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Stanford University The Case Against Affirmative Action

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Stanford University The Case Against Affirmative Action

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If, after 25 years, affirmative action has not succeeded in ending discrimination, perhaps it is time to try something else.

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University of Michigan: Affirmative Action Reversal

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University of Michigan: Affirmative Action Reversal

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Yesterday, the Supreme Court ruled that race can no longer be used as a factor in college admissions decisions. But how did we get here? What is the history of affirmative action? And what will be the implications of this major reversal for institutions of higher education? Professor and affirmative action scholar Jennifer Pierce (American Studies) weighs in.

What were the issues in the case before the Supreme Court?

As a sociologist who studies how narratives operate in the news media, I understand the SCOTUS decision as two competing stories about race and racism in the United States. In one narrative, the United States is a society where institutionalized racism continues to negatively affect the life chances of Black, Indigenous, People of Color (BIPOC). This is the argument made in the Court's dissenting opinion and it is supported by years and years of research by historians, sociologists, economists, and other scholars. The other story, told in the majority opinion, is that affirmative action hurts white men and, consequently, is unfair. This story is not supported by evidence. It's a false narrative.

Can you tell us about the history of affirmative action?

In 1965 President Lyndon B. Johnson's issued Executive Order 11246 that called for workplaces with federal contracts of more than $50,000 and 50 or more employees to take affirmative action to remedy past and current racial inequities in workplaces. He amended that Executive Order in 1967 to include women as a protected class. (Disability was added in the early 1990s.) So, what is often forgotten in contemporary stories about affirmative action is that the policy was created to protect BIPOC and white women from discrimination in their workplaces. Initially, employers were uncertain about what constituted discrimination. White women and BIPOC workers, on the other hand, used affirmative action as leverage to make a variety of claims about sex discrimination and racial discrimination. For instance, secretaries claimed that their abysmally low pay was tied to the historical devaluation of jobs that were predominantly female and claimed they faced sex discrimination. Women with PhD's, on the other hand, claimed that sex discrimination barred their access to male dominated jobs in academia.

President Richard Nixon's administration narrowed this definition of affirmative action to questions about access by introducing the concept of "utilization analysis." What this meant was that organizations with federal contracts of more than $50,000 and more than fifty employees must have a written plan that documents how closely the utilization of certain categories of people (e.g., women) matches the availability of qualified people in that category. When utilization falls short of availability (i.e., a university employs few women in faculty positions when in fact there is a large pool of women who are qualified for such jobs), the organization must create a plan for improved performance. The Office of Federal Contract Compliance Programs (OFCCP) is the federal agency that enforces this policy. In such cases, it requires that contractors and organizations make a "good faith of effort" through their efforts to meet goals for improved utilization. Significantly, failure to meet goals is not in itself punishable. For instance, if contractors can demonstrate that they made a "good faith effort" to recruit women but were still unable to increase their numbers in hiring, they will not be penalized for their efforts. In other words, simply making a good faith effort to increase the likelihood of equal opportunity for people of all categories is central to the practice of affirmative action.

For white women, this definition of affirmative action applied to professions that were predominantly male such as law, management, and medicine. It did not apply to secretaries or other jobs where women predominated. Because of sex segregation in the labor force in the 1970s, most women worked in predominantly female jobs. Consequently, affirmative action for women focused only on women in male dominated professions. For BIPOC, this policy definition applied to jobs where white people predominated. Here racial segregation characterized the American labor force and African Americans, for instance, were barred from jobs in construction to professional positions such as law.

In contrast to the popular perception that equates affirmative action with quotas, quotas are not permissible under the law. This ruling was first made in 1978 in the United States Supreme Court (The Regents of California v. Bakke) decision that found racial quotas unconstitutional. The only time that the Supreme Court has ruled that courts can order hiring and promotion quotas is a remedy for "egregious discrimination." In other words, in lawsuits where the court renders a finding of "egregious discrimination" with respect to race, gender, and/or disability, the court can order the employer to create an affirmative action plan with specific goals, timetables, and quotas. In the United States, these kinds of court-mandated affirmative action programs are rare.

How effective has it been?

One of the untold stories about affirmative action is the fact that white professional women have been the policy's greatest beneficiary. In the legal profession, for example, in the late 1980s, 19 percent of attorneys were women, while by 2020, the number had risen to 37 percent. Certainly, white women lawyers continue to experience wage disparities, sexual harassment, and the difficulties of balancing work and family life, but they have made far greater inroads into the profession than their Black, Indigenous, and People of Color counterparts. According to the American Bar Association's 2020 Profile of the Legal Profession, the numbers of lawyers of color have grown slowly from 11.4 percent in 2010 to 14.4 percent in 2020. These numbers are smaller still when we look at specific groups. Only five percent of lawyers are African American, the same percentage from ten years ago, but the US population is 13.4 percent African American.

By the 1990s, anti-affirmative intellectuals and conservative research institutes played a pivotal role not only in bringing about an end to affirmative action through ballot initiatives and litigation, but in disseminating anti-affirmative action arguments in the news media and on college campuses across the United States. One anti-affirmative action narrative maintained that the policy hurt white men. Yet in 1995, a government study conducted by the US Labor Department found that actual cases of "reverse discrimination" against white men were rare, less than two percent; and in those cases, "the courts provided immediate relief." The print news media, however, paid scant attention to this important research and continued to report on white male injury as if it were a common experience. As my research on the legal profession shows, this false narrative had a devastating impact on affirmative action for African American attorneys.

What will be the implications for higher education? For private employers? For workplace diversity?

The Supreme Court's recent ruling is the successful culmination of American conservatives' fifty-year anti-affirmative action campaign in higher education. It will close the doors of higher education to many Black, Indigenous, People of Color hoping to go to college and reduce diversity on college campuses nationwide.

Since the Supreme Court's ruling is about higher education, it's unclear whether this will influence workplaces in the private sector.

What happens now?

In California where affirmative action policy was abolished in higher education, the immediate consequence was a big drop in enrollment numbers for BIPOC students at the University of California (UC). UC has since developed what's called the "nine percent plan" which accepts students who graduate in the top nine percent of their high school graduating classes. This policy has improved the number of BIPOC students attending UC campuses. Other colleges and universities may adopt similar admissions programs.

Jennifer Pierce is a sociologist and full professor in the Department of American Studies; she studies racialized and gendered inequality In American workplaces. She is also the past director of the Center for Advanced Feminist Studies and past faculty chair of the Committee on the University of Minnesota Press at the University of Minnesota in the Twin Cities.

Professor Pierce has authored or edited seven books including Racing for Innocence: Whiteness, Gender, and the Backlash Against Affirmative Action which examines the backlash against affirmative action in the 1990s.

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Affirmative Action Reversal: Understanding the History and Implications

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Professor and affirmative action scholar Jennifer Pierce discusses the history of affirmative action and the implications of the Supreme Court's recent ruling.

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On June 29, 2023, the Supreme Court reversed lower court decisions in Students for Fair Admissions, Inc. v. President & Fellows of Harvard and Students for Fair Admissions, Inc. v. University of North Carolina, effectively ending the use of affirmative action in college admissions. This article does not receive scheduled updates. If you have any questions or comments, contact us.

Affirmative action

Affirmative action refers to a complex set of policies adopted by governments and institutions to take proactive measures to increase the proportion of historically disadvantaged minority groups. These measures have taken many different forms, including strict quotas, extra outreach efforts, and student financial aid specifically for minorities. In the decades since it was first instituted, affirmative action has often taken the form of racial preferences, and the two terms are often used interchangeably.

Originally focused on racial minorities, affirmative action policies were later expanded to include preferences for women as well. Affirmative action policies can most often be found in government employment. Before June 2023, affirmative action polices were often used in university admissions by universities. The Supreme Court significantly limited the consideration of race in university admissions in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, decided on June 19, 2023. The court explicitly exempted national service academies in its decision.

These admissions policies, in particular, had come under scrutiny for their reliance on racial preferences to achieve diversity. Polls have shown that while there is general support for affirmative action, support drops considerably when the question mentions preferences.

Since affirmative action policies were first instituted in the 1960s, federal courts, including the United States Supreme Court, have heard a number of cases relating to the legality of these policies. The courts have issued a series of rulings that have come to shape the interpretation and implementation of affirmative action policies nationwide.

Education cases

Regents of the University of California v. Bakke, 1978

The first major legal challenge to affirmative action policies was brought in Regents of the University of California v. Bakke. Allan Bakke, a white male, brought suit against the University of California (UC) for twice denying him entrance to its medical school, claiming he was excluded on the basis of race. The university reserved 16 of 100 spots for minority applicants and had admitted minorities with lower qualifications than Bakke. The United States Supreme Court found that universities could consider race as one factor to achieve a diverse student body, but it struck down the strict quotas UC had utilized as discriminatory toward white applicants. It also noted that remedying past discrimination was not a legitimate goal of affirmative action in university admissions, and that diversity was the only justifiable use of affirmative action. The decision broadly expanded and legitimized affirmative action while attempting to minimize opposition to perceived injustice against white students.

