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Last Updated: July 29, 2013

Affirmative Action: Are affirmative action programs necessary to make up for past discrimination?

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Introduction

SUPPORTERS ARGUE

Affirmative action allows universities and other organizations to maintain diversity, which helps break down racial barriers and better reflects an integrated world. Affirmative action is also necessary to "level the playing field" for minority groups following centuries of discrimination. Ending affirmative action programs would halt some of the advances that minorities have made.

OPPONENTS ARGUE

Affirmative action merely turns the tide of discrimination against nonminorities and worsens race relations in the country. It is unfair and unconstitutional to give people systematic preference based on the color of their skin or their gender. Furthermore, affirmative action actually threatens to hurt minorities, by leaving their academic and professional achievements open to question.

Issues and Controversies: Line for Affirmative Action Case Fisher v. University of Texas

Jeff Malet Photography/Newscom

Visitors line up to enter the Supreme Court building on October 10, 2012, the day that the Court was to hear arguments in the affirmative action case Fisher v. University of Texas.

In June 2013, the U.S. Supreme Court issued a 7–1 decision in the first major affirmative action case it had considered in a decade. The case, Fisher v. University of Texas, involved the admissions process at the University of Texas in Austin, which automatically accepted students who were in the top 10 percent of their high school classes, but considered race in the second round of acceptances. Abigail Fisher, a white applicant who had been denied admission to the school, alleged that the university's consideration of race was unconstitutional under the equal protections clause of the Fourteenth Amendment to the U.S. Constitution, which guarantees every person "the equal protection of the laws."

Avoiding a sweeping ruling with immediate repercussions for affirmative action programs, the justices instead sent the case back to a lower court for reconsideration, stating that the U.S. Fifth Circuit Court of Appeals in New Orleans had failed to rigorously examine the university's policy using standards set out in previous Supreme Court decisions. Both opponents and supporters of affirmative action claimed the ruling as a victory.

Affirmative action programs are initiatives meant to encourage diversity in classrooms and workplaces while increasing opportunities for minority group members and women. Affirmative action allows university admissions officials or employers to take race, ethnicity, or gender into account when they make admission or hiring decisions. But the practice has been controversial, sparking a debate over how to find the balance between helping traditionally disadvantaged groups and ensuring that discrimination does not tilt in the other direction, against nonminorities.

The federal government first took steps to ensure equal employment opportunities for members of minority groups during the civil rights movement in the 1960s. Since then, affirmative action programs have expanded to include women, Hispanics, and others, and have been instituted in other sectors, including higher education and the military. Such programs have included encouraging more minorities to apply for positions, giving preference to minority applications, and setting aside a certain number of slots for minorities, although these so-called racial quotas have been declared unconstitutional by the Supreme Court.

Affirmative action started as a means of restitution for generations of discrimination against African Americans. The academic and professional progress of black Americans since the launch of such programs has been fairly solid. According to the Christian Science Monitor, in 1978 black Americans made up 11.5 percent of the population, but only 1.2 percent of lawyers and judges, 2 percent of physicians, and 2.6 percent of college and university professors. By 2003, the black population's ratio was largely unchanged—12 percent—but comprised 5.1 percent of lawyers and judges, 5.6 percent of physicians, and 6.1 percent of college and university professors. But progress in other areas—such as the ratio of black to white families under the poverty line and the unemployment rate for blacks compared to whites—has lagged.

While supporters contend that the continuation of affirmative action is necessary to achieve further socioeconomic equality between the races, opponents have long argued that affirmative action is unfair, and that it encourages so-called reverse discrimination—discrimination against whites and men. "Affirmative action policies are controversial because they pit two fundamental principles against each other," Richard Kahlenberg, a senior fellow at the progressive think tank the Century Foundation, explains in a 2010 New York Times article, "the anti-discrimination principle, which says we should not classify people by ancestry, and the anti-subordination principle, which says we must address a brutal history of discrimination."

