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Supreme Court bans affirmative action in U.S. college admissions: Definition, examples, pros and cons

The US has not always been a “land of opportunity” it is touted to be today. Hardly 50 years ago, it wasn’t a land of opportunity for even its own people. Minorities and women were prohibited from applying to universities or for higher-level jobs in their own country. Discrimination was legal and masqueraded as state policy.

“Affirmative action” in the US is conceptually somewhat similar to the reservation system in India, but with a major difference: there are no quotas in the US. The US system seeks to provide justice to groups that faced discrimination historically, by ensuring fair representation for them in education and jobs. In the UK, there is no reservation; the government encourages underrepresented minorities to increase their participation.

In the US, affirmative action was launched in the early 1960s, and initially covered racial discrimination at the workplace. President J. F. Kennedy, who coined the term, issued an executive order in 1961, prohibiting discrimination by government employers on the basis of race, creed, color, or national origin. The order also established the organization now known as the Equal Employment Opportunity Commission. President Lyndon Johnson introduced “equal employment opportunity through a positive, continuing program.” In 1967, affirmative action, which was also inspired by the Civil Rights Act of 1964, was extended to protect women employees’ rights.

In the first decade of the 21st century, the gap between whites and minorities enrolling for college decreased—from 70 percent of whites, 56 percent of African Americans, and 61 percent of Hispanics in 2007 to 69 percent of whites, 65 percent of African Americans, and 63 percent of Hispanics in 2011, according to data from the National Center of Education Statistics. Obviously, affirmative action had something to do with it.

For years, applicants rejected by universities have fought court cases against affirmative action, some of which have gone to the US Supreme Court, and earned nationwide attention. In Regents of the University of California v. Bakke (1978), the court upheld affirmative action but disallowed quotas for minorities.

However, the court wanted race to be considered in some way in admissions, so that universities could have a diverse student body. Justice Powell, writing the principal opinion of the court in the Bakke case, appended a summary of features of the Harvard College program as a model for race-conscious admissions that did not use quotas.

According to the appendix, Harvard College, besides, merit and other qualifications of an applicant, considered race among the different aspects of the background of the applicant. If the admissions committee felt that the applicant’s race would add a new dimension to her class and enrich diversity, this candidate might be selected over another candidate with higher test scores. This was the gist of Harvard College’s race-sensitive, holistic admissions policy. However, the question remains whether less privileged institutions have the resources to engage in such close scrutiny of applicant backgrounds to achieve a highly sophisticated diversity model.

In the United States as in India, affirmative action has faced controversy, but the US Supreme Court decisions in 2003 in the cases (Barbara) Grutter v. Bollinger and (Jennifer) Gratz v. Bollinger allowed educational institutions to continue race-based affirmative action while prohibiting quotas.

Student applicants Gratz and Grutter had contended that this policy discriminated against them because they were white and denied them admissions to the College of Literature, Science, and the Arts and the University of Michigan Law School, respectively. Justice Sandra Day O’Connor, incidentally the first woman judge of the US Supreme Court, observed that colleges could strive to achieve a “critical mass” of disadvantaged students needed to achieve diversity.

More recently, in Fisher v. University of Texas (2013, 2016), the Supreme Court upheld UT’s affirmative action for admissions as one way to achieve campus diversity, but warned universities that all affirmative action policies might not pass constitutional muster, according to the New York Times.

The Fisher case is seen as a landmark judgment in favor of a “race-conscious, holistic admissions” system that dealt a severe blow to opponents of affirmative action. The Supreme Court heard the case twice (Fisher I and Fisher II). In the first verdict, the court had overturned a lower court’s approval of UT’s race-sensitive admissions policy and called for race-neutral alternatives. In the 2016 verdict, the court found that race played only a modest role UT’s “holistic” affirmative action policy.

