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Legal Aspects of Affirmative Action in Higher Education

Ahyen Labanan

Higher Education and Student Affairs, Northern Illinois University

HESA 771: Legal Aspects of Higher Education

Jeanne Meyer, J.D.

9 December 2022
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Legal Aspects of Affirmative Action in Higher Education

Introduction

Former President Lyndon B. Johnson introduced Executive Order 11246 in the United

States in 1965. The order, known as Equal Employment Opportunity, prohibits employment

discrimination on the basis of race, color, religion and national origin (U.S. Department of

Labor, 2022). It aims to provide equal opportunities for underrepresented populations to obtain

employment. Not only does the mission of this order apply in employment, it additionally

extends to education. Affirmative action policies have significantly increased the diversity of the

student body at higher education institutions in the U.S. since its introduction in the 1960s.

Today, affirmative action policies continue to be debated and seen by the Supreme Court.

Regardless of the outcome, the future of affirmative action policies within higher education will

be significantly impacted.

History of Affirmative Action

Foundations of U.S. higher education

The foundation of higher education institutions in the U.S. was not rooted in accessibility.

Rather, it served to continue the cycle of providing only privileged individuals opportunities and

excluded others. Those who did not hold membership within these traditionally privileged

communities did not have access to education. The 1900s, however, saw the introduction of

initiatives and federal laws increasing the opportunity for historically minoritized communities to

begin pursuing educational opportunities.

In the U.S., the population of individuals who had access to pursue higher education

opportunities consisted of predominantly white men as well as individuals within the middle and

upper classes (Ren and Reason, 2021). According to Thelin (2011), the “main purpose of
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colleges was to identify and ratify a colonial elite,” and “college was a conservative institution

that was essential to transmitting a relatively fixed social order,” (p. 25). These mindsets and

practices existed for centuries and perpetuated the privileges of primarily white middle and upper

class men. This also meant the perpetuation of inequity with communities of color unable to

access certain opportunities.

The period between the 1940s and 1990s saw a change in accessibility. Concluding

World War II, the introduction of the GI Bill increased access to financial resources for WWII

veterans (Renn and Reason, 2021). This resulted in a rise of underrepresented groups pursuing

educational opportunities. Often, some of these veterans would become the first in their families

to attend college (Thelin, 2019; Renn and Reason 2021). The option of taking out federal student

loans and accepting grants emerged in the 1970s and 1980s (Renn and Reason, 2021). The rise of

immigration in the U.S. in the 1990s led to the increase of Latinx students attending higher

education institutions (Grawe, 2018; Keller, 2001; Renn and Reason, 2021). Educational

institution focus later shifted to “enrollment, competition among institutions and institutional

rankings,” (Park and Hossler, 2015; Renn and Reason, 2021, p. 25).

Within this shift, is the increased emphasis in valuing diversity in higher education

institutions. Enrollment following postwar years led educational institution leaders to

“implement policies, practices, and procedures to remain competitive and meet the demands

associated with a diverse population of students, (Long, 2004; Renn and Reason, 2021, p. 25).

Emergence of Affirmative Action

Former President Johnson’s 1965 introduction of Executive Order 11246 provided a

foundation for anti-discrimination law in the country. The order was initially centered around

preventing discrimination in the workplace on the basis of race, color, religion and national
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origin (U.S. Department of Labor, 2022). This principle extended to higher education institutions

around the country as well. Arcidiacono et. al. (2015) discusses how Johnson’s executive order

“introduced more stringent and concrete antidiscrimination standards for government contracting

agencies and typically is viewed as the start of widespread affirmative action,” (p. 490).

Supporters of affirmative action policies cite several of its benefits. These benefits

include the following: education for under-represented minority (URM) students and non-URM

students, the opportunity for URM students to attend high quality colleges equipped with

resources and interracial interactions due to URM students holding leadership roles (Arcidiacono

et. al., 2015).

Non-supporters of affirmative action discuss arguments against the policy’s

implementation at educational institutions. These arguments include the potential negative

impact of resource distortions which can be harmful for URM and non-URM students.

Additionally, it is argued that affirmative action policies can decrease teaching standards because

those admitted may come from “lower academic backgrounds,” which can have “negative peer

effects,” (Arcidiacono et. al., 2015, p. 489).