The Supreme Court last issued a major ruling on affirmative action in 2003 in the case Grutter v. Bollinger, when it upheld an affirmative action admissions policy used by the University of Michigan Law School. In the majority decision, Justice Sandra Day O'Connor wrote that affirmative action admissions policies in education encourage diversity at schools, which enhances the academic experience for all students. O'Connor warned, however, that affirmative action should be only a temporary solution, stating: "The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

Many judicial analysts awaiting the 2013 Fisher ruling had predicted that the Supreme Court, now more conservative, might overturn Grutter, revoking its approval for affirmative action admissions policies and potentially reducing the number of African-American and Hispanic students admitted to college. Although the Court refrained from such a landmark decision, analysts noted that its ruling in Fisher will likely spur more court challenges against similar affirmative action admissions policies across the country.

The debate over affirmative action has left countless employers and university officials struggling with some key questions: Can employers and universities walk the fine line between encouraging opportunity for members of minority groups and engaging in reverse discrimination? Are affirmative action programs necessary to level the playing field for minorities and right a history of discrimination, or are such programs the wrong solution to a still pressing problem?

Supporters of affirmative action argue that race- and gender-conscious policies are the most effective ways to encourage equality, and that it is simply too soon to sound the death knell for affirmative action. Troubling gaps between minorities and whites persist in educational and occupational achievement, they contend, and ending affirmative action will ensure that those disparities remain in place and could even eliminate some of the advances that minorities and women have achieved. State universities that have done away with their affirmative action programs have experienced declines in minority-student enrollments, which supporters insist is a setback not only for the students but also for the universities themselves.

Opponents of affirmative action, however, contend that such programs actually harm minorities and race relations in general. Opponents argue that they do not oppose diversity, but they think it is unfair to give people systematic preferences based simply on the color of their skin or their gender. Many critics claim that there are fairer ways to achieve diversity without engaging in what they regard as reverse discrimination. Opponents argue that such policies violate both the equal protection clause of the Fourteenth Amendment to the U.S. Constitution and the Civil Rights Act of 1964. In addition, some maintain, affirmative action effectively tells minorities that they are not good enough to compete on their own, which can harm their self-esteem and their motivation to succeed.

The History of Affirmative Action

Affirmative action emerged as a result of the civil rights movement of the 1950s and 1960s, when African Americans fought for integration and equal treatment in the United States after centuries of racism, discrimination, and oppression. The term "affirmative action" was first used in 1961, in an executive order signed by President John F. Kennedy (D, 1961–63) encouraging federal contractors to voluntarily "take affirmative action to ensure that applicants are employed…without regard to race, creed, color, or national origin," a charge later monitored by the U.S. Labor Department. 

The principle of equal opportunity was further enshrined in the 1964 Civil Rights Act, a landmark law that banned discrimination based on race, sex, religion, or national origin in schools, the workplace, and public accommodations. The act applied both to federal and private-sector employees. While opponents of affirmative action later used laws such as the Civil Rights Act as a basis for opposing the practice, most affirmative action policies and civil rights laws were initially intended to put an end to decades of institutionalized discrimination against blacks that had blocked their economic and educational advancement in American society.

In 1965, President Lyndon Johnson (D, 1963–69) established affirmative action as government policy when he signed Executive Order 11246 creating the Office of Federal Contract Compliance Programs. The order required government contractors to take "affirmative action" to increase the hiring of minority group members.

Affirmative action programs spread throughout the 1960s as some colleges and universities began to actively recruit African-American students. At the time, a minuscule percentage of blacks attended college, and very few attended law or medical schools. To change this, some private employers also implemented affirmative action programs, even though only government contractors were required by law to adopt such measures. Many companies came to regard a diverse workforce as a competitive advantage, as well as a way to burnish their public image and avoid becoming the target of discrimination lawsuits.

In a commencement speech at Howard University in Washington, D.C., in 1965, President Johnson discussed the importance of affirmative action for remedying past discrimination against minority group members. "You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, 'you are free to compete with all the others,' and still justly believe you have been completely fair," he said. "Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates." [See Johnson Addresses Inequality of Opportunity in Howard University Commencement Address (sidebar)]