Studying UT’s admissions policy, an opinion piece in “US News & World Report” says that in instances where admissions officials took race into account, race alone did not determine the admissions outcome. In fact, whites and Asians, too, could benefit from consideration of race. The holistic admissions policy of Michigan University upheld in the Grutter case had similarities to UT’s policy. In each instance, under the holistic policy, admissions officials could take into account factors other than race, such as a candidate’s socioeconomic status and community service.

The new realities of racial tumult in the US and movements against racial injustice may have influenced the court’s ruling on Fisher, says the US News article.

A Time magazine article notes that Fisher didn’t have the qualifications to enter UT. “Her grades weren’t that great,” and in the year she applied, admissions were even more competitive at UT than they were at Harvard. The university told the court that if Fisher had received a point for race, she still wouldn’t have made it. But the fact is that five black/Latino students and 42 white students were admitted though they had lower grades and test scores than Fisher.

Against affirmative action

Affirmative action in U.S. college admissionsLitigation hasn’t been the only challenge to affirmative action. In 1996, California adopted Proposition (a referendum on a piece of legislation) 209, a proposal to amend the Constitution to bar any consideration of race and ethnicity in admissions to universities.

Opponents of affirmative action say that it’s unfair to give people an advantage because of the color of their skin rather than for the challenges they have faced. They find the unfairness particularly galling when the policy helps people who probably don’t need it. A Telegraph report refers to a study in the 1990s that found that 86 percent of African Americans on selective campuses were upper or middle class students.

Some critics of affirmative action say that it’s reverse discrimination. Horace Cooper, lawyer and writer, says, “You do not solve the problem of race with race.” He notes that it would be more prudent to prepare members of disadvantaged groups adequately so that they can participate in the competition for college seats and jobs on equal terms with others.

The ‘mismatch theory’

Affirmative action in universities often results in lower graduation rates, lower academic satisfaction, and lower income for the intended beneficiaries, because of a “mismatch” between the abilities of the students and the requirements of the university course that they attend. Underqualified beneficiaries of affirmative action, be they minority students or legacy candidates (children of alumni), who have been accepted to prestigious colleges, may find themselves at sea among their better-prepared classmates.

Mismatch explains why students receiving significant preferences during admissions to top colleges, including minority students, legacy applicants, or athletes, are likely to abandon their studies or intended career paths such as engineering or science. The simple reason is that they are unable to cope. These students are likely to end up in second-choice careers with lower incomes, with loss of self-esteem.

A law professor at UCLA, Richard H. Sander, wrote a provocative article in the Stanford Law Review, saying that a student who benefits from affirmative action is likely to struggle at studies, resulting in lower grades and difficulty in finding a job.

However, others have pointed out that if a minority student attends a course that is in tune with his levels of preparation, there are fewer problems coping, and the student will likely graduate and go on to a career closer to his ambition.

Opponents say that past race discrimination does not justify present discrimination against non-minorities. The present generation is not responsible for past sins of their forefathers. It is against the values of equality and fairness when someone is favored on the basis of color or gender at the cost of someone with equal or greater merit.

The diversity argument

Supporters of affirmative action say it ensures diversity on the campus and at the workplace. It develops tolerance as it promotes exposure to various cultures. It helps level the playing field, as many groups were discriminated against and started late in the race to development.

Affirmative-action activists say the policy has helped remove racial stereotypes by providing opportunities to disadvantaged groups to prove their abilities—though critics say it has only reinforced stereotypes, through a suggestion that minorities and women can thrive only if they are given an unfair advantage over others.

In 2002, Lee Bollinger, the respondent President of the University of Michigan in the Gratz and Grutter cases, spoke at a symposium on “Seven myths about affirmative action in universities,” defending the university’s admissions policy.

Judges differ

Two of the eight judges of the US Supreme Court, which ruled in favor of affirmative action in college admissions at UT in the Fisher case, were people of color, and had different views on the topic. While Justice Sonia Sotomayor, the first Hispanic judge on the Supreme Court, supported affirmative action in an earlier ruling, Justice Clarence Thomas said he felt stigmatized by the policy.

