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The topic that I am going in depth in is affirmative action and how it discriminates against marginalized communities. Affirmative action policies were put into place on college campuses in order to make the admission process more fair for all students. However, the downside to this is that students who come from traditionally more successful groupings will have a harder time getting into the same exact school.

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Affirmative action has been a hard to tackle problem since its induction to school admissions in the 1960s following the civil rights movement. The phrase affirmative action came about in the late 60s when John F. Kennedy created the Committee on Equal Employment Opportunity. This encouraged hiring marginalized people as well as helping end racial discrimination in hiring. Since then other key supreme court cases have helped shape what is and isnt consitional. For example, in the case of University of California v. Bakke (1978), the court ruled that it was unconstituional to have racial quota systems in place. Since then other large cases such as Gratz and Grutter v. Bollinger, and Fisher v. University of Texas. Although there has been plenty of legal disputes over affirmative action, it still remains a problem in more selective universities today. An example of this controversy revolves around Harvard University in the year 2018. The problem was that Harvard was allegedly holding Asian students to a higher standard than students of other races and using an illegal racial quota system. The contrary argument to this is that these systems were put into place in order to help African-American and Latino students to offset years of racial discrimination in this country. This decision of this case was that the school did not violate any laws and was completely constitutional. However, there are more similar allegations that were filed soon after the end of this trial.

https://www.bestcolleges.com/blog/history-affirmative-action-college/
https://time.com/5425147/harvard-affirmative-action-trial-asian-american-students/

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In recent years there has been a lot of talk in the news and media about the use of affirmative action policies and if they are fair. One main example of this is the Students for Fair Admissions, Inc. v. President and Fellows of Harvard College lawsuit filed by Asian-American students against Harvard in 2014. This lawsuit was only settled recently in 2019 where courts found that Harvard was not discriminating against students. A quote from Judge Allison D. Burroughs the case stated that “While the system is "not perfect", the judge ruled, it nonetheless passes constitutional muster”. This lawsuit brought up cases where Harvard did discriminate against students on the basis of racial related topics. A quote from Wikipedia states that “Harvard admissions officers consistently rated Asian-American applicants as a group lower than others on traits like positive personality, likability, courage, kindness and being widely respected”. The outcome of the case was that Harvard College did not violate Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination on the basis of race, color, religon, etc.. Following the decision of the first hearing, Asian-American support groups filed federal complaints to the university again on similar allegations.

https://en.wikipedia.org/wiki/Students_for_Fair_Admissions_v._President_and_Fellows_of_Harvard_College

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DeFunis v. Odegaard was the very first case with issues involving affirmative action. Marco DeFunis was a white man who argued he was denied admission to the University of Washington Law School because the school had prioritized admitting minority students who were less qualified. He said that this violated the Fourteenth Amendment and was unconstitutional. Once the case got to the supreme court, DeFunis was already in his last year of law school and the courts called off the case.

https://www.law.cornell.edu/supremecourt/text/416/312

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Regents of the University of California v. Bakke (1978)

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Regents of the University of California v. Bakke (1978)

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The first ruling on a case related to affirmative action is Alan Bakke v. The University of California. The court ruled that the University violated the equal protection clause as well as the Civil Rights Act of 1964 for the schools’ policy to reserve 16 out of 100 spots for qualified minority students.

https://en.wikipedia.org/wiki/Regents_of_the_University_of_California_v._Bakke

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A landmark case concerning the use of affirmative action for college admissions in the United States. The court ruled that the student admissions process that favors "underrepresented minority groups" does not violate the Fourteenth Amendment's Equal Protection Clause as long as it takes into account other individual factors for every applicant.

https://en.wikipedia.org/wiki/Grutter_v._Bollinger

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Another landmark case in affirmative action where the court ruled the University's point system's "predetermined point allocations" that awarded 20 points towards admission to underrepresented minorities "ensures that the diversity contributions of applicants cannot be individually assessed" and was therefore unconstitutional.

https://en.wikipedia.org/wiki/Gratz_v._Bollinger

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A case that many thought would end affirmative action is Fisher v. University of Texas. By Texas law, the top ten percent of students from their graduating class get immediate admission to in-state universities. For the remaining spots, the university considers many factors, including race. Fisher sued the University and argued that the use of race as a consideration in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. The supreme court ruled that the University did not violate the equal protection clause and the case was dropped.

https://www.oyez.org/cases/2015/14-981

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The main term that my topic is most connected to is the idea of identity and intersectionality. Identity and intersectionality are related to my topic because affirmative action has to do with using a persons identity or race against them. A persons intersectionality is made up defining factors that determine their privilege and how other people view them such as race, gender, etc.. These are the same principles that affirmative action policies use to accept or deny students applications. Using some ones identity or race to determine whether or not they should be accepted is unconstitutional and racist.

