Affirmative Action

Affirmative Action is defined as "any measure, beyond simple termination of a discriminatory practice, adopted to correct or compensate for past or present discrimination or to prevent discrimination from recurring in the future."

Affirmative action may be applied in university admissions as well as hiring practices by employers for women and for underrepresented racial or ethnic groups. However, while universities can legally take race into consideration in admissions decisions, they have been banned from utilizing quotas since the 1977 Bakke Supreme Court decision. Quotas are defined as "an absolute requirement that an employer hire a certain number of or percentage of employees from a specified group, without regard to the availability of qualified candidates or the presence of more qualified members of other groups."

Public Approval of Affirmative Action

For Underrepresented Racial Groups

Approval ratings of affirmative action differ based on how pollsters frame their questions, but several trends remain consistent over time. That is, whites are less likely to support affirmative action than blacks, and support by Latinos falls in the middle. Also, Republicans consistently represent the strongest opposition compared to Democrats.

In 2015, Gallup asked simply whether respondents favor affirmative action for racial minorities. Two years prior, they conducted a poll, but asked respondents if college admissions should be based solely on merit even if that meant fewer minorities were admitted or, alternatively, if race should be taken into consideration to promote diversity on campus, even if that means admitting minority students would would not otherwise be accepted. In 2009, Pew Research Center conducted a survey asking if respondents agree that "we should make every effort to improve the position of blacks and minorities, even if it means giving them preferential treatment." Comparatively, in 2007, they asked if respondents supported "affirmative action programs to help blacks, women and other minorities get better jobs and education" without mentioning preferential treatment.

	Affirmative Action for blacks, women, and other minorities (2007)	Preferential treatment for blacks (2009)	Affirmative action if it means admitting some who would not be admitted based on merit alone (2013)	Affirmative action (2015)
U.S. Adults	70% support	31% support	28% support	58% support
Whites		22%	22%	53%
Blacks		58%	48%	77%
Hispanics		53%	31%	61%
Republicans		16%	11%	38%
White Republicans		12%
Independents			25%	55%
Democrats		42%	42%	76%
White Democrats		31%
Black Democrats		60%
Hispanic Democrats		57%

Therefore, support rises when respondents are simply asked about affirmative action alone, and falls when they are specifically asked about "preferential treatment" or whether they support a system that would allow some minority students to attend school who would not be admitted based on merit alone. Also, in the one poll that takes into account racial difference among Democrats, poll numbers are still lowest among whites and higher among people of color. However, white Democrats are still more likely to support affirmative action than white Republicans.

Several polls conducted using more than one variation on the question also found that mentions of "preferential treatment" reduce support. These include a Public Religion Research Institute survey from 2013, and Pew surveys from 2007 and 2002.

Question:	Support	Oppose
Do you "favor programs which make special efforts to help blacks and minorities get ahead, to make up for past discrimination?"	68%
Do you "think that blacks and other minorities should receive preference in college admissions to make up for past inequities?"	29%
"Affirmative action programs to help blacks, women and other minorities get better jobs and education"	70%	25%
"To overcome past discrimination, do you support affirmative action programs designed to help blacks get better jobs and education?"	60%	30%
"To overcome past discrimination, do you support affirmative action programs that give special preferences to qualified blacks in hiring and education?"	46%	40%
"In order to overcome past discrimination, do you favor or oppose affirmative action programs designed to help blacks, women, and other minorities get better jobs and education?"	63%	29%
"In order to overcome past discrimination, do you favor or oppose affirmative action programs which give special preferences to qualified blacks, women, and other minorities in hiring and education?"	57%	35%
"All in all, do you think that affirmative action programs designed to increase the number of blacks and minority students on college campuses are a good thing or a bad thing?"	60% good	30% bad
"All in all, do you think that affirmative action programs designed to increase the number of blacks and minority students on college campuses are fair or unfair?"	47% fair	42% unfair
"We should make every possible effort to improve the position of blacks and other minorities, even if it means giving them preferential treatment."	24% agree	72% disagree

Two of the above questions mention special preferences or preferential treatment. The difference is that in the former, which 57% favor, the question notes that this is only for qualified blacks, women, and other minorities, whereas the latter, which 72% disagree with, makes no mention of qualifications, but adds that "we should make every possible effort" to improve the positions of these groups.

