Demise of affirmative action in college admission, The

demise of affirmative action in college admission, The

Arredondo, David G

The legal activity in the federal courts related to affirmative action, specifically, the two cases involving the University of Michigan recently heard by the 6th U.S. Circuit Court of Appeals, indicates that within the year it is likely that the U.S. Supreme Court will agree to hear one of the cases moving through the federal appeals courts. In the event they do, there is a strong possibility that by the spring of 2003, the Court will abolish affirmative action in college admission. Several factors, which are outlined below, indicate that the Supreme Court may make a decision that would inevitably alter the landscape of American higher education.

The Bakke Decision

Bakke v. University of California was the first and only time that the Supreme Court addressed the use of race in college admission. Briefly stated, the 1978 Supreme Court decision did the following: 1) upheld the California State Supreme Court, which ordered UC Davis to admit plaintiff Allan Bakke to its medical school; 2) upheld the same court, which struck down the medical school’s special admission program; and 3) reversed the California Supreme Court, which had denied UC Davis medical school the use of race in admission. It is a complex decision and the most famous was written by Justice Lewis Powell, which allows for affirmative action to be used in college admission. Two tenants of that opinion, upon which affirmative action proponents base their support, are race as a “plus factor” and diversity.

Race As a “Plus Factor”

Today, most college admission offices steadfastly cite Bakke, adhering to the principle of race as one factor in admission. Conversely, they ignore Bakke when it comes to precluding them from using quotas and special processes. For example, the University of Michigan continued to use such a dual admission system for whites and Asians and another one for blacks and Hispanics, which they only changed once Jennifer Gratz (Gratz v. Bollinger) sued them for discrimination. It is likely that colleges will continue to deny using quotas and separate admission practices, but the reality is that many continue to use them. A study by the Center for Equal Opportunity released on February 16, 2001, shows that dual admission practices, with distinct criteria and outcomes, prevail at most universities, whether selective or not, from coast to coast. This study demonstrates that race is not just a “plus factor,” but in many cases, the only factor to explain the disparities in admission for blacks and whites.

Justice Powell cited Harvard’s admission practices as a valid example of how race could be used in admission. At Harvard in 1978, probably well over 90 percent of all applicants qualified for admission but more than 80 percent were denied admission. Powell opined that logically, all things being equal academically, an admission officer could look at other qualities and characteristics such as athletic ability, geography, leadership, or personal experiences, and that race might be considered as just another characteristic. The reality is that most colleges and universities do not have nearly the same applicant pool as Harvard and a few other elite colleges. How Harvard uses race as a “plus factor” is not the same as how other schools use race. So, the “plus factor”-as it applies to race. Therefore, only the most selective colleges and universities similar to Harvard the can use the “plus factor.” One must also consider than Powell did not mean for it to be used as it is today, whereby a white applicant is denied admission in favor of a minority applicant with considerably lower test scores and grades.

Already there exists confusion as to who should benefit from affirmative action. For example, when referring to “students of color,” Asian Americans, blacks, Hispanics and Native Americans are usually included. However, when it comes to using admission preferences, Asian-Americans are usually excluded. But are there really enough top black, Hispanic, and Native American students for most colleges, selective or otherwise, to have more than 10 percent black and Hispanic enrollment? For example, in 2000 the National Hispanic Scholar recognition program used a selection-criteria based on PSAT scores above 90 percent and a high school grade point average of 3.6. Consequently, 4,000 Hispanic students earned this distinction as finalists and semi-finalists. Given that small number there would not be nearly enough qualified Hispanic students for Harvard, Stanford, Duke and other elite colleges who routinely reject many white applicants with these same qualifications or better. In order to fill de facto quotas, clearly unqualified students of color need to be, and in fact are, admitted at most colleges and universities, selective or not.

