Race-conscious Admissions Policies Research Articles

Roberts Rules of (Dis)Order: Doctrinal Doublespeak on Affirmative Action and Stare Decisis

In this Article, I argue that Chief Justice John Roberts engaged in doublespeak in his SFFA v. Harvard/UNC majority opinion. He essentially overruled Grutter v. Bollinger (2003) but did not admit doing so, and even structured the SFFA opinion as if he was following Grutter’s precedent. My Article considers why Chief Justice Roberts engaged in this “stealth overruling” of Grutter and exposes his doctrinal sleight of hand in doing so. I first consider how Chief Justice Roberts may have been concerned about the Court’s legitimacy in the wake of its ruling in Dobbs v. Jackson Women’s Health Organization (2022)—where it explicitly overruled Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)—and how that might have influenced his approach to SFFA. Subsequently, I show how throughout the SFFA majority opinion, Chief Justice Roberts either misrepresented Grutter or exploited ambiguities and inconsistencies in Grutter’s doctrine to serve his agenda. I examine the SFFA majority’s treatment of various issues related to the constitutionality of race-conscious admissions policies. These include the compelling interest in diversity, deference to universities on defining their educational missions, the incidental burden of race-conscious policies on certain groups, the use of racial categories, “logical” and arbitrary endpoints for race-conscious admissions, the so-called essay loophole, and the possible military exception. The conclusion considers the consequences of SFFA’s stealth overruling of Grutter: the controversies it could lead to, and its potential impact on the Court’s legitimacy—another matter laden with ironic twists.

The US Supreme Court and Affirmative Action: The Negative Impact on the Physician Workforce

PurposeMaintaining admissions of underrepresented students to medical schools is essential to securing a diverse health care workforce. Empirical evidence indicates that minority patients may prefer practitioners of their own race. The recent US Supreme Court decision concerning affirmative action makes this goal more difficult, but medical schools can still work within the language of the law to redouble their efforts to seat a diverse class of medical students. MethodsWe examined the literature correlating the availability of minority physicians and the health outcomes of the patients they serve. We also examined the literature on race-conscious policies of medical schools intended to address the shortage of minority physicians considering the benefits achieved through a diverse field of health care workers. We also examined the law and the recent US Supreme Court opinion, including the application of equal protection principles, to suggest strategies to seat a diverse class of students within the scope of the law. FindingsInstitutions have maintained the status quo of disparate distributions of professions by race through structural biases that also limit access to medical schools. The new US Supreme Court decision is expected to exacerbate this disparity unless medical schools engage in admissions protocols that actively solicit the character and unique abilities that each of the applicants can offer to contribute to the medical school and the health care profession. ImplicationsThe new US Supreme Court mandate is likely to create challenges for medical schools in their efforts to recruit and seat minority applicants. The mandate provides little discussion, suggesting a lack of understanding of the downstream public health consequences to patients if medical school applicants are denied the benefits of race-conscious admissions policies. Nevertheless, the language of the US Supreme Court's opinion may provide a viable path forward, at least with respect to medical schools where the need for a diverse pool of health care practitioners is particularly compelling.

The Far Reach of the Texas Top Ten Percent Plan: Consideration of Professional School Degrees

ABSTRACT The purpose of this paper is to document the indirect effects of the Texas Top Ten Percent Plan on professional school degrees awarded and to propose the far reach of the law as an alternative argument in support of race-conscious admissions policies challenged under the strict scrutiny standard. Designed around the two tests of strict scrutiny, this study first highlights the essential need for a diverse constituency of professionals to enable societal advancement as a compelling state interest established by the courts and then provides empirical evidence to support additional narrowly tailored race-conscious admissions policies. Complementary interrupted time series analysis and logistic regression find that current admissions policies fail to improve diversity in professional school degrees awarded.

Bans and Signals: Racial and Ethnic Differences in Applications to Elite Public Colleges in States With and Without Affirmative Action

In this research article, Pamela R. Bennett and Amy Lutz offer new hypotheses about how state bans on affirmative action affect application decisions based on students’ beneficiary positions vis-à-vis affirmative action and evaluate them for black, white, Latino, and Asian American students separately. They posit that bans discourage applications to selective colleges from prospective students who benefit from affirmative action (black and Latino) and encourage applications from prospective students who do not benefit from the policy (white and Asian American). Members of nonbeneficiary groups that have strong academic credentials are more responsive to bans because they are best positioned for admission under restrictions on race-conscious admissions policies. Citing results from the Education Longitudinal Study of 2002–2006, the authors show how state restrictions on race-conscious admissions have contributed to racial inequality in higher education by further drawing into elite institutions’ application pools racial groups that already account for most of their students while also raising the chances that students from those groups will be admitted.

