AFFIRMATIVE ACTION

AFFIRMATIVE ACTION

Employment programs required by federal statutes
and regulations designed to remedy discrimina-
tory practices in hiring minority group members;
i.e., positive steps designed to eliminate existing
and continuing discrimination, to remedy linger-
ing effects of past discrimination, and to create
systems and procedures to prevent future discrim-
ination; commonly based on population percent-
ages of minority groups in a particular area.
Factors considered are race, color, sex, creed, and
age.

The idea of affirmative action was foreshad-
owed as early as the Reconstruction Era, which
followed the U.S. CIVIL WAR.When that conflict
ended, the former slave population throughout
the South owned virtually nothing and had only
a limited set of skills with which they could
make a living. To help these newly emancipated
citizens sustain a minimal economic base, the
victorious General William T. Sherman pro-
posed to divide up the land and goods from the
sizable plantations of southeastern Georgia that
were under his command and grant to each
family of color “40 acres and a mule.” The pro-
posal ran into powerful political opposition,
however, and it was never widely adopted.
Nearly a century later, this idea of assisting
whole classes of individuals to gain access to the
goods of U.S. life reemerged in U.S. law and
society through a series of court decisions and
political initiatives interpreting the CIVIL
RIGHTS guarantees within the EQUAL PROTEC-
TION CLAUSE of the FOURTEENTH AMENDMENT.
These decisions and initiatives came to be
known as affirmative action.

The term itself refers to both mandatory and
voluntary programs intended to affirm the civil
rights of designated classes of individuals by tak-
ing positive action to protect them from, in the
words of Justice WILLIAM J. BRENNAN JR. , “the
lingering effects of pervasive discrimination”
(Local 28 of the Sheet Metal Workers’ Int’l Assoc.
v. EEOC, 478 U.S. 421, 106 S. Ct. 3019, 92 L. Ed.
2d 344 [1986]).A law school, for example,might
voluntarily take affirmative action to find and
admit qualified students of color. An employer
might recruit qualified women where only men
have worked before, such as businesses that
operate heavy equipment.

Affirmative action developed during the
four decades following the decision in BROWN V.
BOARD OF EDUCATION, 347 U.S. 483, 74 S. Ct.
686, 98 L. Ed. 873 (1954). In Brown, the Supreme
Court held that public school SEGREGATION of
children by race denied minority children equal
educational opportunities, rejecting the doc-
trine of “separate but equal” in the public edu-
cation context. During the 1960s and early
1970s, the CIVIL RIGHTS MOVEMENT as well as
the VIETNAM WAR inspired members of minori-
ties and women to advocate collectively for
increased equality and opportunity within U.S.
society. These groups appealed for equal rights
under the Fourteenth Amendment, and they
sought opportunity in the public arenas of edu-
cation and employment. In many ways, they
were successful.As affirmative action grew, how-
ever, it drew increasing criticism, often from
men and whites, who opposed what they viewed
as “reverse discrimination.”

While the Brown decision declared segre-
gated schools unlawful, it did not create affirma-
tive action to remedy discriminatory practices.A
decade after Brown, little had changed to inte-
grate the nation’s schools. The Court acted
ahead of business executives and legislatures
when it mandated, in Green v. County School
Board, 391 U.S. 430, 88 S. Ct. 1689, 20 L. Ed. 2d
716 (1968), that positive actions must be taken
to integrate schools. There followed the adop-
tion of an array of devices such as redistricting,
majority-to-minority transfers, school pairings,
magnet schools, busing, new construction, and
abandonment of all-black schools.

The first major legal setback for voluntary affirmation action was REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), in which the Supreme Court struck down an admission
plan at the University of California, Davis, medical
school. The plan, which had set aside 16 places for minority applicants, was challenged
by white applicant Allan Bakke, who had been
refused admission even though he had higher
test scores than some of the minority applicants.
The Court held that by setting aside a specific
number, or quota, of places by race, the school
had violated Bakke’s civil rights. By denying the
“set-aside” practice of an affirmative action
plan, the decision seemed to threaten the principle
underlying affirmative action as well.