Although strict quotas were no longer used, universities continued to consider race in the form of preferences for minority candidates. Cheryl Hopwood and three other white students challenged the use of racial preferences in admissions in Hopwood v. Texas after they were rejected from the University of Texas Law School. The 5th U.S. Court of Appeals ruled in favor of Hopwood, rendering the 1978 Bakke decision invalid by ruling that diversity was actually "not recognized as a compelling state interest" and suspending the affirmative action program of the University of Texas. The U.S. Supreme Court let the ruling stand, and soon after, all public universities in Texas switched to race-blind admissions. The ruling also affected affirmative action admissions in Louisiana and Mississippi.

Two cases against the University of Michigan were heard in conjunction by the Supreme Court: Gratz v. Bollinger against the university's undergraduate admissions, and Grutter v. Bollinger against the University of Michigan Law School. Jennifer Gratz and Barbara Grutter were both white students who had been rejected from the University of Michigan, Gratz from the undergraduate program and Grutter from the law school. Lee Bollinger, president of university at the time, served as the defendant, arguing that the programs' admission policies served the legitimate purpose of campus diversity. The court struck down the "mechanical" points system of the undergraduate school, which awarded 20 extra points-one-fifth of the total needed for admission-to applicants of a minority race, ruling that the system was not "narrowly tailored" and violated the Fourteenth Amendment. However, the court upheld the policy of the law school, stating that the consideration of race in its admissions was "highly individualized" and consistent with the ruling in Bakke. The Grutter decision invalidated the finding of the 5th U.S. Court of Appeals in Hopwood.

Parents v. Seattle and Meredith v. Jefferson, two cases that were heard in conjunction, challenged for the first time the consideration of race in public school assignments. Both Seattle School District Number 1 and Jefferson County Public Schools allowed students to apply to any school in the district. When demand for a particular school exceeded available space, the student's race was considered along with other factors to determine enrollment. Lower courts had applied the precedents set in Grutter and Gratz to determine if the schools' systems served a "compelling government interest" and were "narrowly tailored" to achieve that interest. They found that the policies were lawful and consistent with previous interpretations of the law by the Supreme Court. However, the Supreme Court ruled that the decision in Grutter v. Bollinger did not apply to high schools and that the programs were not narrowly tailored. The court found that both districts' plans were "actually targeted toward demographic goals and not toward any demonstrable educational benefit from racial diversity." The ruling restricted the use of affirmative action in public schools.

After the Hopwood decision, the University of Texas (UT) adopted a policy of automatically admitting high school students who graduated in the top 10 percent of their class. It later revised this policy to allow the consideration of race for those who were not automatically admitted. After Abigail N. Fisher, a white female, was denied admission to UT-Austin, she challenged the university's consideration of race as a violation of the Fourteenth Amendment in Fisher v. University of Texas. In its ruling, the Supreme Court found faults in the decision by the 5th U.S. Court of Appeals. The court stated that affirmative actions cases should be reviewed under the Fourteenth Amendment according to "a standard of strict scrutiny," which the 5th U.S. Court of Appeals did not do. The opinion went on to say that universities must be able to show that "available, workable race-neutral alternatives do not suffice." The case was sent back to the 5th U.S. Court of Appeals for further review, where UT-Austin's admissions policy was ultimately upheld. However, the ruling placed the burden on universities to prove that racial diversity could not be achieved via any other method when they utilize racial preferences.

The Supreme Court agreed to rehear the case in the October 2015 term, and began hearing oral arguments on December 8, 2015. The case has the potential to limit or eliminate affirmative action in higher education.

See also: Students for Fair Admissions, Inc. v. President & Fellows of Harvard and Students for Fair Admissions, Inc. v. University of North Carolina

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, two cases that were heard in combination, plaintiffs asked the Supreme Court to overturn the precedent established in Grutter v. Bollinger that "student body diversity is a compelling state interest that can justify the use of race in university admissions." According to its website, Students for Fair Admission (SFFA) described its mission as: "to support and participate in litigation that will restore the original principles of our nation's civil rights movement: A student's race and ethnicity should not be factors that either harm or help that student to gain admission to a competitive university."

In a 6-3 decision, the court ruled in favor of the plaintiffs, significantly limiting the consideration of race in college admissions. In the majority opinion, Chief Justice Roberts wrote that "the student must be treated based on his or her experiences as an individual-not on the basis of race. Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learned but the color of their skin."

In a dissenting opinion, Justice Sotomayor wrote that in ruling in favor of the plaintiffs "the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society."

In deciding the case, the court reversed the decisions of lower federal courts that upheld both Harvard and the University of North Carolina's admission standards. According to Susan Howe of SCOTUS Blog, in doing so, the court "severely limited, if not effectively ended, the use of affirmative action in college admissions" and "effectively, though not explicitly, overruled its 2003" decision in Grutter. The only institutions of higher education explicitly exempted from the ruling were the nation's military academies.

Employment cases

Kaiser Aluminum and Chemical Corp, had, as part of a collective agreement with the United Steelworkers of America, implemented an affirmative action program within their training program; half the positions in the program were reserved for black employees, even though the company had more white employees. Brian Weber, a white employee, applied for the program and was passed over for a position as none were available for him. Weber sued the company in 1974, arguing this was illegal racial discrimination that violated Title VII of the Civil Rights Act of 1964.

The United States Supreme Court found in favor of United Steelworkers and held that the Civil Rights Act of 1964 did not prohibit employers from favoring women and minorities and that it did not prohibit all forms of affirmative action programs. The court found that, since the training program offered by the Kaiser Aluminum and Chemical Corp. and United Steelworkers of America sought to eliminate the pattern of racial segregation and discrimination in employment but did not expressly prohibit white employees from advancing in the company, it was consistent with the intent of Title VII of the Civil Rights Act of 1964.

Fullilove v. Klutznick, 1980

Passed by Congress and enacted in 1977, the Public Works Employment Act required state and local governments receiving federal funds for public works projects to allocate 10 percent of those funds for services and supplies provided by businesses owned by racial minorities. A group of contractors led by H. Earl Fullilove filed suit in federal court, arguing that the law caused them economic harm in violation of Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause of the Fifth Amendment. The Secretary of Commerce at the time, Philip M. Klutznick, acted as the defendant.

The United States Supreme Court ruled in a plurality opinion, rather than majority opinion, that the set-aside of federal funds did not violate the Constitution. It found that Congress' ability to establish such a program fell under the Spending Power and the Commerce Clause. It also stated that the way states and localities used those funds was not an inflexible mandate and that such a practice was meant to ensure the remediation of past discrimination. In this context, therefore, Congress "did not have to act 'in a wholly "color-blind" fashion.'" This ruling was overturned in 1995 by Adarand Constructors v. Peña.

Wygant v. Jackson Board of Education, 1986

In the 1980s, the contract between the school board of Jackson, Michigan and the teachers' union (a) protected teachers with the most seniority from layoffs and (b) prevented the percentage of teachers laid off who were minorities from being greater than the percentage of minorities employed under the contract. During layoffs over subsequent years, some nonminority teachers were laid off, while minority teachers with less seniority were kept on. Wendy Wygant, a nonminority teacher who was laid off, filed suit against the board with the allegation that such layoffs violated the Equal Protection Clause of the Fourteenth Amendment. The United States District Court for the Eastern District of Michigan found in favor of the board, upholding the contract on the grounds that the board's racial preferences "remedied discrimination by providing 'role models' for minority students." On appeal, the Sixth Circuit Court of Appeals affirmed the decision.

The United States Supreme Court agreed to hear the case in 1985. In its opinion issued May 19, 1986, the court struck down the decision of the Sixth Circuit Court of Appeals, stating that the board laid off Wygant for reasons related to her race and in doing so, violated the Equal Protection Clause. The court found that the school board's layoff policy did not meet the two standards of strict scrutiny: (1) its justification for the policy (that "the percentage of minority students exceeded the percentage of minority teachers") did not serve a compelling state interest, and (2) the policy was not narrowly tailored (applied in such a way to fulfill only very specific goals) because it did not correctly remedy historical discrimination: the loss of a job due to discrimination was more harmful than denial of a job due to discrimination, the court said.

In 1989, the United States Department of Transportation (DOT) awarded a Colorado highway contract to Mountain Gravel and Construction Company. Mountain Gravel subcontracted, with the lowest bid coming from Adarand Constructors. Another company, Gonzales Construction, submitted a higher bid. However, Gonzales Construction was certified by the Small Business Administration as a disadvantaged business (a business owned by racial or ethnic minority groups or women), and so Mountain Gravel gave Gonzales Construction the contract due to the financial incentives from the DOT for using a disadvantaged business. Adarand filed suit in federal court, arguing that the subcontracting incentives were unconstitutional.

The United States Supreme Court ruled in favor of Anarand. According to the Oyez Project, the court ruled that "presumption of disadvantage based on race alone, and consequent allocation of favored treatment, [is] a discriminatory practice that violates the equal protection principle embodied in the Due Process Clause of the Fifth Amendment." The court also ruled, however, that compensation programs based on disadvantage are legal.

The New Haven Fire Department used written exams as part of its process to fill vacant managerial positions, with the exams accounting for 60 percent of the overall assessment of a candidate. City officials found that the pass rate for black candidates was approximately half the rate of white candidates. Under the assessment rules, no black candidate who applied in 2003 could have been promoted. The New Haven Civil Service Board, considering the disparate impact these results would have on employment, decided not to certify any of the candidates that applied in 2003. Frank Ricci and other firefighters who had scored well enough on the exam to be promoted had they been certified brought suit against the department, alleging that their rights under Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment had been violated.

