In the monthly "Ethical Inquiry" series, we examine ethical questions, highlighting a broad array of opinion from journalism, academia, and advocacy organizations. Our intent is to illuminate and explore the complexity of some of the most vexing ethical questions of our time.
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Ethical Inquiry: June 2011
Is Affirmative Action in College Admissions Ethical?
As the college admissions season concludes, we take a look at a question that has plagued this process for many years: Is affirmative action ethical?
“Affirmative action” is defined as taking positive steps to increase the representation of women and minorities in areas of employment, education, and business from which they have been historically excluded. When those steps involve preferential selection — selection on the basis of race, gender, or ethnicity — affirmative action generates intense controversy.
The civil rights movement had its dramatic victories, including the Brown v. Board of Education ruling and the other cases striking down segregation, the Civil Rights Act of 1964, and the Voting Rights Act of 1965, which helped extend the Constitution's promise of equal opportunity to all minorities and women.
Discrimination in education was the target of the original breakthrough civil rights cases. Education has consistently been a central focus of civil rights efforts because education is the gateway to opportunity. In 1955, only 4.9 percent of college students were African American. This figure rose to 6.5 percent during the next five years, but by 1965 had slumped back to 4.9 percent. Only in the wake of affirmative action measures in the late 1960's and early 1970s did the percentage of African American college students began to climb.
The 1978 Regents of the University of California v. Bakke Supreme Court case set the parameters of educational affirmative action. According to the 2003 Supreme Court judgment in Grutter v. Bollinger, colleges could use race and ethnicity as a factor in admissions decisions but could not designate set numbers of spaces for members of specific ethnic and racial groups.
Unintended consequences related to fairness and racial equality have complicated perceptions and influenced public opinion relating to the effectiveness and the future of affirmative action programs.
At Brandeis University, a diversity statement accompanies the school's mission statement, and states in part that Brandeis "Seeks to build an academic community whose members have diverse cultures, backgrounds and life experiences," and "Believes that diverse backgrounds and ideas are crucial to academic excellence." However, as a 2011 article by Ariel Wittenberg and Supreetha Gubbala Omoefe Ogbeide in the student newspaper The Hoot, "Shades of Gray: The gatekeepers, admitting racial diversity," shows, finding the right way to achieve these goals is not always easy.
A Brief Legal History
June 28, 1978
This case involved the University of California Davis Medical School, which had two separate admissions pools, one for standard applicants, and another for minority and economically disadvantaged students. The school reserved 16 of its 100 places for this latter group. Allan Bakke, a white applicant, was rejected twice even though the minority applicants that were admitted had significantly lower scores than him. Bakke maintained that judging him on the basis of his race was a violation of the Equal Protection Clause of the Fourteenth Amendment.
The Supreme Court ruled that while race was a legitimate factor in school admissions, the use of such inflexible quotas as the medical school had set aside was not. The Supreme Court, however, was split 5–4 in its decision on the Bakke case and addressed only a minimal number of the many complex issues that had sprung up about affirmative action. It imposed limitations on affirmative action (such as prohibiting quotas) to ensure that providing greater opportunities for minorities did not come at the expense of the rights of the majority, therefore affirmative action was unfair if it led to reverse discrimination.
March 18, 1996
Cheryl Hopwood and three other white law-school applicants at the University of Texas challenged the school's affirmative action program, asserting that they were rejected because of unfair preferences toward less qualified minority applicants. As a result, the 5th U.S. Court of Appeals suspended the university's affirmative action admissions program and ruled that the 1978 Bakke decision was invalid. The Bakke case maintained that the inclusion of minority students would create a diverse student body, and that was beneficial to the educational environment as a whole. This case, however, rejected the legitimacy of diversity as a goal, asserting, "educational diversity is not recognized as a compelling state interest." The Supreme Court allowed the ruling to stand. In 1997, the Texas Attorney General announced that all "Texas public universities [should] employ race-neutral criteria."
November 3, 1997
A state ban on all forms of affirmative action was passed by popular vote in California, with 54.7% of voters in support. It states that: "The state shall not discriminate against, or grant preferential treatment to, 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."
December 3, 1998
Washington becomes the second state to abolish state affirmative action measures when it passed "I 200" by popular vote with 58.22% in support. Similar to California's Proposition 209, it was added to Washington State law but not its constitution.
February 22, 2000
Race and gender banned as factors in college admissions (Florida)
“One Florida” was initiated by Governor Jeb Bush in November 1999 and passed at the Board of Regents level in February 2000. It includes the “Talented 20” admissions program aimed at ending affirmative action based on race or gender in the state, replacing it with a system in which “students who graduate in the top 20 percent of their high school classes would be eligible for admission to public institutions next fall, provided they had completed 10 required courses in high school.” Socioeconomic status, high school quality and the educational attainment of parents can still be considered, however.