Diversity

Diversity is the second issue that colleges use to justify continuing affirmative action. They argue that a diverse student body consisting of different races and ethnicities and a healthy exchange of ideas is essential to a college education. If this is the case, then Asian Americans, Arab Americans, Hasidic Jews, Armenians, most immigrants in general, among others, should qualify to provide colleges with diversity for their student bodies. But this is not the case, since the colleges have a very narrow definition of diversity that says, in effect, that the only diversity that means anything and for which preferences should be made are blacks, Hispanics and Native Americans. If this doesn’t make sense to you, then you are not alone; it also did not make sense to Detroit Federal District Judge Bernard Friedman, who made the same point in his decision to rule for Plaintiff Barbara Grutter in her lawsuit against the University of Michigan Law School (Grutter v. Bollinger). He stated the following: “…the haphazard selection of certain races is a far cry from the `close fit’ between the ends and means that the Constitution demands.” He went on to note that the Michigan policy favored African Americans and mainland-born Puerto Ricans but not Arabs or Eastern Europeans.

Campus diversity will have to be achieved without using race or ethnicity to offer preference to some at the expense of others. If diversity is the goal, then the definition of diversity needs to be expanded to include more than just three groups. Helping those who are economically disadvantaged can be done without using race or ethnicity as a qualification.

On August 27, 2001, the 11th U.S. Circuit Court of Appeals decided in Johnson v. Board of Regents of University of Georgia, to invalidate the University of Georgia’s admission policy, holding that the policy violated the 14th Amendment’s Equal Protection Clause.

The university had added a fixed numerical bonus to the admission scores of non-white applicants, which the Court did not feel was a justifiable remedy. On December 6, 2001, the 6th U.S. Circuit Court of Appeals in Cincinnati en banc, heard the two University of Michigan cases that were appealed in April 2001. Whatever the outcomes, which will probably be announced sometime this spring, they will be appealed to the U.S. Supreme Court, which is likely to decide to hear them in the fall 2002 term, setting the stage for a decision in the spring of 2003.

At this time, the Supreme Court will ask, “What is diversity?” and find that the definition and actual admission practices do not coincide. It will also ask, “How do we identify who qualifies as a member of a particular race or ethnic group?” and “Must one be at least half, one quarter, one eighth, one sixteenth, black, Hispanic or Native American?” If the argument is advanced that it is necessary to help those who are disadvantaged, are all blacks, Hispanics, and Native Americans disadvantaged? And what about disadvantaged whites, Asian, and Arab Americans? Should they not benefit? The recent U.S. Census results tell us that we no longer can be neatly defined by checking one of five boxes.

When President John F. Kennedy instituted affirmative action in 1961 to give blacks an equal opportunity to succeed, the United States was a very different country. Even though racism has not completely vanished, as a nation we have overcome much of the blatant racism that prevented minorities from obtaining equal access to education and employment decades ago. Affirmative action was instituted when the country was still suffering from the aftermath of dejure desegregation and when Americans were still coming to terms with racial equality. Today, America is a place where discrimination on the basis of race (among other characteristics such as gender, religion, etc.) is not acceptable behavior. Affirmative action has taken American higher education by storm without consideration of the changes in racial politics that have occurred in the late twentieth century until today.

By next year, the Supreme Court may be charged with making a decision regarding affirmative action. If the Court does hear one of these cases, it is my hope that they will decide that there is no reason to allow for the government-sponsored discrimination into which some believe affirmative action has evolved. The American system of education is the great equalizer that provides access to all-immigrants and minorities alike-to enable them to work hard, become educated, and realize the American Dream. Shouldn’t the rights of the individual be more compelling than any racial or ethnic group? Should the Supreme Court Justices have the opportunity to make a ruling on affirmative action, I trust that they will decide that racial and ethnic preferences are no longer necessary and deny their use in college admission.

David Arredondo currently serves as coordinator for international recruitment and student support at Lorain County Community College (OH). He has also been an adjunct professor of sociology at the college. Prior to working at LCCC,Arredondo was associate director of admission for 12 years at Oberlin College (OH), where his daughter is a freshman.Arredondo is an active member of NAFSA, and OACAC, the Ohio Association for College Admission Counseling and is a past member of NACAC and the Overseas Association for College Admission Counseling. He has been a presenter at numerous conferences and annual meetings and most recently, has spoken on panels related to affirmative action, international admission and recruitment issues related to students of color.

Copyright National Association of College Admissions Counselors Spring 2002

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