (Scott & Kibler, 1998; Van Tyle, 1996).

In March 1996, the Fifth Circuit Court of Appeals ruled for the plaintiffs and prohibited the law school, along with other public higher education institutions in Texas, Louisiana and Mississippi, from considering race and ethnicity in admission practices. In July 1996, the U. S. Supreme Court decided not to hear the case because the law school had voluntarily abandoned the admission program in question in April 1994. As a result, the ruling of the Fifth Circuit Court ruling in Hopwood became law in the state of Texas (Scott & Kibler 1998).

The Affirmative Action Debate Continues into the 21^sup st^ Century

As we entered the 21^sup st^ century, the lower courts remained active in deciding litigation for and against affirmative action in higher education admission. In Smith v. University of Washington Law School, the Ninth Circuit Court of Appeals (2000) upheld the constitutionality of the school's race-conscious admission policy. The court reaffirmed the principle, stated by Justice Powell in the Bakke case, that diversity in higher education may be a compelling interest, justifying the consideration of race in admission. The court also found that the admission policy at issue was narrowly tailored to advance that interest.

In a case that failed the constitutional test, the Eleventh Circuit Court upheld the decision made by the lower court in Johnson v. University of Georgia (UGA). The court ruled that UGA's 1999 admission policy violated the equal protection clause, because it was not narrowly tailored to achieve a diverse student body. UGA's freshman admission policy systematically awarded "diversity" points to every non-white applicant at a decisive point in the process. At this same point, the policy also greatly limited other diversity factors that could have been taken into consideration. The University of Georgia has since dropped race as a factor in deciding admission. An obvious split is growing between the circuit courts on whether race may be considered in making student admission decisions, as evidenced in the Hopwood, Smith and Johnson cases (Borkowski, Dreier, & Kobersy 2001).

Of course, the most closely watched cases by higher education institutions today are the highly publicized cases at the University of Michigan, which are set to be heard by the U.S. Supreme Court in June 2003. The first case, Gratz v. Bollinger, et. al (1997) was brought by Jennifer Gratz and Patrick Hamacher, both unsuccessful applicants to the university's College of Literature, Science and the Arts. They challenged the use of race in the university's admission process. For undergraduate University of Michigan applicants, a point system is utilized. Of the 150 total possible points, 110 are awarded for academics (grade point average, SAT scores, high school quality,and difficulty of curriculum). Students from an underrepresented racial/ethnic minority or at a socioeconomic disadvantage earn an extra 20 points, as do scholarship athletes (Kantrowitz & Wingert 2003).

The U.S. District Court ruled in favor of the university stating that the current undergraduate admission program was constitutional and met the standards set by the Supreme Court in Bakke. The case was appealed to the Sixth Circuit Court of Appeals and oral arguments have been heard. At present, no ruling has been issued on this case from the Court of Appeals.

In the companion case from the University of Michigan, plaintiff Barbara Grutter claims she lost her spot at the law school to less qualified minorities. According to the Report and Recommendations of The Admissions Committee (1992), no point system is utilized at the law school. Rather, applicants are evaluated on a composite index score of their undergraduate grade point average and their score on the Law School Admissions Test. The law school also considers "soft" variables, like leadership and work experience, the quality of the applicant's essay, letters of recommendation, and unique talents or interests. After considering all of the variables, the law school sometimes admits students with low index scores. There are two types of students who may be admitted with low index scores: "there are students for whom we have good reason to be skeptical of an index score based prediction" and students who "may help achieve that diversity, which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts" (p. 8-10). In March 2001, U.S. District Court found that the law does not permit higher education institutions to use race in the admission process. The Court issued an injunction, enjoining the law school from using race as a factor in the admission process. This case was also appealed to the Sixth Circuit Court of Appeals, where in May 2002, the circuit court reversed the lower court ruling stating that the university's admission policy was constitutional and narrowly tailored to serve compelling interest in achieving a diverse student body.

In December 2002, the U.S. Supreme Court granted certiorari in the Grutter case and certiorari before judgment on the constitutional issue only in the Gratz case. With these petitions granted, the University of Michigan has successfully forced a definitive decision to be made concerning the future of race-based admission in institutions of higher education. This decision will undoubtedly affect the future of affirmative action programs as they are known today, and may affect how many universities and colleges select who is admitted to their institutions for years to come.

