U.S. Commission on Civil Rights

The Commission, Affirmative Action, and Current Challenges Facing Equal Opportunity in Education

March 2003

. . . I think a great public university, and great public institutions, should reflect the public. And when they don’t reflect the public, they should do something about that, and that’s called affirmative action. It’s not quotas . . . it’s not giving anything to unqualified people.                                                              

—Secretary of State Colin Powell
September 7, 2000[1]

Historically, America has lived by the belief that education can transform and vitalize the lives of its people and further the nation’s economic and political progress. Since its formation, the U.S. Commission on Civil Rights has worked to fulfill the promise of providing all Americans with equal access to educational opportunities. Indeed, the birth of the Commission followed on the heels of the landmark 1954 U.S. Supreme Court decision, Brown v. Board of Education, which pronounced that where education is provided, it must be provided equally to all, regardless of race.[2] From its inception, the Commission has focused on ways to promote equal opportunity in education, including advocating the preservation of affirmative action programs.[3] This summary will demonstrate the Commission’s past and continuing support for race-conscious affirmative admissions programs, similar to the affirmative admissions programs at issue in the University of Michigan cases coming before the Supreme Court. As well, this summary will highlight some of the challenges currently facing affirmative action.

Originally, affirmative action—a term coined by President John F. Kennedy—referred to an equal opportunity policy designed to improve integration in federally financed work projects. In the 1970s, the scope of affirmative action was broadened to apply to college admissions.[4] Gender and minority status were thereafter allowed to be considered by institutions of higher education in their efforts to increase enrollment of historically underrepresented populations.[5] This represented a significant crack in the wall of discrimination that had historically prevented racial and ethnic minorities and women from pursuing higher education.

Over the years, the Commission has consistently supported affirmative action programs in education. For example, the Commission endorsed the Supreme Court’s support for the consideration of race and ethnicity in admissions programs, beginning with the Regents of the University of California v. Bakke decision in 1978.[6] At issue in Bakke was whether the University of California Medical School’s consideration of race in its admissions process was permissible and constitutional. After reviewing the California medical school’s two-tiered admissions policy, the U.S. Supreme Court struck down the university’s admissions program and ruled that Bakke, the white medical school applicant denied admission, must be admitted. In the same ruling but separate opinion, Supreme Court Justice Lewis Powell asserted that in some cases “the goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions.”[7] Thus, the Supreme Court left open the door for race-conscious admissions programs, and for the past 25 years countless colleges and universities have tailored their race-conscious admissions policies to conform with the Bakke decision.[8]

After the Court’s Bakke decision, which was consistent with other federal efforts to bring people of color into the mainstream of American life, the Commission continued to support affirmative action. Commission support for affirmative action in higher education admissions, and the diversity it produces, was reaffirmed in a letter to President George H.W. Bush. The Commission issued this letter to urge the President to “take a strong stand in support of affirmative action in the recruitment of minority students . . .”[9] In the letter, former Commission Chairperson Arthur A. Fletcher stated:

The role of institutions of higher education in achieving important national goals is well recognized. In a society such as ours—with a diverse and multi-cultural citizenry—these institutions can and must contribute to the achievement and maintenance of social strength and harmony. The education of a diverse student body, convened on common ground for common purposes, is their primary vehicle for making this contribution. To thwart their efforts by prohibiting even the very limited use of a tool [affirmative action and race-based scholarships] so many have found essential can only help to perpetuate the racial and ethnic divisions within our society. . . . We urge you, therefore, to take a strong stand in support of affirmative action in the recruitment of minority students, including the use of minority-targeted scholarships where necessary to achieve either of two important national interests—remedying the invidious effects of discrimination and attaining the benefits of a diverse student body.[10]

The Commission’s support of integrated learning environments in higher education mirrors the governmental commitment to diversity that has often been bipartisan.[11] For example, Secretary of State Colin Powell in a radio interview stated, “I think affirmative action is still necessary . . . There is a case now pending, of course, with the University of Michigan that I hope the University wins.”[12]

However, legal and legislative challenges to race-based affirmative action have cast in doubt the nation’s commitment to equal educational opportunity and remedying the effects of discrimination held unconstitutional in Brown and related cases.[13] For example, the Supreme Court has decided to hear two cases from the Sixth Circuit—Grutter v. Bollinger and Gratz v. Bollinger—initiated by unsuccessful applicants to the University of Michigan undergraduate and law programs who claim that the university’s affirmative action admissions policies unconstitutionally discriminated against them. The cases raise the question of whether it is a violation of the Constitution to consider race as a factor among many others in admitting students. The key legal issue is whether achieving a diverse student body is a compelling state interest that justifies governmental action of allowing consideration of college applicants’ race in deciding whom to admit. Commentators have noted that, by agreeing to review the Michigan cases, the Supreme Court has set the stage for a potentially dramatic decision—one that could either undermine affirmative action as a means toward promoting diversity in higher education, or reaffirm Bakke and sanction the use of narrowly tailored race-conscious affirmative admissions policies such as the University of Michigan’s.[14]

The Commission has consistently endorsed the type of affirmative admissions program that the University of Michigan’s diversity-conscious admissions process represents.[15] The university’s admissions policy is modeled on the race-as-a-factor Harvard plan endorsed by Justice Powell in the Bakke decision, which the Commission commented favorably upon.[16] Like the Harvard plan, the University of Michigan Law School’s affirmative admissions policy considers race and ethnicity as potential “plus” factors along with a range of other factors, such as whether a student is related to an alumnus, has taken advanced placement courses, or is from an underrepresented geographic location.[17]

