Affirmative Action does it Hinder or Help Students in Higher Education

Under the recent Trump Administration, affirmative action has reversed the Obama-era policy that advised institutions to diminish race in one of the many factors into their admissions practices and policies. While many constituents are divided on affirmative action, the narrative of this policy has been framed through the media in a way that has caused a divide within higher education. As a country, the United States empathizes the importance of equality and equity among U.S. citizens including individual's in higher education but often disagree when laws such as affirmative action are based around race itself.

Within the divide in higher education there are many constituents who see the systemic oligarchies that are a part of our history, and how these systemic oligarchies continue to permeate people of Color's lives in all aspects. In comparison, there are also numerous people who believe that unequal opportunities are not real, and our country has thrived in being the land of the free including the ability to attend college despite one's circumstances by "pulling yourself up by the bootstraps. Affirmative action has complex issues within colleges because of the argument of reverse racial discrimination, diversity quotas, and that as a country, we do not need affirmative action anymore.

The Civil Rights Act of 1964  was the turning point in discrimination with students applying to colleges on the basis of their intersectionalities and essentially gave students a chance to attend colleges or universities that are disproportionately affected by institutionalized systems. Because affirmative action is multifaceted some in higher education may see it as contradictory, thereby resulting in varying laws varying from state to state. Affirmative action has a set of required federal and state laws to that higher education must abide by and are obligated to create policies that provide equity for all current and potential students. Due to the conflict between the myths of affirmative action and individualized court cases that lack a definitive answer, university administration, faculty and staff are continuously challenged on affirmative action-based admissions. More specifically, the challenge with the reverse of affirmative action under the Trump administration is that there is no consideration regarding the continual need for affirmative action because of the unjust systems in modern day. Yet, affirmative action is still needed because people of Color still face disproportionate discrimination throughout their lifetime that is more systemic currently.

Summary of Cases

In order to define whether or not affirmative action-based admissions is essential in modern day in higher education, an examination of the important laws in place should be conducted around the Equal Protection Clause that is protected under the Fourteenth Amendment.  The Equal Protection Clause becomes increasingly for protected classes, particularly minority populations under religious, national, or racial minorities. The Supreme Court will examine these cases under strict scrutiny because they are a suspect class.  Additionally, the court has a duty to protect certain constituents that are not able to protect themselves because of their lack of representation within the government leading to a disadvantage in democracy. Without proper representation, it can be easy for those to pass laws that may favor against marginalized populations. There are five levels under strict scrutiny that the court looks at: protected liberty, if the liberty is fundamental, undue burden, further compelling government's interest, and the least restrictive means.  The court then questions whether or not the law is unconstitutional and if there are other race neutral alternatives. In the strict scrutiny test, the court needs to find a compelling purpose for affirmative action in each case.  In adherence, with the Fourteenth Amendment, all students are anticipated to be treated by the law with equal respect, and dignity.

When considering historical trends and debates associated with affirmative action, the Board of Education of Topeka, Shawnee County, Kan.  was a landmark case that impacts affirmative action cases today. In this case, a student, Linda Brown had to travel further to attend an all-Black school when there was a closer all-white school in shorter distance to her house. Brown's father attempted to enroll his daughter to the all-white school which was closer to their home, but they were denied admission on the basis of their race. In Board of Education of Topeka, Shawnee County, Kan. the argument was framed around Plessy V. Ferguson in 1896 that segregation was acceptable as long because there was the separate but equal doctrine.  The court ruled in the Board of Education's favor because they believed that races were offered equal facilities regardless of segregation.

When brought to the Supreme Court, in 1954, the decision was reversed in favor of Brown with a 9-0 ruling which overturned Plessy V. Ferguson decision. The idea that separate but equal would offer similar tangible factors for students went against the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court argued the segregation made Black students feel inferior, and had an effect on students that further hinders their development.

