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Threats
to Affirmative Action
Introduction
Congressional
Action
State
Actions
Anti-Affirmative
Action Studies and Reports
Threats
to Affirmative Action
We are now
in the midst of a significant debate over how best to fight discrimination.
Affirmative action is one of the most effective means and best hopes for realizing
the goal of equal opportunity for all Americans. As Senator Edward M. Kennedy
(D-MA) recently testified, "Civil rights is and has always been a bipartisan
issue in Congress. The Party of Lincoln has produced many stalwart supporters
of strong civil rights legislation: former Senators Everett Dirksen, Jacob Javits,
Lowell Weicker, and Jack Danforth have led the way in the past, and many of
our Republican colleagues carry on that distinguished tradition today."
Congressional
Action
Nonetheless,
legislation was introduced in the 105th Congress to curtail affirmative action
programs. Senator Mitch McConnell (R-KY) and Representative Charles Canady (R-FL)
introduced the "Civil Rights Act of 1997," which, despite
its name, prohibited consideration of gender, race, or ethnicity in federal
employment, contracts, and other 
programs.
This proposal would have eliminated the consideration of race, ethnicity, or
gender in all employment, contracting, and other programs at the federal level.
Although the legislation purported to encourage the recruitment of qualified
women and minorities, it specifically prohibited the use of any numerical objectives
such as goals and timetables. It also would have eliminated the use of affirmative
action to remedy past or present discrimination, forbidden consent decrees that
utilize preferences, and outlawed even those programs that adhere to the "strict
scrutiny" standard set by the Supreme Court.
Experts disagreed as to the impact on colleges and universities. Since virtually
every college and university receives federal student financial aid and may
receive other federal grants, some policy analysts argued that this could be
broadly interpreted as a contract and, therefore, subject to the limits of the
legislation. Others contended that, if narrowly focused, the impact of such
a proposal would be minimal on higher education.
There were several hearings held on the measure, but most focused on employment
and the awarding of federal contracts, and very little attention was given to
the use of affirmative action in college admissions. The House Judiciary Subcommittee
on the Constitution approved the bill along party lines. At the full Judiciary
Committee level, a group of moderate Republicans moved to table the legislation,
effectively killing it, at least for the duration of the 105th Congress. They
stated that "this bill will not speed up the correction of the current
injustices nor will it narrow the racial divide" and that "forcing
this issue at this time could jeopardize the daily progress being made in
ensuring equality."
It is expected that similar legislation will be introduced in the 106th Congress,
which began in January 1999. If this occurs, we urge you to express your strong
opposition to such measures to your senators and representatives. It is imperative
that members of Congress hear from a broad constituency about the need to continue
affirmative action programs.
(For further details and suggestions, see "What
You Can Do.")
Proposition
209
Much
attention has been focused on California's Proposition 209, the misnamed "California
Civil Rights Initiative," which was approved by the state's voters
in a close vote (54 - 46 percent) in November 1996. This initiative bans the
consideration of race, ethnicity, or gender in public contracting, employment,
and education. In November 1997, the U.S. Supreme Court rejected a challenge
on Proposition 209, thereby permitting the lower court ruling banning affirmative
action to stand.
There is a movement among students, faculty, and civil rights groups to get
an initiative on the ballot in California in 2000 that would reverse the effects
of Proposition 209. The initiative states: "In order to act affirmatively
in promoting equality of opportunity, it shall be lawful for the state to consider
race, gender, and class as one of the criteria in the selection of qualified
individuals for university admissions, public employment, and public
contracting."
University
of California Regents' Decision
In
July 1995, the Board of Regents of the University of California (UC) voted to
prohibit the use of affirmative action measures in hiring, contracting, and
student admissions. This action took place shortly after Governor Pete Wilson
severely curtailed affirmative action in a broad range of state procurement
and administrative decisions.