Despite that affirmative action programs have substantially improved diversity in America’s institutions of higher learning, legal and political challenges have already limited affirmative action in such places as California, Texas, Louisiana, Mississippi, Florida, Maryland, Washington, and Georgia.[18] Grutter and Gratz represent only a subset of recent challenges to affirmative action, including the replacement of affirmative action programs with “percentage plans” in California, Texas, and Florida.[19] This retreat from affirmative action has forced an increasing number of institutions of higher education to reassess and change their admissions and financial aid programs so that their policies can no longer take race into consideration.[20] These states have banned race-conscious admissions policies and replaced them with percentage plans, which guarantee admission to a set percentage of students based on high school class rank.[21]

Percentage plans alone, however, are not adequate replacements for affirmative action. In 2000, the Commission reported on the inadequacy of percentage plans in achieving the goal of diversity and equal higher education opportunity in Florida, as well as in California and Texas.[22] The Commission concluded that percentage plans have significant flaws and fail to create adequate diversity in undergraduate education. The 2000 report asserted that “percentage plans are experimental responses to the attacks on affirmative action. But they are no substitute for strong race-conscious affirmative action in higher education.”[23] Furthermore, the premise behind the use of percentage plans to promote diversity and grant greater educational opportunities to more minorities is contingent upon continued racial segregation of the nation’s high schools.[24]

The inadequacies of percentage plans were reconfirmed in a Commission staff report released in November 2002, Beyond Percentage Plans: The Challenge of Equal Opportunity in Higher Education. The report found the following alarming trends:

• Black, Hispanic, and Native American enrollment declined at the two premier University of California campuses after the state banned affirmative action. University of California medical and law schools had large drops in the numbers of applicants, admissions, and new registrants for the three underrepresented minority groups (blacks, Hispanics, and Native Americans) from the 1995–96 pre-ban year to 1997–98, when the ban was implemented.[25]

• The Texas plan achieved an initial increase in black and Hispanic enrollment at the state’s flagship campus, but that dwindled by its fourth year of operation. Further, admissions numbers are down for all minorities at the UT School of Law since the 1996 Hopwood decision, which outlawed the use of race-conscious affirmative action in the state’s college admissions programs.[26]

• Florida’s plan failed to achieve consequential increases of blacks and Hispanics at the state’s flagship schools. The percentage of black and Hispanic high school graduates exceeds their percentage as enrollees at elite Florida universities.[27]

The report stated that “percentage plans, as they are currently administered, do not improve diversity and must be implemented in conjunction with affirmative action and other supplemental recruitment, admissions, and academic support programs.”[28] Moreover, percentage plans are not applied to medical and law schools, nor to other graduate and professional programs; consequently, black and Hispanic enrollment at medical and law schools in California and Texas has generally declined.[29] Furthermore, the study indicated that the underrepresentation of minorities in graduate and professional schools, particularly African Americans and Hispanics, has been a consistent problem in higher education. Even though African American and Hispanic students’ numbers in institutions of higher education had increased due to affirmative action, race-conscious admissions policies had not been given their full opportunity to continue to bring black and Hispanic students into undergraduate, graduate, and professional schools in parity with their representation in society.[30] Efforts to correct these disparities through effective affirmative admissions policies should have been the concern of federal and state governments before further bans on affirmative action were considered.

Fostering diversity in the nation’s institutions of higher education is a legitimate state interest in which all Americans have a stake.[31] Historically, the Commission has found that achieving diversity in the classrooms of this nation’s colleges and universities is a compelling—indeed essential—social, economic, and educational goal.[32] With a growing percentage of minorities making up the working population, the nation’s economic vitality will depend on how well minority youth are educated.[33] Facing these challenges, the nation cannot afford to abandon effective admissions and recruitment programs that encourage minority students to pursue college education and enable colleges to educate students in diverse environments.[34]

Unfortunately, structural barriers still exist to achieving diversity in the nation’s institutions of higher education. For many children of color, receiving inferior education in poorly funded schools is commonplace.[35] These children, while fully capable of achieving in a collegiate setting, may be denied equivalent experiences to compete on a level playing field with their white counterparts in regard to traditional entrance requirements.[36] Additionally, racial insensitivity, if not prejudicial attitudes, still persists throughout society—even at the highest levels of power—although in an increasingly more subtle or submerged form.[37] Commission studies conclude that affirmative action in admissions and recruitment still remains the most effective tool for achieving equal opportunity and promoting and attaining diversity.[38]

A Court departure from its support of affirmative admissions programs could serve as a signal to individuals and institutions throughout the nation “that what is past is not prologue but is simply forgotten, and that our legacy of historical obligations can be ignored.”[39] The Supreme Court can ensure that the obligation to provide all children an equal opportunity to a diverse and enriched learning environment will be met and not ignored. For a significant part of the last half century, the Supreme Court has been at the forefront of groundbreaking decisions promoting racial equality. It now has the opportunity to reaffirm its longstanding support of the integrated learning environments it first endorsed in Brown, as well as in Bakke, which universities have relied upon to guide affirmative admissions policies for the last quarter century.