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In the United States, affirmative action refers to equal opportunity employment measures that Federal contractors and subcontractors are legally required to adopt. These measures are intended to prevent discrimination against employees or applicants for employment on the basis of "color, religion, sex, or national origin". Examples of affirmative action offered by the United States Department of Labor include outreach campaigns, targeted recruitment, employee and management development, and employee support programs.
The impetus toward affirmative action is to redress the disadvantages associated with overt historical discrimination. Further impetus is a desire to ensure public institutions, such as universities, hospitals, and police forces, are more representative of the populations they serve. Affirmative action is a subject of controversy. Some policies adopted as affirmative action, such as racial quotas or gender quotas for collegiate admission, have been criticized as a form of reverse discrimination, and such implementation of affirmative action has been ruled unconstitutional by the majority opinion of Gratz v. Bollinger. Affirmative action as a practice was upheld by the court's decision in Grutter v. Bollinger.
The first appearance of the term ‘affirmative action’ was in the National Labor Relations Act, better known as the Wagner Act, of 1935.:15 Proposed and championed by U.S. Senator Robert F. Wagner of New York, the Wagner Act was in line with President Roosevelt’s goal of providing economic security to workers and other low-income groups. During this time period it was not uncommon for employers to blacklist or fire employees associated with unions. The Wagner Act allowed workers to unionize without fear of being discriminated against, and empowered a National Labor Relations Board to review potential cases of worker discrimination. In the event of discrimination, employees were to be restored to an appropriate status in the company through ‘affirmative action’. While the Wagner Act protected workers and unions it did not protect minorities, who, exempting the Congress of Industrial Organizations, were often barred from union ranks.:11 This original coining of the term therefore has little to do with affirmative action policy as it is seen today, but helps set the stage for all policy meant to compensate or address an individual’s unjust treatment.
FDR’s New Deal programs often contained equal opportunity clauses stating “no discrimination shall be made on account of race, color or creed”,:11 but the true forerunner to affirmative action was the Interior Secretary of the time, Harold L. Ickes. Ickes prohibited discrimination in hiring for Public Works Administration funded projects and oversaw not only the institution of a quota system, where contractors were required to employ a fixed percentage of Black workers, by Robert C. Weaver and Clark Foreman:12, but also the equal pay of women proposed by Harry Hopkins.:14FDR’s largest contribution to affirmative action, however, lay in his Executive Order 8802 which prohibited discrimination in the defense industry or government.:22 The executive order promoted the idea that if taxpayer funds were accepted through a government contract, then all taxpayers should have an equal opportunity to work through the contractor.:23–4 To enforce this idea, Roosevelt created the Fair Employment Practices Committee (FEPC) with the power to investigate hiring practices by government contractors.:22
Following the Sergeant Isaac Woodard incident, President Harry S. Truman, himself a veteran of World War I, issued Executive Order 9808 establishing the President’s Committee on Civil Rights to examine the violence and recommend appropriate federal legislation. Upon hearing of the incident, he turned to NAACP leader Walter White and declared, “My God! I had no idea it was as terrible as that. We’ve got to do something.” In 1947 the committee published its findings, To Secure These Rights. The book was widely read, influential, and considered utopian for the times: “In our land men are equal, but they are free to be different. From these very differences among our people has come the great human and national strength of America.” The report discussed and demonstrated racial discrimination in basic freedoms, education, public facilities, personal safety, and employment opportunities. The committee was disturbed by the state of race relations, and included the evacuation of Americans of Japanese descent during the war “made without a trial or any sort of hearing…Fundamental to our whole system of law is the belief that guilt is personal and not a matter of heredity or association.” The recommendations were radical, calling for federal policies and laws to end racial discrimination and bring about equality: “We can tolerate no restrictions upon the individual which depend upon irrelevant factors such as his race, his color, his religion, or the social position to which he is born.” To Secure These Rights set the liberal legislative agenda for the next generation that eventually would be signed into law by Lyndon Baines Johnson.
