Affirmative Action in Higher Education Law - Report Example

Affirmative Action in Higher Education Law 28th Nov, Affirmative Action has been one of the most litigated areas in America . Complex laws have been enacted to regulate affirmative action whether in employment or education. This paper analyses affirmative action in higher education. A rich legal jurisprudence has developed over time because there has been a lot of litigation on the subject. That the subject is highly contested is not in dispute. Even in courts, conflicting decision emerges each time. A period of legal certainty is closely followed by a longer period of uncertainty. The objective of this paper is to critically analyze the place of affirmative action in higher education today. Key words: Affirmative action, compensation, discrimination, diversity, higher education. Affirmative Action in Higher Education Law Doverspike, Taylor and Arthur (2006) define affirmative action as “policies or procedures which attempt to increase the representation of an underrepresented, protected group (primarily minority or female but may include other groups such as aged) in education or employment through consideration in decision making of an applicant’s race, sex, or other protected group status” (p.5). Affirmative action has been employed as the primary tool for addressing gender, racial and ethnic inequalities. Education has been one of the key battlegrounds in the application of affirmative action evidenced by the popular cases such as Brown v The Board of Education (1954). This is because education is highly valued in the American society due to its ability to impact on the life of an individual. Graduating from a selective institution enhances one’s life chances and increases the likelihood of entering a position of corporate or political leadership (Mullen, 2012). There exists a rich and complex legal framework that governs affirmative action in higher education. It is critical for all the stakeholders, whether school administrators, students or the society, to fathom the legal realities. The objective of this paper is to set out this legal framework conspicuously, the applicable constitutional, statutory and case laws. In addition, the paper shall present a coherent debate on the affirmative action: the pros and cons. The debate Affirmative action is a focal point of public debate because of political and legal developments at the federal, state and local levels. Events that shaped the modern day affirmative action dates back to 1860s, especially following the promulgation of the 14th amendment. The amendment forbade states from enacting laws that denied American equal protection of the laws. It suffered setbacks for instance following the Supreme Court’s decision in Plessy v Fergusson where the court held that separate but equal accommodation did not violate the constitution giving rise to segregationist tendencies across United States. The modern day term ‘affirmative action’ traces its origin to President Kennedy, who in 1961 through Executive Order number 10925, introduced methods to address discrimination which had persisted regardless of constitutional guarantees and civil rights laws. It was developed and first enforced by President Johnson who put practical measures that transformed equality as a theory to equality in fact and result (Brunner and Rowen, 2007). Argument in Favor of Affirmative Action There are two core arguments that justify affirmative action. First, affirmative action ensures diversity in any democratic society. If left to chance, diversity can never be achieved. Part of the education process is to prepare students to interact with people from other nationalities. It prepares students to be better citizens in a democratic state. Americans come from diverse background, and America is set to become more diverse in the decades to come (Kowalski, 2006, p. 38). America prides itself on the diversity of its citizenry. Institutions and the whole academic field benefit holistically from diversity because diversity adds to richness of practice in a particular area. The Supreme Court has recognized diversity as a valid ground for affirmative action in Regents of the University Of California V. Bakke Secondly, it is argued that affirmative action compensates victims of past discrimination such as victims of slavery and Jim Crow laws. It is a societal attempt to make up for past injustices done to the minority groups (Kowalski, 2006, p. 37). It remedies historical state sanctioned discrimination against the protected groups (Forest, 2002, p.49. Historically, minority groups such as women and African Americans have not been afforded an equal opportunity to purse education, which explains disparities in performance in a standardized test. Students start academic life from different levels of abilities and opportunities as result of these past injustices and thus the need to boost them. Arguments against Affirmative Action Affirmative action is reverse discrimination. According to Tucker (2000, p.30), reverse discrimination results when efforts to rectify past discriminations violate the equal protection clause of the constitution. This way, affirmative action delivers the exact opposite of what it is desired. Admission is pegged on skin color, rather than merits. It discriminates against the white students, who are forced to pay for the sins of their ancestors. Additionally, it gives a blanket advantage to minority student because of discrimination meted on their forefathers, regardless of their present status. Factually, not all members of the minority groups are disadvantaged. Affirmative action does not level the playing field; rather, it tilts the playing field to disfavor individuals belonging to the majority group. In the process, equality is trampled on in the name of diversity. Any form of discrimination is illegal and immoral Secondly, affirmative action furthers discrimination and racial preferences. As a result, it stigmatizes members of the minority