The United States Supreme Court found the case in favor of Ricci, ruling that before taking an action of intentional discrimination in order to prevent disparate impact, an employer must be able to prove that it will be subject to disparate impact liability. The court found that the city had failed to do so in discarding exam results that would have resulted in promoting no black candidates in the fire department to managerial positions, as the exams were job-related, consistent with business necessity, and there was no evidence that an equally-valid, less-discriminatory alternative was available.

Recent news

The link below is to the most recent stories in a Google news search for the terms Affirmative action lawsuit. These results are automatically generated from Google. Ballotpedia does not curate or endorse these articles.

External links

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Ballotpedia: The Encyclopedia of American Politics

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In 2003, the Supreme Court held that the University of Michigan's law school could substantially relax its admissions standards in order to admit a "critical mass" of African-American and Hispanic students. Many observers interpreted that decision -  Grutter v. Bollinger - as an open-ended embrace of affirmative action.

The University of Texas was among the many universities emboldened to ramp up its use of race-preferential admissions policies. In 2003, the university already had in place an admissions policy designed to raise the number of under-represented minority students attending its flagship campus in Austin by admitting the "top 10%" of the graduates of each Texas high school without regard to SAT scores. Soon after the Grutter decision, however, the university announced that it was still dissatisfied with the diversity of the student body at Austin, 21% of which was composed of under-represented minorities (16.9% Hispanic and 4.5% African-American), and that the school would be implementing race preferences to boost that diversity. Under the new policy, the proportion of the student body composed of Hispanics and African-Americans rose to 25%.

The result was a lawsuit. The plaintiff - Abigail Fisher - is a young woman from Texas whose academic credentials were good, but not quite up to the standards that whites and Asians must meet in order to gain admission. They were, however, above those necessary for African-American and Hispanic students. Fisher, who is white, was rejected, and wound up attending the less prestigious and (for out-of-state students) more expensive Louisiana State University. Her case -  Fisher v. University of Texas - was argued before the Supreme Court in October. It will be decided sometime in the coming months.

The Court may decide Fisher on narrow grounds. There are several dimensions along which the University of Texas's race-preferential admissions policies are more aggressive than those in Grutter. For example, Grutter permitted Michigan to use racially preferential admissions policies to admit a "critical mass" of African-Americans and Hispanics to its overall student body. Texas, however, takes the position that it needs "critical mass" not just in its student body as a whole, but in each classroom, program, and major. Under the "top 10%" policy, Texas had likely already achieved a "critical mass" of minorities across its student body. Classroom-level "critical mass," however, requires much more extensive preferences; it could conceivably justify racial discrimination in course registration and other more aggressive discriminatory practices.

Affirmative-action supporters worry, however, that the Court will take the opportunity to cut back severely on Grutter. They point to changes in the Court's personnel - most notably Justice Sandra Day O'Connor's replacement with Justice Samuel Alito - as cause for concern. Since Grutter was a 5-4 decision, it may not take much to swing the Court in the opposite direction.

The biggest change since Grutter, though, has nothing to do with Court membership. It is the mounting empirical evidence that race preferences are doing more harm than good - even for their supposed beneficiaries. If this evidence is correct, we now have fewer African-American physicians, scientists, and engineers than we would have had using race-neutral admissions policies. We have fewer college professors and lawyers, too. Put more bluntly, affirmative action has backfired.
THE CONSEQUENCES OF MISMATCH
How could such a miscalculation about the effects of affirmative action occur? As University of California, Los Angeles, law professor Richard Sander and legal journalist Stuart Taylor, Jr., describe in their important, recently released book, Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It, one consequence of widespread race-preferential policies is that minority students tend to enroll in colleges and universities where their entering academic credentials put them toward the bottom of the class. While academically gifted under-represented minority students are hardly rare, there are not enough to satisfy the demand of top schools. When the most prestigious schools relax their admissions policies in order to admit more minority students, they start a chain reaction, resulting in a substantial credentials gap at nearly all selective schools.

For example, according to data released by the University of Texas in connection with Fisher, the mean SAT scores (out of 2400) and mean high-school grade-point averages (on a 4.0 scale) varied widely by race for the entering class of 2009. For Asians, the numbers were 1991 and 3.07; whites were at 1914 and 3.04; Hispanics at 1794 and 2.83; and African-Americans at 1524 and 2.57. The SAT scores for the Asian students placed them in the 93rd percentile of 2009 SAT-takers nationwide; the African-American students, meanwhile, were at the 52nd percentile.

This has the predictable effect of lowering the college or professional-school grades the average minority student earns. And the reason is simple: While some students will outperform their entering credentials, just as some students will underperform theirs, most students perform in the range that their entering credentials suggest.

No serious supporter of race-preferential admissions denies this. In their highly influential defense of affirmative action, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions (discussed later in more detail), former Ivy League university presidents William Bowen and Derek Bok candidly admitted that low college grades for affirmative-action beneficiaries present a "sobering picture." This is an understatement: The average African-American first-year law student has a grade-point average in the bottom 10% of his or her class. And while undergraduate GPAs for affirmative-action beneficiaries aren't quite as disappointing, that is in part because, as explained below, affirmative-action beneficiaries tend to shy away from subjects like science and engineering, which are graded on a tougher curve than other subjects.

One example that helps illustrate the consequences of mismatch - how lower entering academic credentials depress both academic performance and grades, and how lower-than-average academic performance and grades in turn harm professional ambitions - is the field of academia. In 2003, too late to be cited to the Court in Grutter, Stephen Cole and Elinor Barber published Increasing Faculty Diversity: The Occupational Choices of High-Achieving Minority Students. The authors' mission was to determine why more members of minority groups are not attracted to careers in the academy. The authors' conclusions, reached after extensively questioning 7,612 high-achieving undergraduates at 34 colleges and universities, pointed to race-preferential admissions as the culprit.

"It is a fact," Cole and Barber wrote, "that in virtually all selective schools...where racial preferences in admission is practiced, the majority of African American students end up in the lower quarter of their class." Lower grades sap the academic self-confidence of African-American students at elite schools, according to the authors, which in turn causes them to abandon their freshman interests in academic careers. Their counterparts at non-elite schools, on the other hand, are more likely to persist and to ultimately succeed. These counterparts enjoy school, in part because they correctly perceive that they are good at it, and they want to stay on campus to pursue careers in academia.

Cole and Barber found that the effect of grades on career ambitions was in fact substantial. The authors noted that among African-American students with GPAs at or near 2.6, only about 4% wanted to become college professors. Among those with GPAs at or near 4.0, however, the number was over 20%.

These findings build on long-established observations about the importance of grades and perceived achievement. Indeed, as early as 1966, University of Chicago sociologist James Davis published research demonstrating that a student who attends a school that is out of his academic league is often put at a professional disadvantage. In "The Campus as a Frog Pond: An Application of the Theory of Relative Deprivation to Career Decisions of College Men," Davis controlled for entering academic credentials and compared students at schools of different academic rank, examining their career choices to see which pursued "high performance" careers (in law, medicine, science, etc.). He found that college GPA correlated more strongly to career choice than did the academic rank of the school attended. He explained this finding in terms of the "theory of relative deprivation," under which students can be expected to measure their own potential in comparison to their immediate classmates, generally using one another's grades as "the accepted yardstick."

Davis put his conclusion in somewhat quaint terms. "Counselors and parents might well consider the drawbacks as well as the advantages of sending a boy to a 'fine' college, if, when doing so, it is fairly certain he will end up in the bottom ranks of his graduating class," he wrote. Davis's research spawned a cottage industry in sociological studies on the hazards of being a "small frog" in a "big pond."

Further support for Cole and Barber's conclusion comes from an unexpected source: First Lady Michelle Obama's 1985 senior thesis at Princeton University, titled "Princeton-Educated Blacks and the Black Community." The future first lady mailed a questionnaire to 400 randomly selected black alumni; though the response rate was not overwhelming, the responses of the 89 black alumni who completed the questionnaire gave reason for concern. Black alumni were asked whether they felt "much more comfortable with Blacks," "much more comfortable with Whites," or "about equally comfortable with Blacks and Whites" in various contexts during three different periods in their lives - before attending Princeton, while students at Princeton, and after leaving Princeton.

Those who argue that race-preferential admissions foster integration might be surprised by Obama's findings. In the category of "Intellectual Comfort," the number of black alumni who said that they felt "much more comfortable with Blacks" than with whites in an intellectual setting went up upon attending Princeton. In their pre-Princeton years, 26% of the respondents were at greater intellectual ease with fellow blacks than with whites; during their Princeton years, however, the number climbed to 37%. This sense of alienation from white students did not appear in other categories of interaction: For "Sporting Comfort," the change was in the opposite direction (26% felt more comfortable with fellow blacks prior to Princeton, compared with 25% who felt more comfortable with fellow blacks while at Princeton). In the categories of "Dating Comfort" and "Business Comfort," the proportions of respondents who felt "much more comfortable with Blacks" were unchanged.