Affirmative Action at the Supreme Court

Since the inception of affirmative action, several Supreme Court cases have changed how it is applied at the university level. Several major cases are detailed below.

Supreme Court Justices on Affirmative Action

• Chief Justice John Roberts: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
• Justice Sonia Sotomayor: "The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination."

Regents of the University of California v. Bakke (1978)

In 1977, the Supreme Court heard Regents of the University of California v. Bakke. Allen Bakke, a white applicant to the Medical School of the University of California at Davis was denied admission twice when he applied. The school used a quota, in which 16 out of 100 seats in its class were reserved for racial and ethnic minorities. Bakke sued the University of California, arguing that the admissions policy violated Title VI of the Civil Rights Act of 1964 and the Fourteenth Amendment's Equal Protection Clause. The Supreme Court ruled 5-4 that "a state may constitutionally consider race as a factor in its university admissions to promote educational diversity, but only if considered alongside other factors and on a case-by-case basis. California's use of racial quotas in this case, however, did not meet those requirements and violated the Constitution's Equal Protection Clause."

Grutter v. Bollinger (2003)

In 2003, the Rehnquist court heard Grutter v. Bollinger. Barbara Grutter was a white Michigan resident who applied for admission to the University of Michigan's Law School and was rejected. "The school also examined a host of subjective factors in making its admissions decisions, including the race and ethnicity of the candidates. "Underrepresented" racial and ethnic minority applicants (i.e., African Americans, Latinos, and Native Americans) were looked upon favorably because they helped achieve the school's mission of student diversity. Evidence suggested that without the school's affirmative action policy, an underrepresented minority's average chance of admission would decrease from 35 percent to 10 percent."

Grutter sued the school, alleging that the admissions policy violated the Fourteenth Amendment of the Constitution. Grutter lost, in a 5-4 decision written by Justice Sandra Day O'Connor.

"The Court argued that while the law school's race-conscious admissions scheme was presumptively unconstitutional under the Fourteenth Amendment's Equal Protection Clause because it intentionally discriminated on the basis of race, the school's interest in promoting "student diversity" was sufficiently "compelling," and its case-by-case admissions process was "narrowly tailored" enough, to withstand strict scrutiny. "Student diversity" was important enough to pass constitutional muster because it both counters racial stereotypes and ensures the presence of racial minorities in the nation's elite. The Court also argued that the law school's case-by-case, subjective admissions process was "narrowly tailored" enough to be constitutional because it did not employ a quota system and provided for individualized review of applicants. Instead, the school construed membership in a minority race as merely a "plus" factor among many weighed in the admissions decision."

Gratz v. Bollinger (2003)

Also in 2003, the Rehnquist court heard Gratz v. Bollinger. Two white students, Jennifer Gratz and Patrick Hammacher, sued the University of Michigan after they were denied admission. The university "ranked each applicant on a 150-point scale, with 100 points generally guaranteeing admission. Membership in a historically discriminated-against racial group, or "attendance at a predominately minority or disadvantaged high school," resulted in an automatic bonus of 20 points on the scale." The court ruled 6-3 that the University of Michigan's undergraduate admissions program was unconstitutional because it violated the Equal Protection Clause. With this case as well as Grutter v. Bollinger, "the Court made clear that affirmative action programs are only constitutional if they consider race as one factor in an individualized evaluation, and only to achieve the goal of 'class diversity.'"

Parents Involved in Community Schools v. Seattle School District No. 1 et al. (2007)

The case of Parents Involved in Community Schools v. Seattle School District No. 1 et al. was argued on December 4, 2006 and decided June 28, 2007.