To Secure These Rights also called for desegregation of the armed forces. “Prejudice in any area is an ugly, undemocratic phenomenon, but in the armed services, where all men run the risk of death, it is especially repugnant.” The rational was fairness. “When an individual enters the service of the country, he necessarily surrenders some of the rights and privileges which inhere in American citizenship.” In return, the government “undertakes to protect his integrity as an individual.” Yet that’s was not possible in the Jim Crow army since “any discrimination which…prevents members of the minority groups from rendering full military service in defense of their country is for them a humiliating badge of inferiority.” Thus, the report called for an end to “all discrimination and segregation based on race, color, creed, or national origins in…all branches of the Armed Services.”
In 1947 he and his advisors came up with a plan for a large standing military, Universal Military Training, and presented it to Congress. The plan opposed all segregation in the new postwar armed forces: “Nothing could be more tragic for the future attitude of our people, and for the unity of our nation” than a citizens’ military that emphasized “class or racial difference.”
On February 2, 1948 President Truman delivered a special message to Congress. His message consisted of ten objectives that Congress should focus on when enacting legislation. Truman concluded his message saying, “If we wish to inspire the peoples of the world whose freedom is in jeopardy, if we wish to restore hope to those who have already lost their civil liberties, if we wish to fulfill the promise that is ours, we must correct the remaining imperfections in our practice of democracy.”
In June, Truman became the first president to address the NAACP. His speech was a significant departure from traditional race relations in the United States. In front of 10,000 at the Lincoln Memorial, the president left no doubt how he stood on civil rights: America had “reached a turning point in the long history of our country’s efforts to guarantee freedom and equality to all our citizens…Each man must be guaranteed equality of opportunity.” He then proposed what black citizens had been calling for-an enhanced role of the federal authority through the states. “We must make the Federal government a friendly, vigilant defender of the rights and equalities of all Americans. And again I mean all Americans.”
On July 26, Truman mandated the end of hiring and employment discrimination in the federal government, reaffirming FDR’s order of 1941. Truman issued two executive order on July 26, 1948: Executive Order 9980 and Executive Order 9981. Executive Order 9980, named Regulations Governing for Employment Practices within the Federal Establishment, instituted fair employment practices in the civilian agencies of the federal government. The order created the position of Fair Employment Officer. The order “established in the Civil Service Commission a Fair Employment Board of not less than seven persons.” Executive Order 9981, named Establishing the President’s Committee on Equality of Treatment and Opportunity in the Armed Services, called for the integration of the armed forces and the creation of the National Military Establishment to carry out the executive order.
On December 3, 1951 Truman issued Executive Order 10308, named Improving the Means for Obtaining Compliance with the Nondiscrimination Provisions of Federal Contracts, which established an anti-discrimination committee on government contract compliance responsible for ensuring that employers doing business with the federal government comply with all laws and regulations enacted by Congress and the committee on the grounds of discriminatory practices.
