Affirmative action is known by a number of names around the world, including positive measures, positive discrimination, preferences, compensatory discrimination, reservations, and reverse discrimination. In those countries where it is in operation, the policy may be targeted at groups who have faced economic and educational disadvantages because of their race, ethnicity, nationality, or gender. For example, India’s constitution specifically permits affirmative action for "any socially and educationally backward classes of citizens," including the Dalits, the group formerly known as Untouchables. The Indian Supreme Court has placed a 50% ceiling on the reserved positions, for groups who represent roughly 25% of the population.
In the U.S. context, affirmative action in education and employment remains a hotly debated topic, and the law is currently in flux. US Supreme Court Justice Ruth Bader Ginsburg, a supporter of affirmative action, has recently stated that "the channel of constitutionally permissible affirmative action in the United States today is narrow, but not closed."[i] The term came into modern usage in the United States in 1961 when President John Kennedy signed an Executive Order requiring government contractors to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin." The concept gained more substance in 1969, when President Richard Nixon issued the Philadelphia Plan requiring government contractors in that city to set goals and timetables for employing minorities in six construction trades. With respect to the employment context, the US Supreme Court has issued a number of decisions over the past twenty years that indicate increased skepticism of government ordered affirmative action.[ii]
This brief paper will only discuss affirmative action as it relates to American legal education. Moreover, I will just focus on race-based measures, since that is the heart of the controversy in the United States. Most law schools have programs to increase the numbers of students from traditionally under represented racial/ethnic groups, most notably African Americans/Blacks (12% of US population), Hispanics/Latinos (11%), Asians (3%), and Native Americans/American Indians (1%). These groups currently constitute less than 10% of the nearly one million lawyers. Yet it is predicted that by mid-century, these same minorities will together become the majority of the United States. While these groups are numerically under represented in the legal profession, they also are over represented in the ranks of the poor. According to a 1995 United Nations report, white Americans would rank first in the world if they were a separate nation in terms of life expectancy, educational achievement, and income, but Blacks would only rank 27th, and Hispanics 32nd.[iii] Very unfortunately, Blacks and Hispanics currently make up half of the prison population as well.
The major legal decision governing affirmative action in universities is Regents of California v. Bakke, 438 US 265 (1978), where the US Supreme Court applied a strict scrutiny standard to determine if the race-based affirmative action program at the University of California at Davis Medical School was legal. Using a two part test, the Court considered whether the program served a compelling institutional interest, and whether the program was narrowly tailored to meet that interest.
In Bakke, there were six opinions written by the nine Justices. Four justices would have permitted affirmative action in most cases and four would have opposed it. Thus, it was the concurring opinion of Justice Powell, a fifth vote in favor of affirmative action, that controlled the actual outcome.
Powell’s opinion rejected the medical school’s use of a quota system in which 16 out of 100 seats were set aside for minorities. Nevertheless, he did hold that race could be a plus factor in admissions. In other words, schools could admit students taking their race into consideration, as long as there was no specific quota for a particular group. The government justification for affirmative action that Powell endorsed was that a racially diverse student body would enrich all students. He also would have permitted the school to remedy specifically identified discrimination in its own past practices, but that was not at issue in the case. The legal option to seek remedy for discrimination in past practices has limited relevance today for American law schools, nearly 50 years after the US Supreme Court’s 1954 Brown v Bd of Education decision officially outlawed de jure racial segregation in education. Thus the Bakke diversity rationale became the predominant justification for race-based affirmative action in universities.
In Bakke, Powell rejected other justifications presented by the government, including affirmative action is needed to address general societal discrimination. One school could not accomplish that lofty goal, according to Powell. The four person plurality generally in favor of affirmative action, Justices Brennan, White, Marshall, and Blackmun would have accepted this justification. Powell also rejected the claim that affirmative action in medical schools would enhance medical services in minority communities.
While Bakke remains the only Supreme Court affirmative action decision on the merits involving higher education,[iv] it has recently been challenged in the lower federal courts and in several states as well.
The Hopwood v. Texas[v] case illustrates the nature of these challenges. Cheryl Hopwood, like Alan Bakke, was a white applicant denied admission to a state supported school, in her case the highly prestigious University of Texas Law School. Her grade point average (GPA) and Law School Admissions Test (LSAT) score were higher than Blacks and Latinos who were accepted. While a detailed discussion is beyond the scope of this paper, it is important to note here that Blacks, Latinos, and Native Americans score lower on the LSAT nationally than whites or Asians.[vi] Thus, Ms. Hopwood and several other unsuccessful white applicants sued for admission alleging reverse discrimination. Implicit in the suit was the assumption that admissions decisions should be guided solely by grade averages and test scores. Yet most law schools have considered a wider variety of factors for many years. At the trial level, the judge found the school’s program met a compelling state interest (diversity for the students), thus complying with the first prong of the strict scrutiny test.
