Affirmative Action: A Moment of Clarity Amongst the Confusion

Last week marked the 50^th anniversary of the passing of the Civil Rights Act of 1964. Two months ago, the U.S. reflected on the 60 years since the Supreme Court ruling that desegregated our public schools.

Yet, Black and Latino students are less likely to attend racially diverse schools today than at any time in the last four decades. Moreover, the racial and socioeconomic diversity at many of America’s elite colleges and universities remains stagnant or has regressed during the same time period.

These trends highlight major setbacks in educational equity and racial equality, yet, America continues its fiercely contentious debate over the validity and necessity of measures to promote racial diversity in our educational institutions. What’s more, the debate remains anchored in personal testimonies that bewilder the general public and hamper our collective ability to make sensible decisions about our systems of education.

Thus, we thought it would be useful to provide a brief overview of the history and evolution of one such measure: affirmative action. In doing so, we attempt to clarify some of the common misconceptions we have encountered in our respective academic and professional journeys.

How Did Affirmative Action Come To Be?

As written by President John F. Kennedy in Executive Order 10925 and codified in the Civil Rights Act of 1964, affirmative action “refers to both mandatory and voluntary programs intended to affirm the civil rights of designated classes of individuals by taking positive action to protect them from discrimination.”

The program directed organizations that received federal funding to employ measures to end discrimination on the basis race, creed, color, or national origin. In other words, “affirmative action” did not mandate the adoption of specific federally regulated programs. Rather, organizations had to demonstrate that they were complying with the non-discrimination requirements set forth by the government.

Researchers have uniformly concluded that immediate and long-term increases in workplace diversity were attributable to the Executive Order, serving the reparative function of its initial statement.

How Has Affirmative Action in Higher Education Evolved?

Shortly after President Lyndon B. Johnson directed government contractors to use affirmative action policies in their recruitment practices in 1965, higher education institutions began to implement them as well. Over time, courts have ruled on various aspects of affirmative action practices in higher education and have ultimately refined the ways in which institutions can address racial inequality in college admissions. 

In 1978, the U.S. Supreme Court in Regents of the University of California v. Bakke ruled that considering race in college admissions was permissible as a compelling public interest.

25 years later, the U.S. Supreme Court ruled on two affirmative action cases involving the University of Michigan.  First, it decided that the University of Michigan Law School’s race-conscious admissions policies were acceptable since they considered many other factors along with race in a holistic process.  Contrarily, it ruled that the undergraduate admissions point system was unconstitutional since it awarded points arbitrarily based on race.

Last year, the U.S. Supreme Court passed the case of Fisher v. University of Texas, Austin back down to the lower courts, but not before suggesting that affirmative action policies must be narrowly tailored to achieve educational diversity and would need to meet the standards of strict scrutiny in the future.

Most recently, Schuette v. Coalition to Defend Affirmative Action case in 2014, the U.S. Supreme Court upheld a voter-approved amendment to the state constitution banning the use of affirmative action, stating that voters enacted a law using their rights as citizens to engage in the political process.

Unfortunately, after nearly 40 years of debate and analysis since the first Supreme Court ruling, broad misconceptions about affirmative action in higher education persist. Fantasies about formalized quota systems that give candidates of color admissions slots, while simultaneously taking away slots that white students earn remain pervasive.

Opponents often describe hypothetical scenarios that illustrate the dramatics of a “final shot” where two equally qualified applicants square-off against each other for admissions at an elite institution. Grossly oversimplifying the intricacies of the admissions process, these opponents postulate that affirmative action uses racial minority status as a “tie-breaker” awarding the win to students of color based on their race alone.   

As pervasive as these claims are, they aren't buttressed by 40 years of legal precedent, constitutional law, and education research.

Quota Systems

Although it seems needless to say, it’s important to state that quota systems have been deemed unconstitutional since the 1978 Regents University of California v. Bakke decision. Further, there is nothing in the Civil Rights Act, Executive Order 10925, or any of the aforementioned legal cases that mandate the use of an affirmative action approach to workplace diversity or college admissions. Rather, affirmative action allows organizations to employ a set of actions to create the composition of student profiles that they deem desirable given its mission, vision, and goals.

