Introduction
The original intent and purpose of affirmative action was to correct the effects of specific forms of discrimination. Affirmative action when used in college admissions allows schools to diversify its student population by giving special consideration to minorities, woman, or other excluded groups. This allows colleges and universities to level the playing field for groups who have traditionally been disproportionately rejected. Understanding the importance of affirmative action, this paper will dive into the notion of race discrimination vs. socioeconomic discrimination and what actions universities should take to ensure equal educational opportunities for people of different incomes vs. different racial backgrounds. The paper will further analyse the discrimination, if any, against particular student populations at the colleges and universities.
Affirmative action has been a highly contested topic since its introduction after the Civil Rights Act was passed. Colleges and universities implemented a variety of different policies following this but it wasn’t until UNIVERSITY OF CALIFORNIA REGENTS v. BAKKE, (1978), that affirmative action in the college admission process began to be challenged. In the case, the student argued he was discriminated against during the admission process. While the court sided with him, it upheld that race could be used as a factor to desegregate colleges and universities. Following that case, GRATZ et al. v. BOLLINGER et al., (2003) and GRUTTER v. BOLLINGER et al., (2003) also put affirmative action back in the spotlight. The first case ruled that a point system favouring minorities was unconstitutional while the latter sided with the universities affirmative action policy. Even today, we see issues arise at schools like Harvard University where affirmative action policies are being contested against the current admission process.
Summary of Cases
To get a better understanding of the role of affirmative action at colleges and universities, we need to first delve into the past incidents that have occurred related to the topic. Each of the following four cases gives an interesting and unique perspective into two sides of the argument towards affirmative action. One of the first cases in which affirmative action is challenged at the Supreme Court is in UNIVERSITY OF CALIFORNIA REGENTS v. BAKKE, (1978). In this case a white male applied to a state medical school two years in a row but was rejected. He made the claim that the structure of admission into the program was discriminatory because 16 of the 100 spots were reserved for minority students. The university argued the special admissions program was legal to introduce diversity into the medical school. After the deliberation of the case, the California Supreme Court decided that the special admission program was illegal because it violated the Equal Protection Clause in the constitution but held that university has a right to be able to use race as a factor for applications. The court argued that because the school could not prove the white male would not of been admitted without the special admission program, they he had the right to be admitted into the medical school.
Looking into the GRATZ et al. v. BOLLINGER et al., (2003) case, we can see similar themes related to the previous case. In this case, two white individuals were rejected from the University of Michigan. The students filed a class action suit against the university, claiming they were violating the Equal Protection Clause, Title 6, and 1981 by using racial preference in admissions to the university. The students were seeking compensatory and punitive damages, declaratory and injunctive relief, as well as admission as a transfer student into the university. After deliberating, the court found the white individuals had ground to seek the declaratory and injunctive relief, the university’s current admissions program violated the Equal Protection Clause, and that Title 6 and 1981 was also violated. The court found issues with the university use of race in the admissions program because it was not narrowly tailored to achieve the respondent’ asserted interest in diversity. As mentioned in the previous case, diversity can’t constitute a compelling state interest, which highlights the simple fact that a university may not do whatever it wants to be able to achieve a more diverse student population; it needs to regard the limits imposed by strict scrutiny.
While the first two cases highlight the stance against affirmative action because of the discriminatory practices that can come from it, the following two cases will highlight the opposite; support towards affirmative action. In GRUTTER v. BOLLINGER et al., (2003) a law school applicant who was denied admission to the university argued the admissions policy violated the Equal Protection Clause by encouraging diversification of applicants. When the case first went to court it was held the university’s decision to use race and ethnicity in admission was illegal and instructed the law school to not use race as a factor in admissions. This decision was appealed and the Supreme Court reversed the initial decision stating the law school’s decision to use race was lawful because it had a compelling interest to diversify its student body; arguing that diversity is crucial to the educational mission of the law school. The Supreme Court also held the law school did not violate the Equal Protection Clause because by narrowly tailoring its admissions program, the school was serving its compelling interest in obtaining educational benefits with a diverse population of students. The plan did not violate the Clause because it didn’t only consider race as a “plus”, establish quotas, or put minorities on separate admission paths. In not violating the Equal Protection Clause, the law school also did not violate Title 6 or 1981.