On appeal, the Fifth Circuit federal court governing Louisiana, Texas, and Mississippi, reversed the lower court. An accretion of anti-affirmative action court decisions over the last decade indicated to that court that diversity was no longer a compelling enough state interest to warrant race-based affirmative action programs under the US Constitution Fourteenth Amendment Equal Protection clause. Justice Powell’s diversity rationale in Bakke was only his own viewpoint, not a majority of the Court.
Hopwood also rejected additional rationales put forth by the state to justify affirmative action at the law school. Providing a first class education to future lawyers was an insufficient compelling state interest as was complying with US federal Department of Education requirements for diversity of students. The court was also not swayed by the state’s assertion of the need to comply with AALS and American Bar Association (ABA) standards of commitment to diversity. Finally, honoring a 1983 consent decree to desegregate the public higher education system of Texas was invalid as well.
The US Supreme Court subsequently denied a petition for certiorari in the case, which means that the decision remains valid law for the three state jurisdiction. While Hopwood clearly means that public law schools can not take account of race in admissions, it also has applicability to the law schools in the Fifth Circuit, which are privately owned as well. Title VI of 1964 Civil Rights Act prohibits all institutions of higher education receiving federal funds (which is almost all universities), from discriminating on the basis of race, color or national origin in operation of programs and activities. The statute subjects private universities to the same standards as public ones. Thus law schools in these three states can no longer consider race as a factor in admissions.
The devastating effect of the Hopwood decision on racial diversity at the University of Texas Law School was felt the following year. In 1997, the entering class had only 4 Blacks and 26 Mexicans, whereas the year before it had 31 Blacks and 42 Mexicans. In May 1997, Governor George W. Bush responded by signing into law a measure requiring public universities to admit all Texas students who graduate in the top 10% of their high school class, regardless of test scores. Because Texas public schools are de facto highly racially segregated, this proposal should ironically result in more Blacks and Latinos being eligible to enroll than in the past.[vii] Since law is a graduate degree, the 10% rule is inapplicable, but may have long term implications on future law school applicant pools.
Moreover, most law schools across the country are engaged in full reviews, if not overhauls of their affirmative action programs, fearing that Hopwood type suits will be filed and adjudicated similarly in their jurisdiction. As a matter of fact, the Center for Individual Rights, the anti-affirmative action group that supported the Hopwood litigation has filed suits against the University of Michigan[viii] and the University of Washington Law Schools.[ix]
The anti-affirmative action sentiment has reached down to decisions involving secondary schools as well. The First Circuit includes Massachusetts, Puerto Rico, Rhode Island, New Hampshire, and Maine. The federal appeals court there held that affirmative action is not permissible in public high schools that use selective admissions criteria.[x] This court held that even if Justice Powell’s Bakke diversity rationale for race-based affirmative action was valid, it could not justify minority representation beyond a small threshold, perhaps under 15% for Blacks and Hispanics together. The long term implications of this decision for university admissions, if any, remain to be seen.
Law suits have not been the only means to attack race-based affirmative action programs.
In 1996, California voters approved Proposition 209 in a ballot referendum that made racial (and gender) preferences unlawful under the state constitution in public education, public employment or public contracting. The effects on racial diversity at the highly prestigious University of California at Berkeley law school, Boalt Hall, were even more astonishing than at the University of Texas. Black enrollment dropped 95%, with just one Black in the law class entering in 1997. Hispanic enrollment dropped 50%, and Native Americans 100%! [xi] Undergraduate admissions has been affected as well.
In Fall 1998, Washington became the second state to curtail affirmative action through a ballot referendum. The University of Washington ended its thirty year affirmative action program soon thereafter. In Florida this year, Governor Jeb Bush recently abolished affirmative action in state institutions as well.