When Eisenhower was elected President in 1952, he believed hiring practices and anti discrimination laws should be decided by the states, although the administration gradually continued to desegregate the armed forces and the federal government. :50 The President also established the Government Contract Committee in 1953, which “conducted surveys of the racial composition of federal employees and tax-supported contractors”.:50-51 The committee, chaired by Vice President Richard Nixon, had minimal outcomes in that they imposed the contractors with the primary responsibility of desegregation within their own companies and corporations.:51
In the 1960 presidential election, democratic candidate and future President John F. Kennedy “criticized President Eisenhower for not ending discrimination in federally supported housing” and “advocated a permanent Fair Employment Practices Commission”.:59 Shortly after taking office, Kennedy issued Executive Order 10925 in March 1961, requiring government contractors to “consider and recommend additional affirmative steps which should be taken by executive departments and agencies to realize more fully the national policy of nondiscrimination…. The contractor will 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”.:60 The order also established the President’s Committee on Equal Employment Opportunity (PCEEO), chaired by Vice President Lyndon Johnson. Federal contractors who failed to comply or violated the executive order were punished by contract cancellation and the possible debarment from future government contracts. The administration was “not demanding any special preference or treatment or quotas for minorities” but was rather “advocating racially neutral hiring to end job discrimination”.:61 Turning to issues of women’s rights, Kennedy initiated a Commission on the Status of Women in December 1961. The commission was charged with “examining employment policies and practices of the government and of contractors” with regard to sex.:66
In June 1963, President Kennedy continued his policy of affirmative action by issuing another mandate, Executive Order 11114. The order supplemented to his previous 1961 executive order declaring it was the “policy of the United States to encourage by affirmative action the elimination of discrimination in employment”.:72 Through this order, all federal funds, such as “grants, loans, unions and employers who accepted taxpayer funds, and other forms of financial assistance to state and local governments,” were forced to comply to the government’s policies on affirmative action in employment practices.:72
Lyndon B. Johnson, the Texan Democrat and Senate Majority Leader from 1955–1961, began to consider running for high office, and in doing so showed how his differing racial views from the traditional South. In 1957, Johnson brokered a civil rights act through Congress. The bill established a Civil Rights Division and Commission in the Justice Department. The commission was empowered to investigate allegations of minority deprivation of rights.
The first time “affirmative action” is used by the federal government concerning race is in President John F. Kennedy’s Executive Order 10925, which was chaired by Vice President Johnson. At Johnson’s inaugural ball in Texas, he met with a young black lawyer, Hobart Taylor Jr., and gave him the task to co-author the executive order. He wanted a phrase that “gave a sense of positivity to performance under the order.” He was torn between the words “positive action” and “alliterative action,” and selected the later due to its alliterative quality. The term “active recruitment” started to be used as well. This order, albeit heavily worked up as a significant piece of legislation, in reality carried little actual power. The scope was limited to a couple hundred defense contractors, leaving nearly $7.5 billion in federal grants and loans unsupervised.
As we’ll see later, the administration’s early 1960s definition of affirmative action, one stipulating recruitment “without regard to race, color, or creed,” will posed problems for liberal supporters. How can you demand affirmative action for one group (African-Americans) while at the same time demanding no special treatment for minorities? This is a dilemma that brought major opposition with it over the next four decades.
NAACP had many problem’s with JFK’s “token” proposal. They wanted jobs. One day after the order took effect, NAACP labor secretary Herbert Hill filed complaints against the hiring and promoting practices of Lockheed Aircraft Corporation. Lockheed was doing business with the defense department on the first billion-dollar contract. Due to taxpayer-funding being 90% of Lockheed’s business, along with disproportionate hiring practices, black workers charged Lockheed with “overt discrimination.” Lockheed signed an agreement with Vice President Johnson that pledged an “aggressive seeking out for more qualified minority candidates for technical and skill positions. This agreement was the administration’s model for a “plan of progress.” Johnson and his assistants soon pressured other defense contractors, including Boeing and General Electric, to sign similar voluntary agreements indicating plans for progress. However, these plans were just that, voluntary. Many corporations in the South, still afflicted with Jim Crow, largely ignored the federal recommendations.
This eventually led to LBJ’s Civil Rights Act, which came shortly after President Kennedy’s assassination. This document was more holistic than any President Kennedy had offered, and therefore more controversial. It aimed not only to integrate public facilities, but also private businesses that sold to the public, such as motels, restaurants, theaters, and gas stations. Public schools, hospitals, libraries, parks, among other things, were included in the bill as well. It also worked with JFK’s executive order 11114 by prohibiting discrimination in the awarding of federal contracts and holding the authority of the government to deny contracts to businesses who discriminate. Maybe most significant of all, Title VII of the Civil Rights Act aimed to end discrimination in all firms with 25 or more employees. Another provision established the Equal Employment Opportunity Commission as the agency charged with ending discrimination in the nation’s workplace.