Schuette v. Coalition to Defend Affirmative Action (2014)

The Supreme Court heard the Schuette v. Coalition to Defend Affirmative Action case in 2013 and issued a ruling in 2014. The case dealt with a Michigan state constitutional amendment prohibiting public universities from considering race in admissions, passed by Michigan voters in 2006. According to the American Civil Liberties Union:

"Shortly after the Supreme Court's decision to uphold the constitutionality of affirmative action in 2003's Grutter v. Bollinger, opponents of equal opportunity began a campaign to destroy affirmative action in Michigan. The result was Proposal 2, a ballot initiative campaign marked by widespread fraud and deception. Although a federal court found the proponents of the initiative, the so-called American Civil Rights Institute, to have committed a campaign of deception in violation of the rights of the citizens of Michigan, the initiative was nonetheless put before the voters in the fall of 2006 and passed by a margin of 58% to 42%. In response, Michigan's public universities put an end to their affirmative action programs."

Justice Elena Kagan recused herself. The remaining justices voted 6-2 to uphold Michigan's ban of race-based preferences in public university admissions. Writing for a plurality, Justice Kennedy wrote the decision was "not about the constitutionality, or the merits, of race-conscious admissions policies in higher education" but instead about "whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions."

Fisher v. University of Texas

See Fisher v. University of Texas.

The Spin Against Affirmative Action

Opposition to affirmative action often comes from conservative or Republican sources, who paint the policy as one that Democrats support. Those who wish to increase opposition to affirmative action use several methods to do so. Consider the following paragraph from an article in the conservative publication the National Review:

"Democrats are champions of racial preferences... Since racial preferences in, e.g., college admissions most heavily favor blacks, it would appear, at first blush, that black votes for Democrats are indeed self-interested. But evidence continues to accumulate that affirmative action may be one of the greatest scams perpetrated on blacks. Studies by, for example, the Center for Equal Opportunity show that the racial preferences employed by some college admissions offices boost a black applicant’s odds of admission over a similarly-situated white comparative by a factor of 200, often much more."

The Center for Equal Opportunity mentioned above sounds like a non-partisan or a government organization, similar to the Equal Employment Opportunity Commission, but it is a conservative think tank. The article does not link to any of the studies it references. Following the unsupported claim about the harm affirmative action inflicts on whites, the article then explains mismatch theory, basing its argument on Richard H. Sander's flawed study as evidence.

Articles like the one quoted above serve to do several things at once: they claim that affirmative action is bad for blacks and other underrepresented racial groups, they stoke whites' fears that less qualified people of color will take their place at elite universities, and they posit that Democrats only support affirmative action to gain black votes and not based on any more valid reason. To support their case, they often rely on "evidence" provided from partisan sources, sometimes named to sound impartial as the one above.

Additionally, the simple use of language can serve to persuade. Polls show that when affirmative action is framed as as "preferential treatment," "special preferences," or "racial preferences," fewer Americans of all races and political parties support it than when it is simply referred to as affirmative action. Support for affirmative action is also lower when it is framed as a program to allow less qualified minority applicants into universities while denying more qualified white applicants, as the National Review suggests here.

Mismatch Theory

Opponents of affirmative action cite the "mismatch theory" as a reason why affirmative action actually harms those it intends to help. The idea behind it is that if less qualified candidates are accepted at institutions they are unqualified to be at, they will do poorly and/or fail. Those who support this theory frequently cite a study by Richard H. Sander in the Stanford Law Review as evidence. Sander went on to write a book entitled Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It with co-author Stuart Taylor, Jr.

