Affirmative Action

Affirmative Action: Affirmative Action Cases in Higher Education

Affirmative action is defined as specific actions taken to eliminate the present effects of past discrimination or to prevent discrimination. As such, affirmative action plans have historically allowed policies to consider gender, race, ethnicity, or disability. Generally, affirmative action refers to hiring practices as well as to higher education recruitment and admissions practices. Typically, affirmative action policies involve granting some sort of preference in hiring or admissions to members of a minority group based on sex or race. This entry focuses on affirmative action relating to students in higher education.

Affirmative action in higher education has been extremely controversial. Critics believe that affirmative action is, in effect, reverse discrimination— so that by giving admissions preferences to members of the minority group, universities are discriminating against Caucasians. Other opponents contend that affirmative action programs benefit only students of color from middle- to upper-class backgrounds. Supporters argue that affirmative action prevents new discrimination and/or eliminates the negative effects of past or ongoing discrimination. In so doing, affirmative action programs in higher education address the education and economic gap between Caucasians and historically disadvantaged groups.

One of the most common arguments against affirmative action, or race-conscious admissions programs, is that they violate Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. According to Title VI, citizens should not be subject to discrimination on the grounds of race, color, or national origin in any program receiving federal financial assistance. The Equal Protection Clause ensures that the government provides equal protection of the laws to all and has been interpreted as meaning that the government should treat similar individuals in a similar manner. Thus, affirmative action admissions programs have typically been challenged by White plaintiffs who claim that such admissions programs violate the Equal Protection Clause, because minority applicants (similar individuals) are given a preference based upon race (dissimilar treatment).

Under equal protection analysis, when a court considers the constitutionality of a government action such as affirmative action in higher education, it must apply one of three standards: rational basis, mid-level review, and strict scrutiny. In higher education admissions cases, strict scrutiny, the highest standard of review used by the courts, is used.

Under strict scrutiny, government officials (whether federal or state) must first show that their decisions to treat people differently are justified not merely by a legitimate or important interest but by a compelling state interest. For example, in affirmative action admissions cases, courts first examine whether promoting diversity in higher education is a compelling governmental interest. If a court finds a governmental interest to be compelling, then it must explore whether the means chosen to obtain a diverse student body, through a race-conscious admissions program, are “narrowly tailored.” In order to be narrowly tailored, a raceconscious admissions plan may use race as a “plusfactor”— meaning that students can gain some additional credit based on their race but that it cannot be the deciding factor—but may not utilize a quota. For example, an admissions program must be flexible in considering several elements of diversity for each applicant rather than admitting an applicant based only on race or sex strictly to meet a quota. To be constitutional, a racial classification must satisfy both the compelling interest and narrowly tailored parts of strict scrutiny.

Suzanne E. Eckes

Further Readings

  • Ball, H. (2000). The Bakke case: Race, education, & affirmative action. Lawrence: University Press of Kansas.
  • Eckes, S. (2007). Affirmative action. In G. L. Anderson & K. G. Herr (Eds.), Encyclopedia of activism and social justice (Vol. 1, pp. 138–141). Thousand Oaks, CA: Sage.
  • Eckes, S. (2008). Grutter v. Bollinger. In C. J. Russo (Ed.), Encyclopedia of education law (Vol. 1, pp. 412–414). Thousand Oaks, CA: Sage.
  • Office of Affirmative Action, Equal Opportunity and Diversity. (n.d.). Glossary of affirmative actions terms. Retrieved April 21, 2009, from http://www.uri.edu/affirmative_action/definitions.html
  • Tribe, L. H. (1979). Perspectives on Bakke: Equal protection, procedural fairness, or structural justice? Harvard Law Review, 92, 864–877. 

Legal Citations

  • DeFunis v. Odegaard, 416 U.S. 312 (1974).
  • Gratz v. Bollinger, 539 U.S. 244 (2003).
  • Grutter v. Bollinger, 539 U.S. 306 (2003).
  • Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).
  • Johnson v. Board of Regents, 263 F.3d 1234 (11th Cir. 2001).
  • Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
  • Smith v. University of Washington Law School, 233 F.3d 1188 (9th Cir. 2000).
  • Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (1964).