Similarly, in the FISHER v. UNIVERSITY OF TEXAS AT AUSTIN ET AL., (2013) case, a white individual was denied admission to a university and claimed its admissions program violated the Equal Protection Clause because of its consideration of race in the application. While the District Court granted summary judgement, the Supreme Court upheld the universities admission plan. Bakke, Gratz, and Grutter are all mentioned in the case when addressing the issue presented stating the after establishing the educational goal and mission of diversity is consistent with strict scrutiny, it needs to show its method to obtain this diversity is narrowly tailored. Ultimately the Fifth Circuit held that instead of an analysis by the reviewing court, the petitioner could only challenge whether the decision made by the university to use race was made in good faith. This decision went against what was decided in Grutter, “all racial classifications imposed by government 'must be analysed by a reviewing court under strict scrutiny.'(Fisher).” The court later vacated the decision made by the Fifth Circuit stating the case be remanded so the admissions program could be considered under the correct analysis.
Analysis of Cases
Now that we have a better understanding of the background of each case, we can take a deep look into the issues that lead to the lack of harmony between the law, campus policies, and practices. In the Regents of California v. Bakke case we see the first instance of push back against policies related to affirmative action. During this time, colleges and universities were actively trying to diversify their student populations as shown by the special admissions program within the medical school. What we learned from this case was that quotas within programs are unconstitutional so while colleges and universities can use race as a factor in the admission process and used to promote diversity. This created new challenges for the university because it needed to find new ways to promote diversity without a special admissions program. Understanding the gap minority or disadvantages students have in education makes the situation harder to remedy. If you cannot save spots for students who don’t perform as well as white students then the question is how can you go about bringing together a diverse group in universities across the country. We see another unique example in Gratz v. Bollinger where the university tried to create a program consistent with Bakke’s requirements but failed to create a plan that was narrowly tailored. In the case the Court did not uphold the universities affirmative action program because of the manner in which race was handled in the application process. By just giving automatic points to minority individuals that applied, the university was not narrowly tailoring its plan to be compliant with the Equal Protection Clause. As mentioned in the Bakke case, this ruling led to more changes to university policies because of more strict scrutiny that needed to be applied to affirmative action programs. Each of these cases adds more regulation and guidelines to the way colleges and universities can handle affirmative action when it comes to the admission process. The more scrutiny we see, the more these universities need to be able to think creatively on how to affect marginalized groups of people when it comes to the admission process. While race can be incorporated into the process, very specific and targeted methods cannot be used as mentioned; no special admissions programs or automatic points in admissions systems.
Turning our heads to Grutter v. Bollinger, the affirmative action program within the university was deemed constitutional. What we find in this case is a primary example where a plan was narrowly tailored enough to push for student diversity while at the same time being able to within strict scrutiny. The decision of this case paired was decided the same day as Gratz v. Bollinger, which made for an interesting dynamic; two cases, one university, two decisions. Understanding how and in what ways colleges and universities could use affirmative action in their admissions process is important so the framing of these programs can be done correctly without going against the constitution, more specifically the Equal Protection Clause. From the case it’s important to understand and take away the importance of admissions programs being able to apply strict scrutiny while also keeping race as a factor in admissions. Universities should not turn their eyes away from race as there has been a long history of overt discrimination so they need to be mindful of their role in “repeating history” in favouring one race over another.
Finally, one of the last cases we look towards is Fisher v. University of Texas. The issue of unconstitutional admission programs comes back into the spotlight. As mentioned in the two previous cases, Regents of California v. Bakke and Gratz v. Bollinger, narrowly tailoring the admissions program is required for a universities program to be constitutional. This case in particular is interesting because it was vacated and remanded. There was insufficient analysis done on the admissions program, which led to the ruling of the case. The three major requirements mentioned by the Supreme Court for affirmative action programs included, ensuring it was narrowly tailored, it had to withstand strict scrutiny, and race could only be considered if there was a reason and principled explanation for wanting a more diverse student body. At the University of Texas we see a unique plan, the top ten percent plan, to ensure more diversity within the class sizes. The ruling the plan did not meet those standards mentioned make it increasingly hard for universities to continue to craft their own narrowly tailored plan. The added rules and guidelines as mentioned in previous cases do not provide any guidance on how universities can craft the perfect narrowly tailored plan. By continually adding more lays to affirmative action, it seems we draw farther and farther from the ultimate goal of correcting the specific forms of discrimination.