The following year, however, the Court
found in UNITED STEELWORKERS V. WEBER, 443
U.S. 193, 99 S. Ct. 2721, 61 L. Ed. 2d 480 (1979),
that the voluntary plan of Kaiser Aluminum
Company to promote some of its black workers
into a special training program ahead of more
senior white workers did not violate the latter’s
civil rights when it did not involve quotas. The
Court also found in Local 28 of Sheet Metal
Workers’ International Ass’n v. EEOC, 478 U.S.
421, 106 S. Ct. 3019, 92 L. Ed. 2d 344 (1986), that
rights were not being violated by a courtordered
membership goal of 29.23 percent
minorities. Writing for the plurality, Justice
Brennan said Title VII of the Civil Rights Act of
1964 does not prohibit courts from ordering
“affirmative race-conscious relief as a remedy
for past discrimination” in appropriate circumstances.
Such circumstances might include
“where an employer or LABOR UNION has
engaged in persistent or egregious discrimination,
or where necessary to dissipate the lingering
effect of pervasive discrimination.”

The Court later found, in City of Richmond
v. J. A. Croson Co., 488 U.S. 469, 109 S. Ct. 706,
102 L. Ed. 2d 854 (1989), that the Minority Business
Utilization Plan of Richmond, Virginia,
violated the rights of private contractors. The
plan, which required 30 percent of all subcontracts
to be awarded to minority-owned companies,
was struck down because this municipality
had failed to show compelling state interest for
such a measure. The Court applied the compelling
interest test after holding that race-based
action by state and local government was subject
to STRICT SCRUTINY. The Court extended this to
the federal government in Adarand Constructors,
Inc. v. Pena, 115 S. Ct. 2097, 132 L. Ed. 2d 158
(1995).

In Johnson v. Transportation Agency, 480 U.S.
616, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987), the
Court ruled that a county agency had not violated
Title VII of the CIVIL RIGHTS ACT when, as
part of an affirmative action plan, it took a
female employee’s gender into account in promoting
her ahead of a male employee with a
slightly higher test score. The Court held that a
“manifest imbalance” existed in this workforce
because of an underrepresentation of women,
and that the employer had acted properly in
using a “moderate, flexible, case-by-case
approach to effecting a gradual improvement in
the representation of minorities and women.”

At issue in affirmative action cases is
whether the Equal Protection Clause of the
Fourteenth Amendment can be employed to
advance the welfare of one class of individuals
for compelling social reasons even when that
advancement may infringe in some way upon
the life or liberty of another. The continuing
existence of affirmative action laws and programs
suggests that so far, the Supreme Court’s
answer has been yes.

Affirmative action plans may be undertaken
voluntarily, as in the case of a private school’s
admissions goals; imposed by the courts to protect
civil rights; or required by law to qualify for
federal contracts. Plans required to qualify for
federal contracts are enforced by the Office of
Federal Contract Compliance Programs
(OFCCP), an agency of the U.S. LABOR DEPARTMENT.
The OFCCP defines its mission with its
critics in mind: “Affirmative action is not preferential
treatment. Nor does it mean that unqualified
persons should be hired or promoted over
other people. What affirmative action does
mean is that positive steps must be taken to provide
equal employment opportunity” (EEOC,
U.S. Labor Department, Pub. No. 2850, Making
EEO and Affirmative Action Work 8 [1993]). One
ranking OFCCP administrator defended the
program even more sharply by saying, “Affirmative
action is not about goals and has nothing to
do with preferences. It is about inclusion versus
exclusion: people who have been excluded from
participation in the process for years are now to
be included.”

Affirmation action plans are subject to
mandatory compliance procedures, which may
include monitoring by review, conciliation of
disputes, exclusion from federal contract work,
or even suit by the JUSTICE DEPARTMENT.

