Affirmative Action Compliance in Higher Education

Affirmative action is a government policy that seeks to remedy long-standing discrimination directed at specific groups, including women and racial and ethnic minorities. The basic purpose of affirmative action policies and programs is to increase access to, and ensure the equitable distribution of, opportunities in higher education, employment, government contracts, housing, and other social-welfare areas. To this end, affirmative action provides regulations, procedures, and guidelines to assure that eligible and interested citizens receive equal consideration regardless of their race, ethnicity, gender, religion, or age. Affirmative action does not fully restrict all forms of discrimination or make them illegal. Rather, it attempts to redress historical inequities by providing traditionally underrepresented groups with more equal access to most public and private arenas. This access is regarded as "more equal" since it attempts to address years of inequities and inequalities within a short amount of time.

The civil rights innovations outlined in the U.S. Constitution were not available to all of the inhabitants of the new nation. Prior to 1865, most African Americans were slaves, and they were considered property and counted for census purposes as three-fifths of a person. For the most part, Native Americans received no consideration at all. Women, although counted as full persons in census data, had very few rights. In spite of a variety of legal and social changes, these groups continued to suffer blatant discrimination well into the second half of the twentieth century.

The Fourteenth Amendment to the Constitution provides the legal basis for affirmative action policies. Added to the Constitution in 1868, this amendment extends legal protection to all U.S. citizens. Specifically, the equal protection clause of the Fourteenth Amendment asserts that, "No state shall … deny to any person within its jurisdiction, the equal protection of laws." Although the language is clear, this legislation was infrequently enforced.

It was not until the Supreme Court ruled in the case of Brown v. Board of Education (1954) that the notion of equal protection received serious national consideration. Specifically citing the Fourteenth Amendment, the Court held that racial segregation in elementary and secondary education is unconstitutional because it promotes an unequal educational system. Following this ruling, President John F. Kennedy issued Executive Order 10925 in 1961, which asked federal contractors to adopt diversity programs in an effort to help end segregation. (This order provides the legal foundation for affirmative action programs.)

In the spirit of the equal protection clause, the Civil Rights Act of 1964 bans discrimination on the basis of race, color, religion, sex, or national origin. To ensure compliance, federal funds are denied to those institutions that violate this mandate. More specifically, Title VII of the Civil Rights Act of 1964 states that:

It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

Compliance

To ensure compliance, the federal government established the Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC). Established in 1965 under Executive Order 11246, the OFCCP reviews, monitors, and enforces an institution's affirmative action plan. The OFCCP posits that each employment agency is responsible for designing an "acceptable" affirmative action program, which "must include an analysis of areas within which the contractor is deficient in the utilization of minority groups … and further, goals and timetables to which the contractor's good faith efforts must be directed to correct the deficiencies, and thus to achieve prompt and full utilization of minorities … at all levels and in all segments of its work force where deficiencies exist" (41 C.F.R. Sec. 60-2.10).

Similar to the OFCCP, the EEOC also helps to enforce antidiscrimination laws and regulations. Created by Title VII of the Civil Rights Act of 1964, the EEOC also enforces other related legislation, including the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, and Title I of the Americans with Disabilities Act of 1990. The EEOC investigates discrimination charges filed by individuals. If an employer is in violation, the EEOC first attempts to bring about voluntary resolution. If this fails, the EEOC may choose to file suit against the employer in federal court. At the conclusion of such a case, the EEOC issues a "notice of the right to sue," which allows an individual to file an additional suit in federal court.

To comply with affirmative action regulations, most colleges and universities reformed their admissions and hiring practices. Throughout the 1970s, higher education institutions established affirmative action programs and antidiscrimination policies designed to increase the number of women and minority students and faculty members in all fields and disciplines. These activities included actively encour-aging women and minorities to apply for faculty and administrative positions, aggressively recruiting students from traditionally underrepresented groups, and offering support programs to help at-risk students succeed. Even so, affirmative action programs did not resolve all of the discrimination problems affecting higher education. Instead, it became one of them. In fact, white women received the greatest benefit from these programs, and many people questioned the constitutionality of affirmative action.

