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Origins: Regents of University of California v. Bakke (1978)

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Origins: Regents of University of California v. Bakke (1978)

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The significance of this court case follows that racial quotas were banned within college admissions since they were being used to deny individuals with better attributes in favor of individuals in a minority social group. However, affirmative action became an alternative for institutions to favor individuals of minority groups with the consideration of other qualities of a candidate. For example, if a white and black individual had the same or very similar test scores, volunteer work, degree of pursuit, etc. then affirmative action allows for the black individual to be admitted but not the white individual on a legal standpoint.

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The US Supreme Court agreed to hear a case regarding affirmative action in college institutions, meaning it is bound to affect all other colleges post-decision. The case will not be heard until October, with a decision not likely until mid-2023. This opens the floor for debate preceding the hearing, hence why it is a relevant topic up for discussion now.

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For Affirmative Action: Would increase number of minority applicants for institutions and decrease socioeconomic biases.
Against Affirmative Action: Likely to create reverse racism within the college admissions process and lower academic standards of attending a particular institution.

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In 2003 ( Grutter v. Bollinger, which clarified the Bakke decision (1978)), the Supreme Court ruled that an admissions preference system that uses numerical point systems quota systems to allocate admissions slots based on race is not permitted but that universities can take race into account during admissions in more subtle ways:

Tamara Lewin and Richard Perez-Pena, June 30, 2015, Colleges Brace for Supreme Court Review of Race-Based Admissions, New York Times, http://www.nytimes.com/2015/07/01/us/politics/colleges-brace-for-supreme-court-review-of-admissions.html?_r=0 DOA: 9-9-1

Over the last three decades, the court has issued several decisions on affirmative action in higher education, and most have limited considerations of race. In 2003, the Supreme Court held that public colleges and universities could not use a point system to increase minority enrollment but could take race into account in more vague ways to ensure academic diversity.

In Grutter, the Supreme Court said that the University of Michigan Law School could consider race in individual applications but in Gratz they said that the undergraduate school could not automatically assign 20 points to every minority. So, again, a specific point system is not acceptable, but subtle consideration is.

Although the US Supreme Court made significant rulings on the issue, it took it up again in 2015 in Fisher vs. the University of Texas due to a new lawsuit that challenges the University of Texas' decision to continuing to factor in race in college admissions:

Abigail Fisher, a white female, applied for admission to the University of Texas but was denied. She did not qualify for Texas' Top Ten Percent Plan, which guarantees admission to the top ten percent of every in-state graduating high school class. For the remaining spots, the university considers many factors, including race. Fisher sued the University and argued that the use of race as a consideration in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the University's admissions process was constitutional, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The case went to the Supreme Court, which held that the appellate court erred by not applying the strict scrutiny standard to the University's admission policies. The case was remanded, and the appellate court reaffirmed the lower court's decision by holding that the University of Texas' use of race as a consideration in the admissions process was sufficiently narrowly tailored to the legitimate interest of promoting educational diversity and therefore satisfied strict scrutiny.

Strict Scrutiny is a legal standard that says that government policies can only discriminate if there is a compelling state interest and no least restrictive alternatives are available. In this case the lower court found both of those were the case.

Most universities continue to consider race as a factor in admissions in this more subtle ways, though such usage is banned in eight states. Universities in these states, as well as other universities that continue to take race into account, also use additional measures to ensure racial and economic diversity. This measures include taking students who rank high in their class regardless of the high school's own ranking, which can reflect neighborhood and socioeconomic status, and accepting more transfer students from community colleges.

Tamara Lewin and Richard Perez-Pena, June 30, 2015, Colleges Brace for Supreme Court Review of Race-Based Admissions, New York Times, http://www.nytimes.com/2015/07/01/us/politics/colleges-brace-for-supreme-court-review-of-admissions.html?_r=0 DOA: 9-9-1

Eight states now ban race-based affirmative action, and their top public universities have different approaches to ensure racial and economic diversity. Some give preference to working-class students, those from troubled high schools and those whose parents did not attend college. Others have increased financial aid. The flagship public universities in Texas and Florida - and other states, to a lesser extent - began offering admission based primarily on how high students ranked within their own high schools, rather than statewide, which often meant that poor and minority students competed with others from similar backgrounds. The University of California system greatly increased the number of transfer students it accepted from community colleges.

