Running head: COMMENTARY: DIVERISTY AND AFFIRMATIVE ACTION

Commentary: Diversity and Affirmative Action

EDLD 8431: Higher Education Law
Dr. Maura Copeland
Jeff Patty
Georgia Southern University

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Commentary: Diversity and Affirmative Action
The purpose of this legal commentary is to outline a particular issue in higher education
and examine the basis of the topic in terms of recent and historical relevance, as it relates to legal
opinions or rulings. In analyzing the debate over Diversity versus Affirmative Action, this paper
will present the basic tenants of the issues being raised, take a look at historical precedents that
may have shaped the current law related to this debate, demonstrate legal challenges on both
sides of the topic, and attempt to draw some conclusions in applicability around this subject.
Issues
The challenges of diversity and affirmative action are certainly not new issues to higher
education. These two topics are so tightly intertwined with one another and have been for years.
Both of these issues, however, continue with fierce debate and are still the subjects of ongoing
legal debate within our country. It is important to understand both of these issues, as they are
actually somewhat dissimilar, but often commingled when being discussed and challenged by
suit. Affirmative action came about as a challenge to the discriminatory practices and as a direct
result of the Civil Rights movement of the 1960s. The goal of Affirmative Action was to increase
the opportunities and employment of underrepresented minorities and women. Diversity,
however, attempts to value the differences between people and recognize that all members of
society should have equal access, equitable opportunities, and be able to become effective
members of society. The challenge with both of these topics, diversity and affirmative action, is
where do we draw the line in favoring one group over the other and still aggressively seeking a
diverse environment? Important legislation and landmark cases have helped point us in a
direction, but the issues continue to be challenged.
Overview of Legal Authority

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Which came first? What is the difference? Why are these issues important? Looking
back over our history in higher education, lack of diversity has always been an issue. Early
colonial colleges primarily consisted of privileged young men, namely white men (Thelin, 2004).
Over the course of history, minorities and women had to fight to achieve access to higher
education. The Civil Rights movement of 1964 paved the way for access to a new world,
including education. The Act outlawed discrimination based on race, color, religion, sex, or
national origin. The guarantees of specific civil rights came from an interpretation of the equal
protection clause of the 14th amendment (Department of Justice, 2015). Additionally, a landmark
case overturning the infamous 1896 case Plessy v. Ferguson, the case of Brown v. Board of
Education (1954), ruled that separate but equal public schools for blacks and whites was
unconstitutional (Board of Education, 2015). This case was instrumental in ruling that
regardless if facilities, teachers, and supplies were equal, separation of students was still a
violation of the Fourteenth Amendment. Suddenly, everyone had to change their policies, hiring
practices, and develop new strategies to deal with the new legal precedent. Those that chose not
to comply or skirt the issue inevitably ended up being dragged into court with long and
expensive legal battles. For years, the courts usually sided in favor of the people, but that would
soon change.
Over time, these legal precedents have been challenged and the courts have ruled in the
other direction. Several important cases brought new challenges to the issue of diversity and
affirmative action. An important landmark case, University of California v. Bakke (1978),
challenged the admissions process in which race was used as a determining factor in deciding
acceptance. Bakke, a white male medical student at the University of California, Davis was
rejected for admissions in favor of other minority students with fewer qualifications and test

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scores. He filed suit against the college, citing a violation of the Equal Protection Clause and
Title VI of the Civil Rights Act of 1964. The court ruled in favor of Bakke, as they felt the
faculty of the university viewed racial types to be victims of societal discrimination and thus
did not provide the appropriate justification for use of the racial classification they were using.
However, importantly, Justice Powell did hold that the attainment of a diverse student
body is a constitutionally permissible objective for an institution of higher education and
may be utilized as a criterion among a range of factors that combined may withstand
strict judicial scrutiny. (p. 440)
Bakke won the case and was admitted to medical school. The most important element of this
case was that the ruling denoted there must be other important factors in determining eligibility
requirements, not racial or ethnicity alone (Alexander & Alexander, 2011). This legal precedent
stood until being overturned in 1996 in a case involving Cheryl Hopwood at the University of
Texas of Law. This case, Hopwood v. State of Texas (1996), ruled that the school would not be
allowed to use race in their admissions decisions any longer on the basis of diversifying the
student body to eliminate past discriminatory practices (Alexander & Alexander, 2011).
Subsequently, Hopwood v. State of Texas (1996) was repealed as well. In Grutter v.
Bollinger (2003), a student of the University of Michigan Law School, Barbara Grutter, filed suit
against the University for denying her admissions based on race. In this case, the Supreme Court
ruled in favor of the University of Michigan, stating that they were allowed to use race as a
determining factor for admissions. Furthermore, this reinstatement of race and diversity as a
contributing factor in determining admissions was recognized as one of the principal criteria in
creating a diverse law program. The Supreme Court recognized that a school should have
discretionary right in such instances to determine what is best for their own programs as long as

