Affirmative Action in The United States - Implementation in Universities

Implementation in Universities

In the U.S., a prominent form of racial preferences relates to access to education, particularly admission to universities and other forms of higher education. Race, ethnicity, native language, social class, geographical origin, parental attendance of the university in question (legacy admissions), and/or gender are sometimes taken into account when the university assesses an applicant's grades and test scores. Individuals can also be awarded scholarships and have fees paid on the basis of criteria listed above. In 1978, the Supreme Court ruled in Bakke v. Regents that public universities (and other government institutions) could not set specific numerical targets based on race for admissions or employment. The Court said that "goals" and "timetables" for diversity could be set instead.

The racial preferences debate related to admission to U.S. college and universities reflects competing notions of the mission of colleges: "To what extent should they pursue scholarly excellence, to what extent civic goods, and how should these purposes be balanced?". Scholars such as Ronald Dworkin have asserted that no college applicant has a right to expect that a university will design its admissions policies in a way that prizes any particular set of qualities. In this view, admission is not an honor bestowed to reward superior merit but rather a way to advance the mission as each university defines it. If diversity is a goal of the university and their racial preferences do not discriminate against applicants based on hatred or contempt, then affirmative action can be judged acceptable based on the criteria related to the mission the university sets for itself.

Consistent with this view, admissions officers often claim to select students not based on academic record alone, but also on commitment, enthusiasm, motivation, and potential. Highly selective institutions of higher learning do not simply select only the highest SAT performers to populate their undergraduate courses, but high performers, with scores of 1500 to 1600 points, are extraordinarily well represented at these institutions.

During a panel discussion at Harvard University's reunion for African-American alumni during the 2003–04 academic year, two prominent black professors at the institution—Lani Guinier and Henry Louis Gates—pointed out an unintended effect of affirmative action policies at Harvard. They stated that only about a third of black Harvard undergraduates were from families in which all four grandparents were born into the African-American community. The majority of black students at Harvard were West Indian and African immigrants or their children, with some others the mixed-race children of biracial couples. One Harvard student, born in the South Bronx to a black family whose ancestors have been in the United States for multiple generations, said that there were so few Harvard students from the historic African-American community that they took to calling themselves "the descendants" (i.e., descendants of American slaves). The reasons for this underrepresentation of historic African Americans, and possible remedies, remain a subject of debate.

UCLA professor Richard H. Sander published an article in the November 2004 issue of the Stanford Law Review that questioned the effectiveness of racial preferences in law schools. He noted that, prior to his article, there had been no comprehensive study on the effects of affirmative action. The article presents a study that shows that half of all black law students rank near the bottom of their class after the first year of law school, and that black law students are more likely to drop out of law school and to fail the bar exam. The article offers a tentative estimate that the production of new black lawyers in the United States would grow by eight percent if affirmative action programs at all law schools were ended. Less qualified black students would attend less prestigious schools where they would be more closely matched in abilities with their classmates, and thus perform relatively better. Sander helped to develop a socioeconomically based affirmative action plan for the UCLA School of Law after the passage of Proposition 209 in 1996, which prohibited the use of racial preferences by public universities California schools. This change occurred after studies that showed that the graduation rate of blacks at UCLA was 41%, compared to 73% for whites.

To accommodate the ruling in Hopwood v. Texas banning any use of race in school admissions, the State of Texas passed a law guaranteeing entry to any state university if a student finished in the top 10% of their graduating class. Florida and California have also replaced racial quotas with class rank and other criteria. Class rank tends to benefit top students at less competitive high schools, to the detriment of students at more competitive high schools. This effect, however, may be intentional, as less-funded, less competitive schools are more likely to be schools where minority enrollment is high. Critics argue that class rank is more a measure of one's peers than of one's self. The top-10% rule adds racial diversity only because schools are still highly racially segregated because of residential patterns. The class rank rule has the same consequence as traditional affirmative action: opening schools to students who would otherwise not be admitted had the given school used a holistic, merit-based approach. From 1996 to 1998, Texas had merit-based admission to its state universities, and minority enrollment dropped. The state's adoption of the "top 10 percent" rule returned minority enrollment to pre-1996 levels.

In 2006, Jian Li, a Chinese undergraduate at Yale University, filed a civil rights complaint with the Office for Civil Rights against Princeton University, claiming that his race played a role in their decision to reject his application for admission, and seeking the suspension of federal financial assistance to the university until it "discontinues discrimination against Asian-Americans in all forms" by eliminating race and legacy preferences. Princeton Dean of Admissions Janet Rapelye responded to the claims in the 30 November 2006 issue of the Daily Princetonian by stating that "the numbers don't indicate ." She said that Li was not admitted because "Many others had far better qualifications." Li's extracurricular activities were described as "not all that outstanding". Li countered in an email, saying that his placement on the waitlist undermines Rapelye's claim. “Princeton had initially waitlisted my application,” Li said. “So if it were not for a yield which was higher than expected, the admissions office very well may have admitted a candidate whose ‘outside activities were not all that outstanding.

A study in 2007 by Mark Long, an economics professor in University of Washington, demonstrated that the alternatives of affirmative action proved ineffective in restoring minority enrollment in public flagship universities in California, Texas, and Washington. More specifically, apparent rebounds of minority enrollment can be explained by increasing minority enrollment in high schools of those states, and the beneficiaries of class-based (not race) affirmative action would be white students. At the same time, affirmative action itself is both morally and materially costly: 52 percent of white populace—compared to 14 percent of black—thought it should be abolished, implying white distaste of using racial identity, and full-file review is expected to cost the universities an additional $1.5 million to $2 million per year, excluding possible cost of litigation.

In 2012, Abigail Fisher, an undergraduate student at Louisiana State University, and Rachel Multer Michalewicz, a law student at Southern Methodist University, filed a lawsuit to challenge the University of Texas admissions policy, asserting it had a "race-conscious policy" that "violated their civil and constitutional rights". The University of Texas employs the "Top Ten Percent Law", under which admission to any public college or university in Texas is guaranteed to high school students who graduate in the top ten percent of their high school class. Fisher has brought the admissions policy to court because she believes that she was denied acceptance to the University of Texas based on her race, and thus her right to equal protection according to the 14th Amendment was violated. The Supreme Court was expected to review the case around October 2012.