June 2015Volume 8Number 1PDF icon PDF version (for best printing)

Affirmative action, then and now

The end of affirmative action and/or positive discrimination in universities. Is this to be praised or abhorred? Over 60 years ago, President Truman emphatically declared that Congress should “correct the remaining imperfections in…democracy” by “restor[ing] hope to those who have already lost their civil liberties.”1 Shortly thereafter, numerous executive orders ensued, prohibiting discrimination in employment practices, the armed services, the defense industry, and the government.2 It was not long before this concept shifted into the academic arena and evolved into a determining factor in the university admissions process.

Regents of the University of California v. Bakke

As with any new policy, legal complications arose. The United States Supreme Court first analyzed the issue of affirmative action in an academic setting in Regents of the University of California v. Bakke in 1978.3 In that case, the University of California at Davis Medical School (hereinafter “Davis”) developed a special admissions program that focused on educationally and/or economically disadvantaged applicants, or those from distinct minority groups.4 If the applicants were found to fall into one of these categories, they were not ranked against the other candidates, nor were they required to meet the same qualifications as the candidates of the general admissions program.5 Bakke, an applicant of Davis’s program, did not qualify for special admissions; he was denied entry to Davis two years in a row, despite the simultaneous admission of candidates from the special admissions program with lower benchmark scores.6 Initially, Bakke sought relief in state court, arguing that Davis’ special admissions program violated the Equal Protection Clause of the Fourteenth Amendment.7 The California Supreme Court agreed with Bakke and proclaimed that the program was unconstitutional, but the United States Supreme Court partly reversed this finding: the highest court held that considering race in admission decisions should not be prohibited.8 Nevertheless, Davis’ special admissions program was invalidated because the university could not establish that Bakke would not have been admitted to the university if the special admissions program did not exist.9

In his opinion, Justice Powell emphasized that Davis only commenced its special admissions program after the school administration noticed the distinct absence of a diverse class; the first 100-person class consisted of white and Asian students, but no blacks, Mexican-Americans, or American Indians.10 The special admissions program was developed in order to increase the school’s representation of disadvantaged applicants and/or candidates of a minority group.11 In fact, the program fulfilled its purpose. After the special admissions program began, 63 minority students were admitted to Davis over a three-year period.12 However, Justice Powell presented a general warning regarding the ethics of such a program.13 “[T]here are serious problems of justice connected with the idea of preference itself….preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection.”14 Not only that, but “there is a measure of inequity in forcing innocent persons in [Bakke]’s position to bear the burdens of redressing grievances not of their making.”15 Thus, while attaining a diverse student body is a constitutionally permissible goal for institutions of higher education, steps taken to enact such a goal must be performed with extreme caution.16 However, following this case, ethnic diversity became a factor that universities could consider in achieving genuine diversity.17

Grutter v. Bollinger

Almost 30 years later, the United States Supreme Court revisited this issue. This time, affirmative action appeared in a law school atmosphere. In that case, the University of Michigan Law School (hereinafter “Michigan”) developed an admissions policy that evaluated applicants based on their undergraduate grade point averages, Law School Admission Test (hereinafter “LSAT”) scores, talents, experiences and essays.18 In addition to these qualifications, Michigan’s admissions department considered race as a “potential plus factor” in order to affirm the school’s commitment to diversity.19 As a result of this policy, Michigan admitted a “critical mass” of underrepresented applicants from minority groups.20 Grutter, a white applicant, was denied entry to Michigan, despite her satisfactory grade point average and LSAT score.21 Like Bakke, Grutter claimed that Michigan’s use of race in its admissions process was unconstitutional.22 The District Court held in Grutter’s favor, but this decision was ultimately reversed by the Sixth Circuit and the United States Supreme Court.23 In her opinion, Justice O’Connor stressed that universities cannot establish quotas to achieve their goal of maintaining diverse a student body; they may merely consider race as one factor, amongst many, in a candidate’s application.24 Nevertheless, Justice O’Connor heartily echoed Justice Powell’s words from Bakke: “[t]he ‘nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation.”25

Schuette v. Coalition to Defend Affirmative Action

Another 10 years passed, and affirmative action was challenged once more. In response to heavy opposition to positive discrimination, the state of Michigan amended its constitution to include provisions proscribing prejudice and/or preferential treatment to any individual or group by any state school or government entity.26 In other words, affirmative action was banned statewide. The Coalition to Defend Affirmative Action (hereinafter the “Coalition”) strongly reacted against Michigan’s decree and filed suit against Michigan’s Attorney General Schuette.27 Yet, instead of challenging the constitutionality of “race-conscious admissions policies in higher education,” the Coalition claimed that voters, not the courts, should have the ability to admit or prohibit race-conscious admissions policies.28 The United States Supreme Court agreed that “the courts may not disempower the voters from choosing which [of these] path[s] to follow.”29 In his decision, Justice Kennedy elaborated that Michigan’s new law was surely pre-determined by its voters before its enactment.30 Consequently, the Supreme Court Justices did not believe they had the authority to set aside such constitutional amendments.31 The potential ramifications of this holding are significant: Essentially, going forward, states may altogether ban affirmative action as long as their voters see fit to mandate as such.