The Supreme Court also considered the case Sweatt V. Painter, where a student was denied admission based on race to the University of Texas Law School even though the student

exceeded all the schools' admission requirements. That particular case found that separate law schools for Negroes would not provide equal prospects because the Black law school did not measure to the white law school's accreditation. During this case, the court stated, "those qualities which are incapable of objective measurement but which makes for greatness in law school.  The court found that Black and white schools can always be equal in terms of buildings, curriculum, salary of teachers but it does not speak to the effect segregation has on Black students.

Affirmative Action is a complex topic in higher education because of strict scrutiny and the narrow-tailored test, which were established during the Grutter V. Bollinger case. In this case, Barbara Grutter was a white Michigan resident that applied to the Law School in 1996 and had met the academic requirements of the program.  Grutter was placed on the waitlist, and eventually was denied admission. In 1997, Grutter went to court contending that Michigan discriminated against her on the basis of her whiteness, therefore violating the Fourteenth Amendment. Grutter stated that she was denied admission to the Law School because they used her race as a preponderate influence on their decision, demonstrating favor to those who belong to minoritized populations. In considering her denial of admission, Grutter stated, "factor, giving applicants belonging to certain minority groups a significantly greater chance of admission than students with similar credentials from disfavored racial groups; and that respondents had no compelling interest to justify that use of race.

Concurrently in the trial, Dennis Shields, the Director of Admission communicated that there were daily reports that showed racial, ethnic, gender, and residency configuration of the Law School. Shields stated that "assembling a class that is both academically qualified and broadly diverse" the Law School seeks to "enroll a 'critical mass' of minority students.  The importance in this case is that Shields testified that he did not pursue students based on a quota or numbers for marginalized students. Erica Munzel who later took Shields position testified by explaining that "critical mass means "meaningful numbers or "meaningful representation" which Munzel understood to mean a number that encourages underrepresented minority students to participate in the classroom and not feel marginalized.  The Dean, Jefferey Lehman also added that affirmative action was used by a case by case basis of race playing a role in the students' admission. Lehman found the admission process and affirmative action important to have students from different perspectives in the classroom. The policy of the Michigan Law school focuses on academics along with diverse experiences in order to "to contribute to the learning of those around them.  The admissions process and policy evaluates applicants off of different criteria's such as personal statements, recommendations, grade point average, LSATS etc. However, having a low or high score does not deny or guarantee admission for the student. This Law School looks at "soft variables when determining admission. The Law School policy stated that it looks for diversity beyond racial and ethnic students.

The landmark case Regents of the University of California, Petitioner V. Allan Bakke was used in Grutter V. Bollinger. In this case, the program reserved 16 out of 100 seats for minoritized populations. During that particular holding, 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.   The holding stated that using race was constitutionally allowed ;however, race cannot be the only factor in admitting a student through affirmative action.  By using this landmark case, the court held in Grutter V. Bollinger the Law School had a compelling interest in achieving a diverse body. Justice Powell found that under the First Amendment educational autonomy was protected in that Universities are allowed to make their own decisions of whom they choose for their student population.  The Supreme Court also cited that the Law School also had a compelling interest in their students that aligns with their policies. The Law School did not use quotas in their admissions processes because that would then be considered unconstitutional.

In the recent news, affirmative action has been brought to court again at Harvard University particularly looking at Asian-American students. The case alleged that Harvard has been using quotas on Asian-American students by holding them to a higher admission process than other marginalized populations in terms of race. This case is unique in that they are asserting that Harvard has been admitting underrepresented minority groups in but not at the same rate as Asian-American students. Many believe that this case can be a landmark factor in affirmative action by abolishing the law itself particularly because the Trump Administration reversed Obama Administration recommendations for affirmative action. In this particular case constituents believe that some are using this case to overall abolish affirmative action for all minoritized populations which can be a negative outcome for not only Asian Americans, but also other races in the United States. Under the Trump Administration, if this is brought to Supreme Court, there are many concerns due to the conservative nature of this administration that affirmative action will be changed for good. In this lawsuit, the plaintiffs are also alleging that Harvard rates Asian American students as lower in personality than their peers through their ambiguous admissions policy, thereby violating the civil rights law because Harvard University receives federal funding.