The Future of Race-Based Admission and Affirmative Action:The Debate Continues

To date, the highest courts have supported the use of race in admission processes, if the policies that support these processes are narrowly tailored to serve compelling interest in achieving a diverse student body. Is a diverse student body necessary to provide a high-quality education? In a 2002 paper, "On the Importance of Diversity in Higher Education," the American Council on Education (ACE) asserts that a diverse student body is essential to providing that high-quality education. ACE states that diversity enriches the educational experience, promotes personal growth and a healthy society, strengthens communities and the workplace, and enhances America's competitiveness. This paper, endorsed by more than 65 other higher education associations, also states that they "believe so strongly that racial and ethnic diversity should be one factor among the many considered in admission and hiring."

The literature also supports the positive effect a diverse student body has on the campus community (Shuford 1998). Astin (1993) concluded in his four-year longitudinal study that emphasizing diversity, either as a matter of institutional policy or in faculty research and teaching, as well as providing students with curricular and extracurricular opportunities to confront racial and multicultural issues, are all associated with widespread beneficial effects on students' cognitive and affective development.

Similar findings were reported by Pacarella, Whitt, Nora, Edison, Hagedom, and Terrenzini (1996) in their three-year longitudinal study. They concluded that a nondiscriminatory racial environment at the institution, on-campus residence, as well as participation in cultural awareness seminars, and the extent of their involvement with diverse student peers had a significant positive impact on the students' end-of-year openness to challenge and diversity (Shuford 1998).

Since a diverse student body is an essential factor in a quality higher education, can that diversity be achieved without utilizing race as a factor in admission? Some in the literature support using class-based options in place of race-based factors, while others support basing admission on merit alone.

According to Kane's (1998) 12-year longitudinal study, class can not be substituted for race in admission without having "substantial effects on campus diversity." If a selective college wants to achieve a substantial minority enrollment without considering race as a factor, "it would have to reserve six times as many places for low-income students as it now reserves for minority students" (Kane, 1998, p.25). In reviewing the data on all California seniors who take the SAT, Karabel (1998) found that the main beneficiaries of an admission policy emphasizing class disadvantage would be low-income whites and Asians, thereby doing little to maintain the diversity needed for a quality educational experience.

In examining the merit argument, one must define the meaning of merit. For many, "merit" means scores achieved on some standardized test or examination, like the SAT, the most commonly utilized test for undergraduate admission.

Historically, the scores of Hispanics and African Americans on standardized tests have been substantially lower than those of Asians and whites. Recent trend data over several years indicate that this difference has remained the same (Nettles, Perna, & Millett 1998). Looking at the effect of SAT scores on black applicants, Crouse and Trusheim (1998) found that the SAT score has a substantially more negative effect on African-American applicants than on white applicants. Their research indicates that "when admission decisions are made without regard to applicants' color - so that the same standards are used for whites and blacks - adding the SAT to the high school record reduces the number of blacks admitted to colleges, sometimes by more than half, but does not reduce the number of whites admitted." Data collected at the University of Michigan in 1995 also supports this research. The university estimates that the number of African Americans in the entering first-year class would have dropped from 580 to fewer than 100 if test scores were used as the sole or dominant factor in determining admission (Nettles, Perna, & Millett, 1998).

If race-based affirmative action is outlawed, it will have an enormous impact on the ability of colleges and universities to maintain a diverse student body. According to the research, there is not an adequate substitute for race-based affirmative action at this time, neither class-based nor merit-based options will maintain the level of racial and ethnic diversity that has been achieved on today's college and university campuses. Justice Harry Blackmun, in the Supreme Court's 1978 Bakke case, presents the most persuasive argument for race-based affirmative action:

I suspect that it would be impossible to arrange an affirmative action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot - dare not-let the Equal Protection Clause perpetuate racial supremacy.

References

American Council on Education, (May 2002). Making the Case for Affirmative Action in Higher Education. On the Importance of Diversity in Higher Education. Washington, D.C.? American Council on Education.

Astin, A. W. (1993). What Matters in College? Four Critical Years Revisited. San Francisco: Jossey-Bass.

Bickel, R. D. (1998). A Brief History of the Commitment to Inclusion as a Facet of Equal Educational Opportunity. In D. D. Gehring (Ed.), Responding to the New Affirmative Action Climate (pp. 3-13). San Francisco: Jossey-Bass Publishers.