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Title VII of the Civil Rights Act of 1964

Prohibits employment discrimination on the basis of race, color, religion, etc.

Age Discrimination in Employment Act of 1967

Prohibits employment discrimination based on age

Rehabilitation Act of 1973, Sections 501 and 505

Prohibits employment discrimination against individuals with disabilities

https://www.law.cornell.edu/wex/affirmative_action

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Affirmative action is defined as a set of procedures designed to; eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future. Applicants may be seeking admission to an educational program or looking for professional employment. In modern American jurisprudence, it typically imposes remedies against discrimination on the basis of (at the very least) race, creed, color, and national origin.

Legal Origins

While the concept of affirmative action has existed in America since the 19th century, it first appeared in its current form in President Kennedy's Executive Order 10925 (1961): "The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin."

Employment:

Government Contractors

In 1961, President John F. Kennedy issued an executive order mandating government contractors to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." ( Executive Order 10925) Since 1965, government contractors have been required to document their affirmative action programs through compliance reports, to contain "such information as to the practices, policies, programs, and employment policies, programs, and employment statistics of the contractor and each subcontractor . . . " (Executive Order 11246). Enforcement is conducted by the U.S Department of Labor's Office of Federal Contract Compliance Programs.

In Richmond v. Croson, 488 U.S. 469 (1989), the Supreme Court held that strict scrutiny applies to state statutes which set standards for affirmative action.

Employers who contract with the government or who otherwise receive federal funds are required to document their affirmative action practices and metrics. Affirmative action is also a remedy, under the Civil Rights Act of 1964, where a court finds that an employer has intentionally engaged in discriminatory practices.

The Equal Employment Opportunity Commission, created by Title VII of the Civil Rights Act of 1964, enforces the following employment anti-discrimination laws:

Equal Pay Act of 1963

Title VII of the Civil Rights Act of 1964 (race, color, religion, national origin)

Age Discrimination in Employment Act of 1967 (people of a certain age)

Rehabilitation Act of 1973, Sections 501 and 505 (people with disabilities)

Titles I and V of the Americans with Disabilities Act of 1990

Civil Rights Act of 1991

Recipients of federal funds are required to document their affirmative action practices and metrics. Educational institutions which have acted discriminatorily in the past must take affirmative action as a remedy. ( 34 CFR § 100.3(6)(ii)).

The Office of Civil Rights enforces the following education anti-discrimination laws:

Title VI of the Civil Rights Act of 1964 (race, color, religion, national origin)

Age Discrimination Act of 1975 (people of a certain age)

Title IX of the Educational Amendments of 1972 (gender)

Section 504 of the Rehabilitation Act of 1973 (people with disabilities)

Title II of the Americans with Disabilities Act of 1990

The Boy Scouts of America Equal Access Act (Section 9525 of the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001) (equal access for outside community groups to school facilities during non-school hours)

Supreme Court Decisions Related to Education:

In chronological order, here is a non-exhaustive list of Supreme Court decisions related to affirmative action.

Brown v Board

In Brown v. Board of Education, 374 U.S. 483 (1954), the Supreme Court held that public schools may not exclude minority students from white schools by sending the minority students to a school that separately services minority students. This decision acted as a precursor to many of the education-based affirmative action cases in the Supreme Court which followed in later years.

Regents v. Bakke

In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the University of California's Medical School at Davis reserved 16 spots in each entering class of 100 students for minority students. The Court did not hold a majority opinion, but the main legal takeaway from Bakke is that the Constitution prohibits a school from having racial quotas.

​Gratz v. Bollinger

In Gratz v. Bollinger, 539 U.S. 244 (2003), the University of Michigan's Undergraduate Admissions Office used a points-based system in its admission process. The office added points for an applicant who was an underrepresented minority. The Supreme Court held that the race-based methods must use strict scrutiny. The Court held that the generalization of "underrepresented minorities" failed the narrow tailoring requirement that strict scrutiny imposes.

Grutter v. Bollinger

In Grutter v. Bollinger, 539 U.S. 306 (2003), the University of Michigan Law School Admissions Office used race in its admissions process. However, the school did not assign points based on race. Instead, the school used race as one of a number of factors; race could not automatically result in an acceptance or a rejection (which contrasts with Gratz, in which those 20 points used in Gratz could have resulted in admission or rejection).The Court held that this plan is narrowly tailored enough to satisfy strict scrutiny because the "program is flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes race or ethnicity the defining feature of the application . . . The Law School engages in a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment." In dicta contained in the majority opinion, Justice O'Connor wrote, "The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

Fisher v. Texas

In Fisher v. University of Texas, 579 U.S. (2016), the University of Texas at Austin used a Top Ten Percent Law, in which any student who graduated in the top 10% of their high school class would be granted admission to the University. If an applicant was not in the top 10% of his or her high school class, the University would create an Academic Index (AI) and a Personal Achievement Index (PAI) for each student.

