Affirmative Action in Higher Education

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The Life and Death of Affirmative Action in Higher Education: An Examination of Percent Plans as an Alternative to Race Conscious Admissions

Prior to the Civil War, there was no structured higher education system for black people. Public policy prohibited the education of blacks in various parts of the nation. The legacy of slavery continues to affect millions of people in a negative way. Some believe it is an issue that has been dealt with and belongs in the past. Affirmative Action is program that was initially created to rectify the past societal discrimination and segregation by allocating jobs and educational opportunities for black people. Affirmative Action is deeply rooted in the struggle for black civil rights. Since its inception, Affirmative Action has changed to include women and other marginalized minorities as well as protection for people with disabilities. Some believe that affirmative action is needed in society due to racism and racial disparities while other believe that it perpetuates reverse discrimination. The debate over Affirmative Action has been raging for the over 60 years. Given our current political situation, Affirmative Action is in grave danger of losing its life.

This literature review will examine the history and birth of affirmative action policies, the tumultuous life of affirmative action, the main issues surrounding affirmative action and the slow death of affirmative action. It will examine effects of eliminating affirmative action and the percent plans as an alternative solution.

The Birth of Affirmative Action

The American colonies in the 17th and 18th centuries practiced slavery. It was widely practiced in the Southern states where African slaves helped build the nation into an economic force through the production of profitable crops such as tobacco and cotton (Palmer, 1957). Slave owners imposed a system of restrictive codes including prohibiting them from learning to read and write. The first laws prohibiting slave education was passed by South Carolina in 1740 (Palmer, 1957) and in 1833 Alabama passed a law fining anyone that educated a slave between $250 and $550 dollars (Palmer, 1957). Many whites did not want blacks to become educated, fearing they would challenge white supremacy and not be content with jobs working in the fields or in domestic service. Literacy was seen as a threat to slavery (Palmer, 1957). African Americans were denied access to education. The goal of the white supremacist was to have African slaves completely powerless and dependent on the them. Young (2014) describes this marginalization as a form of oppression that can systematically destroy people’s lives by barring access to opportunities. This marginalization of African Americans has transcended generations and still exists today.

After the civil war, Southern legislators enacted Jim Crow laws that mandated racial segregation in all public facilities including public education starting in the 1870’s (Brazzell, 1996). Access to higher education was specifically extended to African Americans with the passage of the second Morrill Act of 1890. This Act required states that had land-grant colleges to provide educational opportunities to African American students. It mandated that funds for education be distributed annually on a “just and equitable” basis to African Americans (Brazzell, 1996).

Dual systems of higher education were established when nineteen states and the District of Columbia chose to establish separate Black colleges (Anderson, 2004). The curriculum at these schools emphasized a focus on mechanics, agriculture, and the industrial arts. This federally-supported model of vocational education further promoted the idea that African Americans were intellectually less capable than whites and should be offered a separate and lower-caliber education (Anderson, 1988; Davis, 1998). Roebuck and Murty (1993) hypothesize that public HBCUs were created for the following reasons: “to limit African American education to vocational training, and to prevent African Americans from attending white land-grant colleges” (p. 27).  The public HBCUs founded during this period were generally of poorer quality than their white public institutions. These institutions were forced to operate with inadequately trained faculty and substandard instructional facilities. Nonetheless, these institutions produced more than 3,400 African American college graduates by the turn of the century (Anderson, 2004). Separate but equal was formally legalized as a result of the Court’s landmark decision in Plessy v. Ferguson in 1896. The court ruled that states could continue the racial segregation of public schools only if accommodations and facilities were equal (Anderson, 2004).

