APU Legal Studies Original

Affirmative Action, the Supreme Court and College Admissions

Colleges and universities have a duty to protect the well-being of students and maintain justice and fairness in their policies and procedures. Still, minority students in higher education face a number of challenges to social justice, mental health and academic success.

For example, deficiencies in institution practices can put minority groups at a disadvantage during different stages of higher education, including admissions, enrollments, financial aid and academic assessment. Post-secondary schools wrestle with a number of problems, and some of the most pervasive are explicit and implicit biases that can disenfranchise minority students in their efforts to earn an education.

Right now, the United States Supreme Court is hearing arguments in two cases – Students for Fair Admissions (SFFA) v. Harvard and Students for Fair Admissions (SFFA) v. University of North Carolina (UNC). Both lawsuits involve the legality and propriety of voluntary affirmative action programs implemented by U.S. colleges and universities to promote fairness and equity in admissions.

What Is Affirmative Action?

I have written extensively about affirmative action and why it is a complicated subject. I also recorded a podcast on the evolution of affirmative action programs and their viability in the modern era.

affirmative action lecture hall
Typical lecture hall of a university.

It’s worthwhile to remember that federal law and many state laws prohibit discrimination based on a limited list of protected classes – such as race, color, national origin, ethnicity, religion, gender, age, and disability – in most societal contexts. And affirmative action is a tool designed to safeguard those protections.

Affirmative action dates back to the Kennedy and Johnson administrations in the early 1960s, so the idea has been around for more than half a century. Generally, affirmative action refers to a category of policies or programs that are engineered to address historical imbalances caused by inherent human biases. These biases are both conscious and subconscious; and if they are not abated, they can (and often do) result in discrimination or other harm upon underprivileged groups.

Affirmative action initiatives generally fall into one of two key contexts: hiring/employment and university admissions. This article focuses on the latter setting.

Suppose that a white male and a black male both apply for admission to a college. And suppose that there is only one remaining spot open for admission to that college.

If this college has an affirmative action policy in place, that policy would probably require that – all else being equal – that some consideration be given to underrepresented racial demographics. So in other words, if black students were underrepresented at the college, then affirmative action would suggest that the black student should probably be afforded some degree of preference or priority.

Note the presence of the “all else being equal” qualifier in the preceding paragraph, because it is critical. Affirmative action laws and precedents generally do not allow for any particular protected class to be the sole determining basis of an admissions decision. Instead, the idea is that protected classes (such as race and others) may be considered as one of a multitude of factors in determining whether to admit a student to a higher education institution.

Overall, the general spirit of the rule is that students should not be admitted to universities simply on the basis of their underrepresented minority statuses. Ideally, universities should consider all relevant factors, including academic performance and preparedness for the hard work that will await the student in college.

If imbalances remain in student diversity demographics even after such thorough reviews, applicants who possess the requisite qualifications for admission in other areas (i.e. academic proficiency) and are members of underrepresented minority groups might be given preference in admissions decisions. This strategy helps to promote opportunity and diversity among higher education student populations.

Determining the Appropriate Measuring Stick for Affirmative Action Programs

But how should we define “underrepresented”? In other words, how does a university determine the proper levels of demographic representation within its classes?

Ultimately, the answer boils down to the demographics of the population of potential and/or reasonably anticipated applicants. But as it turns out, reaching consensus on the appropriate parameters for this kind of task can be extremely difficult.

Most colleges and universities welcome anyone across the country who wishes to enroll. As a result, we might be tempted to think that the appropriate basis for diversity standards and minority representation quotas in universities should be based on U.S. population demographics.

But hold on. We must also remember that schools cater to international students as well. So perhaps the standards should be global – rather than national – population metrics.

But that’s not necessarily an appropriate basis for decision-making, either. National or world demographic ratios include all people, most of whom are not eligible to apply for college even if they wanted to. Babies, children and anyone without the equivalent of a high school diploma or General Educational Development (GED) test, would not be among the pool of potential applicants that we would want to consider. So we’d need to narrow our scope, which makes the situation more complicated.