Critics say that Sander's study was systemically flawed. Among other critiques, they say that Sander's study relied on data from a year with a abnormal black to white ratio of law school applications and that performing his calculations based on data from other years would reflect a much larger drop in black admissions to law school if affirmative action were ended. They add that examining data from states that have banned affirmative action also disproves Sander's theory. Additionally, Sander uses data on students who passed and failed the California bar, rather than using data from bar exams throughout the country. This distorts his findings, as the California bar exam is notoriously difficult. Furthermore, Sander found that black and white students with the same entry credentials earned the same first semester grades, whereas other researchers found that black students earned lower grades than white students with the same entry credentials. "This leads to an inference that directly contradicts Sander's thesis: If black and white students with the same entry credentials do not earn the same grades, then something else besides credentials must explain the outcome." One suggestion is that a part of the difference is due to the "Stereotype Threat," which occurs when "the fear of confirming negative racial stereotypes actually suppresses academic performance" in "highly qualified and motivated black students."

Articles and resources

Related SourceWatch articles

• Schuette v. Coalition to Defend Affirmative Action
• Fisher v. University of Texas
• Racial Disparities in Education

External resources

• "Ten Myths About Affirmative Action," Understanding Prejudice

External articles

2015:

• Robert Barnes, "Scalia stirs controversy again with questions in affirmative action case," Washington Post, December 10, 2015.
• Sigal Alon, "Scalia was wrong: Students admitted through affirmative action thrive at elite colleges," Washington Post, December 10, 2015.
• Afi-Odelia Scruggs, "Dear Justice Scalia: Here’s what I learned as a black student struggling at an elite college," Washington Post, December 11, 2015.

2014:

• F. Michael Higginbotham, "Race-based Affirmative Action Is Still Needed," New York Times, April 27, 2014.
• Richard D. Kahlenberg and Halley Potter, "Class-based Affirmative Action Works," New York Times, April 27, 2014.
• Tanya Katerí Hernández, "‘Stereotype Threat’ Is Not Easily Countered Without Affirmative Action," New York Times, April 27, 2014.
• Jennifer Lee, "College Admission Should Be Based on Ethnicity and Income," New York Times, April 27, 2014.
• Haibo Huang, "College Admission Should Be Based on Merit and Income," New York Times, April 27, 2014.
• Angel L. Harris, "Wealth-based Affirmative Action May Be the Best Alternative to Racial Preference," New York Times, April 27, 2014.
• Richard Rothstein, "Race or Class? The Future of Affirmative Action on the College Campus," The American Prospect, July/August 2014.
• Jeannette Wicks-Lim, "Why We All Need Affirmative Action: Recent shootings of young black men sound the alarm for public policies that directly counter racist stereotypes, Dollars & Sense, November/December 2014.

2013:

• Dan Slater, "Does Affirmative Action Do What It Should?," New York Times, March 16, 2013.
• John Cassidy, "Why America Still Needs Affirmative Action," The New Yorker, June 17, 2013.

2012:

• Eric Liu, "What Asian Americans Reveal About Affirmative Action: People assume eliminating race as a factor would benefit Asian Americans, but here's why they're wrong," Time, March 6, 2012.
• Touré, "Why We Still Need Affirmative Action: Removing race from the admissions equation forces schools to be blind to one of the key factors in people's lives," Time, October 12, 2012.
• LZ Granderson, "What's wrong with affirmative action -- and why we need it," CNN, October 13, 2012.
• Alyssa Neumann, "Affirmative Action: Student diversity impacted by race-neutral admissions policy," The Daily Californian, October 15, 2012.

2000s:

• Lee C. Bollinger, "Seven Myths about Affirmative Action in Universities," Speech delivered at the "Education and Law" Symposium at the College of Law at Willamette University, Fall 2002.

1990s:

• Claire Andre, Manuel Velasquez, and Tim Mazur, "Affirmative Action: Twenty-five Years of Controversy," Issues in Ethics, Vol. 5, No. 2, Summer 1992.
• Tim Wise, "Is Sisterhood Conditional?: White Women and the Rollback of Affirmative Action," TimWise.org, September 23, 1998.