5.4 The Rise of Affirmative Action in Education

Affirmative action in education emerged from civil rights efforts to combat racial discrimination. Kennedy and Johnson's executive orders laid the groundwork, requiring non-discrimination and proactive measures to increase minority representation in federal employment and contracting.

Supreme Court cases shaped affirmative action policies in higher education. Landmark decisions like Bakke, Grutter, and Fisher allowed race-conscious admissions but set strict guidelines. These rulings sparked debates on quotas, reverse discrimination, and the value of diversity in education.

Executive Orders and Early Affirmative Action

Kennedy's Groundbreaking Order

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• Executive Order 10925 issued by President John F. Kennedy in 1961
• Established the Committee on Equal Employment Opportunity
• Required government contractors to take "affirmative action" to ensure non-discrimination
• Marked the first use of the term "affirmative action" in a legal context
• Aimed to address racial discrimination in federal employment and contracting

Johnson's Expansion of Affirmative Action

• Executive Order 11246 signed by President Lyndon B. Johnson in 1965
• Prohibited discrimination based on race, color, religion, and national origin by federal contractors
• Required contractors to implement affirmative action plans to increase minority employment
• Established the Office of Federal Contract Compliance Programs (OFCCP) to enforce the order
• Later amended to include sex as a protected category in 1967

Landmark Supreme Court Cases

Bakke and the Constitutionality of Race-Conscious Admissions

• Regents of the University of California v. Bakke decided in 1978
• Challenged UC Davis Medical School's admissions policy reserving 16 out of 100 seats for minority students
• Supreme Court ruled quota systems unconstitutional but allowed race to be considered as one factor in admissions
• Established the principle of diversity as a compelling state interest in higher education
• Set the stage for future affirmative action cases in education

Grutter and the Narrowly Tailored Use of Race

• Grutter v. Bollinger decided in 2003
• Challenged the University of Michigan Law School's admissions policy
• Supreme Court upheld the use of race as one factor among many in holistic review processes
• Reaffirmed diversity as a compelling interest in higher education
• Set a 25-year time limit on the use of race-conscious admissions policies

Fisher and the Strict Scrutiny Standard

• Fisher v. University of Texas decided in 2013 (Fisher I) and 2016 (Fisher II)
• Challenged UT Austin's consideration of race in admissions for students not admitted under the Top Ten Percent Plan
• Supreme Court applied strict scrutiny standard to evaluate the university's use of race
• Upheld UT Austin's admissions policy as narrowly tailored to achieve diversity
• Emphasized the need for universities to continually assess the necessity of race-conscious admissions

Controversial Aspects of Affirmative Action

Quota Systems and Their Legal Challenges

• Quota systems involve setting aside a specific number or percentage of positions for minority groups
• Declared unconstitutional in Bakke case for violating the Equal Protection Clause
• Led to the development of "goals and timetables" as an alternative approach
• Criticized for potentially excluding qualified candidates based solely on race or ethnicity
• Proponents argue quotas necessary to overcome systemic discrimination and achieve meaningful diversity

The Reverse Discrimination Debate

• Reverse discrimination refers to perceived unfair treatment of majority groups due to affirmative action policies
• Critics argue affirmative action violates principles of meritocracy and equal opportunity
• Supporters contend reverse discrimination claims ignore historical and ongoing systemic inequalities
• Legal challenges (Ricci v. DeStefano) have addressed reverse discrimination claims in employment contexts
• Debate continues over balancing remedial action with fairness to all applicants

Diversity and Its Role in Higher Education

• Diversity recognized as a compelling state interest in higher education by Supreme Court
• Encompasses racial, ethnic, socioeconomic, and geographic diversity among student bodies
• Proponents argue diverse campuses enhance learning experiences and prepare students for global workforce
• Critics question the educational benefits of diversity and its prioritization in admissions
• Ongoing research examines the impact of campus diversity on academic outcomes and social dynamics