It is difficult to see how reducing the "Intellectual Comfort" that black students feel with whites can lead to greater black achievement. Yet this is just one of the many perverse effects of affirmative action and the academic mismatch it causes.
SCIENCE AND ENGINEERING
Minority students' lack of interest in academic careers offers one example of the consequences of mismatch, but the strongest evidence comes from the fields of science and engineering. Contrary to what many might expect, college-bound African-American and Hispanic students are just as interested as white students in majoring in science and engineering. Indeed, empirical studies show that they tend to be a little more so. But these are difficult majors that many students abandon. Significantly, African-American and Hispanic students jump ship at much higher rates than whites.

It is not surprising that students with lower entering academic credentials give up on their ambitions to get degrees in science and engineering more often than students with higher academic credentials. What some do find surprising is this: Three in-depth studies have demonstrated that part of the effect is relative. An aspiring science or engineering major who attends a school where his entering academic credentials put him in the middle or the top of his class is more likely to persevere, and ultimately to succeed, than an otherwise identical student attending a more elite school where those same credentials place him nearer to the bottom of his class. Put differently, a student's chances of success in science or engineering are increased not only if his entering credentials are high, but also if those credentials compare favorably with his classmates'.

The earliest of these studies - titled "The Role of Ethnicity in Choosing and Leaving Science in Highly Selective Institutions" - was published in 1996 by a team of scholars led by Dartmouth psychologist Rogers Elliott. It found that the single most important cause for minority attrition from science at the selective institutions studied was the " relatively low preparation of black aspirants to science in these schools." The authors were careful to use the word "relatively." It wasn't just entering credentials demonstrating highly developed ability at science that mattered, but comparatively high credentials. A student who attended a school at which his math SAT score was in the top third of his class was much more likely to follow through with an ambition to earn a degree in science or engineering than was a student with the same score who attended a school at which that score was in the bottom third of the class. The problem for minority students was that, as a result of affirmative action, being in the top third of the class was relatively rare.

Elliott and his co-authors cited the extraordinary record of historically black colleges and universities, which graduate far more than their share of black engineering and science majors, as further support for their findings. Unlike at other colleges and universities, credentials gaps are not an issue at the historically black institutions. As one faculty member at a historically black school - North Carolina Central University's Walter Pattillo, Jr. - told Science magazine in 1992: "The way we see it, the majority schools are wasting large numbers of good students. They have black students with admissions statistics [that are] very high, tops. But these students wind up majoring in sociology or recreation or get wiped out altogether."

A more recent study by University of Virginia psychologists Frederick Smyth and John McArdle (now at the University of Southern California) confirmed Elliott's findings. And the effects were not subtle. In "Ethnic and Gender Differences in Science Graduation at Selective Colleges with Implications for Admissions Policy and College Choice," Smyth and McArdle found that, among a sample of under-represented minority students at 23 universities who intended to major in science, mathematics, or engineering, 45% more of the women and 35% more of the men would have succeeded in attaining their goals if they had attended schools where their entering credentials had been about average.

Another study - this one by Richard Sander, co-author of Mismatch, and UCLA statistician Roger Bolus - pulled data from nine University of California campuses. The authors came to a similar conclusion. "Minority attrition in science is a very real problem," they wrote, "and the evidence in this paper suggests that 'negative mismatch' probably plays a role in it." Their multiple approaches to the data yielded consistent results: "[S]tudents with credentials more than one standard deviation below their science peers at college are about half as likely to end up with science bachelor degrees, compared with similar students attending schools where their credentials are much closer to, or above, the mean credentials of their peers."

The evidence that mismatch has hurt African-American and Hispanic students' chances of having careers in science or engineering was highlighted in a report of the U.S. Commission on Civil Rights in 2010. The data and methodology of the research have not been challenged. The researchers' conclusions have not been rebutted. Nevertheless, the findings have been ignored by colleges and universities. Indeed, one of the arguments that the University of Texas makes before the Supreme Court in the Fisher case is that there are not enough minority students studying science and engineering to make those classrooms racially diverse. As a result, it claims, greater race preferences in admissions are needed. But Texas's race-preferential admissions will likely aggravate rather than alleviate this problem. The more colleges and universities engage in preferential treatment, the fewer the African-Americans and Hispanics who will graduate with degrees in science and engineering.

And the evidence keeps piling up. Recently, Duke University economists Peter Arcidiacono and Esteban Aucejo and Duke sociologist Ken Spenner found evidence supporting the mismatch thesis when researching the major choices of undergraduates enrolled at Duke. In their article in the IZA Journal of Labor Economics, "What Happens After Enrollment? An Analysis of the Time Path of Racial Differences in GPA and Major Choice," they found that black undergraduates were much less likely to persist with an entering goal of majoring in engineering, the natural sciences, or economics than white students were. Approximately 54% of black males switched out of these majors, while only 8% of white males did. Once again, the problem was not lack of interest in science and engineering among black students: Indeed, before starting at Duke, more black students than whites indicated an initial interest in majoring in these subjects. Instead, the differences in attrition were best explained by entering academic credentials.

These authors also dispelled the common belief that affirmative action beneficiaries "catch up" after their freshman years with their better-credentialed fellow students. What happens instead is that many transfer to majors where the academic competition is less intense and where students are graded on a more lenient curve. Their GPAs increase, but their standing relative to their peer groups does not.

This effect is by no means confined to affirmative-action beneficiaries. White children and grandchildren of alumni who receive legacy preferences have the same experience, earning lower grades than white non-legacies at the end of their first year. While the gap narrows over time, it is only because legacy students, too, shift away from the natural sciences, engineering, and economics and toward the humanities and social sciences. It is exceedingly unlikely that anti-legacy bias, lack of legacy role models on the faculty, or any other argument commonly advanced to explain racial disparities in science explains the legacies' collective drift toward softer majors. If it is the wrong explanation for legacies, it is overwhelmingly likely to be the wrong explanation for under-represented minorities, too.

The study created a firestorm at Duke. Unfortunately, the administration, instead of taking the research to heart, focused on pacifying indignant students, alumni, and faculty members who were insulted by the results. In an open letter to the campus responding to demands that the university condemn the study, provost Peter Lange and other administrators stated that they "understand how the conclusions of the research paper can be interpreted in ways that reinforce negative stereotypes." They assured students that there are no easy fields of study at Duke and took the position that, insofar as the mammoth problem identified in the study exists, it could easily be solved through student counseling and a few tweaks to the science curriculum.

Evidently, business will remain as usual at Duke. Potential affirmative-action recruits with an interest in science and engineering will continue to be told that Duke is the school for them. They will not be told that their chances of success in their chosen fields would be greater at the University of North Carolina at Chapel Hill. Nor will they be told that if they switch majors to disciplines like African and African-American Studies, Art History, English, Sociology, and Women's Studies, they are less likely to enjoy lucrative careers or indeed to get jobs at all. In securities law, this would qualify as actionable fraud. In higher education, it is considered forward thinking.
THE MISSING BLACK LAWYERS
The problem of relative performance and credential mismatch does not end with college graduation. It extends to professional schools as well, and is particularly evident at America's law schools. Shortly after Cole and Barber's book was published, Mismatch co-author Richard Sander published a study of law schools titled "A Systemic Analysis of Affirmative Action in American Law Schools." His findings were similar. Outside of historically black colleges and universities, up and down the law-school hierarchy, the average African-American student had an academic index - a combination of GPA and LSAT score - more than two standard deviations below that of his average white classmate. Indeed, at some law schools, there was no overlap between the entering credentials of African-American students and those of white students (Sander did not study Hispanic students). These gaps in entering credentials affect student performance: Sander's research demonstrated that more than half of African-American law students had first-year GPAs in the bottom 10% of their classes. Even critics of Sander's ultimate conclusions agreed that these findings were both true and troubling.

Only slightly more controversial was Sander's finding that this effect was almost entirely the result of affirmative action. When African-American and white law students with similar entering credentials competed against one another, they performed very close to the same. Race-based admissions were thus creating the illusion that African-Americans are somehow destined to be poor law students. The truth is that, if they were attending schools where their credentials matched the average student's, they would be just as likely to do well.

Strangely, however, African-American and white students with identical entering credentials were not performing similarly on the bar exam. Sander showed that the likely reason is that they are not attending the same schools. The African-American students were more likely to be at law schools that are more theoretical in their approach and where "teaching to the bar exam" is considered déclassé. Rather than benefiting from the more competitive learning environment these schools offer, African-American students were falling behind their white academic counterparts who were attending somewhat less competitive schools. Sander's critics, on the other hand, had no explanation for why white students perform better on the bar exam than African-American students with identical credentials.

Under Sander's calculations, if law schools were to use race-neutral admissions policies, fewer African-American students would be admitted to law schools. But since those who were admitted would be attending schools where they were very likely to do well, fewer would fail or drop out. In the end, more would pass the bar exam on their first try (1,896 versus 1,567 successful African-American first-time test takers among the graduating class of 2004) and more would eventually pass the bar (2,150 versus 1,981 among that same class) than under current admissions practices.

Sander's research was criticized by proponents of race-preferential admissions on the ground that it was just one study, and Sander agreed that more research would be desirable. He used the best and most recent data available at the time, and his calculations have been verified by others, but surely confirming the results with a different and more recent database would have been useful. In a report issued in 2007, the U.S. Commission on Civil Rights urged grant-making agencies to fund research into this issue and requested that state bar associations cooperate with this research.