Sotomayor, a graduate of Princeton and Yale, has admitted that along with her academic and professional achievements, affirmative action was also a factor in her achievements. However, Thomas has said that he wished he had never revealed his race in his application form to Yale. He always had to fight against the perception that by being a black student, he was inferior to white students. He said the Constitution barred categorization on the basis of race and described the educational benefits of affirmative action as a faddish theory.

Diversity after the ban

Eight states have banned raced-based affirmative action at public universities: California, Michigan, Washington, Nebraska, Arizona, Oklahoma, Florida, and New Hampshire. These states together educate 29 percent of all high school students in the US. Texas had a ban in effect from 1997 to 2003, and Georgia dropped race-based policy after challenges in court.

What did public universities in these states do to maintain diversity after the ban? According to an article on the Century Foundation website, they mainly used five strategies,: creating percent plans guaranteeing admission to top graduates from high schools in the state; adding socioeconomic factors to admissions; funding new financial assistance programs; improving recruitment and support; and dropping legacy preferences.

Halley Porter, author of the Century Foundation website article, says that in her analysis, seven of 11 flagship universities in these states that adopted race-neutral policies were able to maintain or exceed enrollment figures for African Americans and Latinos recorded before the ban.

As for MBA admissions, the University of California-Berkeley’s Haas School of Business and the University of Michigan’s Ross School of Business are among the top public schools that have been prohibited by their states from using affirmative action. The schools, therefore, achieve diversity in different ways—for example, by partnering with the Consortium for Graduate Study in Management (Consortium MBA), which provides financial aid, and by organizing outreach programs for minority students.

Time to scrap affirmative action?

In 1981, the International Convention on the Elimination of All Forms of Racial Discrimination stipulated that the measures to reverse the ills of discrimination would be wound up once the objectives had been achieved, but in US and India, for example, affirmative action and reservation continue to be used.

Has the time come for phasing out affirmative action? Or should minorities continue to be compensated for the injustice they suffered in the past? Should compensation be handed out at the cost of the descendants of those who committed these injustices? What if the descendants continue to enjoy the fruits of unjust actions committed by their forefathers?

What about the socioeconomically disadvantaged sections among the so-called privileged races? Should the son or daughter of a rich black man receive preference over the child of a white family living in poverty? Is it fair to decide on the basis of factors a human being cannot control, such as race and gender? Tough questions.

The US Supreme Court verdict in Fisher II calls for a review of affirmative action and consideration of the socioeconomic status of candidates. Protests and litigation will probably continue until a better racial climate is achieved on campuses, and applicants can be, and are, considered for their merit and qualities.

Affirmative action and women

In the late 1960s, the federal government included affirmative action that covered women, realizing that they too faced discrimination. The Civil Rights Act of 1964 had only mentioned that discrimination on the basis of sex was illegal, without making specific mention of discrimination against women.

Women have been making up the majority of the student body at degree colleges for years. A Washington Post article from 2014 says, “For 35 years, women have outnumbered women in American colleges.” The author, Nick Anderson, notes that in the preceding decade, women accounted for 57 percent of degree-college student bodies.

According to federal data from 128 colleges and universities that accepted fewer than 35 percent of applicants for the fall 2012 term, the rates of men and women applicants admitted were equal at 16 schools. At 48 schools, women were admitted at a higher rate than men. They included MIT, Caltech, and Carnegie Mellon University. But here, men outnumbered women. At 64 schools, male applicants were admitted at a higher rate. Women outnumbered men at some of these schools.

So, does this mean there should be no affirmative action in favor of women anymore? In any case, there is a legal problem in public universities using gender-based affirmative action, as it would be violation of Title IX.

According to an article in the Time magazine, studies have found that though affirmative action has helped people of color, it has helped women disproportionately, particularly white women. A study in 1995 found that six million women, a majority of them white, secured jobs they wouldn’t have normally got, thanks to affirmative action.

Another study found that employment of women rose at companies with federal government contracts (which are required to implement affirmative-action provisions) 15 percent, while the increase was only about 2 percent at companies that didn’t have such contracts. At IBM, the number of women managers tripled in under 10 years after the company implemented an affirmative action program.