The Supreme Court has affirmed institutional diversity as a governmental and public interest. The Fisher decision reinforced the notion that affirmative action policies must be narrowly tailored to achieve educational diversity and evaluated under standards of strict scrutiny.

The Final Shot

For colleges and universities, the college admissions process typically includes the careful review of a candidate’s application portfolio. Factors including prior academic performance (e.g., high school GPA, rigor of course-taking), quality of personal statement, community-based leadership and volunteer service, legacy status, residency in an underrepresented region of the country, and professional and career aspirations are all reflective of elements often included in the criteria.

The color of one’s skin has never been the sole deciding factor and most colleges and universities will never find themselves in a toss-up over the last spot. The admissions process at many elite institutions is carefully constructed, lasting the better part of an academic year, with several waves and iterations, reviews, and evaluations. It’s time we give admissions personnel more credit for the hard work they do.

Being White is a Disadvantage in College Admissions

The idea of using “objective” criteria to determine admissibility through “merit” has been a central component of the debate around affirmative action. A popular belief is that higher standardized test scores and higher GPAs are the best indicators of a strong candidate. The idea of “meritocracy” assumes that individuals simply commit to working hard and eventually achieve success. This notion ignores the reality that high standardized test scores are not necessarily illustrative of hard work, determination, or motivation.

Educational researchers have proven the bias in the process by which students are prepared for and take standardized tests, processes that primarily advantage affluent students that usually have high levels of financial, social, and cultural capital. Moreover, standardized tests have been the topic of scientific studies that have disproven the predictive power of these tests on future academic achievement in college.

To expand the conversation of racial advantages, one such example is the advantage  afforded  to a legacy applicant (a.k.a. the child of an alum), which at highly selective colleges are still primarily white and which one researcher found makes a legacy applicant on average three times more likely to be admitted than non-legacy students.

Not to mention, White students are more likely to be reared in households where one or both parents are college educated, a background strongly correlated with enrollment in a four-year postsecondary institution. These are unearned structural benefits that primarily advantage one type of student, as opposed to programmatic advantages set up consciously to promote the social mobility of all students.

What About Class-Based Affirmative Action?

An interesting proposal, indeed. For example, a wide body of education policy research posits that using class-based affirmative action would be a sufficient substitute for race-based approaches. In addition, many still believe that society has changed in substantive ways, so that if affirmative action were not present, the racial makeup of higher education institutions would remain unchanged. The evidence, however, suggests that the bans on race-based affirmative action has hindered progress toward achieving racial equity.

Perhaps increases in underrepresented minorities at an institution like the University of Texas, Austin show promise. However, even the University of Texas, Austin, which should theoretically benefit from a top 10 percent program that draws students from majority Latino public schools, still found it necessary to consider race to achieve institutional diversity goals since researchers have found that the program still disproportionately benefits white students in the most-advantaged schools. Furthermore, the results after the decisions in California, Michigan, and Washington show that Latino, Native American, and Black undergraduate enrollments in selective or elite public institutions has decreased or has not kept up with state demographics since these race-affirmative action bans.

California in particular experienced sharp decreases in underrepresented minorities at some of its premier institutions after the Board of Regents voted to remove race, religion, sex, color, ethnicity and national origin as consideration factors for college admissions. In 1996, Proposition 209 took it one step further by ruling out race-conscious outreach of financial aid. As a result, minority admissions dropped dramatically in subsequent years, leading to environments seen at the University of California, Los Angeles, where first-time Black male enrollees (48) where outnumbered by the number of NCAA championships the school attained in its history (109).

Our nation’s challenge to embrace and employ tools to promote diversity has left us with the unfortunate trends outlined in the introduction of this piece. For all the gains this country has made in attaining workplace diversity, we’ve taken two steps back by creating an educational system that steers certain students into prestigious universities and other kids into other schools.

What’s more, we take these trends as an absolute, overlooking or altogether ignoring the fact that disadvantages and advantages of past generations carry on to successive generations. It is our hope that clearing up the misconceptions discussed in this article will produce a better understanding of race-based issues and contribute to more unified equity efforts in higher education.