Unfortunately, something closer to the opposite has happened. In order to confirm his initial findings, Sander assembled an ideologically diverse team of investigators and sought data from the State Bar of California. Urged not to cooperate by some of the very same people who had previously complained that Sander needed more evidence, the state bar denied the team access. It didn't matter that Gerald Reynolds, chairman of the U.S. Commission on Civil Rights, flew to San Francisco to ask personally for the state bar's cooperation. It didn't matter that the data had been cheerfully shared with other researchers. The California bar wanted no part of this important research. A court battle is now underway.

Meanwhile, Sander and University of Arizona law professor Jane Yakowitz Bambauer have taken to examining one the most dearly held beliefs of affirmative-action advocates - that enrolling in the most prestigious school one can get into is the key to success. This premise, central to affirmative action, turns out to be false: In predicting future income, getting good grades in law school matters more than getting into a top law school. And as Sander and Bambauer demonstrate in "The Secret of My Success: How Status, Eliteness and School Performance Shape Legal Careers," this is true for law students generally, not just under-represented minorities.

Put differently, aspiring lawyers who tear their hair out to get into the most prestigious law school possible - figuring they can just cruise to a law degree once they get to campus - are making a mistake. They need to be putting at least as much effort into excelling once they are in school. If students at Harvard don't work hard, their professional stars may be eclipsed by lawyers with similar entering credentials who attended lesser law schools and made better grades.

Again and again, the results are the same, no matter what the area of study: Attending a highly competitive school is a good thing. But so is getting good grades. Indeed, getting good grades is somewhat more important than attending a prestigious school. A public policy that ensures that African-American and Hispanic students will disproportionately attend schools where their grades are likely to be worse than their classmates' thus works to the minority students' disadvantage.
THE SHAPE OF MISINFORMATION
To be sure, those who wish to ignore the mismatch literature have been given a convenient excuse to do so: the influential 1998 book defending affirmative action, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions, written by Bowen and Bok. Their book calculated that even black men with combined SAT scores of less than 1000 - low for elite schools - who attend top-tier schools like Princeton out-earn similarly credentialed students who attend schools like Pennsylvania State.

The book received an astonishing level of attention when it was published. Fawning editorials appeared in many newspapers. The New York Times announced that it "flatly refute[d]" the arguments of critics of race-preferential admissions. Newsweek's Ellis Cose commented that the book was the "most ambitious study to date of the effects of affirmative action in higher education" and "an important corrective to conservative propaganda." Some of the commentary specifically addressed the issue of mismatch: Harvard University sociologist Nathan Glazer argued in the Washington Post that it was now "clear" that worries over mismatch were misplaced. The Pittsburgh Post-Gazette editorialized that the notion that race-based admissions policies have hurt African-American students "is one that can be dismissed."

For many reasons, however, the methodology used in The Shape of the River is seriously flawed. For example, Bowen and Bok took account only of SAT scores, overlooking other academic credentials like high-school rank. One cannot assume that a student at Princeton with a given SAT score is the equivalent of a student with the same score at Penn State. There is an excellent chance that the first student has a substantially better high-school GPA or other distinctions in his favor; that is one reason he is at Princeton instead of Penn State. Indeed, Ivy League presidents like Bowen and Bok are constantly making this point themselves: Their schools reject many applicants with stratospheric SAT scores in favor of applicants they believe show greater academic promise in other ways.

Even using flawed methodology, however, it is difficult to avoid the evidence of affirmative action's failure. The Shape of the River's own figures show that black men with SAT scores between 1000 and 1099 and black women with SAT scores between 1100 and 1199 are likely to earn more if they stay away from the most elite schools.

Why might that be? Buried in book's appendices is a more sophisticated analysis that attempts to explain how various factors influence the subsequent earnings of black graduates of selective colleges or universities. Each such factor's effect was measured, including (to a limited extent) a student's high-school rank and whether his college grades put him at the top, middle, or bottom third of his class. The authors purport to show that attending a school like Princeton rather than a school like Penn State adds to the income of black students. They appear oblivious, however, to the stunning point made by their own figures, throughout the different permutations of their analysis: College grades generally contribute more.

Imagine two black males with identical SAT scores, both in the top 10% of their high-school classes, and both from middle-class families. Only their colleges are different. Bowen and Bok convincingly demonstrate that if the two have the same college major and similar grades, the one who attends Princeton will earn considerably more than the one who attends Penn State.

But what if they don't have similar grades? By the authors' own calculations, it is better to be a black male at Penn State in the top third of the class than in the bottom third at Princeton. The increased earnings the Penn State student gets from high grades are worth almost twice the increased earnings from attending Princeton. And the boost in earnings he would get from majoring in natural science rather than the humanities - a more achievable goal at Penn State - is a whopping $49,537 per year.

If one's class rank and major were unrelated to the selectivity level of one's college, then it would be perfectly sensible for the authors to celebrate the finding that, all other things being equal, black males get an earnings boost from attending Princeton rather than Penn State. But they are not unrelated. For students who would not have been admitted but for racial preferences, the chances of being in the top third of the class are remote.

The only question is whether a student who attends Princeton and winds up in the bottom third of the class would likely have been in the top third of Penn State. And the answer to that question, at least in many cases, is yes. Consider, for example, a black male with combined math and verbal SAT scores of 1300 (out of a possible 1600) who just missed being in the top 10% of his high-school class. If he attends Penn State, his SAT scores will put him exactly at the 75th percentile in the 2011 entering class (using figures from U.S. News & World Report). That would give him an excellent shot at earning grades in the top third of his class, or graduating with a natural-science degree, or both. If this student instead enrolls at Princeton, however, his SAT scores will put him 110 points below the 25th percentile for that school, likely making his academic standing very tenuous. If he wants to maximize his earnings upon graduation, the choice is obvious.

How could Bowen and Bok have missed the import of their own research? The answer may lie partly in the fact that the book was rushed to press in 1998 just two months before Election Day. On the ballot that year was Washington State's Initiative 200, a clone of California's Proposition 209, which prohibited race-preferential admissions policies in state colleges and universities. Supporters of race-preferential admissions hoped that The Shape of the River would change voters' minds about the desirability of such prohibitions.

Initiative 200 passed anyway, but The Shape of the River slowed the momentum of state popular initiatives in this area. Perhaps more important, The Shape of the River was cited by and seems to have heavily influenced Justice Sandra Day O'Connor in her opinion for the majority in Grutter. The book and its influence thus point to the troubling implications of using social-science research in constitutional analysis, particularly on the subject of race.
SOCIAL SCIENCE AND THE CONSTITUTION
Brown v. Board of Education may be the most important Supreme Court decision in the area of race in the past century. In arriving at its conclusion in 1954 that "separate but equal" school systems are inherently unequal, the Court relied in part on the now-famous doll experiments of Kenneth and Mamie Clark, intended to test the self-perception of young African-American children brought up in the Jim Crow South. The Clarks showed the children two dolls that were identical except for skin and hair color: One doll represented a blonde white person and the other a black person. When asked which of the two dolls was the nice one, which looked bad, which was the more attractive color, and which was more appealing to play with, the African-American children showed a consistent preference for the white doll.

Constitutional scholars look back at the doll experiments and ask, "What if the children had preferred the black doll?" What if it turned out that the children's preference for the white doll had nothing to do with low self-esteem caused by Jim Crow segregation? Would that have made the case for Brown v. Board of Education weaker? Should the constitutional right to equal protection turn on the latest social-science research?

The answer to these latter questions should be, "Of course not." The Constitution demands equal protection for all persons regardless of whether they can demonstrate through social-science research that they have been harmed by some law or policy or social practice. The Clarks' doll experiments were certainly interesting; given the uncertainties of litigation, the attorneys for the Brown plaintiffs were wise to bring them to the attention of the Court. But the Court probably should not have given the impression that its constitutional analysis might be shaped by the results of such an experiment.

If Brown should not have relied on the doll experiments, does that mean the Court should not take social-science research into account in rendering decisions in litigation over race-preferential admissions policies? Some have suggested as much, arguing that the research showing the harm done by race-preferential admissions should be off-limits.

As it happens, though, the Court has already taken social-science research into account - and in Grutter, it almost certainly took bad social-science research into account. In concluding that race-preferential admissions policies were beneficial to minority students, and that the Court should therefore make an exception to the otherwise overwhelming presumption against racially discriminatory laws and policies, Justice O'Connor's citation to The Shape of the River was explicit. But even without such a citation, it is clear that the Court's decision was premised on a belief that race-preferential admissions were helping, or at least not hurting, African-American and Hispanic students.

Of course, under Grutter, increased campus diversity was said to benefit all students, not just under-represented minorities. Consequently, racial discrimination to obtain that benefit was deemed permissible. But minority students are not public utilities; their futures should not be sacrificed to serve broader goals of social engineering. And it is difficult to imagine a college or university knowingly employing race-preferential admissions to give white and Asian students an advantage at the expense of African-American and Hispanic students. The Grutter decision thus would have been unthinkable in the absence of a strong conviction by the Court that affirmative action was providing minority students with a substantial advantage, not a disadvantage.