It wasn’t until 1954, when a unanimous Court overturned the separate but equal doctrine, making it illegal for Blacks to be denied equal access to public facilities. The U.S. Supreme Court ruled in Brown v. Board of Education that racial segregation, including the operation of “separate, but equal” facilities in public education would no longer be legal (Brown, 2001). Many whites were not receptive to the court’s ruling. Although primary and secondary schools were at the heart of this case, the precedent applied to public postsecondary institutions. This policy was meant to immediately extend access to previously segregated educational institutions. However, most states continued to fight integration. When the U.S. Supreme Court invalidated segregation in undergraduate education these states and their higher education institutions continued to actively resist court orders requiring their desegregation (Brown, 2001). U.S. President John F. Kennedy first introduced the term “affirmative action” in a civil rights speech given on the campus of Howard University, an HBCU (Bowen & Bok, 1998). Executive Order 10925 issued by President John F. Kennedy had put the focus of affirmative action in the United States on the employment sector (Bowen and Bok, 1998). There was a significant increase in urban racial violence in the United States in the 1960’s. The racial riots and the failure of court orders to accomplish higher-education desegregation encouraged Congress to pass the Civil Rights Act of 1964 (Hughey, 2014). In 1965, U.S. President Lyndon B. Johnson officially brought Kennedy’s vision to actualization with the signing of Executive Order 11246, which required federal contractors to increase the number of minority employees as an “affirmative step” toward remedying years of exclusion for minority workers (Hughey, 2014). Affirmative action was systematically enacted that year and expanded affirmative action to university admissions. One decade after Brown v Board of Education, Title VI of the Act provided that “no person in the United States, on the grounds of race, color, or national origin, be excluded from participation in, or the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance” (Malaney, 1987, p. 17). Title III of the Act, Strengthening Developing Institutions, favored HBCUs by providing certain subsidies for their survival (Roebuck & Murty, 1993).

 The Civil Rights Act positively affected African American participation in higher education. African Americans were given opportunities to matriculate at institutions that were once completely inaccessible to non-whites. Enrollments at major colleges and universities would not reach noticeable increases until the late 1960s and early 1970s. Kelly and Lewis (2000) report that Black enrollments increased from 27% in 1972 to 34% in 1976, before dropping steadily during the subsequent decade. President Johnson’s Civil Rights Act of 1964 gave birth to the concept of affirmative action in higher education and opened many doors for African American students in higher education. However, to characterize the current status of African Americans equitable would be a gross understatement.

The Tumultuous Life of Affirmative Action

According to Garrison-Wade & Lewis (2004, p. 24) “the main objective of affirmative action policies … is to improve educational opportunities for minorities by equalizing admission requirements by including race as one factor in the admission process”.  Johnson’s original intention was for affirmative action was for the black population. Later, he amended the policy to include women and people with disabilities.

From the very start affirmative action policies have been challenged. During the 1970’s, affirmative action policies in higher education were actively challenged. The first challenge to affirmative action in higher education was in 1974 DeFunis v. Odegaard (Moreno, 2003). DeFunis took the University of Washington to the State’s Supreme Court after twice being denied admission to its law school. Marco DeFunis was a white Jewish male of Spanish-Portuguese decent. The main premise for DeFunis’s case was that the university considered minority applications separate from non-minority applications. The Washington State Supreme Court upheld the affirmative action policies at the University of Washington by stating that the university was “producing a racially balanced student body and alleviating the shortage of minority attorneys” (Moreno, 2003, p. 17). A few years later in 1978, the Regents of the University of California v. Bakke was decided by the Supreme Court and again the Court upheld the university’s affirmative action policies. Allan Bakke was a thirty-two-year-old white male, Vietnam veteran with a master’s degree in mechanical engineering. By 1973, Bakke had applied to thirteen medical schools and had been denied by all. Bakke then sued the University of California claiming that the special minority admissions program had reduced the number of available slots in the program. The university reserved sixteen out of one hundred spots for certain minority groups. The California Supreme Court did rule the University of California’s policies unconstitutional; however, the case was appealed to the U.S. Supreme Court. The Supreme Court was divided on the issue, but did rule affirmative action polices necessary and constitutional. However, the Court also ruled that the use of numbers or quotas to obtain affirmative action goals was unconstitutional and the University of California was in violation of this because it used a specific number. In summary, affirmative action policies were upheld by the court, but the use of specific quotas were deemed unconstitutional. This landmark case was used as a precedent for affirmative action cases that followed.

During the 1990’s affirmative action policies were again challenged. In 1995, the Regents of California voted to end all affirmative action programs at all of their campuses (Moreno, 2003). In 1996, California voters passed Proposition 209, a law that prohibited the use of all affirmative action policies in the State. That same year in Texas, a U.S. Court of Appeals for the Fifth Circuit ruled that its law school’s policy of considering race in the admissions process was unconstitutional (Texas v. Hopwood, 1996). A year later, in response to Texas v. Hopwood, the Texas legislature issued an executive interpretation that banned affirmative action in public and private colleges that accepted federal funding in Texas. It then passed the Texas Ten Percent Plan, which ensured that the top ten percent of students in all high schools in Texas have guaranteed admission to the University of Texas and the Texas A & M system (Moreno, 2003). Also in 1998, voter’s in Washington passed Initiative 200 which banned affirmative action in the state. In 2000, Florida legislature passed the One Florida Plan that banned affirmative action. The plan guarantees the top 20% of all high school students’ admission to the University of Florida system (Moreno, 2003).