But so far, we’ve been considering the pool of everyone on our planet who could possibly apply to study at a college or university. What about questions related to which populations are most likely to apply at a particular institution?

For example, imagine you are managing admissions for a small, rural community college in, say, Omaha, Nebraska. Now, in theory, your college could (and would) entertain applications from students from anywhere. For instance, the student pool would not only include people from the surrounding Omaha area, but also from Los Angeles, Berlin and Hong Kong if students from those cities were interested in applying.

But the reality of such a community college is that foreign students from the furthest reaches of the globe rarely do apply for admission, so should their admissions diversity standards really be predicated on global demographics? Or should they look instead to the local community statistics where most of their actual applicants reside? These questions are very difficult to answer, and there isn’t one right answer or one objectively valid way to approach them.

The Supreme Court Affirmative Action Cases

The Supreme Court is wrestling with these questions in deliberating over the two SFFA cases. In both lawsuits, Students for Fairness in Admissions (an anti-affirmative action group) is arguing that the policies at Harvard and UNC are improper. But these legal challenges aren’t focused on the ways in which appropriate representation balance is measured. Instead, they raise far more fundamental questions of fairness in the admissions process.

Opponents of affirmative action often describe such policies – in any context and with any parameters – as “reverse discrimination.” They argue that affirmative action simply flips the status quo from discrimination against minorities to discrimination against majorities. And if discrimination in all forms is admonished and prohibited by law, then these critics argue that affirmative action programs should be illegal. These perspectives would assert that universities should be “color blind” about admissions decisions altogether.

This line of reasoning is well-intentioned. However, it also fails to acknowledge the ways in which implicit human bias can perpetuate discrimination – even of an unintentional nature – in human decision making.

Affirmative action programs have always been voluntary for colleges and universities – and some schools have embraced them while others have not. States are also free to prohibit them within their public universities if they wish. It turns out that several states have changed policies in the last few decades, and the results before and after these changes reveal the ways in which affirmative action likely has a positive effect.

For example, state schools and universities in California used affirmative action to consider race in admissions decisions for years in the latter half of the 20th century. But in 1996, California voters passed a law that banned this practice. As a result, admissions for underrepresented minorities fell precipitously and have continued to do so.

California’s story is not unique; Michigan enacted a similar ban on race-conscious affirmative action among public colleges and universities in 2006, and they saw the same drop in minority enrollments. Institutions in California, Michigan and other locations around the U.S. have filed amicus briefs in the SFFA cases, supporting affirmative action programs for admissions and recommending that their use be supported by the Court.

What Will Happen Next in These Supreme Court Cases?

So we know that affirmative action programs, imperfect as they often are in design and execution, can help to promote diversity and opportunity for minority groups in college admissions. But will the Supreme Court be sympathetic to the idea that affirmative action programs should remain a legal and legitimate tool for use by colleges and universities?

Given the dramatic swing to a more conservative majority with the appointment of three new justices under the previous presidential administration, many stakeholders are concerned that the Supreme Court may prohibit the use of affirmative action in higher education institutions. If this happens, minority enrollments in schools around the country would likely see a steep decline, and opportunity and economic prosperity gaps in racial and sociocultural demographics would probably worsen.

And as a side note, prohibiting affirmative action in higher education could have other repercussions. If the Supreme Court strikes down affirmative action college admissions, some fear that decision might also open the door for legal challenges to affirmative action in other contexts, such as employment.

It’s too soon to tell where the Supreme Court will land on the issue of affirmative action. But until a decision is made, college and university administrators must do everything they can to promote diversity and fairness in admissions decisions – and affirmative action programs are one tool that can help them to accomplish that goal.

Gary Deel

Dr. Gary Deel is a Faculty Member with the Wallace E. Boston School of Business. He holds an A.S. and a B.S. in Space Studies, a B.S. in Psychology, a J.D. in Law, and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for the University, the University of Central Florida, Colorado State University and others.

Comments are closed.