During the 1970s, a backlash against affirmative action developed as critics, largely white males, argued that they were being denied opportunities in favor of minorities and women whom they claimed were less qualified. Legal challenges eventually reached the Supreme Court, which in 1978 issued a landmark ruling on affirmative action in Regents of the University of California v. Bakke. Allan Bakke, a white man, filed a lawsuit against a California medical school that had twice rejected his application. The school had used a quota system in which it set aside 16 of its 100 slots for members of minority groups. Bakke claimed that he was denied admission because of his race, a violation of the Fourteenth Amendment's equal protection clause, which mandates that no state shall "deny to any person within its jurisdiction the equal protection of the laws," as well as Title VI of the 1964 Civil Rights Act, which prohibits organizations that receive government funds from discriminating on the basis of race. [See Supreme Court Strikes Down Racial Quota Systems in University Admissions (sidebar)]

In its decision, the Supreme Court ruled that race-based quotas to remedy past discrimination violated the Fourteenth Amendment. However, Justice Lewis Powell Jr. wrote in the main decision, affirmative action was constitutional if used for "obtaining the educational benefits that flow from an ethnically diverse student body." The Bakke decision made "diversity" the key justification for affirmative action, which became the basis for later court rulings.

In 1996, the U.S. Fifth Circuit Court of Appeals overturned the race-based admission policy of the University of Texas School of Law. In the case Hopwood v. Texas, Cheryl Hopwood and three other white applicants claimed they had been rejected from the school in favor of less-qualified minority applicants because of unfair race-based preferences. In its defense, the law school argued that it maintained affirmative action to increase racial diversity on campus. When a court is analyzing whether a law or policy is constitutional, it must decide whether the policy advances a "compelling state interest"—that is, "good for society"—as well as be as "narrowly tailored" as possible to achieve that goal. In Hopwood, the appeals court rejected the university's affirmative action policy, stating that "educational diversity is not recognized as a compelling state interest." The Supreme Court declined to review the case, letting the lower court's decision stand.

In the wake of Hopwood, Texas replaced its affirmative action programs in 1997 with the Top Ten Percent Plan, under which all applicants who graduate high school in the top 10 percent of their class are guaranteed acceptance to any state university in Texas. The Top Ten Percent Plan is considered a race-neutral alternative to affirmative action, since the only factor that matters in admissions is grades. However, since many high schools in Texas (as well as other states) are comprised largely of students of one race or ethnicity, the plan effectively guaranteed admission of a critical number of black and minority students to college. Also in 1997, California adopted a percentage plan of its own after voters approved Proposition 209, which ended all affirmative action programs in the state. In 1998, voters in Washington State approved a similar initiative, and in 2000, Florida governor Jeb Bush (R) signed an executive order ending affirmative action in his state. Like Texas and California, Florida adopted a percentage plan.

Issues and Controversies: Public Opinion on Affirmative Action, 1995 and 2009 (chart)

Supporters Argue: Affirmative Action Is Necessary to Make Up for Past Discrimination

Supporters of affirmative action contend that it is necessary to make up for past discrimination and bigotry. In addition to repaying the social debt owed to minorities, they assert, affirmative action compensates for opportunities lost to them because of prejudice and racism. To oppose affirmative action "denies history," Theodore Shaw, associate director-counsel of the National Association for the Advancement of Colored People (NAACP) Legal Defense and Educational Fund, argued in 2003. "I don't understand how you can say that colleges can't take real steps to try to make up for this country's history on race," he said.

Indeed, supporters argue that affirmative action is necessary to balance the harm done to minorities through years and generations of oppression. "[A]ffirmative action is a reasonable, fair and effective way to redress past harms and promote diversity," a 2012 Los Angeles Times editorial argues.

Affirmative action can help members of minority groups and women achieve leadership roles, supporters assert, and in turn provide inspiration for future generations. In the 2003 Grutter v. Bollinger decision, Supreme Court justice Sandra Day O'Connor noted that about half the nation's governors, more than half the nation's senators, and more than one-third of members of the House of Representatives held law degrees, many from elite law schools. (That trend now includes the nation's president, Barack Obama (D), who attended law school at Harvard University.) O'Connor noted that "effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized." If minorities are to take their place in the leadership of the country, supporters argue, they must have greater access to the same educational opportunities.

Supporters also point out that while affirmative action provides minorities with opportunities they may not otherwise have, they must still achieve success on their own. "Affirmative action gave me the chance to reach my highest aspirations," argues Andrea Guerrero, a beneficiary of affirmative action at the University of California at Berkeley before the policy was ended in 1996. "It did not do my homework, take my exams, or pass the bar for me. It simply gave me a chance."

