Affirmative Action And Equal Protection In Higher Education

When federal courts have analyzed and addressed "affirmative action" in higher education, they have done so in two distinct but related senses, both under the Fourteenth Amendment's guarantee of "equal protection." The first has its roots in the original sense of "affirmative action: " the mandatory use of race by public education systems to eliminate the remnants of state-imposed racial segregation. Because state-sanctioned race segregation in public education violates the Fourteenth Amendment's Equal Protection Clause, in certain cases involving a state's formerly de jure segregated public university system, a state's consideration of race in its higher education policies and practices may be an affirmative obligation. As the U.S. Supreme Court explained in its consequential 1992 decision United States v. Fordice, equal protection may require states that formerly maintained de jure segregated university systems to consider race for the purpose of eliminating all vestiges of their prior "dual" systems. Drawing upon its precedent addressing racially segregated public schools in the K-12 context, the Court established a three-part legal standard in Fordice for evaluating the sufficiency and effectiveness of a state's efforts in "dismantl[ing]" its formerly de jure segregated public university system. To that remedial end, mandatory race-conscious measures-in this de jure context-are not limited to admissions. Instead, remedies may also address policies and practices relating to academic programs, institutional missions, funding, and other aspects of public university operations. Outside this de jure context, "affirmative action" has come to refer to a different category of race-conscious policies. These involve what the Court at one time called the "benign" use of racial classifications-voluntary measures designed not to remedy past de jure discrimination, but to help racial minorities overcome the effects of their earlier exclusion. And for institutions of higher education, the Court has addressed one type of affirmative action policy in particular: the use of race as a factor in admissions decisions, a practice now widely observed by both public and private colleges and universities. The federal courts have come to subject these voluntary race-conscious policies-"affirmative action" in its perhaps more familiar sense-to a particularly searching form of review known as strict scrutiny. And even though this heightened judicial scrutiny has long been regarded as strict in theory but fatal in fact, the Court's review of race-conscious admissions policies in higher education has proved a notable exception, with the Court having twice upheld universities' use of race as one of many factors considered when assembling their incoming classes. The Court has long grappled with this seeming tension-between the strictness of its scrutiny and its approval of race-conscious admissions policies-beginning with its landmark 1978 decision in Regents of the University of California v. Bakke through its 2016 decision in Fisher v. University of Texas. Though the Equal Protection Clause generally concerns public universities and their constitutional obligations under the Fourteenth Amendment, federal statutory law also plays a role in ensuring equal protection in higher education. To that end, Title VI of the Civil Rights Act of 1964 prohibits recipients of federal funding-including private colleges and universities-from, at a minimum, discriminating against students and applicants in a manner that would violate the Equal Protection Clause. Federal agencies, including the Departments of Justice and Education, investigate and administratively enforce institutions' compliance with Title VI.

Winner of the 1981-82 Joseph L. Andrews Bibliographical Award presented by the American Association of Law Librarians ...an excellent bibliography which addresses a very important contemporary issue. It deserves a place in the collections of large public libraries, law libraries, and most academic institutions. --RQ

The author concludes that the troubling issues of race and equality cannot be reduced to the easy categories of "right" versus "wrong."Affirmative action in college admissions, he argues, must ultimately be viewed in relation to other competing principles and in light of many practical problems.

More than three decades after the Supreme Court ruling in Regents of the University of California v. Bakke, the diversity rationale for affirmative action in public education remains a topic of political and legal controversy. Many colleges and universities have implemented affirmative action policies not only to remedy past discrimination, but also to achieve a racially and ethnically diverse student body or faculty. Justice Powell, in his opinion for the Bakke Court, stated that the attainment of a diverse student body is "a constitutionally permissible goal for an institution of higher education," noting that "[t]he atmosphere of 'speculation, experiment, and creation' so essential to the quality of higher education is widely believed to be promoted by a diverse student body." In subsequent years, however, federal courts began to question the Powell rationale, unsettling expectations about whether diversity-based affirmative action in educational admissions and faculty hiring is constitutional under the equal protection clause of the Fourteenth Amendment. After a series of conflicting lower court rulings were issued regarding the use of race to promote a diverse student body, the Supreme Court agreed to review the race-conscious admissions policies used by the undergraduate and law school admissions programs at the University of Michigan. In Grutter v. Bollinger, a 5 to 4 majority of the Justices held that the University Law School had a "compelling" interest in the "educational benefits that flow from a diverse student body," which justified its race-based efforts to assemble a "critical mass" of "underrepresented" minority students. But in the companion decision, Gratz v. Bollinger, six Justices decided that the University's policy of awarding "racial bonus points" to minority applicants was not "narrowly tailored" enough to pass constitutional scrutiny. The decisions resolved, for the time being, the doctrinal muddle left in Bakke's wake. And because the Court's constitutional holdings translate to the private sector under the federal civil rights laws, nonpublic schools, colleges, and universities are likewise affected. However, the Grutter and Gratz decisions did not address whether diversity is a permissible goal in the elementary and secondary educational setting. To resolve this question, the Supreme Court agreed to review two cases that involved the use of race to maintain racially diverse public schools and to avoid racial segregation. In a consolidated 2007 ruling in Parents Involved in Community Schools v. Seattle School District No. 1, the Court struck down the Seattle and Louisville school plans at issue, holding that they violated the equal protection guarantee of the Fourteenth Amendment. Meanwhile, the Court is poised to revisit the issue of affirmative action in higher education during the current 2012-2013 term. The case, Fisher v. University of Texas, involves an equal protection challenge to the undergraduate admissions plan at the University of Texas at Austin, which, in a stated effort to increase diversity, considers race as a factor when evaluating applicants to the school.

Traces the history of this divisive national issue, as reflected in the writings of key opinion makers and in public documents

Affirmative Action Matters focuses specifically on affirmative action policies in higher education admissions, the sphere that has been the most controversial in many of the nations that have such policies. It brings together distinguished scholars from diverse nations to examine and discuss the historical, political and philosophical contexts of affirmative action and clarify policy developments to further the meaningful equality of educational opportunity. This unique volume includes both well established and emerging policies from the Americas, Europe, Africa, and Asia, policies which developed under a variety of political systems and target a range of underrepresented groups, based on race, ethnicity, gender, class, social background, or region. Accessible and thought provoking case studies of affirmative action demonstrate that such policies are expanding to different countries and target populations. While some countries, such as India, have affirmative action policies that predate those in the United States, affirmative action is a recent development in countries such as Brazil and France. Legal or political pressures to move away from explicitly race-based policies in several countries have complicated affirmative action and make this assessment of international alternatives particularly timely. New or newly modified policies target a variety of disadvantaged groups, based on geography, class, or caste, in addition to race or sex. International scholars in six countries spanning five continents offer insights into their own countries’ experiences to examine the implications of policy shifts from race toward other categories of disadvantage, to consider best practices in student admission policies, and to assess the future of affirmative action.

Focuses on affirmative action and its impact on colleges and universities since its inception in 1965. Suggests different perspectives on and approaches to affirmative action and offers and presents various voices on the impact and philosophical implications of affirmative action.