Now it is becoming evident that it was all a mistake. The strong constitutional presumption against race discrimination in all its forms, which must be firm and unchanging to be effective, was laid aside for no good reason.

To compare this to Brown and the doll experiments, one would have to imagine that Brown had come out the other way - in favor of racially segregated schools - because the Court had some reason to believe that Jim Crow was benefiting all students. If later, more sophisticated research had exposed that belief as erroneous, it would be incumbent upon the Supreme Court to return to the principle that race discrimination should not be tolerated.

It remains to be seen what the Court will do in Fisher. It seems unlikely that its decision will cite or discuss the mismatch literature, and that is as it should be. But that does not mean that this body of research will not, or should not, affect the Court's thinking. The mismatch literature is showing Grutter to be a well-meaning but ultimately misguided deviation from what otherwise had become accepted principle - that race discrimination should not be tolerated. Perhaps in the future, the Court will not be so flexible with its principles.
Gail Heriot is a professor of law at the University of San Diego and a member of the U.S. Commission on Civil Rights.

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The Supreme Court will revisit affirmative action in Fisher v. University of Texas, and defenders of the practice worry that the Court's decision may end the use of racial preferences in higher-ed admissions. But those concerned about minority studen...

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Analyzes different factors that may hinder applicant's ability to succeed in the application and admissions process. Admissions counselors should view applicant's as whole taking into consideration their background that may have affected their academics instead of the academics alone.

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Bits about legality we need to keep in mind when implementing our new affirmative action initiatives

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Bits about legality we need to keep in mind when implementing our new affirmative action initiatives

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"At the same time, these affirmative action plans are constrained by laws that prohibit discrimination (Title VII, 5th or 14th amendments of the Constitution). Non-discrimination laws make it illegal to knowingly using one of the protected categories (race, gender, religion, etc.) in any personnel decision, regardless of which group benefits."

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Abstract

Purpose

When implementing affirmative action programs involving race and gender, human resource practitioners must balance efforts to increase workforce diversity against the need to avoid illegal reverse discrimination. The tension between non-discrimination law and preferential treatment is explored. In reverse discrimination case law, affirmative action plans are evaluated by judges along two dimensions: remedial need and limiting harm. The legal literature specifies certain factors such as statistical imbalance, employee qualification, and duration of plan that are usually examined within these two dimensions.

Methodology

A content analysis of 80 federal court cases was conducted to quantitatively analyze the weight and importance of these factors within judicial rulings as well as contextual factors (e.g., judge's political affiliation, beneficiary of program) that may influence the outcome of affirmative action lawsuits.

Results

It was found that remedial need can be demonstrated by large statistical disparities in the workforce, and was also more likely to be found by Democratic than Republican judges. Limiting harm is more likely to be supported by plans that are of limited duration and do not use reserved slots, or quotas.

Implications

The study provides empirically based recommendations for the design of legally defensible affirmative action plans that involve preferential treatment.

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References

Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq.

Crosby, F. J., Iyer, A., Clayton, S., & Downing, R. A. (2003). Affirmative action: Psychological data and the policy debates. American Psychologist, 58, 93-115.

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Fuller, J.A., Freeman, S., Kurowski, R.M. (2007). Leadership and career development programs for women at PepsiCo. E. I. Desrosiers (Chair). Focusing on women: Workplace initiatives that develop women leaders. Symposium presented at the 22nd annual conference of the Society for Industrial/Organizational Psychology, New York, NY.

Gray, J. A. (1992). Preferential Affirmative Action in Employment. Labor Law Journal, Januray, 23-30.

Local No. 93, Intern. Association of Firefighters. 1986. AFL-CIO C.L.C. v. City of Cleveland, 106 S. Ct. 3063.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.

United States v. Paradise, 1987. 107 S. Ct. 1053.

Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. § 4212.

Weisberg, A.C. & Carey, L.B. (2007). Women's initiatives: Today's business case for retaining and advancing women. E. I. Desrosiers (Chair). Focusing on women: Workplace initiatives that develop women leaders. Symposium presented at the 22nd annual conference of the Society for Industrial/Organizational Psychology, New York, NY.

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Acknowledgments

This research was supported by the Psychology Research Fund from the Institute of Psychology, Illinois Institute of Technology, and FDCP Complex Faculty Grant from The Chicago School. We are also grateful to Richard Gonzalez for his assistance and support, as well as Roya Ayman and Nambury Raju. We thank Shani Austin,Angela Bartels, Porcia Beasley, Sarju Bharucha, Katie Cisneros, Justin Greenfield, Hatton Greer, Eunseon Ha, Rebecca Kohn, Suzanne Seiler, Phillip Terrazzino and Tyler Vandermeeden for their invaluable assistance with the coding of cases.

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Authors and Affiliations

1. Business Psychology Department, The Chicago School of Professional Psychology, 325 North Wells Avenue, Chicago, IL, 60654, USA

Jennifer L. Thompson

2. College of Psychology, Illinois Institute of Technology, Chicago, IL, USA

Scott B. Morris

Corresponding author

Correspondence to Jennifer L. Thompson.

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Thompson, J.L., Morris, S.B. What Factors Influence Judges' Rulings About the Legality of Affirmative Action Plans?. J Bus Psychol 28, 411-424 (2013). https://doi.org/10.1007/s10869-013-9292-y
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What Factors Influence Judges' Rulings About the Legality of Affirmative Action Plans? - Journal of Business and Psychology

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Purpose When implementing affirmative action programs involving race and gender, human resource practitioners must balance efforts to increase workforce diversity against the need to avoid illegal reverse discrimination. The tension between non-discrimination law and preferential treatment is explored. In reverse discrimination case law, affirmative action plans are evaluated by judges along two dimensions: remedial need and limiting harm.

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Arguments from individuals of upper middle class backgrounds

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Arguments from individuals of upper middle class backgrounds

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"Affirmative action is a politically-loaded word in California. People, particularly politicians, use the term as if everyone understands what it means. In fact, people use affirmative action as a label for a wide variety of alleged deeds and misdeeds, some correctly termed affirmative action, but others far off the legal or historical mark. What follows is a brief summary of the legal origins of affirmative action, and of the United States Supreme Court's framework for finding affirmative action programs legally valid in the fields of employment and education.' The story of affirmative action begins with the story of American slavery. Although many of the participants in today's debates over affirmative action would have us divorce the term from its historical context, it is misleading and disingenuous to do so. Consequently, we begin our historical examination of affirmative action's legal origins with slavery and its premise of white supremacy." - Professor Martha S West from "The Historical Roots of Affirmative Action"

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"I only got in because of affirmative action"

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"I only got in because of affirmative action"

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“reverse discrimination”  why it doesn't work

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“reverse discrimination”  why it doesn't work

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Background of race based discrimination coming to an end

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Background of race based discrimination coming to an end

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Race discrimination against students in public education had become unconstitutional in 1954 with the Supreme Court's decision in Brown v. Board of Education.7 In addition to the admonition of Brown, Title VI of the Civil Rights Act of 1964 prohibited race or national origin discrimination by any program or activity receiving federal financial assistance.This included colleges and universities administering federally-funded financial aid programs. In 1973, HEW amended its regulations implementing Title VI to authorize "affirmative action" ".to overcome the effects of conditions" which resulted in limited participation by members of particular racial or ethnic groups.49 In response, colleges and universities began adopting affirmative action programs in admissions to increase the low numbers of students of color enrolled.

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Improving Admission of Low-SES Students at Selective Colleges: Results From an Experimental Simulation

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Improving Admission of Low-SES Students at Selective Colleges: Results From an Experimental Simulation

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The system needs to fixed internally as there may be biased among the admissions panel when reviewing differing backgrounds of students. Interventions are necessary to see how to prioritize students of similar standing.

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But if "diversity" were really the goal, then preferences would be given on the basis of unusual characteristics, not on the basis of race. The underlying assumption -- that only minorities can add certain ideas or perspectives -- is offensive not merely because it is untrue but also because it implies that all minorities think a certain way.

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The icon indicates free access to the linked research on JSTOR.

Affirmative action seeks to increase the representation of women and minorities in employment and education, spaces where they have been historically excluded. However, the discussion of preferential treatment based on racial or socioeconomic status has ignited intense public controversy, as highlighted through the college admissions scandal. The scandal exposed the underlying tensions between class and race in the United States, exhibiting the ways in which privilege is opposed to fairness.

The following non-exhaustive reading list discusses the origins of affirmative action, the question of race- versus class-based affirmative action, and the effects of meritocracy in admissions.

The Origins of Affirmative Action

Tierney provides a historical analysis of affirmative action in higher education. Why was it needed as a policy? He then outlines the philosophical and legal ramifications of affirmative action before evaluating criticism and alternatives. He concludes that affirmative action should not be about rewriting past wrongs. Rather, the goal is to develop policies that serve the public good by advancing diversity and facilitating a culture of public participation.

This comparative and institutional analysis of race-conscious affirmative action policies found that affirmative action arose in two waves during the 1960s. The first wave of adoption occurred in the early 1960s, by colleges in the North that were inspired by the nonviolent civil rights protests occurring in the South. The second wave of adoption emerged in the late 1960s as a response to student protests on campus.