Furthermore, many have said that if Harvard loses, that does not necessarily mean that they will ban affirmative action for good, but affirmative action may be tailored differently by Harvard in the future. However, there still is a chance that the law can be changed if brought to Supreme Court and that this particular Harvard case can open up the case of race based affirmative action. Many constituents believe that affirmative action is not solely based on race and we should not take a colorblind approach specifically when many minoritized students' identities are salient in their lives. A Harvard student who testified during the case said, "I think that the way that I was bullied was kind of inextricable from my race.  The student was showing that many cannot separate identities and it is beyond just race when applying affirmative action.

Analysis of Cases

I will now address the question, does affirmative action hinder, or support students in higher education? The first aspect that will be examined is the notion of separate but equal (Brown V. Board). In modern day, there is more public-school segregation than there was during the Brown V. Board case.  In this instance, this case is directly correlated with systemic poverty, placing minority students in districts that have less money for a better quality of education. Furthermore, due to this segregation from white students, they are not receiving tangible equitable education through books, buildings, food, etc. and this also contributes to the feeling of inferiority among students of minority races. The Supreme Court originally banned segregation in schools because although the students were receiving similar tangible items, the effect of the feeling of being inferior to the white race was relevant. In modern day, the students are segregated even further, and their tangible items are not equitable either.  The relevance behind this notion is that the increase of segregation after the landmark case of Brown V. Board has led to students being systemically placed in educational systems that are disadvantaged which leads students to a lack of preparation for admission to post-secondary education. For example, by a school not offering SAT Prep courses, or offering courses but making students pay a fee for those who are low-income they cannot afford to prepare compared to their white peers. Many students in disenfranchised communities are often first generation and by having a lack of support on how to even apply or prepare for college, they are considered disadvantaged. Problems such as not being able to eat food will lead to less concertation classes which may be associated with lower grades, which may negatively impact students as they apply to institutions. When a college degree is considered essential to breaking the cycle of poverty, systems in place like the educational pipeline can hinder students from being admitted to colleges. Through affirmative action, the law places strict scrutiny on students to make sure they are benefiting from the Equal Protection Clause under the Fourteenth Amendment; therefore, it should not be abolished.

I will also analyze how affirmative action relates to the second factor Grutter V. Bollinger. During this case, the Supreme Court held that under the First Amendment educational autonomy was protected in that Universities are allowed to make their own decisions of whom they choose for their student population through their compelling interests through policies. This is an important piece in showing that affirmative action is helping students. Under admissions policies, institutions are able to continue to challenge unconscious biases that this country has. Although affirmative action is in place, white students consistently are admitted to colleges more often than minoritized groups. According to the National Center for Education Studies, "white young adults were higher than the rate for Black young adults. This pattern has held true for every year since 2000.  This data shows that regardless of affirmative action, white students are going to colleges at higher rates. With this information, affirmative action is essential in the success of marginalized populations. Without affirmative action, the number of minoritized populations will continue to decrease because institutions will have less of a duty to protect suspect classes that the Supreme Court put in place. There have been decades of research on unconscious biases and how that plays a role in the everyday life of non-white people. Without affirmative action, unconscious biases will continue to infiltrate into higher education and less marginalized populations will be admitted into institutions across the country.

In the Harvard case, by examining the third determination to why affirmative action assists and benefits minority students, through abolishing this law, this will be regressing the progress this country has made with affirmative action. While underrepresented populations have unique experiences, not all students are tremendously affected by affirmative action. Affirmative action was a result of America realizing that the nation needed a law to essentially meet diversity quotas without the numbers. Asian-American students have continuously performed higher academically than other marginalized populations and in turn, affirmative action doesn't affect them as severely compared to marginalized students who may not perform academically well. According to the UCLA Civil Rights Project, they found "Of students attending schools that are overwhelmingly white and Asian (0-10% black & Latino schools), only 4% have 80% or more students living in poverty.

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