Court Cases Affecting Affirmative Action

Since the late 1970s, several cases have challenged the constitutionality and legality of affirmative action mandates. The earliest and most influential of these cases was Bakke v. Regents of the University of California (1978). Alan Bakke, a white male who was twice denied admission to the University of California–Davis Medical School, charged the institution with practicing reverse discrimination because it reserved certain positions for disadvantaged students. In this case, the Supreme Court held that it is lawful to consider race or ethnicity as one factor in making admission decisions. The opinion also supported the goal of striving to create a diverse student body. At the same time, the Court also stated that the use of racial distinctions is highly suspect and requires meticulous judicial review. Regarding University of California–Davis Medical School's specific program, the Court rejected it as unlawful because it used a fixed quota, or set-asides, in order to attain diverse enrollment.

Rather than settle the constitutional debate surrounding affirmative action, the Bakke decision made it more muddled and confused. In this ruling, the Supreme Court seemed to support the goal of affirmative action programs, while simultaneously making most of them illegal. In Wygant v. Jackson Board of Education (1986), the Court further limited an institution's ability to act on affirmative action legislation by developing the strict scrutiny test. Seeming to clarify the Bakke decision, Wygant required that the use of racial classification both support a compelling interest of state and be narrowly tailored to satisfy that particular interest. The Court's ruling in this case also stated that historic social discrimination was not by itself a compelling reason for an affirmative action policy, and that a public employer should only enact such a policy if it is indeed needed.

In the cases of Kirwan v. Podberesky (1994) and Hopwood v. State of Texas (1994 and 1996), U.S. circuit courts applied the Supreme Court decisions in Bakke and Wygant. In Kirwan, the U. S. Court of Appeals for the Fourth District ruled that a scholarship program for African-American students at the University of Maryland did not serve a compelling state interest, and therefore failed the strict scrutiny test. In 1994, the U.S. District Court of Appeals for the Fifth Circuit held that the University of Texas School of Law's admission policy of accepting less qualified minority applicants was unlawful because it was a quota system. In 1996, this same court also held that the equal protection clause of the Fourteenth Amendment did not permit the University of Texas to establish admissions policies that gave preferential treatment to one race over another.

As a result of the 1996 Hopwood decision, many people have concluded that affirmative action programs are unconstitutional, and many states have begun to rethink their use of affirmative action programs. Most notably, in 1996, California voters approved a law banning the use of such programs in state and local agencies, including the state's public colleges and universities. Yet, because many states are not bound to follow the Fifth Circuit's 1996 decision, the national debate over affirmative action continues.

The confusion the Supreme Court created in the Bakke decision continues to make it difficult for lower courts to rule on issues related to affirmative action programs. In 2000, the state of Michigan became a battle site for this debate. Highlighting the two-faced approach used by the Supreme Court in its Bakke ruling, the cases of Gratz v. Bollinger (2000) and Grutter v. Bollinger (2001) first upheld, and then rejected the use of affirmative action programs in college admissions. In the Gratz case, the U.S. District Court for the Eastern District of Michigan, South Division ruled that the University of Michigan College of Literature, Science and Arts' consideration of race as a factor in its admission of under-graduate students was both a lawful and "narrowly tailored" way of achieving diversity in its student population. However, in the Grutter case, the same court ruled that the University of Michigan Law School's use of race in its admission decisions violated both the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964, and was therefore unconstitutional.

The Supreme Court has yet to hear either case involving the University of Michigan. And as of March 2002, the Court has thus far refused to hear a case challenging the validity of California Proposition 209. Until these cases are heard the future of affirmative action programs and policies remains unknown.

Timeline of Affirmative Action Legislative and Judicial Developments

1787

U.S. Constitution is drafted, including Article I, Section 2, which counts each African-American slave as three-fifths of a person.

1862

The Morrill Act establishes sixteen higher education institutions specifically dedicated to the education of African Americans.

1863

The Emancipation Proclamation is issued, ending slavery in the Confederate States.

1865

The Thirteenth Amendment is added to the U.S. Constitution, abolishing slavery throughout the nation.

1868

The Fourteenth Amendment is added to the U.S. Constitution, guaranteeing equal protection under the law.

1870

The Fifteenth Amendment is added to the U.S. Constitution, extending the right to vote to all male citizens.

1896

In Plessy v. Ferguson, the U.S. Supreme Court establishes the doctrine of "separate but equal," helping to promote segregationist laws and policies.