Since affirmative action’s emergence, the extent to which and methods in which

institutions implement it have been debated in the Supreme Court.

Landmark Supreme Court cases regarding Affirmative Action

The following landmark Supreme Court cases defined institutional implementation and

practices regarding affirmative actions: Kaplin et. al. (2020) notes how courts have dealt with the

complaints of qualified nonminority applicants who were rejected from institutions arguing they

face “reverse discrimination,” because URM applicants were admitted in place of them (p. 417).
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The case Regents of the University of California v. Bakke (1978) involved the plaintiff,

Bakke, a white male who was rejected twice from the University of California Davis medical

school. Bakke sought to challenge the university’s affirmative action plan which entailed that 16

of the 100 medical school applicants would be considered separately from the others (Kaplin et.

al., 2020). Kaplin et. al. (2020) discussed how the court held that the University of California

Davis medical school operated unconstitutionally as it excluded Bakke because of his race.

Bakke would later be admitted to medical school. A majority of the Supreme Court Justices

“agreed that Title VI uses constitutional equal protection standards for determining the validity

of affirmative action programs,” (Kaplin et. al., 2020, p. 418). This case is significant as it

deemed affirmative action constitutional; however, the utilization of quotas is unconstitutional.

In Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), each case involved a

rejected white applicant challenging the university. Gratz dealt with a student rejected from law

school, while Grutter dealt with a student challenging the undergraduate College of Literature,

Science and the Arts (LSA) (Kaplin et. al., 2020). The Supreme Court concluded that LSA’s

admissions policy was unconstitutional as it violated the Fourteenth Amendment since it

awarded points for race in admissions in Gratz. Additionally, the Court upheld the decision of

the law school in Grutter. This entailed that the law school did not violate the Fourteenth

Amendment as it considered various factors for each applicant and it was not solely race (Kaplin

et. al., 2020). Supreme Court Justice Powell opined that utilization of race as a factor in

admissions is constitutional so long as it is not the only factor of the student (Regents of the

University of California v. Bakke). Additionally, in 2003, Supreme Court Justice Sandra Day

O’Connor “suggested that diversity was a goal that was to be achieved perhaps in 25 years,”

(Bowman, 2016, p. 11).

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In Fisher v. University of Texas at Austin (2016) the Court concluded that UT Austin’s

admission’s plan was constitutional as it was a holistic form of application review (Kaplin et. al.,

2020).

Kaplin et. al. (2020) notes that Bakke, Grutter, Gratz and Fisher led to the establishment

of “comparable legal parameters for affirmative action, applicable to public and private

institutions alike,” (p. 418).

Institutional application of Affirmative Action

U.S. higher education institutions incorporate affirmative action within their institutional

operations. Public universities, which are bound by the Constitution, must comply with the

Fourteenth Amendment’s Equal Protection Clause. Private colleges and universities that are

recipients of federal funding, also are required to comply with the Fourteenth Amendment. Back

et. al. (2019) discusses how public and private federally funded institutions are prohibited from

discriminating against students and applicants to the institution.

The implementation of affirmative action practices and programs is overseen by federal

agencies which additionally hold institutions accountable if they fail to comply. Authority to

oversee public and federally funded private institutions is the responsibility of the U.S.

Department of Justice (DOJ) and U.S. Department of Education (ED) (Back et. al., 2019). The

DOJ and ED have the authority to regulate noncompliant federal funding recipient institutions

and conduct investigations. If the DOJ and ED determine institutions are noncompliant, thus they

are practicing discrimination, can “result in the termination, suspension, or refusal to grant

federal funds,” (Back et. al., 2019, p. 40). The revocation of federal funding to both public and

private institutions would result in significant budgetary consequences for the affected

institution.
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It is noted that individual states have at one point or continue to ban affirmative action

starting in the 1990s. These states include the following: California, Texas, Washington and

Florida. The states which followed them include: Arizona, Georgia, Michigan, Nebraska, New

Hampshire, and Oklahoma (Long and Bateman, 2020).