Some agree that positive discrimination should be banned nationwide. California, Washington and Nebraska have joined Michigan in banning affirmative action.32 Those that oppose positive discrimination argue that future generations should not have to recompense for the inequities fostered in the past.33 Not only that, but affirmative action may only be effective when it targets all socially disadvantaged groups, including those founded in ethnicity, gender, poverty and race, instead of race alone.34 Similar arguments maintain that minority students admitted into schools through affirmative action policies become otherwise incapable of attending classes, fail, become discouraged and ultimately leave universities.35 For example, a 2012 Texas study indicates that black law school students were four times as likely to fail the bar exam as whites.36 Furthermore, the same survey estimated that approximately half of black college students were in the bottom 20% of their class.37

On the other hand, some believe that positive discrimination is necessary to balance the scales rendered uneven by race and class-based obstacles. Between 2007 and 2011, approximately 25% of blacks and 23% of Hispanics and Latinos lived below the poverty line, compared to only 11% of whites.38 Pro-affirmative action individuals assume that members of minority groups cannot always access education and employment to the same degree as others. Thus, without higher education, levels of poverty become closely intertwined with the unemployment rate. As of January 2015, the unemployment rate for individuals who had completed high school or less was at 8.5%, while only 2.8% of those with a bachelor’s degree or higher were unemployed.39 The unemployment rate was made up of 10.3% black, 6.7% Hispanic or Latino, 4.9% white, and 4.1% Asian American.40 Research suggests that the existence of positive discrimination plays a sizeable role in these rates. For example, Texas outlawed affirmative action programs in 1995.41 Since the new law’s enactment, the Latino enrollment at the University of Texas Law School has been cut in half.42 Will these numbers continue to dwindle as more states proscribe positive discrimination?

Perhaps affirmative action itself is not the answer. Perhaps another policy is needed to ensure equal access to education and employment amongst all groups. Regardless of the policy, though, action needs to be taken; be it affirmative or otherwise.


This article was originally published in the Kane County Bar Association’s Bar Briefs April 2015 Diversity issue.

Julianne Gerding is an Assistant State’s Attorney with the Kane County State’s Attorney’s Office. She can be contacted at GerdingJulianne@co.kane.il.us


1. Harry S. Truman, Public Papers of the Presidents, Special Message to the Congress on Civil Rights, Feb. 2, 1948 (United States Government Printing Office, 1966).

2. See generally Executive Order 9980 (1948); Executive Order 9981 (1948); Executive Order 10308 (1951); Executive Order 10925 (1961); Executive Order 11114 (1963); Executive Order 11246 (1965); Executive Order 11375 (1965); Executive Order 11625 (1971).

3. See generally Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

4. Id. at 265.

5. Id.

6. Id. at 266. A benchmark score consisted of an overall grade point average, a science courses grade point average, a Medical College Admissions Test score, letters of recommendation, extracurricular activities, and other data about the applicant. Id.at 265.

7. Id. at 266.

8. Id. at 266-67.

9. Id. at 266.

10. Id. at 272.

11. Id.

12. Id. at 275.

13. See id. at 298.

14. Id.

15. Id.

16. Id. at 311-12, 314.

17. Id. at 316.

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

19. Id. at 307.

20. Id. at 306.

21. Id.

22. Id.

23. Id. at 306-07.

24. Id. at 309.

25. Id. at 307.

26. Schuette v. Coalition to Defend Affirmative Action, 134 S.Ct. 1623, 1629 (2014).

27. Id. at 1629-30.

28. Id.

29. Id. at 1635.

30. Id. at 1636.

31. Id. at 1638.

32. See generally California Civil Rights Initiative (1996); Initiative 200 (1998); Nebraska Civil Rights Initiative 424 (2008).

33. See Regents of the University of California v. Bakke, 438 U.S. 265, 298 (1978).

34. Nearer to Overcoming, The Economist (May 8, 2008), <http://www.economist.com/node/11326407>.

35. Richard Sander and Stuart Taylor, Jr., The Painful Truth about Affirmative Action, The Atlantic (Oct. 2, 2012, 10:30 AM), <http://www.theatlantic.com/national/archive/2012/10/the-painful-truth-about-affirmative-action/263122/>.

36. Id.

37. Id.

38. Suzanne Macartney et al., Poverty Rates for Selected Detailed Race and Hispanic Groups by State and Place: 2007–2011 1 (Feb. 2013), available at <http://www.census.gov/prod/2013pubs/acsbr11-17.pdf>.

39. Department of Numbers, Unemployment Rate by Education Level, Unemployment Demographics, <http://www.deptofnumbers.com/unemployment/demographics/> (last visited March 1, 2015).

40. Department of Numbers, Unemployment Rate by Race/Ethnicity, Unemployment Demographics, <http://www.deptofnumbers.com/unemployment/demographics/> (last visited March 1, 2015).

41. University of Michigan, Resegregation in Higher Education, Affirmative Action Facts, <http://www.umich.edu/~daap/facts.htm> (last visited March 1, 2015).

42. Id.

Login to post comments