Title VII was perhaps the most controversial of the entire bill. Many conservatives accused it of advocating of a quota system, and claimed unconstitutionality as it attempts to regulate the workplace. Minnesota Senator Hubert H. Humphrey corrected this notion: “there is nothing in [Title VII] that will give power to the Commission to require hiring, firing, and promotion to meet a racial ‘quota.’ [. . .] Title VII is designed to encourage the hiring on basis of ability and qualifications, not race or religion.” Title VII prohibits discrimination. Humphrey was the silent hero of the bill’s passing through Congress. He pledged that the bill required no quotas, just nondiscrimination. Doing so, he convinced many pro-business Republicans, including Senate Minority Leader Everett Dirksen (IL) to support Title VII.
Finally, on July 2, 1964, democracy triumphed, and the Act was signed into law by President Johnson. The CRA had profound significance. It showed that the federal government could rectify past injustices, no matter how deeply-entrenched into society these behaviors were. A Harris poll that spring showed 70% citizen approval of the Act. After 250 years of slavery, and a hundred years of Jim Crow, racial discrimination was no longer considered fair in the “Land off the Free."
The strides that the Johnson presidency made in ensuring equal opportunity in the workforce were further picked up by his successor Nixon. In 1969 the Nixon administration Initiated the “Philadelphia Order”. It was regarded as the most forceful plan thus far to guarantee fair hiring practices in construction jobs. Philadelphia was selected as the test case because, as assistant secretary of labor Arthur Fletcher explained, "The craft unions and the construction industry are among the most egregious offenders against equal opportunity laws . . . openly hostile toward letting blacks into their closed circle." The order included definite "goals and timetables." As President Nixon asserted, "We would not impose quotas, but would require federal contractors to show 'affirmative action' to meet the goals of increasing minority employment."
It was through the Philadelphia Plan that the Nixon administration formed their adapted definition of affirmative action and became the official policy of the US government. The plan was defined as “racial goals and timetables, not quotas”:124
After the Nixon administration advancements in affirmative action became less prevalent. “During the brief Ford administration, affirmative action took a back seat, while enforcement stumbled along.”:145 Equal rights was still an important subject to many Americans, yet the world was changing and new issues were being raised. People began to look at affirmative action as a glorified issue of the past and now there were other areas that needed focus. “Of all the triumphs that have marked this as America’s Century –...none is more inspiring, if incomplete, than our pursuit of racial justice.”
In the first half of the twentieth century segregation was considered fair and normal. Fortunately because of changes made in American society and governmental policies the United States is past the traditional assumptions of race relations.:275 Affirmative action has gone a long way to changing the definition of fairness and equality in America. The concept and application of affirmative action has developed since its inception, though its motivation remains the same.
“Affirmative action is a national policy that concerns the way Americans feel about race, past discrimination, preferences, merit – and about themselves. This is why it is an American dilemma, and that is why we much understand how it developed and hot its rationale and definition have changed since the 1960’s.”:283
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In the beginning, racial classifications that identified race were inherently suspect and subject to strict scrutiny. These classifications would only be upheld if necessary to promote a compelling governmental interest. Later the U.S. Supreme Court decided that racial classifications that benefited underrepresented minorities were to only be upheld if necessary and promoted a compelling governmental purpose. (See Richmond v. J.A. Croson Co.) There is no clear guidance about when government action is not "compelling", and such rulings are rare.
In 2010 Arizona voters passed a constitutional ban on government-sponsored affirmative action known as Proposition 107.
Ricci v. DeStefano was heard by the United States Supreme Court in 2009. The case concerns white and Hispanic firefighters in New Haven, Connecticut, who upon passing their test for promotions to management were denied the promotions, allegedly because of a discriminatory or at least questionable test. The test gave 17 whites and two Hispanics the possibility of immediate promotion. Although 23% of those taking the test were African American, none scored high enough to qualify. Because of the possibility the tests were biased in violation of Title VII of the Civil Rights Act, no candidates were promoted pending outcome of the controversy. In a split 5-4 vote, the Supreme Court ruled that New Haven had engaged in impermissible racial discrimination against the White and Hispanic majority.