Criticism of affirmative action has been constant
since the Supreme Court first articulated its
views. By the 1990s, opponents began to press the
Court to reverse its precedents both in employment
and in higher education admission policies.
Supporters of affirmative action openly worried that the Court would severely restrict affirmative action. For example, in 1997, the Court was
scheduled to hear an appeal involving a New Jersey
schoolteacher who claimed she had suffered discrimination because of an improper affirmative action plan (Taxman v. Piscataway Township Bd. of Educ., 91 F.3d 1547 [3d. Cir. 1996]).Weeks before oral argument, supporters of affirmative
action made the schoolteacher a financial settlement
in return for her dismissing the case. They
admitted that this was hardly a victory, but supporters
pointed to troubling developments.

One of these developments was the Supreme
Court’s refusal to review a decision that struck
down a university admission plan that used race
as one factor for acceptance. In Hopwood v.
Texas, 78 F. 3d. 932 (5th Cir. 1996), the Fifth Circuit
Court of Appeals ruled that the practice of
providing preferential treatment to minorities in
a public university’s admissions policy was
repugnant to the Constitution.

The University of Texas Law School implemented
an admissions policy in which the standards
for admission were lowered for minorities.
The school employed an index (called the Texas
Index, or TI) that combined standardized test
scores with grade point averages. A minimum
score for acceptance was ten points higher for
whites than for non-whites. The appeals court
found problems with the structure of the TI. While minorities, specifically African Americans and Mexican Americans, earned scores sufficient to be categorized as “presumptive admits” (certain to be accepted), whites that received the
same scores were categorized as “presumptive denials” (certain to be rejected). The court invalidated the admissions policy, concluding that
using race as a criteria for admissions is as ARBITRARY
as using one’s blood type.

In Grutter v. Bollinger, ___U.S.___, 123 S.Ct.
2325, 156 L.Ed.2d 304, 2003 WL 21433492 (U.S.,
Jun 23, 2003) (NO. 02-241), the U.S. Supreme
Court narrowly endorsed the use of race in
choosing students for America’s top universities
and the concept of racial diversity as a compelling
governmental interest. In a landmark
decision with wide-ranging implications for
affirmative action programs across the United
States, the Court ruled that it does not violate
the Equal Protection Clause to give some preferential
treatment to disadvantaged minorities,
calling the diversity that minorities bring to
education, business, and the military necessary
for the cultivation of “a set of leaders with legitimacy
in the eyes of the citizenry.” But the victory
for affirmative action was conditional, as
the Court emphasized that racial preferences
should be a temporary rather than permanent
fixture in American society, and called for “periodic
reviews” and “sunset provisions” for raceconscious
admissions.

In the 5-4 decision, written by Justice SANDRA DAY O’CONNOR and joined by joined by Justices JOHN PAUL STEVENS, DAVID SOUTER, RUTH BADER GINSBURG, and STEPHEN BREYER, the Court ruled that attaining a diverse student body
is at the heart of a law school’s proper institutional mission, and that GOOD FAITH on the part of a university in pursuing diversity should be
presumed, absent a showing to the contrary.

The Supreme Court emphasized that the law
school sought to enroll a “critical mass” of
minority students, not simply to assure that its
student body had some specified percentage of a
particular group. In concluding that the law
school’s admissions policy was narrowly tailored,
the Supreme Court stated that the policy
did not operate as a quota, but used race as a
“plus” factor, such that the policy was flexible
enough to ensure that each applicant was evaluated
as an individual.

The plaintiff was a white Michigan resident
whose application was rejected by the law
school. She alleged that her application was
denied because the law school used race as a
“predominant factor.” A district court agreed
with the plaintiff, but the Sixth Circuit Court of
Appeals reversed.

In a separate 6-3 decision handed down the
same day as Grutter v. Bollinger, the Court struck
down a separate University of Michigan undergraduate-admissions process based on a point system because the admissions process made
race a “decisive” factor, rather than just one of
many in determining who was admitted. Gratz v.
Bollinger, ___U.S.___, 123 S.Ct. 2411, 156
L.Ed.2d 257, 2003 WL 21434002 (U.S. Jun 23,
2003) (NO. 02-516). The opinion was delivered
by Chief Justice WILLIAM REHNQUIST, who was
joined by Justices O’Connor, ANTONIN SCALIA,
ANTHONY KENNEDY, and CLARENCE THOMAS.