The US Congress has so far resisted persistent efforts to ban affirmative action in all universities receiving federal funds. National legislation would obviate the need for the various individual law suits, state referenda and gubernatorial decisions abolishing affirmative action in specific states or regions. If such legislation passed, the only remedy for the supporters of affirmative action would then be to ask the Supreme Court to hold that the legislation was unconstitutional. Since the majority of the Court seems skeptical of, if not hostile to race-based affirmative action in the employment context, such a litigation strategy might have a high likelihood of failure in the education context as well. In 1997, civil rights advocates were so sure of the Supreme Court’s negative view on affirmative action in employment that they collectively fund raised several hundred thousand dollars to settle the case of a white female secondary school teacher alleging reverse discrimination. She had been laid off from her job in favor of a similarly hired Black teacher.[xii]
In conclusion, given the state of flux concerning affirmative action in legal education, what is permissible for schools to consider in admissions decisions? It is quite clear that programs can be designed to eliminate the present effects of past discrimination. As mentioned above, this option is not applicable to most law schools. Promoting racial diversity in the student body remains a legal rationale in most of the 50 states with the exception of California, Washington, Florida, Texas, Louisiana, and Mississippi. In all states, it remains permissible to consider the wide variety of nonraced-based criteria that many schools have traditionally used or want to consider for the first time. While some schools may select a portion of their class solely on grades and test scores, there can continue to be a certain portion that is selected based in part on other criteria. A law school’s application forms, personal essays and reference letters can request information about: career goals, extracurricular activities, class rank, alumni child status, home state, socioeconomic class, native language, athletic background, disability status, prior criminal record, military experience, age, employment, marital status, parenthood status, maturity, leadership potential, history of overcoming disadvantage, compassion, and interest in serving under served communities. Clearly some of these factors may give some disadvantaged minorities an opportunity to distinguish themselves from other applicants.
To meet the second prong of the strict scrutiny test, schools must show that their race-based affirmative action program is narrowly tailored to achieve its purpose. It can not be broader than the minimum required to achieve its goals. Thus schools must show that they considered and rejected plans with a narrower focus, that the plan will only be implemented for a limited time and be evaluated periodically, and that the program does not unreasonably harm rights of third parties. Thus the institution can not set a numerical quota or a goal that results in a de facto quota. There can not be a separate admissions committee to evaluate minorities . There can not be different numerical cut offs to admit minorities. In other words, every candidate must ultimately be reviewed against every other candidate.
Sources
There are literally thousands of books, articles, and reports on race-based affirmative action. For a sample related specifically to law schools, see generally Law School Admissions Council (LSAC), Preserving Access and Diversity in Law School Admissions–An Update (May 1998); LSAC, New Models to Assure Diversity, Fairness, and Appropriate Test Use in Law School Admissions (October 1999); Linda F. Wightman, The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admissions Decisions, 72 N. Y.U. L. Rev. 1 (1997). Also see Chuck R. Lawrence and Mari J. Matsuda, We Won’t Go Back (1996). For the largest study exploring the effects of race-based affirmative action in higher education, see William Bowen and Derek Bok, The Shape of the River: Long Term Consequences of Considering Race in College and University Admissions (1998). This study by the former presidents of Princeton and Harvard examined grades, test scores, graduation rates, and career choices of nearly 50,000 Black and white students at 28 prestigious schools and found that the Black recipients of affirmative action graduated at higher rates, and experienced higher rates of career success, and income than the Black national averages. Elimination of affirmative action would have a big effect on the minority enrollment, but only raise white applicant chances by 1.5 %.
Notes
[i]. Ruth Bader Ginsburg & Deborah Jones Merritt, Affirmative Action: An International Human Rights Dialogue, 1 Rutgers Race & L. Rev. 193, 211-12 (1999).
[ii]. See e.g. Adarand Constructors v. Pena, 515 US 200 (1995); City of Richmond v JA Croson, 488 US 46 (1989).
[iii]. United Nations Development Programme, Human Development Report 1995, at 22 (1995).
[iv]. An earlier suit involving a state law school’s affirmative action plan was dismissed as moot in De Funis v. Odegaard, 416 US 312 (1974). The plaintiff had almost graduated from school by the time the case was heard.
[v]. Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, 518 US 1033 (1996).
[vi]. For example, in 1994, the national average SAT scores by race and gender were: white men, 964; white women, 916; Black men, 747; Black women, 735; Mexican American men, 823; Mexican American women, 778. Fair Test/National Center for Fair and Open Testing, Gender Bias in College Admissions Tests (undated).
[vii]. Both the number and percentage of Black and Latino students attending segregated elementary and secondary schools is rising sharply. Gary Orfield et al., Deepening Segregation in American Public Schools: A Special Report of the Harvard Project on School Desegregation (1997).
[ix]. Smith v. University of Washington Law School, No. C-97-335(C)Z (WD WA filed March 5, 1997).
[x]. Weissman v. Gittens, 160 F.3d 790 (1st Cir. 1998).
[xi]. John Morris, Boalt Hall’s Affirmative Action Dilemma, Am. Lawyer, Nov. 1997, at 4, 7.
[xii]. Piscataway v. Taxman, 832 F. Supp. 836 (D.N.J. 1993), aff’d en banc, 91 F.3d 1547 (3d Cir. 1996), cert. granted, 521 US 1117, cert. dismissed, 522 US 1010 (1997).