As of January 1, 2012, affirmative action is not allowed in college admissions and employment.
During November 6, 2012 election poll, majority of Oklahoma voters voted 'yes' to Oklahoma Affirmative Action Ban Amendment which will end affirmative action in college admissions and employment.
President Kennedy stated in Executive Order 10925 that "discrimination because of race, creed, color, or national origin is contrary to the Constitutional principles and policies of the United States"; that "it is the plain and positive obligation of the United States Government to promote and ensure equal opportunity for all qualified persons, without regard to race, creed, color, or national origin, employed or seeking employment with the Federal Government and on government contracts"; that "it is the policy of the executive branch of the Government to encourage by positive measures equal opportunity for all qualified persons within the Government"; and that "it is in the general interest and welfare of the United States to promote its economy, security, and national defense through the most efficient and effective utilization of all available manpower".
Some individual American states also have orders that prohibit discrimination and outline affirmative action requirements with regard to race, creed, color, religion, sexual orientation, national origin, gender, age, and disability status.
Proponents of affirmative action argue that by nature the system is not only race based, but also class and gender based. To eliminate two of its key components would undermine the purpose of the entire system. The African American Policy Forum believes that the class based argument is based on the idea that non-poor minorities do not experience racial and gender based discrimination. The AAPF believes that "Race-conscious affirmative action remains necessary to address race-based obstacles that block the path to success of countless people of color of all classes". The groups goes on to say that affirmative action is responsible for creating the African American middle class, so it does not make sense to say that the system only benefits the middle and upper classes.
A study conducted at the University of Chicago in 2003 found that people with "black-sounding" names such as Lakisha and Jamal are 50 percent less likely to be interviewed for a job compared to people with "white-sounding" names such as Emily or Greg.
A recent study by Deirdre Bowen tested many of the arguments used by the anti-affirmative action camp. Her research showed that minority students experience greater hostility, and internal and external stigma in schools located in states that ban affirmative action—not the schools where students may have benefited from affirmative action admissions.
There are a multitude of supporters as well as opponents to the policy of affirmative action. Many presidents throughout the last century have failed to take a very firm stance on the policy, and the public has had to discern the president’s opinion for themselves. Bill Clinton, however, made his stance on affirmative action very clear in a speech on July 19th, 1995, nearly two and a half years after his inauguration. In his speech, he discussed the history in the United States that brought the policy into fruition: slavery, Jim Crow, and segregation. Clinton also mentioned a point similar to President Lyndon B. Johnson’s “Freedom is not Enough” speech, and declared that just outlawing discrimination in the country would not be enough to give everyone in America equality. He addressed the arguments that affirmative action hurt the white middle class and said that the policy was not the source of their problems. Clinton plainly outlined his stance on affirmative action, saying:
“Let me be clear about what affirmative action must not mean and what I won’t allow it to be. It does not mean – and I don’t favor – the unjustified preference of the unqualified over the qualified of any race or gender. It doesn’t mean – and I don’t favor – numerical quotas. It doesn’t mean – and I don’t favor – rejection or selection of any employee or student solely on the basis of race or gender without regard to merit…”
In the end, Clinton stated that all the evidence shows that, even though affirmative action should be a temporary policy, the time had not come for it to be ended. He felt it was still a relevant practice and overall, the goal of the nation should be to “mend it, but don’t end it.” Clinton’s words became a slogan for many Americans on the topic of affirmative action, and he had made his stance on the topic crystal clear.
Affirmative action has been the subject of numerous court cases, where it is often contested on constitutional grounds. Some states specifically prohibit affirmative action, such as California (Proposition 209), Washington (Initiative 200), Michigan (Michigan Civil Rights Initiative), and Nebraska (Nebraska Civil Rights Initiative).
Richard Sander claims that by artificially elevating minority students into schools they otherwise would not be capable of attending, this discourages them and tends to engender failure and high dropout rates for these students. He claims that the supposed "beneficiaries" of affirmative action – minorities – do not actually benefit and rather are harmed by the policy.