Landmark Supreme Court cases set precedents for college and university admissions

practices. In Bakke, it was concluded unconstitutional for institutions to use racial quotas in

admissions processes. The Grutter case found that race can be a factor of admissions if all

applicants are viewed holistically. In Gratz, it was found that the institution could not award

points solely for race as it narrowed the line of being a quota and not viewing applicants

holistically. According to Back et. al. (2019), “The Court has long grappled with this seeming

tension — between the strictness of its scrutiny and its approval of race-conscious policies,” (p.

0). This signifies that an admissions review process can consider race; however, it cannot be the

only factor and the policy must use the least restrictive means.

The Court continues to debate the constitutionality of affirmative action in the context of

higher education.

Contemporary context of Affirmative Action

The current national debate on affirmative action is if it is possible for institutions to

develop a college admissions process achieving the goal of racially diverse colleges without

considering student’s race (Orfield, 2017). Institutions are motivated to be desirable to future

prospective students and an essential factor of desirability is the diversity of an institution.

Bowman (2016) notes how diversity is viewed as an objective “rather than as a basic and

accepted element of our social and natural order,” (p. 11). Though there has been an increase in
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minority student enrollment and support programs for these students, affirmative action

continues to be questioned (Nichols et. al., 2005).

Despite the Court upholding affirmative action in the recent Fisher v. University of Texas

(2016), membership of the Court has shifted to become more conservative (Liptak and

Hartocollis, 2022). The Supreme Court is currently hearing two cases challenging affirmative

action in college admissions at Harvard University and the University of North Carolina. Liptak

and Hartocollis (2022) describe that a ruling with restrictions or prohibition of race consideration

in admissions would “reduce the number of Black and Latino students at nearly every selective

college and graduate school, with more Asian American and white students gaining admission

instead.” The decision, which is expected in 2023, is likely to impact the admissions processes at

higher education institutions across the nation moving forward.

Conclusion

Since former President Johnson’s introduction of Executive Order 11246, the

advancement of both employment and educational opportunity for historically minoritized

communities significantly increased. Access to these employment and educational opportunities

has been beneficial for the nation. Access, as a result of affirmative action, attempts to rectify

and prevent the history of systemic racism and discrimination, brought upon by the foundation of

higher education in the U.S. Despite the benefits, national discourse regarding the future of

affirmative action continues. Supreme Court cases involving Harvard University and the

University of North Carolina may determine the future of affirmative action in the U.S. It is

imperative to continue participating in national discourse around diversity and its impact on

education.
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References

Arcidiacono, P., Lovenheim, M., & Zhu, M. (2015). Affirmative action in undergraduate

education. Annu. Rev. Econ., 7(1), 487-518.

Back, C. J., Hsin, J. S., & Library of Congress, C. R. S. (CRS). (2019). “Affirmative Action” and

Equal Protection in Higher Education. CRS Report R45481, Version 3. Updated. In

Congressional Research Service. Congressional Research Service.

Bowman, P. (2016). Transforming understandings of diversity in higher education:

Demography, democracy, and discourse. Stylus Publishing, LLC.

Kaplin, Lee, B. A., Hutchens, N. H., & Rooksby, J. H. (2020). The law of higher education /

William A. Kaplin [and three others]. (Sixth edition, student edition.). Jossey-Bass.

Liptak, A., & Hartocollis , A. (2022, January 24). Supreme Court will hear challenge to

affirmative action at Harvard and ... The New York Times . Retrieved from

https://www.nytimes.com/2022/01/24/us/politics/supreme-court-affirmative-action-

harvard-unc.html

Long, M. C., & Bateman, N. A. (2020). Long-Run Changes in Underrepresentation after

Affirmative Action Bans in Public Universities. Educational Evaluation and Policy

Analysis, 42(2), 188–207.

Nichols, J. C., Ferguson, F., & Fisher, R. (2005). Educational Pluralism: A Compelling State

Interest. Journal of College Admission, 189, 21–28.

Orfield, G. (2017). Alternative Paths to Diversity: Exploring and Implementing Effective

College Admissions Policies. Policy Information Report and ETS Research Report Series

No. RR-17-40. ETS Research Report Series.

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Renn, K. A., & Reason, R. D. (2021). College Students in the United States: Characteristics,

Experiences, and Outcomes. Edition 2. In Stylus Publishing LLC. Stylus Publishing LLC.