Affirmative action battles were challenged again in two University of Michigan cases.  These two landmark cases, Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003) both dealt with affirmative action in the admissions process in higher education. Gratz v. Bollinger (2003) focused on undergraduate admissions at the University of Michigan. Gratz v. Bollinger (2003) lawsuit claimed that they were discriminated by the University by accepting Blacks and Hispanics with lower test scores and grade point averages (Lords, 2013). And Grutter v. Bollinger (2003) centered on law school admissions at the University of Michigan. Similarly, Barbara Grutter claimed that less-qualified minority students were admitted while she was denied admission (Lord, 2003). In Gratz vs. Bollinger (2003), the Supreme Court ruled that the points awarded to race and ethnicity were essentially too many points. The Supreme Court ruled that Michigan’s race-conscious point system for undergraduate acceptance denied other applicants (non-minorities) equal protection under the law. In Grutter v. Bollinger (2003), the Supreme Court upheld affirmative action by ruling that the University of Michigan’s law school admissions procedures were satisfactory (Moreno, 2003). The Supreme Court handed down two conflicting decisions without providing a clear rationale. According to Justice Scalia, the rulings are a “split doubleheader that seems perversely designed to prolong the controversy and the litigation” ((Moreno, 2003).


The Main Issues

Racism and racial disparities are at the heart of the Affirmative Action controversy. Both sides of Affirmative Action claims racism as key to their arguments for and against affirmative action. Carroll, Tyson, & Luma (2000) claims that affirmative action is considered outdated by those who believe that there is a level playing field. They state that students of color continue to face situations that other white students do not have to face. Racial disparities exist in higher education as evidenced by research. Even after decades of affirmative action, Black and Hispanic students are more underrepresented at the nation’s top colleges and universities than they were 35 years ago. Black students are15 percent of college age Americans but only 9% of students at the Ivy League and 6% at public flagships. Blacks and Hispanics have gained ground at less selective colleges and universities but not at the highly selective institutions. The persistent underrepresentation often stems from equity issues that begin earlier (Ashkenas, Park and Pearce, 2017).  Defenders of affirmative action believe that the only way to eliminate some of these racial disparities in our society is through affirmative action policies. Dovidio and Gaertner (2000) measured racial attitudes and biases in rating the qualifications of an African American and White candidate among White college students in 1989 and then 10 years later. They found that White participants exhibited an aversive racism or a subtler prejudice. The found that bias against African Americans candidates persisted over the 10-year gap.

Diversity is also a main factor when examining affirmative action (Crawford, 2000). Supporters of Affirmative Action claims that it promotes diversity among students. Hurtado, S., Inkelas, K., Briggs, C., & Rhee, B. (1997) link diversity with academic excellence and student success. Inkelas (2003) found that students who socialized with students who were ethnically or racially different from themselves were more likely to support affirmative action policies. Inkelas (2003) explained that students who participated in campus diversity programs were more likely to have informal conversations with friends about diversity and as a result, would reflect upon their own racial identities. Crosby, Iyer, Clayton, & Downing (2003) conclude that diversity is beneficial and that affirmative action does indeed increase diversity.

Challengers of affirmative action claim that affirmative action is a form of racism in that it uses race as a factor and as a result excludes another race (Crawford, 2000). They claim that of supports reverse discrimination. Many of the lawsuits brought against the use of affirmative action has claimed exactly this. Another critical argument against affirmative action is that attaining diversity requires an assault on merit (Steele, 1999). They believe that race conscious admission means that candidates with better academic credentials will be passed over in favor of candidates with better academic credentials (Steele, 1999).  And they claim that affirmative action is not the best way to increase diversity efforts. Critics believe that focusing on other societal disparities, such as social class, is a better way to offer special support for underrepresented students than focusing on race. Glazer (1999) acknowledges that college admissions have never been run as a pure meritocracy. Glazer (1999) affirms that legacy admissions, Athletics and alumni connections has always been a part of admissions. Critics believe that focusing on other societal disparities, such increasing socio-economic diversity is a better way to offer special support for underrepresented students than focusing on race.