This point-system ruling is expected to force
state schools that use similar numerical methods
to revise them, and it could cause companies to
rethink their reliance on quantitative evaluations
of job applicants and employees. Although
Michigan is a public university, the decision is
considered likely to apply to selective private universities
as well because they receive government
funding. It also will affect admission practices at
selective public high schools where affirmative
action has also been eliminated or besieged.

Distaste for affirmative action also led opponents
to attack the policy at the state level
through ballot initiatives and referendums. In
November 1998, the California electorate passed
Proposition 209 (54 to 46 percent), which
banned many of the affirmative action programs
in California. The REFERENDUM was promoted by
the nonprofit Center for Individual Rights, which
was also instrumental in building opposition to the University of Texas admissions policy that was struck down in Hopwood. The proposition
has remained a controversial topic,with supporters
arguing that state and local officials have
avoided dismantling affirmative action. These
same supporters continue to call on state officials
to enforce the law. Officials, however, have
pointed out that under the proposition, when
federal laws mandate affirmative action to qualify
for federal monies, the state law must give way.

In 2000, Florida became the first state to voluntarily
end affirmative action in higher education
and state contracts. Public universities put
into place new college admission policies that
prohibit affirmative action. One new component
was the Talented 20 Plan, which mandates that
students who graduate in the top 20 percent of
their class and who complete a college preparatory
curriculum must be admitted into one of
the ten state universities. These changes were
designed to increase opportunity and diversity
while ending racial preferences and set-asides.

In the face of continuing legal challenges, the
fate of U.S. affirmative action programs
remained unclear in early 2004. Recent federal
court decisions as well as state government
actions suggested that affirmative action policies
might need to change in order to pass constitutional
muster in the future. Commentators speculated
that a Supreme Court—after expected
retirement of the older justices—might be more
likely to signal its rejection of existing affirmative
action principles.

FURTHER READINGS
ACLU. 1995a. Affirmative Action. Briefing paper no. 17,
March 22.
—. 1995b. The Case for Affirmative Action. July 1.
“Affirmative Action.” 1995. CQ Researcher. April 28.
Clinton, President Bill. 1995. Speech at the National
Archives, July 31.

Coyle, Marcia. 2003. “The Fallout Begins: In Its Final Week
of the Term, the Supreme Court Hands Down Landmark
Rulings That Give Legal Backing to Two Kinds of
Diversity; Affirmative Action and Gay Rights.” The
National Law Journal 25 (July 7).

Curry, George E., and Cornel West, eds. 1996. The Affirmative
Action Debate. New York: Perseus.

Landsberg, Brian K. 2003. “Affirmative-Action Decision
Indicated Shifts in Position.” The Los Angeles Daily Journal
116 (June 30).

Rubio, Philip F. 2001. A History of Affirmative Action,
1619–2000. Oxford: Univ. Press of Mississippi.

CROSS-REFERENCES
Civil Rights Acts; Equal Employment Opportunity Commission;
Seniority; Sex Discrimination.

How Much Affirmative Action Is Enough Affirmative Action?