Race- vs. Class-Based Affirmative Action

Derek Bok, the former president of Harvard University, discusses race-based affirmative action in college admissions. After studying more than 60,000 students, the author learned that most minority students attending selective colleges would have been rejected under a "race-neutral" admissions process. Bok assesses the different policy alternatives, like class-based affirmative action and top 10 percent plans. However, he concludes that these policies likely would not lead to the creation of racially diverse classes. He concludes that race-conscious admissions are the only solution that achieves diversity by admitting the best qualified minority students.

Using data from the National Longitudinal Survey of Youth, Cancian tries to simulate the impact of moving away from a race-based admissions process to class-based affirmative action by examining whether racial and ethnic minorities would be eligible for a class-based program. A class-based college admissions process likely would bound the eligibility of racial and ethnic minorities and would not have similar results to race-based affirmative action.

This research report evaluates the effects of affirmative action on employment, college admissions, and government contracting. The empirical evidence shows that affirmative action programs shift employment, admissions, and government contracting away from white men and toward women and other minorities. However, these shifts in employment and college admissions do not have significant or large effects on the representation of minorities in colleges and university programs. Holzer and Neumark note that replacing race-based affirmative action with a different set of policies based on income or class rank likely would reduce the number of minorities enrolled at selective colleges.

Malamud discusses why class-based affirmative action will likely not achieve economic equity in higher education. She also discusses why a class-based admission process is less likely to achieve racial equality.

Sander discusses how UCLA School of Law incorporated class-based preferences into its admissions system and then evaluates the results. He discusses how the class preference system increased the socioeconomic diversity of the student body but had mixed results in preserving racial diversity.

The Challenges of Meritocracy

Liu argues that in meritocracy, social status becomes intertwined with level of education. Colleges and universities are now the gatekeepers of class positions and access to them will determine future class status. Liu discusses how higher education should serve as an instrument to expand opportunity and not be reduced to a "defensive necessity." She signals that it is important for researchers to examine the theoretical basis of meritocracy and its consequences in higher education.

Espenshade, Chung, and Walling examine the college admissions process and the preferences for athletes, children of alumni, and minority applicants. The authors note how elite universities give additional weight to different characteristics in which academic preferences for athletes and legacies often compete with the preference for minority applicants.

Critical Race Theory

Using the framework of critical race theory, the authors discuss the role of race and racism in shaping educational institutions. They also discuss how color-blind, diversity, and remedial legal rationales are shaped by race and racism, underlining how conservatives challenge affirmative action based on a "colorblind" rationale, where race-blind admissions ensure meritocracy. Liberals, on the other hand, defend affirmative action based on a diversity rationale, where minority students enrich the learning environment for white students. The remedial rationale wishes to grant minority groups access as a partial remedy for past and current discrimination.

Resources

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Affirmative Action: Foundations and Key Concepts - JSTOR Daily

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This non-exhaustive reading list discusses the origins of affirmative action, the question of race vs. class, and the effects of meritocracy.

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"Improve access from community college to a four-year degree."

"Engage in holistic admissions that evaluates applicants’ demonstrated capacity and strengths in light of the resources and opportunities available to them in their K-12 community. This form of holistic review is particularly important given that American schools are increasingly segregated and unequal."

"Reform secondary admissions processes that create unfair and unnecessary barriers to majors like education, nursing, and engineering."

"Eliminate legacy preferences."

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At the end of its term, the Supreme Court upended established equal protection law with its decision in SFFA v. Harvard and SFFA v. UNC, effectively eliminating the use of affirmative action in college admissions. The court's decision disregards prior precedent, as well as the societal realities of race discrimination and inequality.

Many schools, as well as the courts, recognize that diversity exposes students to new ideas and ways of thinking, prepares them to live and work with one another in a diverse society, and increases understanding and respect across differences. Those findings have not changed, although schools will need to rely more on other means of cultivating a campus where students of all backgrounds can learn together.

While this legal decision is indisputably a major setback, it is not the end of the drive to open educational opportunities for people of color. As we press forward in this work, here are four answers to crucial questions in the wake of the affirmative action rulings:

What can college admissions offices still do to ensure they create opportunities for students of color?

Affirmative action in college admissions has been an important tool, but it is not the only avenue for ensuring that educational opportunities are open to all. In the absence of affirmative action, it is more important than ever that schools work to identify and remove inequitable barriers to higher education. At a minimum, schools must continue to comply with federal and state civil rights laws that require them to provide educational opportunities on an equal basis. They can achieve this by ensuring that policies and practices do not unnecessarily limit opportunities for people on the basis of race or ethnicity (or other protected characteristics, including disability, sex, sexual orientation and gender identity) and by ensuring that school climate enables all students to access and engage with educational opportunities.

Other ways to increase opportunities include:

Eliminate reliance on standardized testing, which has been shown to unfairly disadvantage people of color.

Expand outreach and recruitment pathways from middle and high school.

Improve access from community college to a four-year degree.

Engage in holistic admissions that evaluates applicants' demonstrated capacity and strengths in light of the resources and opportunities available to them in their K-12 community. This form of holistic review is particularly important given that American schools are increasingly segregated and unequal.

Reform secondary admissions processes that create unfair and unnecessary barriers to majors like education, nursing, and engineering.

Engage in holistic review that considers how race has impacted an individual applicant's life.

Consider how an individual applicant's cultural or political background, such as enrollment in a federally recognized Indian tribe or language ability, contribute to student body diversity.

Eliminate legacy preferences.

Remove barriers for justice-impacted students.

Remove financial barriers to enrollment. The financial burdens of higher education, including increasing student debt, fall disproportionately on people of color.

Adopt guaranteed admissions (top percent plans).

After students are admitted, how can colleges work to create and foster diverse and equitable campuses?

Creating a campus environment where students feel they belong and can fully engage academically is important to student recruitment and to students' success once enrolled. This can include making classroom teaching methods more fair and inclusive; providing curriculum, programs and activities that speak to students' diverse interests and lived experiences; reforming programs intended to fill k-12 learning gaps; removing financial obstacles to academic success; addressing bias in advising; meeting students' basic needs for food, housing, and transportation; and supporting the needs of parenting students.

Additionally, ensuring that higher education opportunities are open to everyone requires taking a broader view of higher education. The affirmative action cases depict a higher education experience that begins with a highly competitive admissions process to an elite institution where students graduating from high school spend the next four years on campus. Equity for students who follow this path is important. But most students, regardless of their race or ethnicity, do not follow this path, and ensuring educational opportunity is open to all is broader than this. Enhancing support for community colleges and addressing educational equity across the spectrum of higher education is also important.

What do affirmative action rulings mean for other institutions? For example, can employers still pursue more racially equitable practices in the hiring process?

The decisions in the SFFA cases address the unique practice of affirmative action in higher education. They do not alter the substantially developed body of law setting the standards for compliance with federal civil rights in other areas, such as employment, lending, and housing, which each contain specific obligations. Entities are still required to comply with existing guidance in these areas.

Additionally, all recipients of federal financial assistance are required to comply with Title VI of the Civil Rights Act, which prohibits entities from discriminating, including through policies that have the effect of unnecessarily disadvantaging people on the basis of race. As with schools, recipients of federal funds can and should operate with neutral policies and practices that ensure opportunities are open equally to people of all races. This means that entities should periodically review their policies and practices to ensure that they do not unnecessarily inhibit equal opportunities on the basis of race or otherwise.

What ripple effects might these decisions have on K-12 education?

The SFFA decisions do not alter the legal landscape for K-12 education. In 2007, the Supreme Court clarified in Parents Involved in Community Schools v. Seattle School District No. 1 that K-12 schools cannot use race-based student assignment practices to pursue diversity and integration. Following this decision, K-12 schools have already been operating under the guidelines similar to those announced for colleges in the SFFA decisions. The Supreme Court recognized the important values of diversity in K-12 education, and those values can be pursued through neutral policies. The court's decision this term in Allen v. Milligan reaffirmed the understanding that examining the effects of government policies to ensure that opportunities are "equally open" to people of all races is permissible.

Schools are required at a minimum to comply with federal and state civil rights laws requiring educational opportunities to be equally available to students of all races. The educational mission of K-12 schools is best served when all students can learn together. School districts can and should continue to use a range of tools to address racially divided educational settings.

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Moving Beyond the Supreme Court's Affirmative Action Rulings | ACLU

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The work to ensure educational opportunities for people of color continues, despite the court's decision.

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In addition to reviewing academic standing and limited resources, admissions panel can look into who the applicant is as a whole person and the decision patterns they make. This can influence what may be predicted of how the student would succeed at the college.

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This book provides a path for resolving challenges related to access, diversity, equity, and other issues facing higher education admissions. It illuminates current higher education admissions practices in a global context, highlighting common obstacles. The chapters outline decision-making models u…

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When the most prestigious schools relax their admissions policies in order to admit more minority students, they start a chain reaction, resulting in a substantial credentials gap at nearly all selective schools.

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Recent ruling. Article dives into both positions as to how the news is being recieved.

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In a historic decision, the U.S. Supreme Court on Thursday effectively ended race-conscious admission programs at colleges and universities across the country. In a decision divided along ideological lines, the six-justice conservative supermajority invalidated admissions programs at Harvard and the University of North Carolina.

