Legal Issues

Implications for Higher Education

Admission and Retention

For higher education, the most sensitive issue regarding affirmative action is that of student admission to and retention in selective undergraduate, graduate, and professional programs. The best defenses of affirmative action approaches are those that speak to the process of selecting a limited number of students from a quantitatively defined and qualified pool. It is argued that in such cases, virtually everyone in the pool is qualified, and thus the issue should not be defined as the qualified versus the unqualified, but as the more or less qualified. At this point, the issue of quantitative measures to differentiate among qualified applicants must be addressed.

Opponents of affirmative action often assert that it is possible to rank all applicants on the basis of quantitative measures alone, whereas proponents believe that quantitative measures represent only one aspect of ranking applicants. For example, few studies show that student learning outcomes, such as success in postgraduate employment, correlate positively with initial quantitative test scores or grade point averages. Admittedly, the state of the art in measuring student learning outcomes still is not sophisticated. But, as Michael Kinsley has observed, it simply is not possible to rank the American population from one to 250 million, and the same is true for student applicant pools. Admissions officers and committees have devoted careers to careful screening that combines quantitative and nonquantitative factors to get "the best class." Before the use of affirmative action, the admission process was an agonizing exercise that left well-intentioned people uneasy. Counting "legacies" or athletic prowess as "plus factors" has a long and largely honorable tradition. A law professor at a recent meeting of legal scholars suggested that, in the case of underrepresented minorities, one could simply define "legacies" to include those whose legacy is a family background of discrimination.

Proponents of multiple criteria for college admission need to defend such policies based on their educational currency. Those educational benefits obviously can include the need to remedy the vestiges of past discrimination. Equally important, the achievement of diversity in a student body can be set forth as an educationally and legally valid objective.

The 1978 Bakke case, upholding the use of race as a "plus factor" in UC Davis Medical School admissions decisions, has provided institutions and the courts with a benchmark characterized as allowing race-conscious admissions decisions if they are predicated on either remedying present effects of past discrimination or fostering student diversity. Bakke specifically does not permit quotas or set-asides.

Institutions thus should be prepared to defend their affirmative action admissions policies in terms of the educational rather than the societal purposes being served. Many college presidents have eloquently asserted that all students receive a better education because of their affirmative action policies.

Student Financial Aid

For many years following the Civil Rights Act of 1964, the Department of Education permitted institutions to take race into account to a greater extent in financial aid awards than in admissions, as long as minority-targeted aid represented a small part of the overall aid program. In 1990, the Bush administration abruptly changed course and said that race at most could be used only as a "plus factor" in decisions concerning financial aid awards. The predominant sentiment in the higher education community was that race-neutral financial aid programs would not address the pipeline problem in graduate and professional education satisfactorily, and that some limited racial targeting was defensible at the undergraduate level. The Bush administration left office without issuing final guidelines on minority-targeted student financial aid. After hearing from ACE and other associations in defense of minority-targeted aid programs, the Clinton administration returned to the more permissive pre-1990 policies.

The Podberesky case was filed by a student at the University of Maryland who was denied access to a scholarship because he was not African American. This case involving race-exclusive scholarships was decided against the university at the appeals court level, and the Supreme Court was asked to grant certiorari. ACE filed four amicus briefs at various stages of this case in support of the university's position. In May 1995, the Supreme Court declined to hear the case; therefore, the ruling of the lower court stands and a settlement with the student has been made. While minority-targeted aid programs intended to foster diversity are widespread, surveys conducted by both ACE and the General Accounting Office indicate that they involve only a small share of aid dollars and most often are not race-exclusive.

Employment

While the legal issues surrounding affirmative action in admissions and financial aid are unique to higher education, the regulations concerning affirmative action in employment apply to colleges and universities just as to other federal contractors. The principal regulatory instrument is Executive Order 11246, issued by President Johnson in 1965, which requires that contractors take affirmative action to ensure that applicants are employed, and that employees are treated equally during employment, without regard to race, color, religion, or national origin. (This order subsequently was amended by four additional orders, with Executive Order 11375 adding "sex" to the protected classes in 1967.)

The term "affirmative action" is not defined in the Executive Order, nor does the order suggest that the term was intended to be synonymous with racial or gender preferences. This order is enforced by the Office of Federal Contract Compliance Programs (OFCCP) of the Department of Labor, which, among other things, calls for annual reports to include goals and timetables for achieving a work force consistent with the employment pool from which the employer draws. Over the years, arguments have persisted over the definitions of "under-utilization" of women and minorities and the "available pool" from which employers draw their employees.

Higher education is challenged to demonstrate how essential diversity and inclusiveness are to our campuses and to a future educated populace, and to spread the word that these goals cannot be achieved without the continued use of affirmative action programs. Laws and court decisions must be followed; thus, it is our duty to ensure that lawmakers and judges understand the implications of any effort to undermine current policies and practices.

Two memoranda from the Department of Education, included on the following pages, contain policy guidance for colleges and universities. The first (July 30, 1996) advised campuses that, except in the Fifth Circuit, race could still be used in making admissions decisions and granting financial aid. The second document (September 7, 1995) concerned race-targeted student financial assistance as it related to the Podberesky and Adarand decisions.