In the combustive debate over affirmative
action, fairness is the hottest issue
of all. Most people agree that employers
should hire and promote people fairly.
Does affirmative action make this happen?
Americans disagree sharply: a July
1995 Associated Press poll found that 39
percent think it does, but 48 percent said
giving preference to women and minorities
produces even greater unfairness.
These numbers barely scratch the surface
of the antagonisms in a debate now more
than thirty years old. Proponents
argue that the benefits of
affirmative action policies are
tangible, deserved, and necessary.
Opponents reply that
these benefits hide the real
harm done by affirmative
action: rewarding the wrong
people, devaluing the idea of merit, and
punishing white men. The two sides disagree
on what should be done, yet there is
no shortage of ideas. In the 1990s, a flurry
of arguments have come from politicians,
academics, civil rights leaders, and
reformers that are aimed at preserving,
modifying, or ending affirmative action.
History has drastically rewritten the
terms of this debate. In the years of great
advances in federal civil rights, Presidents
JOHN F. KENNEDY and LYNDON B.
JOHNSON could easily frame the issue as
a purely moral one. Johnson put it this
way in 1965:
Freedom is not enough. . . . You
do not take a man who for years
has been hobbled by chains, liberate
him, bring him to the starting
line of a race, saying, “you are
free to compete with all the others,”
and still justly believe you
have been completely fair. Thus
it is not enough to open the gates
of opportunity.
Thirty years later, Senate
majority leader BOB DOLE (RKan.)
made this widely quoted
attack: “The race-counting
game has gone too far.” Polls
indicate that both Johnson and
Dole spoke for a majority of
citizens of their time. Johnson captured
the essence of a nation willing to move
beyond the legacy of JIM CROW LAWS.
Dole summoned the resentment of white
males who had seen the affirmative
action net expand to hold not only
minorities but also women and immigrants.
But white men are hardly the only
complainers: according to a March 1995
Washington Post-ABC News poll, 79 percent
of middle-class white women
oppose preferences for women.
For affirmative action’s strongest
supporters, explaining the new harshness
in the policy’s politics is a matter of going
back to the beginning. They point out
that affirmative action was never supposed
to be painless. Making room for
groups that have historically suffered discrimination
means that the very group
that did not suffer—white males—now
has to do so. This can be characterized as
the sins-of-the-fathers argument, illustrated
in a 1995 briefing paper from the
AMERICAN CIVIL LIBERTIES UNION
(ACLU): “[W]hile it’s true that white
males in any given era may not all have
been responsible for excluding people of
color and women, all white males have
benefited unjustly from that historical
exclusion . . . [thus enjoying] privileged
status and an unfair advantage.” This
position is supported by statistics: in 1995
white males held nearly 95 percent of senior
management positions in major corporations,
earned 25 to 45 percent more
than women and minorities, and held
well over 80 percent of the seats in Congress.
On the other hand, from 1973 to
1993, black poverty increased from 31.4
to 33.1 percent.Without doubt, discrimination
continues; from the perspective of
supporters of affirmative action, the sins
of the fathers are far from paid for.

Because equality still eludes the beneficiaries
of affirmative action, supporters
dismiss attacks on the policies as part
of a backlash. Three decades of advances
for affirmative action’s beneficiaries have
meant diminished dominance for white
men, a group whose income has been
falling in real terms since 1973. But, supporters
say, the reason white men earn
less today than their fathers did is not the
fault of affirmative action. They point to
long-term changes in the U.S. economy
and job market as the real explanations
for stagnating incomes, diminishing buying
power, and decreasing job security.
Yet affirmative action gets the blame. “We
are the ultimate scapegoat for whatever
goes wrong,” Mary Frances Berry, chairwoman
of the U.S. COMMISSION ON
CIVIL RIGHTS, told the Boston Globe in
1995. Dwindling support from middleclass
white women also draws the ire of
affirmative action’s advocates. “In the
1970s and 80s, white women had no
problem hitching up to the affirmative
action banner of ‘women and minorities’,”
journalist Derrick Z. Jackson wrote.
“If they now want to rip down the banner,
it will confirm the dirtiest little secret
of all about affirmative action”—that
white women supported it only to the
extent that it benefited themselves.
Dismissing these explanations as
excuses, critics of affirmative action
denounce it as “reverse discrimination.”
They either reject outright the idea that
historical wrongs can be redressed
through contemporary means, or believe
that the cost to those who must pay for
such redress is too high. Conservative
think tanks such as the Institute for Justice
and the HERITAGE FOUNDATION
regularly lead this prong of the attack.
Clint Bolick, the Institute for Justice’s vice
president, told Congressional Quarterly,
“If you add up the number of people who
have encountered reverse discrimination
in college admissions, scholarships, public
school magnet programs, government
contracts and jobs in the private and
public sectors, you have a pretty sizable
population.” The charge strikes the
strongest advocates of affirmative action
as insupportable. According to the
research of law professor Alfred Blumrosen,
of Rutgers University, only a few
dozen such cases reached the federal
courts in the early 1990s, and in most, the
plaintiff failed. Other advocates see the
reverse discrimination argument as sour
grapes; the ACLU goes so far as to call it a
smoke screen “for retention of white
male privilege.”