December 13, 2000
Gratz v. Bollinger
This was a case regarding the University of Michigan undergraduate affirmative action admissions policy. Petitioners Jennifer Gratz and Patrick Hamacher, both Caucasian residents of Michigan, applied for undergraduate admissions to University of Michigan but both were denied admission. Their class-action lawsuit alleged, “violations and threatened violations of the rights of the plaintiffs and the class they represent to equal protection of the laws under the Fourteenth Amendment…and for racial discrimination.” This case focuses on the undergraduate admission’s point system in which a 150-point scale was used to rank applicants. 100 points were needed to guarantee admission. Applicants who were members of minority groups were given 20 points automatically. This became the central issue and this case was heard in District Court, appealed to the Sixth Circuit Court of Appeals and finally asked to be heard before the Supreme Court.
This case and Grutter v. Bollinger (see below) were both heard before the Supreme Court, with the verdict given together on the 23rd of June 2003.
N.B.: Lee Bollinger was Dean of the University of Michigan Law School from 1987 to 1994, and President of the University of Michigan from 1996 to 2002.
March 27, 2001
This case is similar to Gratz v. Bollinger (see above), but this time the petitioner Grutter was denied admission to University of Michigan Law School. She filed this suit alleging that the admissions had discriminated against her on the basis of race in violation of the Fourteenth Amendment of the U.S. Constitution and of Title VI of the Civil Rights Act of 1964.
She was claiming that the reason that she was rejected was that the law school used race as a predominant factor, giving applicants belonging to certain minority groups a significantly higher chance of admissions than students with similar credentials from disfavored racial groups. Like Gratz, this case was also heard in district court, appealed to the Sixth Circuit Court of Appeals and asked to be heard before the Supreme Court.
June 23, 2003
Supreme Court Decisions: Grutter v. Bollinger and Gratz v. Bollinger
In the most important affirmative action decision since the 1978 Bakke case, in 2003 the Supreme Court upheld the University of Michigan Law School's policy in a 5–4, finding that race can be one of many factors considered by colleges when selecting their students because it furthers "a compelling interest in obtaining the educational benefits that flow from a diverse student body." The Supreme Court, however, ruled (6-3) that the more formulaic approach of the University of Michigan's undergraduate admissions program, which uses a point system that rates students and awards additional points to minorities, had to be modified. The undergraduate program, unlike the law school, does not provide the "individualized consideration" of applicants deemed necessary in previous Supreme Court decisions on affirmative action.
As Brandeis student newspaper The Hoot reports, "Brandeis University supported the decision along with 37 other private colleges and universities, submitting an amicus brief stating that the university considered the gender, race and country of origin of applicants in the admissions process alongside extra-curricular and co-curricular activities, special talents and evidence of leadership."
Viewpoints: Pro Affirmative Action
Various arguments are made in support of affirmative action, including arguments that suggest it benefits non-minority students as well.
Racial Prejudice Still Exists
The colorblind ideal has not been achieved yet: Although racial discrimination in the U.S. has been eradicated in law and policy, there is no question that racism is still sometimes prevalent in practice. A study at the University of Chicago [PDF] has shown that, with an identical resume, prospective employees with “white-sounding” names such as Emily have a higher chance of being invited for a job interview than when they have a “black-sounding” name such as Lakisha.
Affirmative action can help to offset such discrimination in college admissions. A 2009 study by Deidre M. Bowen confirmed that, although racial discrimination is banned legally, there is still a significant amount of stigma against students of color in higher education.
After affirmative action was banned in California, Washington, and Michigan due to what Bowen terms the “colorblind ideal” – the belief that “society no longer judges people by their skin color” – Bowen conducted a nationwide study to test the argument that affirmative action is indeed no longer required. The data showed that students of minority groups experience higher levels of hostility as well as internal and external stigma at universities located in states that have banned affirmative action when compared to states that allow it. This conclusion can be used as grounds to argue that the “colorblind ideal” has not been achieved in practice, and that active steps must be taken to prevent minority college applicants from being discriminated against.
Diversity on campus is beneficial to all students
Affirmative action in university admissions results in a more diverse student body. One of the goals of a college education is teaching students how to interact with people from different racial or ethnic backgrounds, and a more diverse campus results in graduates being better equipped to interact with different kinds of people. The study "Evaluating the Rationale for Affirmative Action in College Admissions: Direct and Indirect Relationships between Campus Diversity and Gains in Understanding Diverse Groups" [PDF] (Journal of College Student Development, March/April 2007) has shown that affirmative action is favorable for this very reason: It shows that “student-body diversity was indirectly, but not directly, related to gains in understanding people from diverse backgrounds.”
The outgoing president of Amherst College, Anthony Marx, "argued that elite colleges were neither as good nor as meritocratic as they could be, because they mostly overlooked lower-income students." He attempted to increase diversity at Amherst by, among other things, putting "a thumb on the scale to give poor students more credit for a given SAT score." (See "Top Colleges, Largely for the Elite" New York Times, 2011.) This approach has drawn a mixed reaction, as evidenced by letters to the New York Times in response to the previously-cited article.
Gary Orfield, co-director of the Civil Rights Project/Proyecto Derechos Civiles and Professor of Education at UCLA argued in 1999 that “Affirmative Action Works – but Judges and Policy Makers Need to Hear That Verdict”. In a study of law school students, he found that “Although it is far from a panacea for the racial problems of higher education, affirmative action appears to provide powerful educational benefits. Nine out of 10 students reported that diversity had had a "positive" impact on their educational experience. Students said they believed that, in a racially diverse environment, they learned more in class as well as during informal discussions with other students outside of class – that they gained a much broader perspective on a variety of educational and personal matters.”
