How old is affirmative action

The Court has approached most of the cases in a piecemeal fashion, focusing on narrow aspects of policy rather than grappling with the whole. Even in Bakke-the closest thing to a landmark affirmative action case-the Court was split , and the judges' various opinions were far more nuanced than most glosses of the case indicate. Sandra Day O'Connor , was often characterized in her time as the pivotal judge in such cases because she straddled conservative and liberal views about affirmative action.

She was described by University of Chicago law professor Cass Sunstein as "nervous about rules and abstractions going wrong. She's very alert to the need for the Court to depend on the details of each case. But in a landmark case involving the University of Michigan's affirmative action policies-one of the most important rulings on the issue in twenty-five years-the Supreme Court decisively upheld the right of affirmative action in higher education.

Two cases, first tried in federal courts in and , were involved: the University of Michigan's undergraduate program Gratz v.

Bollinger and its law school Grutter v. The Supreme Court upheld the University of Michigan Law School's policy, ruling 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 undergraduate program, unlike the law school's, did not provide the "individualized consideration" of applicants deemed necessary in previous Supreme Court decisions on affirmative action.

In the Michigan cases, the Supreme Court ruled that although affirmative action was no longer justified as a way of redressing past oppression and injustice, it promoted a "compelling state interest" in diversity at all levels of society.

A record number of "friend-of-court" briefs were filed in support of Michigan's affirmative action case by hundreds of organizations representing academia, business, labor unions, and the military, arguing the benefits of broad racial representation. As Sandra Day O'Connor wrote for the majority, "In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.

June 4, Johnson speech defining concept of affirmative action? June 28, Regents of the University of California v. July 2, Fullilove s. Regents of the University of California v. This landmark Supreme Court case imposed limitations on affirmative action to ensure that providing greater opportunities for minorities did not come at the expense of the rights of the majority—affirmative action was unfair if it led to reverse discrimination. The case involved the Univ. The school reserved 16 of its places for this latter group.

Allan Bakke, a white applicant, was rejected twice even though there were minority applicants admitted with significantly lower scores than his.

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. While Bakke struck down strict quotas, in Fullilove the Supreme Court ruled that some modest quotas were perfectly constitutional.

In cases involving valid hiring goals, the burden to be borne by innocent individuals is diffused to a considerable extent among society generally. Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose. Denial of a future employment opportunity is not as intrusive as loss of an existing job.

In response, the court ordered specific racial quotas to correct the situation. This use of numerical quotas was challenged. What Croson was to state- and local-run affirmative action programs, Adarand was to federal programs.

Small businesses also resented the paperwork. The extent of the corporate buy-in was put on dramatic display in , when the Supreme Court heard Grutter v. Bollinger, another admissions case, this one involving the University of Michigan Law School.

They supported affirmative-action admissions because they wanted universities to produce educated people for a diversified workforce.

The Court voted to uphold the Michigan program, but it was a 5—4 decision. No sector is more committed to diversity than higher education is, but it has proved to be one of the stickiest areas for affirmative action, both legally and practically. Urofsky, perhaps because he is an academic, is more patient with the trouble that universities have had in achieving diversity than he is with the problems of labor unions, to which, in general, he is uncharitable.

It is true that probably the main reason Nixon promoted affirmative-action programs was to pit African-Americans against labor, both traditionally Democratic voting bases. And, by many accounts, he succeeded, and created Archie Bunker—the Reagan Democrat, a man who resents special government help for minorities.

Still, the leadership of unions like the United Auto Workers, though sometimes fighting their own membership, were active in support of civil rights. Higher education and unions have a similar problem when it comes to changing the demographics: we are dealing with a cake that cannot be unbaked.

The undergraduate population turns over every four years, but the faculty turns over every forty years. When the new students arrive on campus, they often wonder where the professors of color are. The answer is: wait twenty years, and they will show up. Even so, the lag in diversification between university faculties and their student bodies is striking. As late as , less than five per cent of all professors had African or Asian ancestry, and around eighty per cent were men.

Schools like Harvard and Stanford have had trouble even getting to gender balance. In , women made up 1. Even at Berkeley, which had been admitting women since , women made up just 5. Today, less than thirty per cent of all university faculty at Stanford are women, and seven per cent are classified as underrepresented minorities.

At Harvard, twenty-seven per cent of tenured faculty are women, and eight per cent are underrepresented minorities. On the other hand, student bodies, where race- and gender-conscious admissions policies can have an effect more quickly, have diversified.

In , eighty-three per cent of university students were white; in , fifty-seven per cent were white. The percentage of black students in that period increased from ten to fourteen; the percentage of students that the government categorizes as Hispanic increased from less than four to more than eighteen.

The percentage of black and Latinx graduates as opposed to enrollees also increased although graduation rates for both groups are lower than for whites. Did affirmative-action admissions help? Starting in the mid-nineties, opponents of affirmative action were able to get laws passed prohibiting the use of race in admissions at public universities in several states, including Michigan, Washington, and California.

The top public universities in those states tried to attract minority students by other means, but Urofsky says that the percentage of black and Hispanic students has dropped significantly. Do students admitted under affirmative-action criteria benefit from their educations? Historically, black students as a group have tended to underperform academically—to get lower grades than their SAT scores predict.

So do varsity athletes. As many writers have pointed out, when we are considering colleges and jobs, there is a pipeline problem. They went to the same high schools that their brothers did and most of them probably got better grades. The success of affirmative action in employment and university admissions has not eliminated the education and income gaps between whites and blacks. Although the poverty rate for blacks and Hispanics has dropped some since , it is still more than double the rate for whites.

Americans of color are starting from much farther behind. Millions never get on board a train that most whites were born on. The Supreme Court case that admissions offices rely on today is Regents of the University of California v. It was decided in , and, despite several attempts to relitigate it, it is still the law of the land. Bakke is a good example of the jurisprudential confusion around affirmative action: the Court managed to produce six opinions in that case.

The plurality opinion, by Lewis Powell, struck down an admissions program at the University of California at Davis School of Medicine, from which Allan Bakke, a white man, had been twice rejected, but it upheld the right of schools to use race-conscious admissions programs. The problem at Davis was that the medical school basically ran two admissions processes, one for everybody and one that effectively considered only minority applicants, for whom sixteen places were set aside.

Bakke was able to show that his record was superior to the records of some of the students who had been admitted through the special program. The Davis program was obviously not narrowly tailored. One consideration that the university offered in the way of compelling state interest was its belief that minority M. Powell found no evidentiary basis for this, and it was arguably a racist assumption. The school could have investigated whether applicants had worked with underserved communities in the past.

They did not, and Powell suggested that such a standard might be a better proxy than race. Admissions programs determined by race are in violation of both the equal-protection clause of the Fourteenth Amendment and Title VI of the Civil Rights Act, which outlaws racial discrimination in institutions that receive federal funding. Powell argued, however, that another right was in play: the First Amendment; specifically, the right of academic freedom. There is no constitutional right of academic freedom, but Powell cited a case, Sweezy v.

New Hampshire, in which Felix Frankfurter, in a concurring opinion, quoted South African jurists to the effect that the principle of academic freedom allows a university to determine who will teach its classes and who will sit in its classrooms.

The Michigan case, Grutter v. Bollinger, in , was basically a relitigation of Bakke.