In the process of making changes in its policies, however, the university must
not violate any federal regulations that would jeopardize eligibility for federal
or state funding. It may take appropriate action to remedy cases of discrimination,
if approved by the Regents, or to satisfy a court order.
The employment and contracting resolution stated: "Effective Jan. 1,
1996, the University of California shall not use race, religion, sex, color,
ethnicity, or national origin as criteria in its employment and contracting
practices." The president of the UC System was directed "to
ensure that all persons have equal access to job competitions, contracts, and
other business and employment opportunities of the University."
The resolution affecting admissions practices went into effect for the 1997-98
academic year for graduate and professional students, and for undergraduate
admissions in the fall of 1998. Admissions decisions must be made without any
reference to race or gender for any program of study at the university, or "admissions
in exception to the UC eligibility requirements." Not less than 50
percent nor more than 75 percent of any entering class on any of the UC campuses
may be admitted strictly on the basis of academic qualifications. Under the
new race-blind admissions process, more than 50 experts read nearly 30,000 files
in search of students who demonstrated creativity, character, leadership, or
artistic or musical talents.
In the fall of 1997, the University of California saw sharp declines in the
number of students of color who applied, were accepted, and ultimately enrolled
in its graduate and professional programs. Most noteworthy were the declines
in UC law schools where enrollment of African Americans decreased by 63 percent,
and Latinos by 34 percent. In the UC System's business schools, enrollment of
Latino students dropped by 54 percent, while African American enrollment fell
26 percent. In the five medical schools, however, declines were not as severe
because the admissions process is much more comprehensive than grades and test
scores. Diversity in the university's graduate programs, such as education,
remained little changed from the previous year.
Similarly, a 2 percent decline in minority undergraduate enrollment was experienced
in the fall of 1998 at UC systemwide. At several of UC's most competitive campuses,
including Berkeley, UCLA, and San Diego, the total number of African American
and Latino students enrolled dropped by 48 percent and 32 percent, respectively,
between 1997 and 1998. Other UC campuses, such as Riverside and Santa Cruz,
reported increases in underrepresented minorities admitted in 1998. The number
of minority students who applied for admission to UC increased in 1998, reflecting
the extensive outreach efforts to high schools with large minority populations.
However, these outreach efforts did not yield
the expected results in terms of actual enrollment of students of color systemwide.
In the second year of the new policy for graduate and professional students,
minority enrollment at UC Berkeley's law school increased by nearly 12 percent
over fall 1997, but still fell short of the 1996 level. The increase was attributed
to several factors:
- Aggressive
recruiting at historically black colleges and universities and other minority-serving
institutions, along with follow-up contacts by faculty and alumni.
- More
emphasis on students' character and somewhat less on test scores during the
admissions process.
- Creation
of private scholarships for minorities.
- Elimination
of extra weight given to undergraduate degrees from elite colleges compared
to less selective institutions.
California's
current governor, Gray Davis (elected in 1998), has expressed dismay at the
abysmal minority enrollment at UC, especially at the flagship campuses (Berkeley
and UCLA) and the professional schools (law, medicine, and business). Governor
Davis has indicated that action must be taken to reverse the downward spiral
in the admission of qualified students of color at UC institutions.
In March 1999, the UC Board of Regents approved a proposal that would guarantee
all students ranking in the top 4 percent of their high school graduating class
a slot at one of the eight UC campuses. In order to qualify for admission under
the new policy, students still must complete college-prep courses in English,
math, and other subjects required by the university. Standardized test scores
will only affect eligibility for the most competitive UC campuses (Berkeley,
UCLA, and San Diego). The plan, which received mixed reviews, will go into effect
in fall 2001. No currently eligible students will be displaced. Projections
show that nearly half of the newly eligible students will be from urban schools,
and about one-fourth will be from rural schools. Latino enrollment is expected
to grow from 12 to 20 percent, while enrollment for African Americans would
increase from 3 to 5 percent.
Texas
The
Hopwood v. Texas decision
affects the three states in the Fifth Circuit: Texas, Louisiana, and Mississippi.