In ensuring diversity, proponents contend, affirmative action benefits all students who attend school, not just members of minority groups, by preparing them to take their place in an increasingly integrated world. "For our students to better understand the diverse country and world they inhabit, they must be immersed in a campus culture that allows them to study with, argue with and become friends with students who may be different from them," wrote Columbia University president Lee Bollinger, former dean of the University of Michigan Law School and the person named in the two 2003 landmark Supreme Court cases, Grutter v. Bollinger and Gratz v. Bollinger.

Supporters argue that there are still racist strains in the United States that would keep minority students from achieving their full potential if not for affirmative action policies. Ending such policies, they claim, would merely allow admissions officials to revert to a system that automatically benefits wealthy whites. "Race matters in this culture," Columbia University law professor Patricia Williams wrote in the New York Times in 2012. "[I]f we don't learn to take it into account in sensible and fair ways, it will continue to operate insidiously within a veil of denial…. It permeates our lives in statistically documented ways whether we 'speak it' or not."

Supporters celebrated the Supreme Court's 2013 Fisher v. University of Texas decision for upholding diversity as an important educational goal. U.S. Secretary of Education Arne Duncan praised the decision for preserving "the well-established legal principle that colleges and universities have a compelling interest in achieving the educational benefits that flow from a racially and ethnically diverse student body, and can lawfully pursue that interest in their admissions programs."

Opponents Argue: Affirmative Action Encourages Reverse Discrimination

Opponents argue that affirmative action fosters the very bigotry and racial discrimination that it was meant to combat. In effectively discriminating against candidates based on their skin color, critics contend, affirmative action violates the 1964 Civil Rights Act, which prohibits "discrimination or segregation on the ground of race, color…or national origin" in federally funded programs and activities. "Some don't realize that the 1964 Civil Rights Act that is cited as the authority for mandating preferential treatment for racial minorities actually forbids all racial discrimination," conservative journalist John Fund argues in the National Review.

Affirmative action, opponents assert, also violates the Fourteenth Amendment's equal protection clause, which guarantees "equal protection of the laws." In the 1996 case Hopwood v. Texas, the U.S. Fifth Circuit Court of Appeals in New Orleans, Louisiana, reached the same conclusion:

Within the general principles of the Fourteenth Amendment, the use of race in admissions for diversity in higher education contradicts, rather than furthers, the aims of equal protection. Diversity fosters, rather than minimizes, the use of race. It treats minorities as a group, rather than as individuals.

Many affirmative action beneficiaries struggle at or drop out of the more competitive schools while they could have done well at less elite institutions, critics contend. Therefore, they argue, affirmative action only hurts minorities in the long run. "Failing at a more prestigious college for which they are not academically or financially prepared is probably more harmful to their life's prospects than succeeding at a lesser institution," Yale law professor Peter Schuck argued in his 2003 book Diversity in America.

Affirmative action further hurts minorities, opponents charge, because people will always assume that they got where they are receiving special treatment, not by their own hard work. Supreme Court Justice Clarence Thomas expressed that concern in his dissent in the 2003 University of Michigan case, Grutter v. Bollinger:

The majority of blacks are admitted to the Law School because of discrimination, and because of this policy all are tarred as undeserving… When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement.

Others point out that affirmative action harms minority members' self-esteem and motivation by conveying the message to them that they are not good enough to succeed on their own. Also, by fostering discrimination against nonminorities, critics contend, affirmative action hurts race relations overall. "Affirmative action sets one race against another," Washington Post columnist Richard Cohen claims. "It elevates sheer skin color to an importance it should not have."

Others argue that ending the practice of affirmative action might actually prompt the United States to adopt a deeper, more substantial solution to racial inequities. "Race-based affirmative action has been a woefully inadequate weapon in the arsenal against inequality," Princeton University sociology professor Thomas Espenshade argued in the New York Times in 2012. "It treats the symptoms but not the root causes of an underlying social problem." If the Supreme Court struck the practice down, he claimed, "It would spur Americans who care about racial inequality to seek alternatives…by addressing the deeply entrenched disadvantages that lower-income and minority children face from the beginning of life."