An examination of the bidirectional relationship between federal civil rights guidance and research

As the primary agency responsible for enforcing federal civil rights laws in the educational context, the U.S. Department of Education Office for Civil Rights (OCR) issues policy guidance to help ensure that school districts and universities understand their legal obligations. These policy guidance documents have direct connections to topics studied by educational researchers (e.g., disproportionality in special education, race conscious admissions policies in higher education, transgender student inclusion, etc.). However, we do not have an empirical understanding of how this guidance is used by the research community. Nor do we have a strong grasp on the extent to which this guidance is explicitly informed by research. It is important to acquire an empirical understanding of the bidirectional relationship between research and educational policy in the context of civil rights enforcement in order to determine areas of strength and those in need of improvement. Specifically, this study poses the following research questions: 1) How often and in what ways do scholars explicitly use OCR policy guidance to inform their research? What are the characteristics of this research? 2) Conversely, how often and in what ways does OCR explicitly use research to inform policy guidance? What are the characteristics of research cited in OCR guidance?

The Unconstitutionality of Affirmative Action in U. S. College Admissions Policies

미국 대학입학정책에서 적극적 평등실현조치는 평등의 가치와 기회의 평등을 증진시키기 위한 교육의 역할과 관련해 중요한 문제가 되고 있으며, 특히 대학입학정책에서 문제되고 있는 것은 인종적 소수자에 대한 우대이다. 인종에 근거한 적극적 평등실현조치에 대하여 지원자의 피부색에 근거한 고정관념에 기초한 것이라는 비판도 제기되고 있지만, 인종은 유색인종의 삶속에서 어떤 형태로든 인종적 종속을 지속시키는 실질적 결과를 가져오고 있다. 미국 대학입학정책에서 사용된 적극적 평등실현조치는 연방대법원에서 그 위헌성 여부가 다투어졌으며, 이는 다시 대학의 입학정책에서의 변화를 가져왔다. 연방대법원 판결에서 제시하는 일정한 기준에 따라 대학들은 헌법상 허용되는 범주 내에서 입학정책을 마련하여 왔다. 이에 본 논문에서는 미국 대학입학정책에서의 적극적 평등실현조치와 관련된 연방대법원의 판결, 특히 2013년의 Fisher v. University of Texas 판결(Fisher I 판결)과 2016년 Fisher v. University of Texas 판결(Fisher II 판결)의 주요내용과 법리를 검토함으로써 인종에 근거한 적극적 평등실현조치의 위헌여부를 판단하는 심사기준과 구체적 입학정책의 위헌성여부를 살펴보고자 한다. 먼저 인종을 고려한 입학정책에 대하여 엄격심사기준을 적용함에 있어서, 필요불가피한 이익이라는 요건과 엄밀하게 재단되어질 것이라는 요건이 충족되었는지를 검토한다. 특히 후자의 요건과 관련하여 ‘필요 충분한 인원’의 의미와 인종중립적 대안의 심사에 관하여 살펴본다. 나아가 인종중립적 대안으로 여겨지고 있는 상위 10퍼센트 입학정책의 경우 과연 인종중립적인 것인지, 평등권을 침해하는 것인지에 대한 논의를 검토한다. 이러한 연구는 직접적으로 인종과 관계되지는 않았지만 우리나라 대학입학정책에서의 적극적 평등실현조치의 허용여부와 그 범위를 판단하는데 도움이 될 수 있으며, 또한 대학의 구체적 입학정책의 위헌성 여부를 판단하기 위해 적용되어야 할 심사기준과 그 요건을 검토하는데 도움을 줄 수 있다. 대학이 입학정책을 통하여 다양한 사회ㆍ경제적 약자를 배려하는 경우에도 평등권에 합치되는 것이어야 한다.Affirmative action is becoming an important issue related to the role of education for the value of equality and to elevate equal opportunity in American college admissions policies. In particular, the biggest issue with college admissions policies in the United States is preference given to racial minorities. While there are criticism made that race-based affirmative action is founded on stereotypes based on the skin color of applicants, but regardless of the form in the lives of people of color, race has brought upon the actual results of continuing racial subordination. The unconstitutionality of affirmative action in college admissions policies has been reviewed in the Supreme Court, and this has once again brought about changes in college admissions policies. Universities have created admissions policies within the scope allowed by the constitution according to the guidelines given through Supreme Court rulings. Accordingly, this study examined the Supreme Court’s decisions related to affirmative action for US college admissions policies. In particular, it reviewed the main contents and legal principles of the recent case, Fisher v. University of Texas (Fisher I) (2013) and Fisher v. University of Texas (Fisher II) (2016). The strict scrutiny applied to race-conscious admissions policies of the University of Texas at Austin was examined and it was also reviewed whether the “narrow tailoring” requirement other than compelling interests was satisfied. In addition, regarding “narrow tailoring” requirement, the meaning of critical mass and the importance of race-neutral alternatives were examined. Also, the meaning of changes made through the US Supreme Court rulings on affirmative action was reviewed. Such study can help judge whether to allow and the scope of affirmative action in Korean college admissions policies. Furthermore, it can help examine the judicial review standards and requirements that should be applied to judge the unconstitutionality of detailed admissions policies. Even if universities show consideration for people with various social and economic disadvantages through its admissions policies, this should not violate the equal rights of the constitution.