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they are used only as one of the elements in deciding admissions to the school (Alexander &
Alexander, 2011). Oddly enough during that same year another case was brought against the
same school. The case of Gratz v. Bollinger (2003) involved two students who were denied
admissions. They argued that race used in admissions decisions was a violation to their
Fourteenth Amendment rights. In this case, the Supreme Court ruled in the opposite manner and
found judgment in favor of the students. They determined, therefore, that because the
University's use of race in its current freshman admissions policy is not narrowly tailored to
achieve respondents' asserted compelling interest in diversity, the admissions policy violates the
Equal Protection Clause of the Fourteenth Amendment (Alexander & Alexander, 2011). In
looking at the contrasts between these seemingly identical cases, the Court upheld the use of race
because it was only one plus determining factor used in the consideration for acceptance. The
University looked at the overall contributions of each candidate, not race alone. As for the Gratz
case, the Court found the institutions undergraduate admissions program unconstitutional
because actual points were awarded for racial minorities (Gratz v. Bollinger, 2015). Part of the
challenge in determining the outcomes in these cases, was that the University was continually
changing their admissions policies during these years. Based on the Courts findings, summary
judgment was granted to petitioners for the periods of 1995 through 1998 and 1999 through 2000
respectively, in relation to the Universitys undergraduate program of College of Literature,
Science, and the Arts (Alexander & Alexander, 2011).
Another case challenged the University of Texas under the same allegations in Fisher v.
University of Texas (2013). This case has bounced back and forth in the courts, but finally was
ruled on by the U.S. Court of Appeals on July 15, 2014, in favor of the University. The Court
determined, It is equally settled that universities may use race as part of a holistic admissions

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program where it cannot otherwise achieve diversity (Bidwell, 2015). This case awaits being
heard by the Supreme Court.
Just last year in November of 2014, two more lawsuits were filed against Harvard
University and North Carolina at Chapel Hill. Both of these suits allege race is being used
improperly to consider admissions. They are also based on the earlier rulings of the Fisher v.
University of Texas. In the case of the Harvard student being rejected, he was a valedictorian
with a perfect score on the ACT and scores of 800 each on the SAT. The student from Chapel
Hill also had high marks with a score of 2180 on the SAT, a perfect reading score, and 800s in
Math and Physics. Both students were excellent academically and participated in extracurricular
activities in addition. Assertions have been made that Harvard practices racial balancing,
whereby they give favor to certain ethnicities in order to create diversity among their student
body (Mulhere, 2014). Racial balancing has been upheld in the Supreme Court in the cases
where de jure segregation existed previously, although this has been challenged (Alexander &
Alexander, 2011).
Conclusion
Without a doubt, this topic of diversifying our workplace and institutions of higher
learning is an important one. Likewise, dealing with the fallout of Affirmative Action policies
and mandates complicates the matter. There is plenty of case law to demonstrate both success
and failure regarding the policies universities employee to handle admissions decisions into their
programs. There are passionate parties on either side of the issue and even the courts are having
a very difficult time interpreting what is right and wrong, how history and earlier legal decisions
should impact todays diversity challenges, and where we go from here. If the courts cannot
mutually decide, how are the rest of Americans, and more specifically higher education,

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supposed to determine fair policies? If you have spent any time on a college campus, you are
likely pretty aware that diversity is an extremely important topic. Institutions are continuously
striving to create a diversified student body, as well as employee counterpart. I believe the tide is
beginning to turn in the courts and we will continue to find rulings in favor of eliminating these
admissions policies. Although they are intended to help bring about diversity and equal access,
often the opposite happens and discrimination against other students occurs. I think institutions
of higher learning are going to have to adapt and work harder to recruit more diversity without
having to rely on antiquated admissions mechanisms to solve this problem for them. Institutions
need to offer fair and equal access to all who want to attend and base all decisions on equitable
measures. There are a number of methods that schools can enlist to start attacking the problems
of diversity. Many schools now have diversity office and officers, dedicated to enacting these
new approaches, getting out into the communities, and working to bring new life to the subject.

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References
Alexander, K. W., & Alexander, K. (2011). Higher education law: Policy and perspectives. New
York: Routledge.
Bidwell, A. (2014, July 15). Court Upholds University's Affirmative Action Admissions Policy.
Retrieved June 26, 2015, from
http://www.usnews.com/news/articles/2014/07/15/appeals-court-upholds-university-oftexas-at-austins-affirmative-action-admissions-policy
Brown v. Board of Education. (2015). Retrieved June 26, 2015, from
http://www.civilrights.org/education/brown/?referrer=https://www.google.com/
GRATZ V. BOLLINGER. (2003, April 1). Retrieved June 26, 2015, from
https://www.law.cornell.edu/supct/html/02-516.ZS.html
Thelin, J. (2004). A history of American higher education. Baltimore: Johns Hopkins University
Press.
Title VI of the Civil Rights Act of 1964. (2015, June 24). Retrieved June 26, 2015, from
http://www.justice.gov/crt/about/cor/coord/titlevi.php