Opponents of affirmative action lauded the Supreme Court's Fisher v. University of Texas in 2013 for encouraging courts to take a more critical look at affirmative action policies. Edward Blum, who headed prosecution in the case and serves as director of the anti–affirmative action group Project on Fair Representation, argued that the decision

begins the restoration of the original colorblind principles to our nation's civil rights laws. The Supreme Court has established exceptionally high hurdles for the University of Texas and other universities and colleges to overcome if they intend to continue using race preferences in their admission policies. It is unlikely that most institutions will be able to overcome these hurdles.

Alternatives to Affirmative Action?

In the wake of the Fisher ruling, analysts have continued to debate whether universities and other institutions should replace affirmative action with a different system of leveling the playing field. Richard Kahlenberg, for example, has argued that schools should institute an affirmative action program based on class, not race. He points out that elite universities frequently admit the children of alumni—so-called legacy admissions—which, he contends, essentially provides affirmative action for the wealthy. "It would be better," he suggested in the Washington Post in 2010, "if universities seeking diversity had to vigorously pursue race-neutral alternatives such as socioeconomic affirmative action first and could use modest racial preferences only as a last resort."

Class-based affirmative action would provide greater opportunity to Americans living near or below the poverty level regardless of their race, ethnicity, or gender, supporters say, but because blacks, Hispanics, and other minority groups are statistically more likely than whites to fall into these economic categories, they would still benefit from such a program.

Although people disagree on whether affirmative action programs should be maintained or discarded, most agree that race remains an issue and that American society is not yet color-blind. "The plain fact of the matter—in [President Thomas] Jefferson's day and ours—is that race is deeply entrenched in the American fabric," Corey Walker, chair of the Department of Africana Studies at Brown University in Providence, Rhode Island, observed in 2003. And the fact that affirmative action confronts racial issues in the United States head-on makes it particularly controversial.

In October 2013, the Supreme Court is scheduled to hear oral arguments in another affirmative action case, Schuette v. Coalition to Defend Affirmative Action, regarding an amendment to Michigan's state constitution prohibiting all public universities from granting preferential treatment based on race. Until the issue again reaches the nation's highest court, Americans will continue to debate the merits and pitfalls of affirmative action.

Affirmative Action Continues to Spark Challenges in Higher Education

Court challenges to affirmative action continued throughout the 1990s and into the 21st century. In 1999, the U.S. Fourth Circuit Court of Appeals in Richmond, Virginia, struck down a Maryland public school district's school-transfer policy as unconstitutional because it took race into account. The case, Montgomery County Public Schools v. Eisenberg, involved a white student who tried to transfer from a mostly black and Hispanic school to a predominantly white school. The predominantly white school had a strong reputation for math and science instruction. Yet Montgomery County school district officials wanted to keep the boy at the minority-dominated school in order to maintain diversity.

Lawyers for the student argued that the district's policy violated the boy's right to equal protection under the law. The circuit court ruled in favor of the student, finding that the school system's transfer policy was "mere racial balancing in a pure form" and that the district's desire for diversity did not justify denying improved educational opportunities to individual students. In 2000, the Supreme Court refused to hear a challenge to the case, allowing the lower court's ruling to stand. Many educators had hoped the Supreme Court would rule on the Eisenberg case in order to provide a firm national standard for school officials wrangling with race issues.

In 2003, 25 years after Bakke, the Supreme Court again revisited affirmative action in higher education in its consideration of a pair of cases against the University of Michigan's law school and undergraduate school, Grutter v. Bollinger and Gratz v. Bollinger, respectively. The former case was based on a 1997 suit against the University of Michigan's law school brought by Barbara Grutter, a white applicant, after the school had rejected her for admission. The law school had weighed race as a factor in the consideration of students' applications, with the goal of achieving an unspecified "critical mass" of underrepresented minorities, namely blacks, Hispanics, and Native Americans. In a 5–4 ruling in Grutter, the Supreme Court upheld the law school's policy. The Court recognized that the law school had a compelling interest in maintaining a racially diverse student body and noted that the school considered all applications in a "highly individualized" manner. This satisfied the Court's standard of "strict scrutiny"—carefully analyzing the process the school used to ensure that it passed constitutional muster. The Court's decision in Grutter echoed its ruling in Bakke a quarter-century earlier and effectively overturned the standing decision in Hopwood v. Texas, the 1996 case in which the Supreme Court let stand a lower court's decision deeming a similar affirmative action program unconstitutional.

