Affirmative Action Developments in the United States
Affirmative Action Developments
Starting in the mid-1990s politicians and grassroots groups began to attack affirmative action at the state level, with some success. The regents of the University of California system voted in 1995 to end all affirmative action in hiring and admissions, and minority enrollment in the system’s entering undergraduate class plummeted in 1998, when the changes took effect. In 1996 California voters approved Proposition 209, an initiative that ended affirmative action throughout the state in public hiring, purchasing, and other government business. In 1998 Washington State voters passed Initiative 200, a measure that banned affirmative action in state and local government hiring, contracting, and education.
Around the same time, federal courts began considering lawsuits from white students denied admission to state universities with affirmative action programs. In some cases, the courts have invalidated such programs on the grounds that they promote reverse racial discrimination. For example, in Hopwood v. Texas (1996), a federal appeals court barred the University of Texas Law School from “any consideration of race or ethnicity” in its admissions decisions. As in California, the termination of the school’s affirmative action program led to a sharp drop in minority enrollment. In Johnson v. University of Georgia (2001) a federal appeals court upheld a ruling striking down the freshman admissions policy of the University of Georgia. In calculating a ranking that helped decide whom to admit, the school had awarded a fixed numerical bonus to nonwhite applicants.
Not all attacks on affirmative action have been successful. In Smith v. University of Washington (2000) a federal appeals court upheld an affirmative action program at the University of Washington Law School, concluding that diversity in education was a compelling state interest (however, by the time of the ruling the program had been halted). Federal courts reached the same conclusion in Gratz v. Bollinger (2000) and Grutter v. Bollinger (2002), upholding affirmative action policies for, respectively, undergraduate and law school admissions at the University of Michigan.
In 2003 the Supreme Court ruled on these two cases. In Grutter v. Bollinger the Court found that the law school’s affirmative action program was constitutional, reaffirming its finding in the Bakke decision that the state has a compelling interest in assuring racial diversity. In the 5 to 4 majority decision Justice Sandra Day O’Connor wrote: “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”
However, in a separate decision, the Court rejected the affirmative action program used in the university’s undergraduate program, which was challenged in Gratz v. Bollinger. The undergraduate program used a point system in deciding how to weigh applicants, with minority applicants receiving a large number of points. The Court ruled that this method was too “mechanistic” and amounted to a quota system. The law school program, the Court said, was permissible because it evaluated each applicant individually and used race as one of many factors in deciding whom to admit.
Civil rights organizations hailed the decision because it clearly reaffirmed the value of affirmative action programs, even though it did not overturn state laws that prohibit affirmative action, such as those in California and Washington. Opponents of affirmative action vowed to continue fighting and noted the Court’s opinion that “enshrining a permanent justification of racial preferences would offend [the] equal protection principle” of the Constitution. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” O’Connor wrote. (See the Sidebar “Grutter v. Bollinger.”)
By the time the Court heard the Grutter case, affirmative action had become an accepted practice throughout American society. Amicus (friend of the court) briefs from the heads of major corporations and from retired military officers argued that affirmative action was essential to produce qualified corporate managers and military leaders, and to encourage industrial innovation. These amicus briefs, and Justice O’Connor’s references to them in her opinion, suggest that affirmative action has become a key tool not only to achieve greater equality in the nation, but also to help manage sustained economic growth and secure the national defense. (1)
In this Section:
- Affirmative Action,
- Affirmative Action Controversy,
- Affirmative Action Legislation and Supreme Court Rulings, and
- Affirmative Action Developments.
The U.S. Supreme Court
In 1996 California voters passed Proposition 209 (Cal. Const., Art. 1, § 31), which prohibits the government from discriminating or giving preference based on race or gender in contracting, education, or employment. In 2006 voters of Michigan passed a similar initiative, commonly referred to as Proposal 2. (See Mich. Const., art. 1, § 26.)
In an en banc decision, the Sixth Circuit held that Proposal 2 violated the equal protection clause because it impermissibly restructured the political process along racial lines. As the court noted, any group can seek beneficial treatment from the Regents of the University of Michigan in the admissions process – except for racial minorities, who could only obtain constitutionally permissible racial preferences by amending the state constitution. The Sixth Circuit said that this discrepancy amounted to a racial classification that failed to satisfy strict scrutiny. (Schuette v. Coalition to Defend Affirmative Action, 701 F.3d 466 (6th Cir. 2012) (en banc), cert. granted, 133 S.Ct. 1633 (2013).) The issue in Schuette is not whether an affirmative action program is constitutional, but whether a state can prohibit race-based affirmative action in its constitution while allowing other preference programs to exist free of such restrictions.
Affirmative Action in School Admissions Challenged
In 2003, the United States Supreme Court ruled, in a 5-4 vote, that “universities could consider an applicant’s race alongside a host of other factors to improve diversity.” Yesterday, the Court heard challenges to the administration of affirmative action as applied by the University of Texas.
Abigail Fisher, a white student, sued the University of Texas in 2008. She claimed that, although she had more qualified credentials, she was denied admission in favor of racial minorities. In bringing her lawsuit, she claimed that she was denied equal protection as guaranteed under the United States Constitution. On the other side, the University of Texas is arguing that affirmative action programs in admissions are still required in order to ensure underrepresented minorities are sufficiently represented at their school.
The conservative judges questioned the school’s attorneys regarding the goals of affirmative action, whether a time would come when affirmative action in admissions was no longer necessary and how universities would know when this time had come without court intervention. The more liberal judges seemed to side with the fact that there was no need to overturn their prior rulings on this matter.
It is unsure exactly how the vote will lie; as such, it is unsure how strong a ruling against the use of affirmative action in admissions would be should that be the decision of the majority. The current feeling is that enough judges are disenchanted with the University of Texas’use of affirmative action, but not disenchanted enough with affirmative action as a whole to make sweeping changes outside the University of Texas at the moment.
Author: Paul Venard (A)
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