Preference for men?

Are admissions officials giving men an edge now? An article on “” points to a surprise statement by Jennifer Delahunty Britz, admissions dean of Kenyon College, in the New York Times that the college considered men as more valued applicants as it received more applications from women than men. “Once you become decidedly female in enrollment, fewer males, and as it turns out, fewer women, find your campus attractive,” she wrote.

In the debate that followed, it came out that the gender gap is so heavily against men that board members of UNC, Chapel Hill, reportedly asked if there could be an affirmative action plan for men.

Kenyon College could implement a male preference as it is a private institution, but UNC would be in trouble under Title IX if it tried that, as it is a public institution that receives federal funds.

Preference to male applicants has been challenged in the courts. In 1996, the Supreme Court ruled that an institution required compelling justification related to the government’s interests to adopt gender-based distinctions in admission. In 1999, the University of Georgia was sued by a white woman who challenged its system of awarding extra points to male and/or minority applicants. It withdrew the system before the court ruling.

Analysts say that in the interest of diversity, colleges that receive applications mainly from men or mainly from women may show some bias towards either male or female applicants, as the case may be. But activists say that any bias against women would be grossly unfair given the tortuous history of the women’s rights movement.

However, despite the fact that women graduates have long been outnumbering male graduates, women are yet to claim their rightful clout in the corporate world. According to the Center for American Progress, although women hold 52 percent of all professional-level jobs, only 15 percent of executive officers, 8 percent of top earners, and 5 percent of Fortune 500 CEOs are women.

Affirmative action and Asian Americans

Affirmative action has had a negative impact on Asian Americans, particularly at top universities and colleges. A Harbus (of the Harvard Business School) article highlights a 2015 study that found that under a race-neutral admissions policy, the percentage of Asian Americans would rise from 24 percent to 32 percent at Ivy League schools.

According to a 2011 study by two economics professors, an Asian candidate has 6 percent less chance of being accepted to an MBA program than a white applicant. Another study has found that they have to score 140 points higher on their SATs to gain admission to top universities compared with white students.

A 2014 lawsuit pending in the US District Court in Massachusetts against Harvard University alleges that it has followed a pattern of racial discrimination for a long time. Edward Blum, president of Students for Fair Admissions, who filed the suit, says that while the university used its admissions policy to keep out qualified Japanese students in the 1920s, it is today using the same policy to discriminate against Asian Americans.

In an article in the Huffington Post, Bernadette Lim, a Harvard student and founder of Women Speak, writes that Asian Americans are often left out of the affirmative-action debate. They are considered the “unexplained minority exception,” as they have managed to secure the highest high school graduation rate among all races.

African Americans also secure what is sometimes seen as a disproportionately large percentage of seats in prestigious universities, such as the UC, where they make up more than one-third of undergraduates.

Do universities feel that Asian Americans are over-represented compared to their minority status, and are colleges using affirmative action to keep them out? Is it therefore more difficult for them to gain admission to elite universities?

Is there an alternative?

All said, one can safely assume that colleges will need to use one form of “discrimination” or another in their admissions process as they receive far too many applicants than there are seats, and have to weed out some applications in some way. It may also be safe to assume that universities might like status quo on raced-based admissions if only because other programs to increase diversity would probably be more expensive.

But are the people who matter in the debate missing the elephant in the room—legacy candidates, celebrity applicants, and athletes, who get unquestioned preference? There seems to be no big protests against rolling out the red carpet for them at universities and colleges.

Update: On 29th June 2023, the United States Supreme Court has come down hard on affirmative action, and officially killed it. Opinion in the academic circles is divided with most universities expressing their commitment to an inclusive and diverse class. It remains to be seen how the Supreme Court’s historic judgement impacts higher ed admission decisions in the years to follow.

Also read;
How the best MBA programs strive to increase diversity in the class
Can you buy your way into a top university?
How to get into Princeton University
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