Running head: HISTORY AND ANALYSIS OF AFFIRMATIVE ACTION

Historical Analysis Paper: Affirmative Action Briana McNeil EDLD 7432 Georgia Southern University Dr. Russell Mays

HISTORY AND ANALYSIS OF AFFIRMATIVE ACTION

Affirmative Action: History and Analysis Introduction Affirmative Action has been a topic of much debate. Affirmative action is an important tool to provide qualified individuals with equal access to educational and professional opportunities they would otherwise have been denied despite their strong qualifications (Americans for a Fair Chance, 2013). Although much progress has been made over the past fifty years as it relates to diversity, ensuring that all Americans receive equal opportunity in higher education and in the workplace remains to be an unattainable goal. The question has been raised whether or not affirmative action is fair. Yes, it is fair and needed. Affirmative action initiatives are designed to help companies, organizations, and educational institutions evaluate candidates equally and fairly that is, based on their qualifications (Americans for a Fair Chance, 2013). In general, affirmative action is meant to provide opportunities for minorities and other underrepresented groups opportunities that otherwise may not be offered to them under normal circumstances. This paper will discuss the history of affirmative action and its development through the years, court rulings that have impacted affirmative action decisions for colleges and universities and the impact that affirmative action will and does have on higher education.

History of Affirmative Action The relationship between affirmative action and its development through the years has caused much controversy. There are those who believe that affirmative action creates diversity and then there are those who believe that it is a form of reverse discrimination. Affirmative Action is an opportunity that took an extreme amount of time to develop into what is now known as the law. There are brief and detailed situations listed below to show the growth and

HISTORY AND ANALYSIS OF AFFIRMATIVE ACTION

development of affirmative action. In every case there has been something monumental in nature that has completely changed the landscape of how higher education deals with similar situations regarding the governing principles of education. In institutions of higher education, affirmative action refers to admission policies that provide equal access to education for those groups that have been historically excluded or underrepresented, such as women and minorities (National Conference of State Legislatures, 2013). Affirmative action is needed to ensure diversity primarily in the college admissions process and with employment in the workplace. If affirmative action is applied at the university level it can lead to greater benefits in the long run. In other words, education can be the ramp up to a level playing field, eliminating the need for affirmative action later in life or in other fields of endeavor (Swink, 2003). Affirmative action polices now in education can possibly eliminate the need for affirmative action polices later in education and also in the workplace. The U.S. Supreme Court ruling in Brown v. Board of Education (1954) monumentally changed educational opportunities available to minority students. The Court unanimously voted that segregated educational facilities were unequal and, therefore, violated the equal protection clause of the fourteenth Amendment of the Constitution. It overturned the previous decision in Plessy v. Ferguson (1896), which permitted separate but equal public facilities for minorities and pushed policymakers to examine other principles governing education for people of color (Garrison-Wade & Lewis, 2004). In 1961, President John F. Kennedys Executive Order (E.O.) 10925 used affirmative action for the first time by instructing federal contractors to take affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin (Americans for a Fair Chance, 2013). This was a major turning event in history. This order

HISTORY AND ANALYSIS OF AFFIRMATIVE ACTION

called for government contractors to voluntarily support affirmative action efforts by recruiting, hiring and promoting minorities (Moreno, 2003). Then, in the 1964 Civil Rights Act was passed. The Civil Rights act of 1964 mandated an end to discrimination in employment. Title VII, Section 703(a) forbade any employer "to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color religion, sex, or national origin" (Mack, 1996).

Key Cases Involving Affirmative Action Regents of University of California v. Bakke (1978) was the first case to question the legality of affirmative action policies in higher education. Allan Bakke, a white applicant, claimed he was wrongfully denied admission to medical school at the University of California to make room for less qualified minority applicants (Garrison-Wade & Lewis, 2004). The court was asked to decide if University of California violated the Fourteenth Amendment's equal protection clause, and the Civil Rights Act of 1964, by practicing an affirmative action policy that resulted in the repeated rejection of Bakke's application for admission to its medical school? The U.S. Supreme Court ruled that the establishment or use of racial quotas in determining admission violates the Equal Protection Clause of the fourteenth Amendment; however, institutions of higher learning can still consider race as one factor, among many, in the admission process (Garrison-Wade & Lewis, 2004). This case being first set the precedent for future cases to be determined as to whether or not there violations of the fourteenth amendment occurred. In Fisher v. Texas, the court was asked to decide is the Equal Protection Clause of the Fourteenth Amendment permit the consideration of race in undergraduate admissions decisions.