The Texas Top Percent Plan:

The Texas Top Ten Percent Plan focuses on increasing socio-economic access as well as socio-economic diversity. In 1996, the Fifth Circuit Court of Appeals ruled in the case of Hopwood v. Texas that race could not be used as a factor at the University of Texas School of Law. This ruling led to a ban on affirmative action at all public universities in Texas beginning in 1997. The Texas Top Percent Plan (TTP) is an attempt to formulate a policy that would help maintain diversity in competitive public universities that did not give admissions preferences based on race. The Texas TTP plan allows for disadvantaged and underrepresented minority students to have increased access to more selective public colleges (Daugherty, L., Martorell, P., & Mcfarlin, I., 2014). Policies designed to raise enrollment rates of disadvantaged students at high-quality colleges have the potential to reduce these disparities and increase labor market returns. The Texas TTP combined with adequate supports and financial aid can help accomplish this goal (Andrews, R. J. et al., 2016). The admission agreement increases access to students even at low-achieving high schools. These students tend to be disproportionately poor and minority. An original flaw in the program is that it gave access to students to a flagship institution but did not provide the supports needed to succeed or the financial assistance to low income students. An increase in access to a more selective institution did not increase the number of disadvantaged and minority student enrollment (Horn and Flores, 2012). An admission guarantee does not guarantees attendance. The implementation of the Longhorn Scholarship University gave students financial assistance as well as support services to help them succeed.  This includes tuition as well as housing assistance (Horn and Flores, 2012). The ten percent plan with a comprehensive financial and educational support package is a good plan to increase socio-economic diversity (Andrews, R. J. et al., 2016).  Increase access for diverse and disadvantaged students to more elite colleges and institutions are essential to the nation’s social progress, economic prosperity and global competitiveness (Perna, 2006). With the increasing risk of Affirmative Action ending an alternative race neutral policy must be considered to make up for the gap in access and college choice that students could face.

The Impending Death of Affirmative Action

A new lawsuit challenging affirmative action is currently being reviewed. A group called Students for Fair Admissions, has accused Harvard of discriminating against Asian-American applicants. It argues the school forces Asian-Americans to meet a higher bar to get in. (Hartocollis, 2018)The plaintiffs accuse Harvard of effectively setting a restrictive quota for the number of Asian-American students it accepts. Harvard denies this claim. Harvard says it does not discriminate against applicants of any race. It has defended its “holistic” admissions policy, which considers race as one factor among many (Hartocollis, 2018). It denies using racial quotas to achieve a diverse class. The case is a departure from past challenges to race-conscious admissions. It contends that a minority group has been unfairly penalized in favor both of whites and of other minority groups. The initial trial is over. And the judge could have the ruling as early as January 2019. Both sides say they plan to appeal, which means the fate of affirmative action policies could once again end up in the hands of the Supreme Court (Hartocollis, 2018). The recent appointment of Supreme Court Justice Kavanagh has turned the Supreme Court into a conservative majority. Judge Kavanagh has argued against race conscious policies (Hartocollis, 2018). This could have a huge impact on the eventual outcome of this case and quite possibly the death of affirmative action.


Affirmative Action arose out of centuries of slavery, white oppression, racism and racial inequalities. Slaves were denied access to education even after slavery ended. Eventually, the Civil Rights Act of 1865 gave them equal access to education. But this access hasn’t been equitable. Hence, Affirmative Action has attempted to even the playing field. This policy has been questioned and debated on since its inception. There is a real risk that the Harvard lawsuit will end Affirmative Action. The Texas Top Ten Percent was examined as a race neutral alternative to affirmative action. Combined with financial assistance and support services research has shown small improvements in socio-economic and racial diversity. But it doesn’t address the original concept of the Civil Rights Act which was to give African Americans a chance at an equitable education. But since the 1960’s, American society has changed. Blacks aren’t the only marginalized minority group that is are fighting for a chance at an equitable education. Although, some progress has been made through race neutral policies one can’t help but wonder can Affirmative Action be reformed and resurrected? Perhaps an Affirmative Action policy that gives access to higher education at more selective institutions specifically for low-income, high achieving minority students.

Works Cited

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