The AI calculated SAT scores and high school academic performance, the PAI considered applicant's essays, as well as a full-file review" which included leadership and work experience, extracurricular activities, community service, and other "special characteristics" that might give the admissions committee insight into a student's background; race was included as one of these special characteristics.

The Court found that the University's use of race constitutes a "factor of a factor of a factor," which, as one factor in the University's holistic review process, is narrow enough to meet strict scrutiny. The Court also held that there is a compelling interest in "obtaining the educational benefits that flow from student body diversity." As such, strict scrutiny is satisfied, and the Court held that the use of race in the University's admissions efforts was constitutional.

Additional Resources:

For more information on affirmative action, see this Harvard Law Review article, and this Michigan Law Review article.

Supreme Court & Case Resources

University of California Regents v. Bakke, 438 U.S. 265 (1978)

Fullilove v. Klutznick, 448 U.S. 448 (1980)

Wygant v. Jackson Board of Education, 476 U.S. 267 (1986)

United States v. Paradise, 480 U.S. 149 (1987)

City of Richmond v. Croson, 488 U.S. 469 (1989)

Adarand Constructors v. Pena, 515 U.S. 200 (1995)

Grutter v. Bollinger, 539 U.S. 306 (2003)

Gratz v. Bollinger, 539 U.S. 244 (2003)

Alexander v. Sandoval, 532 U.S. 275 (2001)

Pennsylvania State Police v. Suders, 542 U.S. 129 (2004)

General Dynamics Land Systems Inc. v. Cline et al., 540 U.S. 581 (2004)

Office of Federal Contract Compliance Programs, Department of Labor

Equal Employment Opportunity Commission

Office of Civil Rights, Department of Education

Federal Material

Federal Statutes

USC §§ 1981, 1981a, 1983, 1988 - Nineteenth Century Civil Rights Acts

29 USC § 206 - Equal Pay Act of 1963

42 USC Ch. 21 - Civil Rights Act of 1964

29 USC §§ 621 - 634 - The Age Discrimination in Employment Act (1967)

20 USC §§ 1681-1688 - Title IX Education Amendments (1972)

29 USC §§ 791, 793, 794(a) - The Rehabilitation Act of 1973

38 USC § 4212 - Vietnam Era Veterans' Readjustment Assistance Act of 1974

42 USC Ch. 126 - Americans with Disabilities Act of 1990

Civil Rights Act of 1991

Federal Agency Regulations

34 CFR Chapter I - Office of Civil Rights

34 CFR 100.3(b)(6)(i)

29 CFR Chapt. XIV - Equal Employment Opportunity Commission

41 CFR Part 60-2 Affirmative Action Programs - Office of Federal Contract Compliance

Federal Judicial Decisions

Additional Topics:

[Last updated in June of 2022 by the Wex Definitions Team]

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Affirmative action is defined as a set of procedures designed to; eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future. Applicants may be seeking admission to an educational program or looking for professional employment.

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“Affirmative Action.” Legal Information Institute, Legal Information Institute, https://www.law.cornell.edu/wex/affirmative_action.

“Fisher v. University of Texas.” Oyez, https://www.oyez.org/cases/2015/14-981.

“Gratz v. Bollinger.” Wikipedia, Wikimedia Foundation, 26 June 2021, https://en.wikipedia.org/wiki/Gratz_v._Bollinger.

“Grutter v. Bollinger.” Wikipedia, Wikimedia Foundation, 14 Aug. 2021, https://en.wikipedia.org/wiki/Grutter_v._Bollinger.

“A History of Affirmative Action in College Admissions.” BestColleges.com, 27 July 2021, https://www.bestcolleges.com/blog/history-affirmative-action-college/.

“Marco Defunis Et Al., Petitioners, V. Charles Odegaard, President of the University of Washington.” Legal Information Institute, Legal Information Institute, https://www.law.cornell.edu/supremecourt/text/416/312.

“Regents of the University of California v. Bakke.” Wikipedia, Wikimedia Foundation, 3 Nov. 2021, https://en.wikipedia.org/wiki/Regents_of_the_University_of_California_v._Bakke.

Reilly, Katie. “Asian-American Students' Lawsuit against Harvard Could End Affirmative Action.” Time, Time, 16 Oct. 2018, https://time.com/5425147/harvard-affirmative-action-trial-asian-american-students/.

“Students for Fair Admissions V. President and Fellows of Harvard College.” Wikipedia, Wikimedia Foundation, 4 Oct. 2021, https://en.wikipedia.org/wiki/Students_for_Fair_Admissions_v._President_and_Fellows_of_Harvard_College.