HISTORY AND ANALYSIS OF AFFIRMATIVE ACTION

The University of Texas enacted an admissions policy that would admit the high school seniors who ranked at the top 10 percent of their class. After they found differences between the racial and ethnic makeup of the campus population they decided to change its racial-neutral policy. The new policy continued to admit all in-state students who graduated in the top ten percent of their high school classes. For the remainder of the in-state freshman class the university would consider race as a factor in admission (The Oyez Project at IIT Chicago-Kent College of Law, 2013). In 1997, Abigail Fisher a white Caucasian woman was not in the top ten percent other class and therefore she had to compete with the other non-ten percent in-state applicants. Consequently she was denied admission to the university. Miss Fisher later filed a lawsuit against the university claiming that their admissions policy violated the equal protection clause of the fourteenth amendment. The court voted 7-1 in favor of Abigail Fisher. The Court did not overturn affirmative action generally, but did emphasize that affirmative action programs need to be more strictly reviewed. The Court explained that the program must pass a test of "strict scrutiny," proving an absence of alternatives that do not include race as a means to diversify the student body. The case is being sent back to the Fifth Circuit Court of Appeals in order to determine if the University of Texas' affirmative action program passes this test (The Oyez Project at IIT Chicago-Kent College of Law, 2013). In the Grutter v. Bollinger case, the court was asked to decide if the University of Michigan Law School's use of racial preferences in student admissions violated the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964. In 1997, Barbara Grutter, a white resident of Michigan, applied for admission to the University of Michigan Law School. Miss Grutter applied with a 3.8 undergraduate GPA and an LSAT score

HISTORY AND ANALYSIS OF AFFIRMATIVE ACTION

of 161. She was consequently was denied admission to the law school. The law school admits using race as a factor of admissions decisions because as they stated, it serves a "compelling interest in achieving diversity among its student body" (The Oyez Project at IIT Chicago-Kent College of Law, 2003). Miss Grutter filed a lawsuit against the law school alleging that violated the University of Michigan Law School's use of racial preferences in student admissions violated the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964. The court decided in a 5-4 vote that the Equal Protection Clause did not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body (The Oyez Project at IIT ChicagoKent College of Law, 2003). The Court reasoned that, because the Law School conducts highly individualized review of each applicant, no acceptance or rejection is based automatically on a variable such as race and that this process ensures that all factors that may contribute to diversity are meaningfully considered alongside race (The Oyez Project at IIT Chicago-Kent College of Law, 2003).

How Affirmative Action Impacts Higher Education Major decisions have been made through various court cases dealing with affirmative action policies for colleges and universities. Affirmative action is used to make college admissions decisions as well as decisions as it relates to hiring faculty and staff and this level. As diversity increases in the general population, U.S. colleges and universities are struggling to maintain campus diversity in the context of legislative elimination of affirmative action in admissions (Kaufmann, 2007). In July 1995, the Regents of the University of California voted to

