ASHE Higher Education Report: Volume 41, Number 4
Kelly Ward, Lisa E. Wolf‐Wendel, Series Editors
Affirmative Action at a Crossroads: Fisher and Forward
Edna Chun and Alvin Evans
ASHE Higher Education Report: Volume 41, Number 4
Kelly Ward, Lisa E. Wolf‐Wendel, Series Editors
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ISSN 1551‐6970 electronic ISSN 1554‐6306 ISBN 978‐1‐119‐12492‐4
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The Supreme Court decision in Fisher v. University of Texas (2013) on June 24, 2013, represents the culmination of a 35‐year‐long debate in the United States regarding the use of race and ethnicity in voluntary admissions programs initiated by colleges and universities. The monograph traces the rise of affirmative action from its original framing in the 1960s as positive action for underrepresented minorities to the evolution of contemporary, nonremedial forms of affirmative action. Due to the relative stability of affirmative action in the employment arena, the study focuses on challenges to affirmative action in university admissions in key Supreme Court cases. It provides historical perspective on the convergence of interests that led to the creation of affirmative action programs during the Civil Rights era and notes the impact of past governmental “affirmative action” programs over the last few generations that have primarily benefited White Americans through the social reproduction of intergenerational wealth.
Interpretation of the Equal Protection Clause of the Fourteenth Amendment (1868) has been at the heart of Supreme Court rulings on affirmative action. The major interpretive shift from the clause's original intent to protect the rights of minorities and group rights to the protection of majority interests and individual rights took shape in the landmark Regents of the University of California v. Bakke case in 1978 and has been the centerpiece of subsequent legal challenges to affirmative action. Lawsuits designed to eliminate the use of racial and ethnic preferences have been funded by wealthy conservative groups working through channels such as Edward Blum's single‐handed Project on Fair Representation that actively recruits individuals as plaintiffs.
The monograph charts the narrowing course of affirmative action to a singular legal argument deemed by the high court to represent a “compelling state interest,” namely, the educational benefits of diversity. Ironically, the diversity rationale is framed in terms of the educational gains of majority students on predominantly White campuses. The monograph primarily focuses on three landmark Supreme Court decisions that have shaped the redefinition of affirmative action and its destabilization: Regents of the University of California v. Bakke, 1978 (438 U.S. 265); the 2003 Grutter v. Bollinger (539 U.S. 306) and Gratz v. Bollinger (539 U.S. 244) decisions; and the 2013 Fisher v. University of Texas at Austin (570 U.S.).
While the 2003 Grutter and Gratz rulings allowed for holistic review that included race as one factor among others in a narrowly tailored admissions process, the Fisher case established a much more stringent standard. First, a reviewing court is to determine if a university's use of race is necessary to achieve the educational benefits of diversity. And “the reviewing court must ultimately be satisfied that no workable race‐neutral alternatives would produce” these benefits (Fisher v. University of Texas at Austin, 2013, p. 2). Second, universities must first exhaust race‐neutral measures before race‐sensitive factors can be considered. Critics indicate that the rulings of Chief Justice John Roberts's conservative court reflect a postracial, color‐blind perspective based on the view that America has changed to a degree that race cannot be used as a measure of disadvantage. This vantage point is best summed up in Chief Justice Roberts's statement in the 2007 Parents Involved v. Seattle School District; Jefferson County Board of Education (127 S. Ct. 2738) case that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race” (Roberts, 2007, pp. 40–41).
In Fisher, the Supreme Court returned the case to the Fifth Circuit, asking the district/appellate court to re‐review the case with “strict scrutiny” in terms of the inclusion of race in the holistic review admissions process at the University of Texas. Nonetheless, in a remarkable ruling issued on July 15, 2014, the three‐judge panel of the Court of Appeals in a 2‐1 decision upheld UT Austin's use of race as one of many factors in holistic admissions. The Fifth Circuit indicated that “it is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity. This interest is compelled by the reality that university education is more the shaping of lives than the filling of heads with facts—the classic assertion of the humanities” (Abigail Noel Fisher v. University of Texas at Austin, 2014, p. 41).
Given the fact that the educational benefits of diversity represent the only potential basis for consideration of race‐sensitive factors in admissions, the monograph provides an overview of six primary streams in the substantive social science literature relating to the beneficial effects of diversity on student learning outcomes. Yet research indicates that these benefits will not result simply from the attainment of structural diversity, but instead require the development of a campus ecosystem that enhances cross‐racial interactions through intentional programs, interventions, and practices that strengthen the campus racial climate. In this context, the monograph addresses the impact of inhospitable campus climates on minoritized students and the isolating experiences that can lead to heightened stress for these students.
To provide context to persistent inequalities in college access, the study focuses on three critical junctures that are linked to increasing the share of minoritized students who attain a bachelor's degree: academic preparation for college, graduation from high school, and enrollment in college. These three critical precollege junctures are affected by a confluence of factors that include the widespread resegregation of public schools, disproportionate access to intergenerational wealth, parental education, inequitable school funding, state policies, college preparatory resources, cultural and social capital, and the availability of financial aid.
The monograph shares data on state bans on affirmative action in terms of the impact on campus climate, student access, and success. In addition, it examines the results of alternative efforts to remedy disadvantage, such as through state‐based percent admissions plans implemented in California, Florida, and Texas. Since the use of socioeconomic class (SES) as a proxy of disadvantage has not been challenged by the courts to date, the study explores the potential for the use of class in admissions criteria and notes potential methodological difficulties. It provides recent findings demonstrating that SES models work differently when applied to elite institutions as compared with moderately selective and less selective institutions. Review of the research includes assessment of the implications of the controversial theories of mismatch and undermatch. The analysis also identifies examples of facially race‐neutral practices that have been cited as acceptable methods of attaining racial and ethnic diversity by the Supreme Court and implemented widely by colleges and universities in recent years.