Race-Conscious Admissions, Diversity, and Academic Freedom

This Essay examines the First Amendment component to race-conscious admissions policies. It argues that these policies reflect a core First Amendment value: academic freedom. It illustrates that race-conscious admissions policies promote academic freedom in two ways. One aspect of a university’s academic freedom is the selection of its own student body. Justice Felix Frankfurter stated this explicitly in his concurrence in Sweezy v. New Hampshire (1957), which was later cited in Justice Lewis Powell's influential concurrence in Regents of the University of California v. Bakke (1978). Additionally, the compelling interest in diversity has roots in the First Amendment. By facilitating the admission of a more diverse student body, race-conscious admissions policies contribute to the “marketplace of ideas” on campus -- thus embodying the values inhering from freedom of speech. The Essay also examines how the marketplace rationale is more availing in the context of student diversity than it is in the production of scholarship.

The Partial Deinstitutionalization of Affirmative Action in U.S. Higher Education, 1988 to 2014

Since the 1990s, affirmative action opponents have targeted colleges' and universities' race-conscious admissions policies and secured bans on the practice in eight states. Although scholarly and media attention has focused on these dynamics at a handful of elite institutions, little is known about race-conscious admissions across the broader field of higher education. We provide a descriptive, quantitative account of how different types of colleges and universities responded to this political context. Through analysis of almost 1,000 selective colleges and universities, we find a dramatic shift in stated organizational policy starting in the mid-1990s. In 1994, 60 percent of selective institutions publicly declared that they considered race in undergraduate admissions; by 2014, just 35 percent did. This decline varied depending on status (competitiveness) and sector (public or private). Race-conscious admissions remain the stated policy of almost all of the most elite public and private institutions. The retreat from race-conscious admissions occurs largely among schools lower in the status hierarchy: very competitive public institutions and competitive public and private institutions. These patterns are not explained by implementation of state-level bans. We suggest that the anti–affirmative action movement had a diffuse impact whose effects varied across different strata of American higher education.

Breaking the Cycle: Countering Voter Initiatives and the Underrepresentation of Racial Minorities in the Political Process

This Article examines issues of inequality in education, minority representation, and access to the political process. The Article considers constitutional protections and other legal mechanisms available to racial minorities to nullify or circumnavigate majoritarian voter initiatives that seek to override federal constitutional guarantees and United States Supreme Court holdings on the validity of the use of race in university admissions decisions. Voter initiatives have been used to undermine the socio-economic and political interests of vulnerable communities. In the education realm, affirmative action opponents are increasingly adopting this instrument to defeat race-conscious admissions policies. This Article focuses on several seminal cases involving the political process doctrine, including the Court’s most recent decision, Schuette v. Coalition to Defend Affirmative Action. In Schuette, the Court held that the amendment to Michigan’s Constitution, which prohibits governmental entities from utilizing race-conscious policies, is valid under the Equal Protection Clause. In so holding, the Court failed to adequately address the argument that the amendment leaves some minorities without meaningful access to the political process. This Article proposes recommendations for ensuring that the rights of minorities are adequately represented.

Predicting Federal Judicial Decisionmaking in University Admissions Cases

This article considers the evolving federal jurisprudence on the use of race in university admissions through an empirical lens. We test the extent to which existing theoretical frameworks from the literature about judicial decisionmaking can be used to explain federal judicial decisions in cases involving the use of race in university admissions policies. Specifically, our test seeks to determine whether a judge’s decision to afford deference to a policy involving the use of race in university admissions can be predicted from background and socialized characteristics of the judge, idiosyncrasies of the court, or elements unique to the era in which the decision is made. Our results do not indicate support for the attitudinal or political cultures theoretical frameworks, which have drawn much attention in the judicial decisionmaking literature, to explain substantive or procedural decisions. Instead, we find mixed effects supporting the behavioral framework when examining substantive judicial decisions. The key element of this framework rests on the statistically significant effect found in a judge’s gender, suggesting a deference among female judges to university admission policies that permeates substantive judicial decisionmaking. We also find significant and large effects for the era in which a decision is made, particularly in substantive decisions, supporting evidence of a punctuated equilibrium theoretical framework in our sample of cases. Finally, we employ our model to predict how the Supreme Court justices would decide the Fisher v. University of Texas case and report our predictions. Our empirical inquiry provides insight into questions about judicial use of academic abstention and deference, as well as how race-conscious admissions policies will fare before judicial decisionmakers, given the temporal context of the cases and controversies involving race-conscious university admissions policies.

