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  Postsecondary ParticipationAffirmative Action |
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Policies referred to as "affirmative action" are generally those in which an institution or organization engages in an active effort to improve the employment or educational opportunities of members of minority groups or women. Such policies can be implemented in a variety of situations. For instance, the term "affirmative action" is applied equally when referring to policies or programs that govern admission to education institutions or that impact the awarding of contracts to minority-owned businesses. On this issue site, however, affirmative action is considered only in the context of the education environment.
For the most part, however, the legality of affirmative action policies has been left for the courts to decide. The U.S. Supreme Court first attempted to establish the "law of the land" regarding higher education affirmative action policies in Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978). In a heavily divided opinion, the court struck down the use of policies that apply strict "quotas" on the number or percentage of students of a particular racial or ethnic background who are admitted to an education institution. The court, however, allowed the consideration of race to be used as one factor among several for the specific purpose of achieving student body diversity. Promoting student body diversity evolved into the primary rationale for affirmative action relied upon by selective colleges and universities and became the main focus of continued legal challenges. The split in the Supreme Court's opinion regarding the diversity rationale and changing public attitudes towards the fairness of affirmative action policies in general gave rise to a series of conflicting appellate court decisions attempting to interpret Bakke and the constitutionality of affirmative action. The fracturing of opinion in the lower federal appellate courts meant that the legality of a specific affirmative action policy used to promote campus diversity depended largely on the jurisdiction in which a lawsuit was brought. In a much anticipated June 23, 2003 ruling, however, the Supreme Court reaffirmed the basic holding of the 1978 Bakke case and held that colleges and universities can consider race in making admissions decisions for the purpose of promoting student body diversity. The ruling — which combined cases involving both the University of Michigan's undergraduate program and law school (Grutter v. Bollinger and Gratz v. Bollinger) — represents the court's most significant statement on the legality of affirmative action in 25 years. The Court did not grant a blank check on the use of affirmative action. Instead, the justices attempted to provide a roadmap establishing some limits for how such programs can be legally operated. For instance, in its 5-4 decision regarding the University of Michigan's law school, the justices upheld an admissions process that considered a candidate's race, but did not assign a specific weight to this factor. The court, however, struck down Michigan's undergraduate admissions program, which automatically awarded 20 points to minority candidates. A candidate that achieved 100 points was guaranteed admission to the school. The court found the Michigan law school admissions program acceptable because, although race was certainly considered, it was not by itself a decisive factor in gaining admittance. In contrast, the court found the undergraduate system weighted race alone heavily enough to virtually ensure the admittance of every minimally qualified minority student. What also seemed to appeal to the court was that the law school admissions process used a more intensive, individual review of each applicant's file that considered other factors in addition to race. The court rejected arguments that such an intensive review may be too costly or burdensome to implement, especially for larger universities. The court's decision has had an immediate impact in states where lower courts previously held the consideration of race in admissions unconstitutional. And some colleges and universities have already indicated that they will undertake a more intensive review of each individual applicant in order to meet their diversity goals. The ruling will not, however, have any direct impact on the admissions programs in states such as California, Florida and Washington, where consideration of race in admissions was banned by either citizen initiatives or a governor's executive order. Nor is the ruling likely to put this policy issue definitively to rest. Some policymakers continue to explore "race-neutral" alternatives to affirmative action, such as mandating acceptance into a state's public universities for a top percentage of students from all high schools in the state. California (top 4%), Texas (top 10%) and Florida (top 20%) have already instituted such polices. It is not clear whether these programs, which are still very much in their infancy, are effective replacements for traditional affirmative action. What is clear, however, is that the passion affirmative action naturally engenders guarantees that policymakers will continue to face pressure through ballot initiatives, litigation and proposed legislation from those groups who believe their interests have not been adequately or fairly addressed.
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