The decision reverses decades of precedent upheld over the years by narrow Supreme Court majorities that included Republican-appointed justices. It endsthe ability of colleges and universities - public and private - to do what most say they still need to do: consider race as one of many factors in deciding which of the qualified applicants is to be admitted.

Chief Justice John Roberts, a longtime critic of affirmative action programs, wrote the decision for the court majority, saying that the nation's colleges and universities must use colorblind criteria in admissions.

Majority opinion

"Many universities have for too long...concluded, wrongly, that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learned but the color of their skin," he wrote. "Our constitutional history does not tolerate that choice."

Justice Clarence Thomas took the unusual step of reading from the bench parts of his lengthy concurring opinion.

Thursday's decision, he wrote, "sees the universities' admissions policies for what they are: rudderless, race-based preferences. ... Those policies fly in the face of our colorblind Constitution."

As he has done before, Thomas, the second black justice appointed to the court, reiterated his long-held view that affirmative action imposes a stigma on minorities. "While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold our enduring hope that this country will live up to its principles that ... all men are created equal, are equal citizens, and must be treated equally before the law."

Roberts, for his part, pointed to the court's 2003 decision reaffirming the constitutionality of affirmative action programs, noting that Justice Sandra Day O'Connor, writing for the court at the time, had suggested that there would have to be an end at some future point. That time has now come, Roberts said.

Opposing view

"It feels tragic," said Columbia University President Bollinger, who has for 30 years been a leading proponent of affirmative action programs.

"It feels like the country has been on a course of choosing between a continuation of the great era of civil rights, and another view of 'We've done this long enough, and we need a whole new approach.' It's now the second choice."

That sentiment echoed Justice Sonia Sotomayor's dissent.

"The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society," she wrote.

Justice Ketanji Brown Jackson, the court's first Black female justice, also chimed in, saying: "With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces 'colorblindness for all' by legal fiat. But deeming race irrelevant in law does not make it so in life."

Indeed, the reality is that in those places where affirmative action has been eliminated, there has been a severe drop in minority, and particularly, African American, admissions. NYU law professor Melissa Murray was the acting dean at the University of California Berkeley in 2016 and 2017 when a state referendum barred the use of race in college admission decisions.

"There was an immediate drop off in the number of African American students that was both a confluence of the change in the admissions policy, but also African American students not wanting to go [to Berkeley] under those conditions," she said. "People don't want to be spotlighted. There is a kind of comfort in numbers, and it was very difficult for a very long time to recruit under those conditions."

Indeed, the situation got so bad, she says, that she had to go to the president of the state university system to get permission to place clusters of African American students in classes, instead of "sprinkling them around," leaving minority students alone to speak their mind when subjects of race were discussed.

Door is left slightly open

Now every school will be in that situation, or so it may seem.
The court did not entirely close the door to racial considerations in college admissions. As Roberts put it, "Nothing in this opinion should be construed as prohibiting universities from considering an applicants discussion of how race affected his or her life." Nor did the court address the tactic of clustering minority students in classes.

What's more, the court specifically left open the possibility that the nation's military academies, because of their "distinct interests," may be able to continue with their successful affirmative action programs, which have resulted in a very diverse officer corps.

"That issue is so sensitive because it raises the question of national security that the court has backed away from following its own logic," said University of California Berkeley professor Jerome Karabel.

He notes that a similar logic might apply to police forces seeking to recruit minorities so as to ensure that a virtually all white force would not be policing a majority Black town.

For the nation's colleges and universities, however, diversity will no longer be an acceptable rationale for taking race into account.

Broader impact

Thursday's decisions are likely to cause ripples throughout the country, and not just in higher education, but in selective primary and secondary schools like Boston Latin in Massachusetts, Thomas Jefferson high school in Virginia, and Bronx High School of Science in New York.

Ultimately, effects will be felt in every aspect of the nation's economic, educational, and social life--from the Rooney rule that requires a minority applicant be considered in all NFL coach hiring decisions to employment and promotion decisions, DEI programs in schools and workplaces, and much more.

"We're going to be fighting about this for the next 30 years," said Harvard law professor Randall Kennedy.

Edward Blum, who for decades has been a one-man crusader against everything from the landmark 1965 Voting Rights Act to affirmative action in higher education, plans to challenge some corporate boards on racial preference grounds, and he says he knows of other plans to challenge minority scholarship and fellowship programs.

UC's Karabel notes that there are already employment lawsuits pending, and "by the logic of this decision, I would think that racial discrimination, as defined by the court, would be banned in employment as well."

"It's going to open a Pandora's box across the country and across institutions and industries," said Harvard co-counsel Bill Lee in an NPR interview last fall.

How the case came to be

The court's decisions came in cases involving two elite institutions, one the oldest public university - the University of North Carolina - and the other, the oldest private university, Harvard. Blum, the anti-affirmative activist, likely chose these highly visible schools as his legal targets precisely because of their elite status.

UNC did not admit Black undergraduates until 1955, and then only after it was ordered to by the federal courts. Harvard, by contrast, became the model for affirmative action programs in 1978 when the Supreme Court cited the school's consideration of race as similar to other traits the school relied on to ensure a diverse student body. Thus, the court said back then that race could be one of many factors that the school considered, just as other characteristics were considered - geography, or being raised on a farm, or special achievements in everything from science to athletics, or being a so-called legacy student, the son or daughter of someone who attended Harvard.

That system, reaffirmed twice by the Supreme Court, has remained in place not just at Harvard, but at most of the institutions of higher learning across the United States. Until Thursday, when the court - as it did last year in the abortion case - upended decades of its own precedents.

The court majority made clear that it agreed with Students For Fair Admissions, which sued Harvard and UNC, claiming, among other things, that the schools discriminated against Asian American students who had SAT and grade scores higher than any other racial group, including whites, and who made up, at Harvard, for instance, 29% of the entering class last year. SFFA asserted that the number should have been higher than that, though Asians are just 7.2% of the U.S. population.

Harvard, in defending its current iteration of affirmative action, noted that each class has only 1,600 slots, but, by the numbers, it has thousands of equally qualified applicants. In the class of 2019, for instance, it had 35,000 applicants, 3,700 of them with perfect math SAT scores; 2,700 with perfect verbal SAT scores, and more than 8,000 with perfect grade point averages. There are no similar figures for the most recent incoming class at Harvard, but the number of applicants in 2023 has nearly doubled in the last four years.

What the public thinks

The reaction to Thursday's decision may be consternation in some quarters, but public opinion on affirmative action is not like abortion, a subject on which virtually every poll shows the public completely at odds with the court. Public opinion on affirmative actions is more nuanced and more mixed. Polls on the subject conflict: some show upwards of 60% approval for affirmative action programs, and others show less than 50% support.

Indeed, in liberal California, for instance, 57% of voters in 2020 cast their ballots against rein s tating affirmative action in the state's public colleges and universities.

Generally, polls show that public support for affirmative action has grown in recent years, but voters are conflicted on the subject, with the outcome depending on how the question is asked. A recent Washington Post-Schar School Poll found that 6 in 10 Americans say race should not be considered in college admissions. But when the question was asked a slightly different way, the numbers showed big majorities endorsing programs to boost racial diversity on campuses.

And yet no alternative to affirmative action has worked as well as some consideration of race.

College admission administrators say schools that have tried to raise the numbers of Black and Latin0 students without any consideration of race have found that no other criterion - class, or economic status, or programs like a guarantee of admission for students in the top 5% or 10% of their high school class - works as well.

"The research is exceptionally clear," University of Texas professor Stella Flores, whose specialty is higher education and public policy, told NPR in an interview last fall. "There's no other alternative method that will racially diversify a student body, other than the use of race as one factor of consideration."

Court's 'double tak'

Harvard's Professor Kennedy points to what he calls "double talk: in the Supreme Court's Thursday opinion. Take two signs, he says: a sign that says "Black people stay out," and contrast it with a sign that says "Black people welcome."

"Both have race in them. Are they truly both racially discriminatory? The Supreme Court, at least on one side of its mouth, seems to say yes, they're both racially discriminatory. But at the end of the Supreme Court's opinion, it says, well of course one can look favorably on someone who's overcome racial impediments."

"I think we are at a very critical point," said Columbia President Bollinger, who, earlier in his career, shaped the affirmative action program at the University of Michigan, a program that was upheld in 2003. He sees the landscape of admissions systems now shifting markedly, with "the demise" of school rankings, and less emphasis on standardized test scores. Columbia, he notes, has more veterans than any other Ivy League college. "I think there will be a lot of experimentation in admissions, as there should be over the next decade."

The magnitude of Thursday's decision was emphasized by the fact that, in all, six justices wrote separately. And three justices spoke for more than 40 minutes from the bench--the chief justice in the majority, Thomas concurring, and Sotomayor in dissent. Indeed, in print, the Supreme Court's decisions, plus dissents and concurrences, reached a book-sized 237 pages.

Race has never been any easy subject for Americans to deal with, and it's about to get a lot harder.

Meghanlata Gupta contributed to this story.

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Supreme Court guts affirmative action, effectively ending race-conscious admissions

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The decision reverses decades of precedent upheld over the years by narrow court majorities that included Republican-appointed justices.

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Mandate Essay of Additional Comments and challenges

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Mandate Essay of Additional Comments and challenges