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Affirmative Action and College Admissions

The Civil Rights Act of 1964 made it illegal to discriminate against students and college applicants on the basis of race or gender, but proving bias in college admissions is quite difficult. As with discrimination in the hiring process, rejected applicants generally are not privy to the factors behind the decisions made by admissions personnel. As a result, many schools adopted so-called affirmative action policies to help ensure greater diversity. Methods vary, but affirmative action refers to the special consideration given to women, racial minorities, and members of other historically excluded groups.

While opponents often refer to it as "reverse discrimination," this strategy was meant to level the playing field for those who have been disproportionately rejected by college admissions. A combination of federal and state laws sets the parameters for how schools may implement affirmative action policies, which continue to be challenged and altered in the courts.

This article explores the legal aspects of affirmative action in college admissions, including the current legal challenge to such policies.

A Brief Overview of Affirmative Action

Several universities implemented affirmative action policies after passage of the Civil Rights Act, but the U.S. Supreme Court first established legal limits for such policies in a 1978 case involving a medical school applicant. The applicant, a white male, sued the school after he was denied by admissions, claiming that he was the victim of discrimination. While the Court ultimately ruled in his favor, it also held that race could be one of many factors used by admissions in the effort to desegregate colleges. The Court ruled that setting a racial quota violates the Equal Protection Clause of the 14th Amendment, so schools adopted more nuanced methods.

The use of affirmative action in college admissions was similarly upheld in successive Supreme Court cases, although its scope has been narrowed, and some school policies were in fact found to be in violation of the law. However, the courts have wavered on this issue, and the future of affirmative action is uncertain. For example, the U.S. Supreme Court ruled in 2003 that a University of Michigan point system favoring minority applicants was unconstitutional. But in a separate case involving Michigan's graduate school admissions also decided in 2003, the Court narrowly upheld the university's affirmative action policy.

There have been numerous court challenges ever since, though, setting the stage for a landmark decision by the High Court.

Affirmative Action and the Supreme Court

Colleges and universities may use race as a factor in admissions as long as the methods used are narrowly tailored to achieve a level of student diversity more representative of the larger population. However, the U.S. Supreme Court, which is currently revisiting a 2013 case involving affirmative action at the University of Texas at Austin, may drastically limit the ability of institutions to adopt such policies when it rules in 2016. When the Court originally ruled on the case, it avoided sweeping action and sent the matter back to the lower court.

The Court may undue the 2003 Grutter v. Bollinger decision discussed earlier when it issues another opinion on Fisher v. University of Texas. We will update this page after the decision is filed.

State Affirmative Action Laws

Just because federal courts have backed affirmative action in college admissions doesn't mean the practice has been embraced by the states. In fact, the Supreme Court in 2014 upheld Michigan's constitutional amendment banning affirmative action in the state's universities. So while federal law currently permits such policies, they may be further defined (or even eliminated) through state laws.

At least 10 states have passed laws limiting or banning the use of affirmative action in college admissions, including the following:

  • Oklahoma - State Question 759, passed by voter referendum in 2012, prohibits the state from granting preferential treatment to certain individuals (including that based on race) in public education.
  • Arizona - Proposition 107, passed by ballot initiative in 2010, prohibits the granting of preferential treatment of certain individuals (including that based on race) in public education.
  • Nebraska - Initiative 424, passed by voters in 2008, eliminates affirmative action at state colleges and universities.
  • Texas - The "10 Percent Plan," passed by lawmakers in 1997, guarantees state university and college admission of students who finish in the top 10 percent of their graduating class (thus narrowing the application of affirmative action policies).
  • Florida - The "One Florida" initiative, issued as an executive order by Governor Jeb Bush in 1999, prohibits the use of affirmative action the admissions policies of state schools.

Affirmative action is an ever-changing and often-controversial method for expanding educational opportunities. Check back often, as these laws are far from settled. You may want to contact an education lawyer or civil rights attorney in your area if you have additional questions.

See FindLaw's Higher Education section for additional resources.

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