Others point to studies suggesting a very small impact on the rate of white admissions. In “Affirmative Action in College and University Admissions: Yes.” (National Forum: Phi Kappa Phi Journal, 1999) Martin Michaelson “Argues in support of affirmative action in college and university admissions, noting the actual, relatively small effect of affirmative action on white admission and opportunity, and suggesting other possible reasons for the heated debate...[and] [n]otes two related Supreme Court decisions made a century apart and reviews statistical studies in support of affirmative action.”
Viewpoints: Against Affirmative Action
Various arguments are made in opposition to affirmative action, including arguments that suggest it harms the very students it purports to help.
Does not work – and causes harm
Thomas Sowell, the Rose and Milton Friedman Senior Fellow on Public Policy at the Hoover Institution, contends in “Affirmative Action around the World”, adapted from his book of the same name, (Yale University Press, 2004), that in the case of African Americans, “The empirical evidence is clear that most blacks got themselves out of poverty in the decades preceding the civil rights revolution of the 1960's and the beginning of affirmative action in the 1970s.” He goes on to write that “Despite a tendency to think of group preferences and quotas as transfers of benefits – a zero-sum process – there are in fact many ways in which these transfers can be negative-sum processes, in which what is lost by one group exceeds what is gained by another, making the society as a whole worse off.” In addition, he argues it leads to intergroup polarization and “by a withdrawal of members of non-preferred groups and the loss of their contributions to the society at large.”
Leads to “Reverse discrimination”
The “reverse discrimination” argument reasons that affirmative action is an unethical approach to combating discrimination because it itself requires a certain amount of prejudice.
It was popularized by Ward Connerly, a businessman and founder and President of the American Civil Rights Institute. His bio on the American Civil Rights Institute’s website states that “As a member of the University of California Board of Regents, Mr. Connerly focused the attention of the nation on the University's race-based system of preferences in its admissions policy. On July 20, 1995, following Mr. Connerly's lead, a majority of the Regents voted to end the University's use of race as a means for admissions.” Connerly was also one of the main activists supporting California’s Proposition 209.
One of Connerly’s central points of opposition to such “reverse discrimination,” is that asking Americans to disclose their race on college applications is more harmful than helpful in decreasing racial disparity, even if it is aimed at leveling out the playing field for those at a racial disadvantage.
Admitting students who do not meet merit standards hurts those students
Some argue that affirmative action lowers the bar for admission. At the same time, some argue these policies leads to people who are not fully qualified for a given educational institution to be accepted – and since they do not necessarily have the capabilities required to perform at such high standards, they will eventually fail – which does not benefit the supposed “beneficiaries” of such a policy. (See “What’s At Stake” Newsweek, 2003)
Nurtures a “culture of victimization”
Some opponents of affirmative action argue that it works against the equalization of races by sending minority groups the signal that they cannot be successful without external help. While the goal of affirmative action is to aid minority groups, advocates of this camp maintain that it often does more harm than good because it is patronizing. Ultimately, self-reliance is the only way to level out racial disparities, some say, and affirmative action only emphasizes the unevenness of the playing field.
Associate Justice Clarence Thomas, the only sitting African American Supreme Court Justice, believes that he experienced firsthand that his law degree from Yale lost value in the eyes of potential employers because he was black. "That degree meant one thing for whites and another thing for blacks…it was discounted," he said, because the law school reserved a certain number of slots for minority students.
Affirmative action has run its course
Some contend that affirmative action was appropriate in the past but no longer is needed. In “Is affirmative action still necessary?” (CNN’s American Morning, 2009) Carol Costello points to a 2009 Quinnipiac poll and to comments of people on the street, showing that many feel the time to end affirmative action has come, in a time when an African American is President, among other advancements.
Affirmative action in education admissions is a matter of continuing debate, legal action, and policymaking.
A number of approaches have been tried by states in the wake of lawsuits and propositions rejecting affirmative action. Labeled “affirmative access,” some plans try to increase the number of minority students on campuses through methods such as guaranteeing a percentage of students from every high school admission to the state university – in some states this is focused on the top students. (See “Affirmative Access: Making the Grade” Newsweek, 2003)
Ultimately, affirmative action seeks to level the playing field. Should the economic background of applicants be taken into consideration instead of or in addition to racial or ethnic factors, on the theory that applicants from wealthier backgrounds have advantages over those with less money, regardless of race or ethnicity?
Are standardized tests an appropriate measurement for college admissions, or are the results tainted by a lack of educational opportunity for some students or biases in the tests themselves? And what are the lessons from the experience of affirmative action in higher education for those striving to increase opportunity and diversity in other areas, such as business?
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This installment of "Ethical Inquiry" was researched and written by Tenzing Sherpa ’12, a member of the Spring 2011 Ethics Center Leadership Council (ECLC). Read more from Tenzing on the ECLC's blog, "Exploring Ethics."