However, the major impact has been on Texas, as Louisiana and
Mississippi fall under prior desegregation cases, such as Adams and
Fordice.
Hopwood
v. Texas
In
March 1996, the U.S. Court of Appeals for the Fifth Circuit barred the University
of Texas (UT) Law School from considering race and ethnicity as factors in student
admissions to promote diversity. The court ruled that the UT Austin Law School
had violated the equal protection clause of the U.S. Constitution and had discriminated
against four white applicants. The Fifth Circuit's decision reversed a 1994
U.S. District Court ruling that upheld the university's right to consider race
as a factor in admissions. However, the 1994 ruling barred the use of separate
admissions lists and different minimum test scores and grade point averages
for students of color and white students. As a result of this earlier decision,
admission practices at UT Law School were revised in accordance with the ruling.
In addition to affecting institutions within the Fifth Circuit, the ruling has
broader implications for colleges and universities throughout the country. At
the heart of the court's decision in Hopwood is a question of fundamental
importance to all higher education institutions: Is the promotion of student
diversity a compelling interest that justifies taking race into account to a
limited extent in determining which applicants to admit? Two members of the
three-judge panel that decided this case held that diversity is not a compelling
interest by which race-conscious admissions practices can be justified. By so
doing, they flatly rejected the views expressed by Justice Powell in the Supreme
Court's 1978 Bakke decision. In deciding this case, the appeals court
applied the "strict scrutiny" standard established by the Supreme
Court in City of Richmond v. Croson (1989)
and in Adarand v. Peña (1995).
The state of Texas appealed the ruling to the U.S. Supreme Court. However, the
Court denied certiorari and allowed the lower court ruling to stand.
A subsequent ruling on damages for the plaintiffs paved the way for a new appeal
by the University of Texas, which is now pending. The American Council on Education,
in cooperation with the Association of American Law Schools, the American Association
of University Professors, and other higher education associations, will file
an amicus brief in support of the University of Texas. The dates for
filing and arguments have not yet been scheduled. (For
further details, see "Legal Issues.")
Whether or not the Hopwood decision in fact will be a crippling blow
that curtails the use of affirmative action practices to facilitate greater
diversity within higher education is yet to be decided. In the meantime, Bakke
continues to be the controlling decision on which colleges and universities
should base their institutional practices.
Ten Percent
Law
Governor
George W. Bush signed into law in May 1997 a measure that would require public
universities to admit all Texas students who graduate in the top 10 percent
of their high school class, regardless of test scores or extracurricular activities.
This legislation was designed to reverse declines in minority applications to
state universities. As a result of the Hopwood decision, which precluded
the consideration of race as a factor in admissions, scholarships, and financial
aid decisions, the number of applications plummeted
by 24 percent for African Americans and 22 percent for Latinos.
The "Ten Percent Law" sought to increase the pool of potential
applicants. However, concerns have been raised that, because of vast differences
in the quality of elementary/secondary education between wealthy and poor districts,
some students will not be sufficiently prepared for the highly competitive campuses.
While admissions officials have been broadening the factors considered in admissions
decisions, this measure limits those factors. Another issue concerns the cost
of implementation. It is estimated that $60 million in financial aid will be
needed for the newly eligible minority students who qualify under the new law
but can't afford to attend.
Enrollment data for the fall of 1998 showed encouraging results. Despite fewer
enrollment offers to African American and Latino students, a greater number
of those students who were offered admission actually enrolled at the University
of Texas.
Proposition
A
Patterned
after California's Proposition 209, Proposition A, introduced in the City of
Houston, sought to eliminate affirmative action in public employment and contracting.
The requisite number of signatures was secured to place the measure on the November
1997 ballot. The support of the corporate sector and heavy voter turnout in
African American and Latino communities were central to the defeat of Proposition
A by a 55-45 percent
margin.