Critics frequently argue that affirmative
action does an injustice to the idea of
merit. Organizations representing police
officers and firefighters, such as the
national Fraternal Order of Police, complain
that qualifications and standards
have fallen to accommodate affirmative
action candidates. This criticism is popular
not only with whites, who have long
claimed that better qualified candidates
lose out as a result of affirmative action,
but also with two leading conservative
African American critics. “What we’ve
had to do for 25 years to pull off affirmative
action,” the author Shelby Steele said,
“is demean the idea of merit.” The economist
Thomas Sowell advances much the
same argument in his claim that the
policy hurts African Americans. Like
other conservatives, Sowell ties the rise of
affirmative action in the 1970s to the
development of the black economic
underclass. Steele and Sowell have argued
that affirmative action sets up its beneficiaries
for failure, corrupting the value of
achievement for blacks and reinforcing
racist stereotypes for whites. Viewing
affirmative action as antidemocratic, they
conclude that individual qualities alone
should determine who is hired or
accepted into an academic program.
Advocates are highly suspicious of
the merit argument. In the first place,
they deny that creating opportunities
ignores the value of personal merit. Voluntary
affirmative action merely gives
people who traditionally have been
excluded a leg up, they assert; and when it
is court ordered to redress a pattern of
workplace discrimination, the question
of merit misses the point.More crucially,
supporters think the merit line is superficial.
Political commentator Michael E.
Kinsley quipped that critics “seem to
imagine that everyone in America can be
ranked with scientific precision, from No.
1 to No. 260,000,000, in terms of his or her qualification for any desirable career
opportunity.” He and other supporters
consider the argument specious in a society
in which merit is often the last reason
for success and other variables that give
advantages to certain groups are deemed
perfectly natural—the children of the
rich attend the best schools regardless of
their abilities, for example, and military
veterans receive preferences whether or
not they have personally sacrificed anything
for the nation. The United States
was never a meritocracy, asserts Laura
Murphy Lee, director of the ACLU’s
national legislative office: “Affirmative
action didn’t come along to taint a
process that never existed.”
Proposals for reforming affirmative
action became increasingly popular in
the mid-1990s. At one extreme, politicians
have called for dumping it altogether.
This idea has been urged in
Congress chiefly by ultraconservative
Republicans such as Senators Phil
Gramm (R-Tex.) and JESSE HELMS
(R-N.C.). Although no action has been
taken on the congressional level, similar
proposals in the states of California and
Florida have gained ground. California
reformers scored two victories in the
mid-1990s: First, in 1995, regents of the
University of California dropped genderand
race-based admissions, hiring, and
contracting. Then, reformers succeeded
in passing an anti-affirmative action
REFERENDUM—the California Civil
Rights Initiative, a measure that would
outlaw gender- and race-based preferences
in government programs—in 1996.
A similar referendum passed in Washington
State in 1998.

Less radical and perhaps more politically
feasible, another proposal calls for
preserving affirmative action while shifting
its emphasis. The idea would abandon
race and gender as yardsticks and
match preferences solely with economic
need. Conservatives again lead this campaign,
but it draws some support even
from moderates: President BILL CLINTON,
declaring that his administration
was against quotas and guaranteed
results, ordered a review of federal
employment policies in 1995 to ensure
that they were being applied fairly. Critics
of affirmative action believe that this
kind of reform would ensure opportunity
for disadvantaged people while ending
what they see as egregious abuses,
such as the awarding of contracts to rich
minority-owned businesses. Traditional
supporters agree that affirmative action
benefits do not always help the people
who most need them. But they believe
that substantial gains should not be
reversed, and that any need-based measurement
should only augment—not
replace—existing policies.