In Gratz, meanwhile, the University of Michigan's undergraduate school had denied white applicants Jennifer Gratz and Patrick Hamacher admission. Unlike the law school, the undergraduate school used a numerical scale, awarding points for certain accomplishments or attributes. The system operated on a 150-point scale, with 100 points usually used as a threshold for admission. Under the system, members of minority groups were automatically awarded 20 points. In a 6–3 decision, the Court ruled the system unconstitutional, holding that automatically awarding points for race violated the Fourteenth Amendment.

The Supreme Court next addressed the issue of racial diversity in the 2007 case Parents Involved in Community Schools v. Seattle School District No. 1, in which a group of parents challenged the practice by a Seattle school district of assigning students to certain public school districts in an attempt to increase diversity. The Court struck down the practice in a 5–4 decision; Chief Justice John Roberts wrote in the majority opinion, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

In 2006, Michigan voters approved, 58 percent–42 percent, a measure to ban affirmative action policies in public education, state employment, and public contracting. The state's ban on affirmative action, however, did not withstand judicial scrutiny. Opponents challenged the measure, and a federal appeals court struck it down in 2011, ruling that it "unconstitutionally alters Michigan's political structure by impermissibly burdening racial minorities." Michigan attorney general Bill Schuette appealed the decision, insisting that "entrance to our great universities must be based upon merit" alone. The Supreme Court is scheduled to hear arguments in the case, Schuette v. Coalition to Defend Affirmative Action, in its term starting October 2013.

In November 2008, Nebraska voters approved a measure, called Initiative 424, which amended the state's constitution to end affirmative action in public institutions by preventing preferential treatment for "any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education, or public contracting." The measure passed by a margin of 52–48 percent. Voters in Colorado, on the other hand, narrowly defeated a similar measure the same day.

In addition to debating the constitutionality and morality of affirmative action, observers have differed over the ultimate goal of such programs. While some argue that the aim of affirmative action is to redress past wrongs against minorities, others emphasize the importance of achieving diversity on campuses and in the workplace. In the 1978 Bakke case, for example, Justice Lewis Powell, Jr., rejected the view that affirmative action was necessary to redress past discrimination, and argued instead that it is acceptable only if there is a "compelling interest in diversity."

Other justices have disagreed with that rationale. "The stain of generations of racial oppression is still visible in our society," Ruth Bader Ginsberg wrote in her dissent in the Gratz case, "and the determination to hasten its removing remains vital." Affirmative action, Ginsberg wrote, is the simplest and most transparent way for schools to rectify past injustice.

In October 2012, the Supreme Court heard arguments in Fisher v. University of Texas. The case involved Abigail Fisher, whose grades only barely kept her from the top 10 percent of her class, thereby disqualifying her from automatic admission to the University of Texas at Austin under the Top Ten Percent Plan. After being denied admission in the second tier of the admissions process, Fisher alleged that the school had unconstitutionally considered her race, prompting her to sue with the backing of anti-affirmative action groups. The U.S. Fifth Circuit Court of Appeals upheld the university's policy, but Fisher appealed to the Supreme Court.

On June 24, 2013, the Court issued an anticlimactic 7–1 decision, sending the case back to the appeals court. (Justice Elena Kagan, who had defended affirmative action policies as a solicitor general in the administration of President Barack Obama (D), had recused herself from the case.) In his majority opinion, Justice Anthony Kennedy repeated the Court's earlier assertions that diversity among the student body was a compelling interest, but argued that the appeals court had failed to apply "strict scrutiny," as required by the Grutter decision. Strict scrutiny, Kennedy wrote, "does not permit a court to accept a school's assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice." Race, Kennedy argued, should only be considered if "no workable race-neutral alternatives would produce the educational benefits of diversity." Justice Ginsburg, the sole dissenter, argued that the appeals court's approval of the admissions policy should stand. [See Supreme Court Issues Narrow Ruling in Fisher v. University of Texas (sidebar)]

Analysts noted that while the decision was not the sweeping repudiation of affirmative action many had expected, it was likely to inspire similar challenges to affirmative action policies in the near future. It is also likely that once the appeals court reviews Fisher, the case will return to the Supreme Court.