The controversy surrounding affirmative action’s effectiveness is based on the idea of class inequality. Opponents of racial affirmative action argue that the program actually benefits middle- and upper-class African Americans and Hispanic Americans at the expense of lower-class European Americans and Asian Americans. This argument supports the idea of solely class-based affirmative action. America’s poor is disproportionately made up of people of color, so class-based affirmative action would disproportionately help people of color. This would eliminate the need for race-based affirmative action as well as reducing any disproportionate benefits for middle- and upper-class people of color.
|Overall Acceptance Rate||Black Acceptance Rate||% Difference|
In 1976, a group of Italian American professors at City University of New York asked to be added as an affirmative action category for promotion and hiring. Italian Americans are usually considered white in the US and would not be covered under affirmative action policies, but the professors believed they were underrepresented.
A 2005 study by Princeton sociologists Thomas J. Espenshade and Chang Y. Chung compared the effects of affirmative action on racial and special groups at three highly selective private research universities. The data from the study represent admissions disadvantage and advantage in terms of SAT points (on the old 1600-point scale):
In 2009, Princeton sociologist Thomas Espenshade and researcher Alexandria Walton Radford, in their book No Longer Separate, Not Yet Equal, examined data on students applying to college in 1997 and calculated that Asian-Americans needed nearly perfect SAT scores of 1550 to have the same chance of being accepted at a top private university as whites who scored 1410 and African Americans who got 1100. After controlling for grades, test scores, family background (legacy status), and athletic status (whether or not the student was a recruited athlete), whites were three times, Hispanics six times, and blacks more than 15 times as likely to be accepted at a US university as Asian Americans.
Some opponents of affirmative action, like Ward Connerly, call it reverse discrimination, saying affirmative action requires the very discrimination it is seeking to eliminate. According to these opponents, this contradiction might make affirmative action counter-productive. Other opponents say affirmative action causes unprepared applicants to be accepted in highly demanding educational institutions or jobs which result in eventual failure. (See, for example, Richard Sander's study of affirmative action in Law School, bar exam and eventual performance at law firms). Other opponents say that affirmative action lowers the bar and so denies those who strive for excellence on their own merit and the sense of real achievement. (See, for example, Clarence Thomas's "My Grandfather's Son: A Memoir".) Some argue that affirmative action itself has some merit when it is targeted to true causes of social deprivation such as poverty but that race-, ethnicity-, or gender-based affirmative action is misguided.
Some opponents further claim that affirmative action has undesirable side-effects and that it fails to achieve its goals. They argue that it hinders reconciliation, replaces old wrongs with new wrongs, undermines the achievements of minorities, and encourages groups to identify themselves as disadvantaged, even if they are not. It may increase racial tension and benefit the more privileged people within minority groups at the expense of the disenfranchised within better-off groups (such as lower-class whites and Asians). There has recently been a strong push among American states to ban racial or gender preferences in university admissions, in reaction to the controversial and unprecedented decision in Grutter v. Bollinger. In 2006, nearly 60% of Michigan voters decided to ban affirmative action in university admissions. Michigan joined California, Florida, Texas, and Washington in banning the use of race or sex in admissions considerations. Some opponents believe, among other things, that affirmative action devalues the accomplishments of people who belong to a group it's supposed to help, therefore making affirmative action counter-productive.
Conservative Supreme Court Justice Clarence Thomas, the only current black Justice, opposes affirmative action. He believes the Equal Protection Clause of the Fourteenth Amendment forbids consideration of race, such as race-based affirmative action or preferential treatment. He also believes it creates "a cult of victimization" and implies blacks require "special treatment in order to succeed". Thomas also cites his own experiences of affirmative action programs as a reason for his criticism.
Frederick Lynch, the author of Invisible Victims: White Males and the Crisis of Affirmative Action, did a study on white males that said they were victims of Template:Reverse discrimination. Lynch explains that these white men felt Template:Frustrated and unfairly victimized by affirmative action. Shelby Steele, another author against affirmative action, wanted to see affirmative action go back to its original meaning of enforcing equal opportunity. He argued that blacks had to take full responsibility in their education and in maintaining a job. Steele believes that there is still a long way to go in America to reach our goals of eradicating discrimination.