1948

President Harry S. Truman issues Executive Order 9981, which ends segregation in the U.S. Armed Forces.

1948

In Sipuel v. Board of Regents, the Supreme Court orders the University of Oklahoma to admit an African-American law student because the state does not provide a separate law school for African Americans.

1950

In McLaurin v. Oklahoma State Regents, the Supreme Court rules that it is unconstitutional for an African-American student to be physically segregated from other students because of his race.

1950

In Sweatt v. Painter, the Supreme Court rules that the state of Texas's newly established law school for African Americans does not provide separate but equal facilities. As such, it cannot deny the petitioner the right to attend the University of Texas Law School.

1954

The Supreme Court reverses its doctrine of separate but equal established in Plessy v. Ferguson. In Brown v. Board of Education, the Court holds that state laws mandating or permitting segregation are unconstitutional under the equal protection clause of the Fourteenth Amendment.

1964

The Civil Rights Act of 1964 is passed. This legislation includes Title VI, which prohibits public and private institutions receiving public funds from discriminating on the basis of "race, color, religion, sex, or national origin," and Title VII, which provides for the establishment of the Equal Employment Opportunity Commission (EEOC).

1965

President Lyndon B. Johnson issues Executive Order 11246, requiring organizations that receive federal contracts of $50,000 or more and have fifty or more employees to develop affirmative action plans. The Office of Federal Contract Compliance Programs (OFCCP) is developed to monitor compliance with these regulations.

1967

President Lyndon B. Johnson issues Executive Order 11375, which amends and extends Executive Order 11246 to include women.

1972

Title IX of the Education Amendments of 1972 is passed, prohibiting gender-based discrimination in the programs and employment practices of federally funded organizations.

1978

In Bakke v. Regents of the University of California, the U.S. Supreme Court rules that University of California–Davis Medical School's special admissions program is unlawful.

1981

In DeRonde v. Regents of the University, the Supreme Court of California rules that the affirmative action plan in place at the University of California–Davis Law School violates of the equal protection clause of the Fourteenth Amendment.

1986

In Wygant v. Jackson Board of Education, the U.S. Supreme Court holds that the school board's plan to consider race in laying off teachers violates the equal protection clause of the Fourteenth Amendment. In this case the Court also established the strict scrutiny test.

1992

The U.S. Department of Education and the University of California, Berkeley establish an agreement ending the admissions practice of placing applicants into separate pools on the basis of race.

1994

In Kirwan v. Podberesky, the U.S. Circuit Court of Appeals for the Fourth Circuit holds that the University of Maryland's Banneker Scholarship Program unlawfully violates the equal protection clause of the Fourteenth Amendment.

1994

In Hopwood v. State of Texas, the U.S. District Court for the Western District of Texas holds that the admissions policy of the University of Texas School of Law established an unlawful quota system.

1996

The U.S. Circuit Court of Appeals for the Fifth Circuit holds that the equal protection clause of the Fourteenth Amendment does not permit an institution to establish preferential, race-based admissions policies. The Fifth Circuit also rules that the University of Texas Law School may no longer consider race in its admissions decisions.

1996

California Proposition 209, also known as the California Civil Rights Initiative, is voted into law, eliminating the use of affirmative action programs throughout state and local agencies, including public colleges and universities.

2000

In Gratz v. Bollinger, the U.S. District Court for the Eastern District of Michigan, Southern Division rules that the University of Michigan College of Literature, Science and Arts' use of race in its admissions decisions is a lawful and "narrowly tailored" way of achieving diversity.

2001

In Grutter v. Bollinger, the U.S. District Court for the Eastern District of Michigan, Southern Division holds that the University of Michigan Law School's use of race in its admissions decisions is unconstitutional, stating that the university's policies violate both the equal protection clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. The court also rules that diversity is neither a "compelling interest" of the state nor a remedy for past discrimination.

Since the Bakke decision, some public and private entities have either chosen or been forced to abandon affirmative action programs. Rather than resolve issues surrounding the validity of these programs, this decision has actually caused more controversy. The legal challenges that resulted from the Supreme Court's ambiguous decision in this case suggest that the Court will soon be expected to make a final determination regarding the constitutionality of these programs.