Race-Based Affirmative Action in Higher Education: Has a Decade Made a Difference?

Abstract

Affirmative action has been at the center of political debate and discourse since its inception in the 1960s. In 1978, the U.S. Supreme Court legitimized the consideration of race as a factor in higher education admissions in University of California v. Bakke, finding diversity may be a compelling government interest. However, in the last decade, this debate has been particularly focused on whether race is an appropriate criterion for establishing diversity in higher education. Proponents of race-based affirmative action see this policy as a means to correct past discrimination, eliminate present discriminatory practices, and level the playing field for various minority groups. Opponents, however, see race-based affirmative action in terms of reverse discrimination, race-based preferential treatment, and a dated practice in our present day color-blind society. The Court’s decision in Grutter v. Bollinger in 2003 provided vague guidelines for race-based admissions for the 21st Century. However, just a decade later, the Court is re-evaluating its decision in the upcoming Fisher v. University of Texas at Austin. This case will determine the relevance of race-based affirmative action in the higher education application process. This decision will necessarily have a profound impact on the admissions practices available to universities nation-wide. It will also determine whether O’Connor’s 25-year prediction in Grutter was accurate or longer than necessary. Despite the outcome in Fisher, the use of race as a dividing factor in admissions is on the decline. Several states have already banned its use in order to create a more color-blind society. In order for our society to evolve, Americans can no longer see diversity as making sure different colors are in a room, but instead, focus on different ideas. Consequently, it is important to shape higher education admissions based on this different ideas and backgrounds. This Note will argue the most appropriate way to develop this new type of diversity is to replace race-based affirmative action with a system so as to consider socioeconomic status. Part II of this Note will take a brief look at the history of affirmative action in higher education admissions, including the public policy surrounding its implementation and the litigation it triggered. Part III will address the current status of affirmative action in university admissions and outline the arguments in the upcoming Fisher case. Finally, Part IV will show, as the Court is likely to rule race-based affirmative action unconstitutional, why an affirmative action policy based on socio-economic status (SES) would be an appropriate alternative to establish diversity, both in policy and legal terms.