Terry Eastland, the author who wrote From Ending Affirmative Action: The Case for Colorblind Justice states, “Most arguments for affirmative action fall into two categories: remedying past discrimination and promoting diversity”.  Eastland believes that the founders of affirmative action did not anticipate how the benefits of affirmative action would go to those who did not need it, mostly middle class minorities. Additionally, she argues that affirmative action carries with it a stigma that can create feelings of self-doubt and entitlement in minorities. Eastland believes that affirmative action is a great risk that only sometimes pays off, and that without it we would be able to compete more freely with one another. Libertarian economist Thomas Sowell identified what he says are negative results of affirmative action in his book, Affirmative Action Around the World: An Empirical Study. Sowell writes that affirmative action policies encourage non-preferred groups to designate themselves as members of preferred groups [i.e., primary beneficiaries of affirmative action] to take advantage of group preference policies; that they tend to benefit primarily the most fortunate among the preferred group (e.g., upper and middle class blacks), often to the detriment of the least fortunate among the non-preferred groups (e.g., poor white or Asian); that they reduce the incentives of both the preferred and non-preferred to perform at their best – the former because doing so is unnecessary and the latter because it can prove futile – thereby resulting in net losses for society as a whole; and that they engender animosity toward preferred groups as well.
In the US, a prominent form of racial preferences relates to access to education, particularly admission to universities and other forms of higher education. Race, ethnicity, native language, social class, geographical origin, parental attendance of the university in question (legacy admissions), and/or gender are sometimes taken into account when the university assesses an applicant's grades and test scores. Individuals can also be awarded scholarships and have fees paid on the basis of criteria listed above. In 1978, the Supreme Court ruled in Bakke v. Regents that public universities (and other government institutions) could not set specific numerical targets based on race for admissions or employment. The Court said that "goals" and "timetables" for diversity could be set instead.
The racial preferences debate related to admission to US colleges and universities reflects competing notions of the mission of colleges: "To what extent should they pursue scholarly excellence, to what extent civic goods, and how should these purposes be balanced?". Scholars such as Ronald Dworkin have asserted that no college applicant has a right to expect that a university will design its admissions policies in a way that prizes any particular set of qualities. In this view, admission is not an honor bestowed to reward superior merit but rather a way to advance the mission as each university defines it. If diversity is a goal of the university and their racial preferences do not discriminate against applicants based on hatred or contempt, then affirmative action can be judged acceptable based on the criteria related to the mission the university sets for itself.
Consistent with this view, admissions officers often claim to select students not based on academic record alone but also on commitment, enthusiasm, motivation, and potential. Highly selective institutions of higher learning do not simply select only the highest SAT performers to populate their undergraduate courses, but high performers, with scores of 2250 to 2400 points, are extraordinarily well-represented at these institutions.
During a panel discussion at Harvard University's reunion for African American alumni during the 2003–04 academic year, two prominent black professors at the institution—Lani Guinier and Henry Louis Gates—pointed out an unintended effect of affirmative action policies at Harvard. They stated that only about a third of black Harvard undergraduates were from families in which all four grandparents were born into the African American community. The majority of black students at Harvard were Caribbean and African immigrants or their children, with some others the mixed-race children of biracial couples. One Harvard student, born in the South Bronx to a black family whose ancestors have been in the United States for multiple generations, said that there were so few Harvard students from the historic African American community that they took to calling themselves "the descendants" (i.e., descendants of American slaves). The reasons for this underrepresentation of historic African Americans, and possible remedies, remain a subject of debate.