Borkowski, J. W., Dreier, A. E., & Kobersy, M. R. (2001, October 25). The 2000-2001 Term of the United States Supreme Court and Its Impact on Public Schools. West's Education Law Reporter, 156 Ed. Law Rep.381.

Brunner, B. (2001). Bakke and Beyond. A History and Timeline of Affirmative Action. Retrieved October, 5, 2001, from http://www.infoplease.com/spot/affirmativel.html

Crouse, J., & Trusheim, D. (1988). The case against the SAT. Public Interest, 93, 97-110.

Howard, J. R. (1999). The Shifting Wind. The Supreme Court and Civil Rights from Reconstruction to Brown. Albany: State University of New York Press.

Kane, T. J. (1998). Misconceptions in the Debate over Affirmative Action in College Admissions. In G. Orfield & E. Miller (Eds.), Chilling admissions. The affirmative action crisis and the search for alternatives (pp. 17-30). Cambridge: Harvard Education Publishing Group.

Kantrowitz, B. & Wingert, P. (2003, January 27). What's at Stake. Newsweek, 30-37.

Karabel, J. (1998). No Alternative: The Effect of Color-Blind Admission in California. In G. Orfield & E. Miller (Eds.), Chilling Admissions. The Affirmative Action Crisis and the Search for Alternatives (pp. 33-49). Cambridge: Harvard Education Publishing Group.

Kolling, A. T. (1998). Student Affirmative Action and the Courts. In D. D. Gehring (Ed.), Responding to the New Affirmative Action Climate (pp.15-31). San Francisco: Jossey-Bass Publishers.

Loevy, R. D. (1997). Introduction: The Background and Setting to the Civil Rights Act of 1964. In R. D. Loevy (Ed.), The Civil Rights Act of 1964: The Passage of the Law that Ended Racial Segregation. Albany: State University of New York Press.

Lofgren, C. (1987). The Plessy Case: A Legal-Historical Interpretation. New York: Oxford University Press.

Nettles, M., Perna, L. W. & Millett, C. M. (1998). Race and Testing in College Admissions. In G. Orfield & E. Miller (Eds.), Chilling admissions. The Affirmative Action Crisis and the Search for Alternatives (pp. 97-110). Cambridge: Harvard Education Publishing Group.

O'Neil, R. M. (1987). Preferential Admissions Revisited: Some Reflections on DeFunis and Bakke. Journal of College & University Law, 14, 423-34.

Pascarella, E. T., Whitt, E.J., Nora, A., Edison, M., Hagedom, L.S., & Terenzini, P. T. (1996). What Have We Learned from the First Year of the National Study of Student Learning? Journal of College Student Development, 37, 182-192.

Scott, F. J., & Kibler, W. L. (1998). A Case Study: The Effects of the Hopwood Decision on Student Affairs. In D. D. Gehring (Ed.), Responding to the new affirmative action climate (pp.57-69). San Francisco: Jossey-Bass Publishers.

Sindler, A. P. (1978). Bakke, Defunis and Minority Admissions. The Quest for Equal Opportunity. New York: Longman, Inc.

Shuford, B. C. (1998). Recommendations for the Future. In D. D. Gehring (Ed.), Responding to the New Affirmative Action Climate (pp.71-78). San Francisco: Jossey-Bass Publishers.

Van Tyle, P. (1996). The Other Shoe Drops: Courts Make College Admission a "Risky Business." NACAC Journal of College Admission, (152-153, 32-37).

Wilber, S. , & Bonous-Hammarth, M. (1998). Testing a New Approach to Admission: The Irvine Experience. In G. Orfield & E. Miller (Eds.), Chilling admissions. The affirmative action crisis and the search for alternatives (pp. 111-121). Cambridge: Harvard Education Publishing Group.

Pamela Barta Moreno works full time in staff development and is a part-time doctoral student in higher education and student affairs leadership at the University of Northern Colorado. A registered nurse with more than 17 years of experience in health care, Moreno has dedicated the last 10 years of her career to education as a staff development professional and nursing school faculty member. She earned her B.S. in nursing in 1985 from Incarnate Word College (TX) and her M.S. in 1992 from the University of Texas Health Sciences Center at San Antonio.

Copyright National Association of College Admissions Counselors Spring 2003
Provided by ProQuest Information and Learning Company. All rights Reserved