In June 1998, a judge threw out the election results, stating that the language
on the ballot did not reflect the intent of the more than 20,000 individuals
who signed the petition to allow the measure to be included on the 1997 ballot.
The words "affirmative action" and "women and minorities"
had been added to ensure that the public understood the issues. The judge asserted
that the change in ballot language did not present the issue fairly. The City
of Houston has indicated that it will appeal this ruling, in an effort to avoid
another costly election battle.
Washington
Initiative
200 (I-200) was passed by voters in November 1998, despite opposition to the
proposal by Governor Gary Locke (D), former Governor Daniel Evans (R), and many
corporate executives, including Seattle-based Boeing, Microsoft, Eddie Bauer,
Starbucks, Costco, Weyerhaeuser, and the Seattle Times. The initiative,
similar to California's Proposition 209, was approved by 58 percent of the voters.
Unlike Proposition 209, however, I-200 was not an amendment to the state constitution.
Therefore, it is uncertain whether the new law supersedes existing state and
local laws that allow the use of race and gender in employment and contracting.
Clearly, the initiative does not apply to state programs that are federally
funded and, therefore, must comply with federal nondiscrimination laws. In addition,
it does not eliminate preferences allowed for
veterans, the disabled, or persons over 40 years old.
One of the most critical actions after the passage of I-200 was that University
of Washington (UW) President Richard L. McCormick announced that the UW would
suspend the use of race, ethnicity, and gender in admissions, beginning in spring
1999 and for all applicants thereafter. Officials at the UW estimate a 15 percent
decline in enrollment for African-American and Latino students, both at the
undergraduate and graduate and professional levels.
As a result of UW's new admissions policy, the number of black applicants to
the UW law school for next fall plummeted 41 percent over last year, while the
number of Filipino applicants dropped 26 percent and Latino applications are
down 21 percent. It is too early to predict how many applicants will be accepted
and how many will ultimately enroll, but it is clear that the overall minority
representation in the law school will be sharply decreased.
The UW Board of Regents is considering a proposal that would allow race and
gender to continue to be factors in the awarding of scholarships from private
donors. Applicants would first have to pass a screening process based on merit,
need, and other neutral factors. From that pool, students would be matched with
scholarships, including those designated for women and minority students.
I-200 could also affect teacher recruitment and how students are assigned to
public schools in the state (i.e., magnet school programs). In the past, race
had sometimes been used as a "tiebreaker" in cases where there were
more applicants than slots for a particular school,
especially in communities where the public schools are highly selective.
Other
States
Several
other states have had anti-affirmative action legislation introduced and/or
voter-based initiatives in progress. Two states had measures signed into law
in 1997 (Alaska and Oregon). Many states had legislation introduced (but not
enacted) in 1997 or 1998 (Alabama, Arizona, Colorado, Georgia, Kansas, Michigan,
Missouri, Montana, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon,
South Carolina, and Tennessee.) Several states (Michigan, Missouri, South Carolina,
and Tennessee) have anti-affirmative action bills pending in the 1999 legislative
session.
Buoyed by success in California, 18 states have proposed voter-based initiatives
in the past two years. Many have failed to get the required number of signatures
in order to place their initiatives on the ballot. Several states may still
do so in 1999 or 2000, including
Colorado, Florida, Michigan, Nebraska, Ohio, and Oregon.
Pro-Affirmative
Action Measures
Though
limited in numbers compared to the anti-affirmative action movement, measures
that would strengthen affirmative action programs have been introduced in the
past two years in several states (Arkansas, Florida, Hawaii, Illinois, Minnesota,
and New York). In Florida, for example, the legislation would require that all
public universities have a concrete plan to increase the number of women and
minorities in faculty and administrative positions. Five bills were introduced
in Illinois related to employment, hiring, layoffs, compliance audits, and the
availability of apprenticeships. Early in 1999, the legislatures in Colorado
and New York are considering such measures.
Residents of the states that are attempting to strengthen and expand affirmative
action are encouraged to thank their state legislators for these positive actions,
and urge them to pass the
legislation.