The journey of affirmative action
from its heyday to the present reflects
great changes in the United States.
Between the administration of President
Johnson and the Republican-controlled
Congress elected in 1994 lies a thirty-year
experience with GREAT SOCIETY initiatives
that has left many citizens soured on
the idea of government assistance. Radical
changes in the nation’s economy and
workforce have surely not made the journey
any easier. Bridging this gap seems
unlikely, given the vastly different history
of white males on the one hand, and
women and people of color on the other.
From these two poles of experience, two
opposing ideas of necessity emerge. Critics
say the time is ripe to overhaul affirmative
action, a well-intentioned policy
gone bad. Supporters, perceiving a playing
field that is still far from level, maintain
that the real work of affirmative
action has scarcely begun.
In recent years, the battlefield for
affirmative action has shifted from the
workplace to education. Higher education—
the arena that gave birth to
REGENTS OF UNIV. OF CAL. V. BAKKE, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), the first significant Supreme
Court decision endorsing affirmative
action—has more recently produced a
mishmash of court decisions and laws
that have called into question the future
of affirmative action. There were arguments
not just how Bakke should be
applied, but whether it should be applied
at all.

Higher education has been a particularly
contentious area on affirmative
action for many reasons. Because many
higher education institutions are public,
there is an issue of whether taxpayer
money should be going to institutions
supporting affirmative action. The public
status of COLLEGES AND UNIVERSITIES
also ensures that affirmative action
debates will be conducted out in the
open. Also, the quality and prestige of a
college or university is often seen as
determining where someone will end up
on the socioeconomic scale after graduation,
making the affirmative action stakes
at such institutions high.

In a reversal of the way they tolerated
discrimination through most of the 20th
century, many colleges and universities
now seem anxious to employ affirmative
action to increase the diversity of their
campuses. Court cases litigating affirmative
action in higher education are
brought by disgruntled white students
and parents claiming “reverse discrimination.”
It has been the courts and the
legislatures, not the colleges and the universities,
that have shown willingness to
put the brakes on affirmative action.
The battle over Bakke and its effects
on higher education swung into focus in
1996, when the 5th Circuit Court of
Appeals struck down affirmative action
in college admissions in their decision Hopwood v. Texas, 78 F.3d 932, 5th Cir. (Tex. 1996). The decision covered institutions in the states of Texas, Louisiana, and Mississippi. Within a year of that ruling, enrollments by minorities in higher education
institutions dropped in all three states.

In response, the state of Texas guaranteed
a place in a state university or college
to anyone who had graduated in the
top 10 percent of their class. This gave
more minorities a chance, and as a result
minority enrollment at higher education
institutions in the state was higher in
2001 than it was in the year before Hopwood.
Several other states, including California
and Florida, have adopted
versions of Texas’s “10 percent” solution.
Critics have charged that these programs
are inadequate, failing to ensure that
minorities are represented at the most
prestigious institutions even when they
do boost enrollment in state university
systems overall.

In 2002, the affirmative action focus
in higher education shifted to the University
of Michigan. White applicants to its
undergraduate school and its law school
sued on reverse discrimination grounds.
A U.S. district judge in Michigan upheld
the undergraduate procedure, but
another struck down the law school
process. On appeal, a divided Sixth Circuit
Court of Appeals ruled in favor of
both admissions polices. The U.S
Supreme Court agreed to hear appeals of
each decision. The administration of
GEORGE W. BUSH filed a brief opposing
these programs.“The method used by the
University of Michigan to achieve this
important goal is fundamentally flawed,”
said the statement from President Bush.
Defending the policy,Michigan President
Mary Sue Coleman said “[President
Bush] misunderstands how our admission
process works” and denied it was
unconstitutional. On June 23, 2003, the
Court ruled 6-3 against the under graduate
policy because it made each candidate’s
race the “deciding” factor but
uphead 5-4 the law school’s process
because a compelling state interest exists
for universities to create racially diverse
campuses.

FURTHER READINGS
Buchanan, Sidney. 2002. “Affirmative Action:
The Many Shades of Justice.” Houston
Law Review 39 (summer).
“Coloring the Campus.” 2001. Time Magazine
(September 17).
Goldstein, Amy, and Dana Milbank. 2003.
“Bush Joins Admissions Case Fight; UMich.
Use of Race Is Called ‘Divisive’.”
Washington Post (January 16).