Another article provides a similar explanation -

Richard Kahlenberg, May 18, 2015, Chronicle of Higher Education, For the Safe of Working Class Students, Give Fisher another chance, http://chronicle.com/article/For-the-Sake-of-Working-Class/230239?cid=megamenu DOA: 9-9-15 Richard D. Kahlenberg is a senior fellow at the Century Foundation and editor of The Future of Affirmative Action: New Paths to Diversity After Fisher v. University of Texas (Century Foundation Press, 2014).

Instead, a majority of people believe in using alternatives to race when feasible - policies like providing a leg up to economically disadvantaged students, boosting financial aid, increasing transfers from community colleges, ending legacy preferences, and reducing an emphasis on tests in favor of students in the top portion of a state's high schools.

Arguments in Favor of Consideration of Race

The primary argument in favor of consideration of race in college admissions is that eliminating it would reduce the number of minority applicants, particularly Blacks, who are accepted. This has happened in other states where race was banned.

Tamara Lewin and Richard Perez-Pena, June 30, 2015, Colleges Brace for Supreme Court Review of Race-Based Admissions, New York Times, http://www.nytimes.com/2015/07/01/us/politics/colleges-brace-for-supreme-court-review-of-admissions.html?_r=0 DOA: 9-9-15

The state bans on considering race have struck hard at elite public universities seeking to maintain a pool of minority students. The three most selective institutions in the states with bans - the University of Michigan; the University of California, Los Angeles; and the University of California, Berkeley - have all lost ground in diversity since their state bans went into effect. "Those three compete on a national level with universities like Stanford and Harvard," said Richard D. Kahlenberg, the author of the Century Foundation report. "They're in an impossible situation, since they have to play by one set of rules and the private universities have a different set of rules."

Some argue that a ban on the use of race in college admissions would encourage universities to do more to help struggling high schools but many do not have the resources to do that.

Tamara Lewin and Richard Perez-Pena, June 30, 2015, Colleges Brace for Supreme Court Review of Race-Based Admissions, New York Times, http://www.nytimes.com/2015/07/01/us/politics/colleges-brace-for-supreme-court-review-of-admissions.html?_r=0 DOA: 9-9-15

Anthony P. Carnevale, the director of the Center on Education and the Workforce at Georgetown, said most race-neutral diversity efforts were difficult and expensive. "The fact is, a lot of universities couldn't afford to do a lot more," he said. Ultimately, each university will have to decide where to put its energies and its dollars.

Beyond the argument that eliminating race based considerations in admissions hurts individual applicants, a strong argument that it hurts university decision-making.

Why?

Because a reasonable argument can be made that universities should be able to set their own admissions criteria and that the only relevant admissions factors are not grades and scores. For examples, universities also want to encourage diverse communities so that students can learn from each other through real life experiences. In order for universities to provide that experience, they have to have admissions processes and standards that make the admission of diverse student populations possible.
The Problem with Allowing Race Considerations in Admissions
The primary problem with allowing the consideration of race in admissions is that it results in reverse discrimination against whites who are disadvantage simply by the fact that they are white.

So, yes, as noted, universities should be able to use admissions standards that further their own aims in terms of what type of communities they want to build, but we can also all agreed that they shouldn't be able to use discriminatory admissions standards. For example, everyone would agree that universities should not be allowed to ban African Americans from attending their universities if the university is founded by whit supremacists, so if admissions criteria disadvantage a group in a way that doesn't serve a compelling state interest (racism is not a compelling state interest (or a state interest at all)), then it makes sense that it should not be accepted as one. Opponents of affirmative action in college admissions think it has a discriminatory purpose (or at least a discriminatory outcome) and should not be accepted.
Conclusion
The debate over affirmative action is a long one and it will not end soon. To win it, Pro teams should focus on the benefits of admissions to the historically disadvantaged as well as the benefits of a diverse university. Con teams should focus on the reverse discrimination that occurs as a result of affirmative action.

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The Affirmative Action Debate - DebateUS

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Legal Background In 2003 (Grutter v. Bollinger, which clarified the Bakke decision (1978)), the Supreme Court ruled that an admissions preference system that uses numerical point systems quota systems to allocate admissions slots based on race is not permitted but that universities can take race into account during admissions in...

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Some of the most common arguments against and misunderstandings of affirmative action include that few people support the matter, it is used constantly in institutions, this gives minority groups an unfair advantage in applying, consideration of income instead of race would produce the same results, and this is not a large issue. (Source: https://edtrust.org/the-equity-line/debunking-5-myths-affirmative-action/)

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Graph of ethnic group versus socioeconomic standing with regards to attending a "highly selective institution."

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Clearly, there is a vast disparity between different racial groups and how much of that particular group is of higher economic status and how many individuals of each economic group have the opportunity to attend these institutions, demonstrating a genuine argument for income consideration producing the same result as racial considerations.