Brief of Legal Scholars Defending Diversity in Higher Education as Amici Curiae in Support of Respondents, Fisher v. University of Texas at Austin, et al. (14-981)

Legal Scholars Defending Diversity in Higher Education submit this brief to the U.S. Supreme Court as amici curiae in support of Respondents in Fisher v. University of Texas, et al. (14-981). Amici argue that: 1. Racial isolation in schools is a perverse and insufficient means to attain diversity in higher education, because the U.S. Supreme Court has noted that racial isolation is a compelling interest, and Texas's Top Percent Law yields racial diversity only because of such racial isolation; 2. Universities need to use holistic, race-conscious admissions policies to pursue qualitative diversity (i.e., diversity within racial groups), because qualitative diversity has educational benefits and requires individualized assessment of applicants; 3. Elimination of racial disparities, not critical mass, provides a measurable end point for race-conscious admissions, because while the compelling interest that justifies race-conscious admissions is the educational benefits of student body diversity, the need to use race to achieve such diversity is predicated on racial disparities and inequality; and 4. Less reliance on race is a constitutional virtue, not a vice, contrary to Petitioner's assertion, because small increases in racial diversity have benefits and because less reliance on race indicates a university's serious intent to eventually transition to race-neutral admissions policies.

Examining Post-Racial Ideology in Higher Education

In this chapter, the author explores connections between post-racial ideology and exclusionary practices in higher education. Post-racialists contend that race-conscious practices and policies in higher education are no longer necessary because of significant racial progress in society. In contrast, the author argues that post-racialism extends a key tradition of higher education—the mediation of self-serving ideology for the culturally dominant group from seemingly objective stances. After presenting the historical influence of White privilege on higher education policies and practices, the author outlines two current examples of post-racialism in postsecondary education—the continued retreatment from race-conscious admissions policies and the persistence of race-neutral, universalist perspectives of knowledge. In light of continuing racial stratification for postsecondary opportunities in the United States, contesting post-racialism is critical for scholars and policy makers interested in educational equity and justice.

MAKING A CIVIL RIGHTS CLAIM FOR AFFIRMATIVE ACTION

AbstractThe politics of affirmative action are currently structured as a litigious conflict among elites taking polarized stances. Opponents call for colorblindness, and defenders champion diversity. How can marginalized activists subvert the dominant terms of legal debate? To what extent can they establish their legitimacy? This paper advances legal mobilization theory by analytically foregrounding the field of contention and the relational production of meaning among social movement organizations. The case for study is two landmark United States Supreme Court cases that contested the University of Michigan’s race-conscious admissions policies. Using ethnographic data, the paper analyzes BAMN, an activist organization, and its reception by other affirmative action supporters. BAMN had a marginalized allied-outsider status in the legal cases, as it made a radical civil rights claim for a moderate, elite-supported policy: that affirmative action corrects systemic racial discrimination. BAMN activists pursued their agenda by passionately defending and, at once, critiquing the university’s policies. However, the organization’s militancy remained a liability among university leaders, who prioritized the consistency of their diversity claims. The analysis forwards a scholarly understanding of the legacy of race-conscious policies.