The monograph concludes with recommendations for colleges and universities as institutions develop admissions criteria designed to maintain and enhance campus diversity in a post‐Fisher era. Due to the ongoing needs of campuses to create inclusive campus environments despite the current legal limitations on the use of race‐sensitive factors, the monograph will have wide appeal to presidents, provosts, student affairs officers, chief diversity officers, affirmative action officers, admissions officers, university counsel, human resource professionals, governing boards, policy makers, academic and administrative leaders, faculty engaged in diversity and policy research, and campus taskforces.
Topics related to race and diversity in the United States and within higher education more specifically tend to be controversial and often contested. Affirmative action stands at the center of what some believe to be an important legal remedy to histories of discrimination and what others see as an outmoded concept that causes reverse discrimination. Righting the wrongs of accumulative and historical discrimination within society and within higher education is complicated work. Affirmative action has been integral to create conditions where equality in admissions and employment within colleges and universities can take place.
Relying on a comprehensive review of the literature and of related legal cases, in Affirmative Action at a Crossroads: Fisher and Forward, authors Edna Chun and Alvin Evans clearly present continued significance related to affirmative action and the role it plays in contributing to a high‐quality and diverse higher education experience. Too often, affirmative action gets referenced in conversations about race and diversity in higher education but is frequently misunderstood. The monograph will help inform readers about the history and origins of affirmative action, legal precedent and how it evolved, and the role of affirmative action in ongoing research and practice related to admissions and employment in higher education.
A component of the book I found to be particularly useful is the authors’ comprehensive treatment and understanding of affirmative action. They are inclusive of information about all different racial groups and are careful to examine how overlapping identities and social class are part of dialogue about affirmative action. The authors offer a complex analysis of a very complex concept. Further, the monograph includes clear recommendations for action and ongoing mechanisms to further affirmative action as a means to pursue equity in higher education.
Researchers, students, and administrators looking to know more about affirmative action and to have a reference for how affirmative action legislation and practice have developed in the United States are sure to find the book useful and informative. In addition, those who are interested in topics related to diversity and affirmative action, but are not clear on the intricacies of how the legal cases have developed and relate to one another, will find the book clear in its delineation of theory, practice, and legal issues.
The monograph is timely, given current unrest related to race in the United States and in higher education. The monograph is also timely in the ASHE Monograph series, given the companion pieces that explore different aspects of race and social class. Recent titles in the monograph series, Black Male Collegians: Increasing Access, Retention, and Persistence in Higher Education; Asian Americans in Higher Education: Charting New Realities; Latinos in Higher Education and Hispanic‐Serving Institutions: Creating Conditions for Success; Postsecondary Education for American Indian and Alaska Natives: Higher Education for Nation Building and Self‐Determination; Cultural Capital: The Promises and Pitfalls in Education Research; and a forthcoming volume on critical race theory all provide readers with resources for looking critically at topics related to affirmative action. When considered collectively, these monographs provide a broad base of information about race, racism, and affirmative action and are sure to help readers with regard to expanding research and improving practice. As editors, we strive in the series to provide volumes that critically analyze and synthesize current research and practice, and the current volume is no exception.
It is particularly important for topics related to diversity to have information grounded in theory and practice to help people in higher education working for diversity to have information that is current and research based. Creating a diverse and healthy environment in higher education is part of a critical agenda facing administrators, students, and faculty today. Chun and Evans do their part in explaining the complexity of affirmative action so readers can be informed as they work to recruit and retain a diverse and high‐quality student body and workforce within higher education.
Kelly Ward
Lisa E. Wolf‐Wendel
Series Editors
We dedicate this book to our children—Alexander David Chun, Shomari Evans, Jabari Evans, Kalil Evans, and Rashida VanLeer—who represent the talents of the next generation that will immeasurably contribute to the realization of the values of our diverse democracy. We would like to express our sincere appreciation to Professors Kelly Ward and Lisa Wolf‐Wendel, who encouraged us to pursue this important and complex topic for the ASHE monograph series and have provided us with immeasurable support. We also would like to thank the peer reviewers who strengthened the manuscript with their comments.
We would like to express our deep gratitude to Professor Joe Feagin, Ella C. McFadden professor of sociology at Texas A&M University, for his generosity, encouragement, and invaluable suggestions throughout the evolution of the manuscript. We thank Bryan Cook, senior vice president for institutional capacity building at the American Dental Educational Association, for his generous help, and Kimberly Rosenfeld for her highly skilled and responsive research assistance throughout the course of the project.
We would like to thank our family, friends, and mentors for their continuous support. Alvin Evans would like to thank Ethel and Horace Bush, Patricia and Leon Scott, Karen and Hassan Rogers, Patricia and Donald Marsh, Brian and Lisa Marshall, Victoria Thomas, and Lesley Green. Edna Chun would also like to thank Trustees Levi Williams and Georgette Sosa‐Douglass for their unwavering leadership in diversity and affirmative action at Broward College over the last decade. She wishes to thank Jay Kyung Chun, Alexander D. Chun, David and Laura Tosi Chu, George and Eleanor Chu, Ronnie Rothschild, and Karen Williams for their loving encouragement and support.
—Edna Chun and Alvin Evans