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One large debate topic of affirmative action is meritocracy: the concept of needing to work hard in order to earn your status. Those who argue against affirmative action note that minority groups attain an advantage and diminish society's meritocratic system by giving opportunities based on race. However, people in favor of affirmative action argue that a true meritocracy is a myth since minority groups are often given less opportunity to work hard to achieve status, so this system allows minorities to earn their status.

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The Myth of Meritocracy: The Necessity of Affirmative Action

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By Sasha Robinson, ERC Intern I was born white and naive, raised ignorant to the benefits I gained from being white and the issues plaguing minority children: gang violence, drug abuse, poor education, and dismal living conditions. This lack of understanding stemmed from the idea that since everyone was equal, race did not matter.

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Graph of 2019 Yale Survey depicting support of affirmative action categorized by ethnic group.

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Yalies support affirmative action, survey finds

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According to a News survey distributed last month, more than two-thirds of undergraduate respondents said they supported affirmative action.

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Although the Supreme Court has deemed affirmative action legal for institutions, the decision of California v. Bakke deemed that the states ultimately have the final say in what their institutions follow. Hence, currently 8, previously 9, states have banned their institutions pursuing affirmative action.

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Tuesday's Supreme Court decision upholding Michigan's ban on affirmative action affects more than college admissions, and more than just Michigan. Seven other states have similarly broad bans in their constitutions or statute books, and opponents of affirmative action have called on other states, and the federal government, to follow suit.

In a 6-2 decision marked by divisions among the justices (three concurrences in addition to Justice Kennedy's plurality opinion, which only two other justices joined), the Court was careful to stress that it wasn't ruling on "the constitutionality, or the merits, of race-conscious admissions policies in higher education." Rather, the key question was "whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions..."

Affirmative action, in the sense of active measures to improve work or educational opportunities for members of historically disadvantaged groups, is an outgrowth of the civil-rights movement of the 1960s. In 1965, President Johnson issued Executive Order 11246, which (as amended) requires federal contractors to "take affirmative action to ensure that equal opportunity is provided in all aspects of their employment." Over the following years, affirmative-action programs became common at the state and local levels as well, including at colleges and universities.

In 1996, following years of controversy over affirmative action that dates back to the 1978 Bakke decision), California became the first state to enact a formal ban on racial and other preferences, when voters approved Proposition 209. Since then, Michigan and six other states - Washington, Florida, Nebraska, Arizona, New Hampshire and Oklahoma - have adopted similar bans. Most of those measures include language similar or identical to Prop 209's key provision: that the state (including but not limited to public colleges and universities) "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."

Six of the bans were adopted by voters (five via initiative petitions, one by legislative referral). The only state where an anti-affirmative action initiative failed at the ballot was Colorado, where voters narrowly rejected Amendment 46 in 2008.

Nationally, however, Americans appear strongly supportive of affirmative action, at least in the realm of higher education. In a Pew Research Center survey conducted last month, 63% of people said such programs aimed at increasing the number of black and minority students on college campuses were a good thing, versus just 30% who called them a bad thing.

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Supreme Court says states can ban affirmative action; 8 already have

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Tuesday's Supreme Court decision upholding Michigan's ban on affirmative action affects more than college admissions, and more than just Michigan. Seven other states have similarly broad bans in their constitutions or statute books, and opponents of affirmative action have called on other states, and the federal government, to follow suit.

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It's important to note that affirmative action does not solely have to do with race, although it clearly plays a large role in debate. But race and ethnicity are not the only ways an institution can use affirmative action. Gender, (dis)ability, sexuality, economic status, and many other groups can also be viewed by institutions for a possibility of affirmative action.

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Texas initially banned the use of affirmative action in college admissions, but this Supreme Court decision allowed for it to be used again. This was under the defense of the Equal Protection Clause of the 14th Amendment. This is similar to the case being argued in 2022, yet the latter encompasses a more specified argument that will affect admissions at the national level, rather than a state policy.

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https://edtrust.org/the-equity-line/debunking-5-myths-affirmative-action/

https://slate.com/news-and-politics/2013/06/fisher-v-university-of-texas-decision-at-the-supreme-court-affimative-action-at-universities-should-switch-to-class-based-preferences.html

https://www.oyez.org/cases/2012/11-345

https://www.semanticscholar.org/paper/Affirmative-Action-and-Intersectionality-at-the-Klasen-Minasyan/b4c5f8f2a416a138533daa39586226f2f4d21966