UCLA professor Richard H. Sander published an article in the November 2004 issue of the Stanford Law Review that questioned the effectiveness of racial preferences in law schools. He noted that, prior to his article, there had been no comprehensive study on the effects of affirmative action. The article presents a study that shows that half of all black law students rank near the bottom of their class after the first year of law school and that black law students are more likely to drop out of law school and to fail the bar exam. The article offers a tentative estimate that the production of new black lawyers in the United States would grow by eight percent if affirmative action programs at all law schools were ended. Less qualified black students would attend less prestigious schools where they would be more closely matched in abilities with their classmates and thus perform relatively better. Sander helped to develop a socioeconomically-based affirmative action plan for the UCLA School of Law after the passage of Proposition 209 in 1996, which prohibited the use of racial preferences by public universities in California. This change occurred after studies showed that the graduation rate of blacks at UCLA was 41%, compared to 73% for whites.
To accommodate the ruling in Hopwood v. Texas banning any use of race in school admissions, the State of Texas passed a law guaranteeing entry to any state university if a student finished in the top 10% of their graduating class. Florida and California have also replaced racial quotas with class rank and other criteria. Class rank tends to benefit top students at less competitive high schools, to the detriment of students at more competitive high schools. This effect, however, may be intentional since less-funded, less competitive schools are more likely to be schools where minority enrollment is high. Critics argue that class rank is more a measure of one's peers than of one's self. The top 10% rule adds racial diversity only because schools are still highly racially segregated because of residential patterns. The class rank rule has the same consequence as traditional affirmative action: opening schools to students who would otherwise not be admitted had the given school used a holistic, merit-based approach. From 1996 to 1998, Texas had merit-based admission to its state universities, and minority enrollment dropped. The state's adoption of the "top 10 percent" rule returned minority enrollment to pre-1996 levels.
In 2006, Jian Li, a Chinese undergraduate at Yale University, filed a civil rights complaint with the Office for Civil Rights against Princeton University, claiming that his race played a role in their decision to reject his application for admission and seeking the suspension of federal financial assistance to the university until it "discontinues discrimination against Asian Americans in all forms" by eliminating race and legacy preferences. Princeton Dean of Admissions Janet Rapelye responded to the claims in the November 30, 2006, issue of the Daily Princetonian by stating that "the numbers don't indicate [discrimination]." She said that Li was not admitted because "many others had far better qualifications." Li's extracurricular activities were described as "not all that outstanding". Li countered in an email, saying that his placement on the waitlist undermines Rapelye's claim. “Princeton had initially waitlisted my application,” Li said. “So if it were not for a yield which was higher than expected, the admissions office very well may have admitted a candidate whose "outside activities were not all that outstanding".
A study in 2007 by Mark Long, an economics professor at the University of Washington, demonstrated that the alternatives of affirmative action proved ineffective in restoring minority enrollment in public flagship universities in California, Texas, and Washington. More specifically, apparent rebounds of minority enrollment can be explained by increasing minority enrollment in high schools of those states, and the beneficiaries of class-based (not race) affirmative action would be white students. At the same time, affirmative action itself is both morally and materially costly: 52 percent of white populace (compared to 14 percent of black) thought it should be abolished, implying white distaste of using racial identity, and full-file review is expected to cost the universities an additional $1.5 million to $2 million per year, excluding possible cost of litigation.
In 2012, Abigail Fisher, an undergraduate student at Louisiana State University, and Rachel Multer Michalewicz, a law student at Southern Methodist University, filed a lawsuit to challenge the University of Texas admissions policy, asserting it had a "race-conscious policy" that "violated their civil and constitutional rights". The University of Texas employs the "Top Ten Percent Law", under which admission to any public college or university in Texas is guaranteed to high school students who graduate in the top ten percent of their high school class. Fisher has brought the admissions policy to court because she believes that she was denied acceptance to the University of Texas based on her race, and thus, her right to equal protection according to the 14th Amendment was violated. The Supreme Court heard oral arguments in Fisher on October 10, 2012, and rendered a ruling in 2013 rendered the University's policy unconstitutional because there were race-neutral factors available, holding that the Fourteenth Amendment was designed to eliminate racial barriers, not perpetuate them.