The Quixotic Search For Race-Neutral Alternatives

The Supreme Court has stated that the narrow-tailoring inquiry of the Equal Protection Clause’s strict scrutiny analysis of racially disparate treatment by state actors requires courts to consider whether the defendant seriously considered race-neutral alternatives before adopting the race-conscious program at issue. This article briefly examines what that means in the context of race-conscious admissions programs at colleges and universities. Part I sets forth the basic concepts that the Supreme Court uses to analyze race-conscious decision-making by governmental actors and describes the role of “race-neutral alternatives” in that scheme. Part II examines the nature of “race-neutral alternatives” and identifies its various possible meanings, arguing that the idea of a “race-neutral alternative” only makes sense when the goal itself is race-neutral. Part II then carefully considers Supreme Court cases that mention this idea and argues that the Court has given confusing signals. Part III suggests that the idea of “race-neutral alternatives” has been misused when the government’s underlying goal is race-conscious; the Court’s guidance about what it means to consider a “race-neutral alternative” is practically useless because it has never explained whether that concept includes racially motivated manipulation of facially neutral criteria to achieve a racial goal. Requiring such “race-neutral alternatives” is akin to requiring the serious consideration of a slow-moving alternative to achieving a speed goal. One might well wonder why anyone would do such a counterintuitive thing, and the Court has not yet provided a good explanation. In the world of race-conscious admissions policies, the concept of a “race-neutral alternative” distracts attention from the more important question: whether having more racial or ethnic minorities at a college or professional school leads to better educational outcomes. I suggest that the Court should eliminate the “race-neutral alternative” requirement in this context. Instead, the Court should focus more attention on whether the use of race actually leads to the benefits claimed.

Growing C-D-R (Cedar): working the intersections of interest convergence and whiteness as property in the affirmative action legal debate

In this article we extend Bell’s work on interest convergence by using Harris’ work on whiteness as property to articulate a cycle of interest convergence, interest divergence, and imperialistic reclamation, or convergence-divergence-reclamation (C-D-R, pronounced ‘cedar’). We then apply the C-D-R cycle lens to the evolution of federal race-conscious affirmative action legal cases in higher education and state anti-affirmative action policies that have emerged since the implementation of Civil Rights Act of 1964, and how these legal cases and policies are emblematic of the convergence, divergence, or reclamation periods. We also explore the incessant legal and political debate regarding race-conscious admissions policies.

Fighting the Battle for Racial Diversity: A Case Study of Michigan’s Institutional Responses to Gratz and Grutter

How did the University of Michigan become a viable defendant of raceconscious admissions policies? Pursuing a simple legal strategy to address Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003) was certainly an option; however, Michigan’s leadership chose to respond in ways that increased the institution’s role in the affirmative action debate, resulting in the Supreme Court’s decision to affirm the use of race in admissions. This case study explores Michigan’s institutional responses to understand those elements that are critical for institutional engagement as it relates to promoting race-conscious policies, racial diversity, and inclusion.

An Alternative to Affirmative Action: Attributing Lack of Diversity in Undergraduate Institutions to a Failing Education System

In the recent Supreme Court decision, Grutter v. Bollinger, the Court upheld the use of race-based affirmative action in admissions processes at higher education institutions. In the course of holding that diversity is a compelling interest, and that narrowly tailored race-conscious programs may be used to achieve diversity at graduate and undergraduate institutions, the Court also noted that such “race-conscious admissions policies must be limited in time.”

The Asian American Nexus to Civil Rights

When the U.S. Supreme Court upheld the use of race-conscious admissions policies in the recent University of Michigan affirmative action cases, the majority of opinions did not mention Asian Americans. Indeed, Asian Americans were not included as part of the University's undergraduate admissions policy that granted additional points to underrepresented minority applicants. But Asian Americans were not absent from the Supreme Court's decision-making. The Court received two friend-of-the court briefs from Asian American organizations: One brief, filed by a single organization, argued against race-conscious admissions because of past discrimination against Asian Americans and because of the harms that affirmative action might impose on Asian Americans. The other brief, filed by a coalition of national and local organizations, argued that Asian Americans continue to suffer discrimination and do, in fact, benefit from affirmative action; they also argued that as a matter of principle, not simply self-interest,...

Leading Conservative Scholar Supports a University's Option to Choose Whether it Will Adopt Race-Conscious Admissions Policies

Leading Conservative Scholar Supports a University's Option to Choose Whether it Will Adopt Race-Conscious Admissions Policies

Bakke in Balance: Some Preliminary Thoughts

The Bakke decision' was a long time in coming, and one may well wonder whether it was worth the wait. The Supreme Court has now given some guidance with respect to the role of race in higher education, although at least as many questions have been raised as have been answered. The Court has already agreed to review several related cases this term,2 indicating a willingness to provide further answers. Meanwhile, college and university administrators across the country must do the best they can with the modest guidance that the Bakke opinions afford.3 This Article seeks to aid the process of understanding Bakke, fully conscious of the risks of extrapolation at this early stage. Several propositions emerge from the opinions and may provide a starting point for legal analysis. First, no member of the Court foreclosed the use of race in higher education. Five Justices clearly held that the California Supreme Court erred in forbidding race-conscious admissions policies.4 The other four Justices did not speak to the issue and, indeed, warned those who might be tempted to find in their opinion any indication of a broader judgment not to do so. They expressly reserved the constitutional issue of the role of race for a later case5 and addressed only the legality of the single admissions program before the