Anti-Affirmative
Action Studies and Reports
The
Center for Equal Opportunity (CEO), a conservative think tank, has undertaken
studies of the state systems of higher education in several key states: California,
Colorado, Michigan, North Carolina, Virginia, and Washington, as well as the
U.S. Service Academies. These studies have found the use of preferences in admitting
African American students with GPAs and SAT scores significantly below those
of the white students admitted. For example, the study of North Carolina colleges
showed 50- to 90-point differences in the SAT verbal scores and 70- to 110-point
differences in the SAT math scores between African-Americans and whites. The
gaps between whites and Hispanics are much smaller. The CEO studies also claim
that six-year graduation rates are significantly
lower for African Americans and Hispanics than for whites and Asians.
The Center for Individual Rights (CIR), a Washington-based public policy
law firm, represents the plaintiffs in the major reverse discrimination lawsuits
filed against the flagship universities in Michigan, Texas, and Washington.
In late January 1999, the CIR released two handbooks, one intended for college
and university trustees and the other for students. The handbook for trustees
claims to provide "practical knowledge about what is legally permissible
in college and university admissions" and threatens that trustees may be
held "personally liable" for damages if a lawsuit against the institution
is successful. The companion volume offers advice to students who seek to sue
their institutions.
The CIR contends that most colleges that practice affirmative action do so in
a way that is illegal under federal law. An advertisement prepared for student
newspapers at 15 institutions charged that "nearly every elite college
in America violates the law." In order to counter the CIR attacks, 68 higher
education associations joined together to endorse a statement highlighting the
reasons that diversity is essential to a quality education. This statement was
placed as an advertisement in the Chronicle of Higher Education and the
various student newspapers targeted by CIR.
(See "On the Importance of Diversity
in Higher Education.")
In response to the CIR charges, leaders of the University of Virginia appointed
a special panel to review the role that an applicant's race plays in admissions,
and to determine whether governing-board members may be held personally liable
for policies that may violate the law. Several of Virginia's more selective
public institutions were among those targeted by the CIR.
The University of Massachusetts announced recently that it would rely less on
race and ethnicity and more on factors such as socioeconomic status and extracurricular
activities when admitting students and awarding financial aid. College officials
estimate that this change will cause minority enrollment to drop from 19 to
13 percent next year.
The Lincoln Center for Public Service and the Florida Association
of Scholars compiled a report on Race as an Admissions Factor in Florida's
Public Law and Medical Schools. The study examined admissions practices
over a three academic-year period, 1995-1997. In the Executive Summary, the
authors declared that "race is a very significant factor in determining
acceptance or rejection. At every level of merit qualification, black applicants
have a much better chance of acceptance at Florida's law and medical schools
than either white or Hispanic students with similar qualifications."
They further stated that the grades and test scores of black applicants admitted
were significantly lower than those of either white or Hispanic students who
were accepted to the law and medical schools. While these assertions may be
true in this case, other studies have
shown that many white students with lower grades and test scores are admitted
to selective institutions if they possess certain qualities that are of importance
to the admissions committee. Some of these characteristics include community
service, leadership skills, and the ability to overcome obstacles. This is especially
true in considering candidates for admission to medical school, where many factors
are taken into account in addition to grades and MCAT scores.
The Delaware Association of Scholars conducted a survey of faculty at
the University of Delaware in December 1998. The authors reported that about
70 percent of those who responded oppose the use of racial and gender preferences
in both faculty employment and student admissions. However, it must be noted
that the response rate for the survey was only about 20 percent, causing concern
about the validity of the results.
| Making
the Case for Affirmative Action
| Threats
to Affirmative Action |
| Affirmative
Action Works | Answering
the Critics
| Legal
Issues |
| What
You Can Do |
ACE
and Affirmative Action
|
| Acknowledgments
|
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American Council on Education, 1995–
2008.
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Last Modified: May 22, 2002