HISTORY AND ANALYSIS OF AFFIRMATIVE ACTION

end all affirmative action programs at all of their campuses (Moreno, 2003). In November 1996, California voters passed Proposition 209 by a narrow margin. This proposition abolished all public sector affirmative action programs in the state in employment, education and contracting (Moreno, 2003). These two highlighted events in history higher education impacted institutions in California. This may become the norm across the nation if the benefits of affirmative action cannot be proved or made to be fair across the board for all students. The selected cases mentioned previously in this paper help to illustrate the impact affirmative action is making on higher education. Diversity is becoming harder to accomplish in higher education for the fear of committing reverse discrimination. Higher education institutions have to be careful and make sure that their affirmative action policies are fair to all applicants not just minority applicants. Although many are attempting to eliminate affirmative action the future value of this law cannot yet be seen. There is no way to put a value or the significance of affirmative action in higher education. Today, "affirmative action" means goals, timetables, quotas, busing, and preferential treatment (Mack, 1996). Affirmative action should not only benefit the numbers for the college or university but it should also help to create a sense of diversity on campus. The anticipated outcomes of affirmative action policies include improved educational opportunities for students regardless of race or gender, increased diversity in enrollment, and positive effects on both learning and democratic outcomes (Garrison-Wade & Lewis, 2004). There are most certainly more positive effects than negative effects regarding affirmative action. Diversity alone should be a good enough reason to keep affirmative action in place. Is there a need to create diversity amongst students at a college or university to provide a quality education? Research would say yes. Affirmative action in higher education also has life-

HISTORY AND ANALYSIS OF AFFIRMATIVE ACTION

long benefits for its students. Years after graduating, students who have learned to engage effectively with members of other groups in college remain more likely to maintain cross-racial relationships and to live in integrated communities (Kaufmann, 2007). Meaning, students who are learning in a diverse environment are more likely to feel more comfortable working, living, etc. with persons who are different from them. Creating a sense of belonging and diversity in higher education should be a priority. College is where students learn more about the world and more about themselves. Students also need to learn that diversity is acceptable and must be practiced in every aspect.

Conclusion The initial goal of affirmative action has been to provide equal opportunities for minority groups and women to advance in society both educationally and professionally. Since its inception, there has been an ongoing debate on whether or not affirmative action is fair and if it is actually reverse discrimination. The history of affirmative action has shown that there is no right answer to solve this problem. Court decisions have been voted sometimes in favor of affirmative action and at times against affirmative action. The implementation and change in polices throughout history still have not found a way to make affirmative action fair for everyone. The debate over affirmative action will continue at higher educational institutions and in other areas as they seek to achieve diversity. If affirmative action is outlawed it will make it much more difficult to ensure diverse populations in education. As time goes on, the hope is that there will be a way to gain better access and opportunity for all students not just minority students.

HISTORY AND ANALYSIS OF AFFIRMATIVE ACTION

References Americans for a Fair Chance. (2013). Equal Opportunity Fact Sheets. Retrieved November 7, 2013, from The Leadership Conference on Civil and Human Rights: http://www.civilrights.org/equal-opportunity/fact-sheets/fact_sheet_packet.pdf Garrison-Wade, D. F., & Lewis, D. C. (2004). Affirmative action: History and analysis. Journal of College Admission (184), 23-26. Kaufmann, S. W. (2007). The history and impact of state initiatives to eliminate affirmative action. New Directions for Teaching and Learning (111), 3-9. Mack, R. W. (1996). Whose affirmative action? Society , 33(3), 41-43. Moreno, P. B. (2003). The history of affirmative action law and its relation to college admission. The Journal of College Admission , 179, 14-21. National Conference of State Legislatures. (2013, June). Affirmative Action: Court Decisions. Retrieved November 4, 2013, from National Conference of State Legislatures Web site: http://www.ncsl.org/research/education/affirmative-action-court-decisions.aspx National Conference of State Legislatures. (2013, June). Affirmative Action: Overview. Retrieved November 4, 2013, from National Conference of State Legislatures Web site: http://www.ncsl.org/research/education/affirmative-action-overview.aspx Swink, D. R. (2003). Back to Bakke: Affirmative action revisted in educational diversity. Brigham Young University Education & Law Journal (1), 211-256. The Oyez Project at IIT Chicago-Kent College of Law. (2013, June 24). Fisher v. The University of Texas. Retrieved November 7, 2013, from The Oyez Project Web site: http://www.oyez.org/cases/2010-2019/2012/2012_11_345 The Oyez Project at IIT Chicago-Kent College of Law. (2003, June 23). Grutter v. Bollinger. Retrieved November 7, 2013, from The Oyez Project Web site: http://www.oyez.org/cases/2000-2009/2002/2002_02_241