In October 2012, the Supreme Court heard arguments in Fisher v. University of Texas. The case involved Abigail Fisher, whose grades only barely kept her from the top 10 percent of her class, thereby disqualifying her from admission to the University of Texas at Austin under the state's 10 percent law. Fisher alleged that a later evaluation of her academic performance considered her race, prompting her to sue. The Supreme Court agreed to hear the case in February 2012.

Issues and Controversies: Bachelor's Degrees Earned by Race, 1990-2006 (graph)

Bibliography

"Affirmative Action and the Law." Los Angeles Times, November 30, 2012, articles.latimes.com.

Arenson, Karen. "The Supreme Court: Impact on Universities Will Range from None to a Lot." New York Times, June 25, 2003, www.nytimes.com.

Bravin, Jess. "Justices Take Pass on Texas Affirmative-Action Case." Wall Street Journal, June 25, 2013, online.wsj.com.

Cohen, Richard. "Affirmative Action: Its Time Is Long Past." Washington Post, January 21, 2003, www.washingtonpost.com.

Espenshade, Thomas. "Moving Beyond Affirmative Action." New York Times, October 4, 2012, www.nytimes.com.

Fund, John. "Infinite Affirmative Action?" National Review. March 6, 2012, www.nationalreview.com.

"In Texas Affirmative-Action Ruling, Supreme Court Seeks Race-Blind Admissions." Christian Science Monitor, June 24, 2013, www.csmonitor.com.

Graglia, Lino. "Winks, Nods—and Preferences." Wall Street Journal, June 25, 2003, online.wsj.com.

Guerrero, Andrea. "Why We Still Need Affirmative Action." Christian Science Monitor, January 1, 2003, www.csmonitor.com.

Kahlenberg, Richard. "Elite Colleges, or Colleges for the Elite?" New York Times, September 29, 2010, www.nytimes.com.

———. "Why Not an Income-Based Affirmative Action?" Washington Post, November 8, 2012, www.washingtonpost.com.

Richey, Warren. "Affirmative Action's Evolution." Christian Science Monitor, March 28, 2003, www.csmonitor.com.

Sander, Richard. "The Unraveling of Affirmative Action." Wall Street Journal, October 13, 2012, online.wsj.com.

Symonds, William. "College Admissions: The Real Barrier Is Class." BusinessWeek, April 14, 2003, www.businessweek.com.

Walker, Corey. "A Jeffersonian Take on Affirmative Action." Christian Science Monitor, March 28, 2003, www.csmonitor.com.

Williams, Armstrong. "But Not at This Cost." Newsweek, January 27, 2003, www.newsweek.com.

Williams, Patricia. "We Still Have Far to Go." New York Times, March 22, 2012, www.nytimes.com/roomfordebate.

Additional Sources

Additional information about affirmative action can be found in the following sources:

Sander, Richard, and Stuart Taylor Jr. Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It. New York: Basic Books, 2012.

Stohr, Greg. A Black and White Case: How Affirmative Action Survived Its Greatest Legal Challenge. Princeton, N.J.: Bloomberg Press, 2004.

Contact Information

Information on how to contact organizations that either are mentioned in the discussion of affirmative action or can provide additional information on the subject is listed below:

Center for Equal Opportunity
7700 Leesburg Pike, Suite 231
Falls Church, Va. 22043
Telephone: (703) 442-0066
Internet: www.ceousa.org

Department of Labor
200 Constitution Ave. N.W.
Washington, D.C. 20210
Telephone: (866) 487-2365
Internet: www.dol.gov

National Association for the Advancement of Colored People (NAACP)
4805 Mt. Hope Dr.
Baltimore, Md. 21215
Telephone: (877) 622-2798
Internet: www.naacp.org

Keywords

For further information about the ongoing debate over affirmative action, search for the following words and terms in electronic databases and other publications:

Allan Bakke
Class-based affirmative action
Grutter v. Bollinger
Racial diversity
Regents of the University of California v. Bakke

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