group when it is viewed that admission to a particular institution was achieved because of membership to a particular minority group rather than on merits. Preferential treatment of the minority groups contributes to racial and ethnic polarization reinforcing racial stereotypes, breeding hatred and resentment from those who find themselves on the receiving end of affirmative action (Tucker, 2000, p.31). The arguments above just but buttress the division in the American society when it comes to the issue of affirmative action. They are moral arguments that just but confuse school administrators more. It is necessary for the school administrators to study the legal regime and case laws while making their decisions. Legal Framework Laws that inculcate affirmative action can be found in local, state and federal level. At the federal level, affirmative action traces its origin to the equal protection clause in the constitution which prohibits discrimination based on race, ethnicity or sex but applies only to public schools. Title VI Civil Rights Act of 1964 echoes the provision of Equal Protection Clause, but adds national origin as another ground for non-discrimination. Title IX of the Education Amendments of 1972 prohibit discrimination based on sex and applies both to public and private schools receiving federal assistance. From the laws, it is clear that no institution of higher learning: public or private, may maintain policies that discriminate on the basis of race, racial segregation: the only exception being affirmative action programs. With regards to the Equal Protection Clause, the Supreme Court has adopted a strict scrutiny and it must be shown that remedying a targeted discrimination is a compelling governmental interest. This area has been heavily litigated on, with several cases stemming from qualified but rejected non-minority students who claim to be victims of reverse discrimination because minority students were given preference in admission on the basis of their minority status (p.339). Case laws Defunis v. Odegaard (1973) This was the first case that challenged the constitutionality of the equal protection clause. The plaintiff was a white male. He applied but was denied admission to University of Washington Law School. Subsequently, he challenged the decision alleging that less qualified applicants had been accepted and that but for affirmative action program, he would have been admitted. On merit basis, Defunis was qualified better than all but one of the minority applicant admitted. The university had considered minority application separately from the other applications. The trial court ordered that he be admitted, but it was overturned by the Washington State Supreme Court which upheld the school’s affirmative action as justified by several compelling state reasons among them diversity reasons, interest in promoting integration in public schools and interest in alleviating shortage of minority lawyers, prosecutors and judges (Kaplin and Lee, 2007). However, he was allowed to remain in school while he sought review in the United States Supreme Court. However, the court never rendered judgment as the case was declared moot on the basis that Defunis was already in his final year in school and the school had asserted that his registration would remain regardless of the outcome of the case. Therefore, the decision of the Washington State Supreme Court was vacated. Regents of the University of California v. Bakke (1978) Five years after Defunis, the court was called to address the validity of affirmative action in the now famous case of Bakke. Bakke, a white male had been twice denied admission to University of California Medical School at Davis. The university had a program whereby it preserved 16 out of 100 positions to minority and considered their applications separately. He instituted the suit against the university based on the Fourteenth Amendment Equal Protection Clause. The University justified the program based on the need to diversify the student body, need to reduce historical deficit on minority doctors and the need to remedy societal discrimination against the minorities. The Supreme Court applied two tests: the “compelling state interest” test and the “less objectionable alternative” test. It held that the state “has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.” (Kaplin & Lee, 2007,p.342). Bakke developed 3 core principles with regards to affirmative action. First, racial preferences in the form of quotas: numerical or percentage, is prohibited. Secondly, separate admission systems different in procedure and criteria from non-minority admissions are impermissible. Finally, Title VI embodies the Fourteenth Amendment principles of equal protection and that it applies to race discrimination in the same manner as the equal protection does (Kaplin &Lee, 2007,p.342). Besides the above holding, Justice Powell gave guidance on how affirmative action programs should be structured to achieve student body diversity and the importance of individualized comparison of all the applicants. He stated that while race may be deemed as a plus, it should not insulate an individual from comparison with others. Justice Powell’s guidance was heavily employed by institutions to structure their affirmative action programs. Bakke and especially Justice Powell’s guidance was heavily applied in subsequent cases to scrutinize schools affirmative action programs, such as in McDonald v. Hogness, 598 P.2d 707 (Wash. 1979) to uphold University of Washington medical school’s race-conscious admissions policy (p. 342). Bakke delivered a period of relative legal calm. Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) After the period of legal certainty following Bakke, the status quo was challenged again in court. This time, four applicants had been rejected by the University of Texas (UT) allegedly on racial grounds, and they challenged the university’s decision under Equal Protection Clause and under Title VI. The University affirmative action program gave a preferential treatment to African Americans and Mexican Americans and used a separate committee to evaluate their applications. The plaintiffs challenged Justice Powell’s opinion and the legality of the diversity rationale in considering race or gender in admission. At the Fifth Circuit, the court applied the strict scrutiny test. The test required U.T to show that there was a compelling interest for using racial preferences and that the use of racial preferences was “narrowly tailored” to achieve that compelling interest. In this case, the court rejected Powell’s reasoning. It stated that achieving a ‘diverse student body’ was not a compelling reason under the Fourteenth Amendment. With regards to the compensatory justification, the court ruled that U.T had to produce evidence of its past discriminatory tendencies, but not rely on past discrimination of the State of Texas. Therefore, the period of legal certainty brought about by Bakke was brought to an end. Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003) The two cases were decided in 2003 and represent the latest jurisprudence on the debate. In both cases, rejected white students challenged respective school’s affirmative action in admission. In both schools, the programs were voluntary and there were racial preferences. In both, the plaintiffs based their arguments on the Equal Protection Clause and Title VI. In Grutter, the law schools program was upheld while in Gratz it was rejected. The Supreme Court upheld Bakke principles that quotas are impermissible but more flexible racial preferences are permissible. The court applied the strict scrutiny test. While both cases met the ‘compelling reason’ threshold, Gratz failed the second limb: that is the program was not tailored to meet that compelling interest. Importantly, in Grutter, the court stated that consideration for diversity could be a legal basis so long as it was not the sole determining factor. Policy development: determining affirmative Action In future. The applicable jurisprudence, therefore, remains Grutter and Gratz. It has been settled in Grutter that considerations of diversity can be compelling reasons under the strict scrutiny. However, diversity does not consist of race considerations only: there are a wide range of characteristics to be considered. The court shall defer to the university’s judgment about educational benefits to be achieved by diversity. Secondly, it is necessary that the program be narrowly tailored to meet the educational objective. Applications should be reviewed on individual basis. It is necessary that the law in future should decide in favor of diversity. Diversity in any school set up brings with it several advantages, to the individual students, the institution and to the country. It produces not only better students but also better citizens and leads to a broader base of knowledge to institutions. Nevertheless, diversity goes beyond race: a broad base of issues should determine the applicable program. If schools wish to rely on diversity to justify affirmative action, the individual plan must be tailored and linked to the school’s mission. It has been shown that without affirmative action, enrollment of the minority groups in elite schools drop significantly. Alternatives to Affirmative Action As discussed, affirmative action raises various contentions as it is applied in school admission. Therefore, there is the need to explore a middle ground. It is possible to achieve the original goal of affirmative action without racial profiling. This includes giving help to those who need help regardless of their race, gender or color. Affirmative action sparks racial diatribes, more than it was intended to solve. Secondly, the other alternative is to determine beneficiaries of affirmative action based on merits. Merit-based affirmative action has the advantage that it rewards all hardworking students regardless of race or color. Finally, institutions should consider race-neutral or uniform affirmative action policy. This way, the universities can supplement or revise their general admission standards or procedures such that they are more responsive to qualifications and potential contributions of all the applicants. all applicants might be eligible for credit for working to help put themselves through school, for demonstrated commitment to living and working in a blighted geographical area, for being the first in one’s family to attend college, for residing in an inner-city area from which the institution typically draws very few students, or for overcoming handicaps or disadvantages (Kaplin and Lee, 2007, P. 352). Conclusion School administrators face a daunting task trying to balance the need for diversity, affirmative action and constitutional requirement. While there is need to try to address historical injustices, the constitution, federal and state laws impose strict legal radius within which schools can do the same. There exists a very thin boundary between affirmative action and reverse discrimination. Consequently, school administrators must fathom the legal realities and, while it is crucial to maintain diversity, they must understand the legal limits placed on them. References Brunner, M. Rowen, P. (2007). Affirmative Action History: A History and Timeline of Affirmative Action. Pearson Education Inc. http://www.infoplease.com/spot/affirmative1.html#ixzz2lpjh47b7 Doverspike,D., Taylor,M. & Arthur, W.( 2006) .Psychological Perspective on Affirmative Action. New York: Nova Publishers. Print. Forest, J. (2002). Higher Education in the United States: An Encyclopedia, Volume 1. California: ABC-CLIO. Print. Tucker, R.(2000). Affirmative Action, the Supreme Court, and Political Power in the Old Confederacy. Maryland: University Press of America. Print. Kaplin, W.A. & Lee, B.A. (2007). The law of higher education (4thed.). (Student Version). San Francisco, CA: John Wiley & Sons. Kowalski, K.(2006). Affirmative Action. New York: Marshall Cavendish. Print Read More