DRAFT: This module has unpublished changes.

Prosperity Through Past Discrimination:

Affirmative Action

By Jonathan Tetecatl

DRAFT: This module has unpublished changes.

We live in a time where diverse classrooms are no longer atypical and the mentality of the greater society has evolved to accept interchanging cultures.  This has been achieved by redressing past discrimination for members of minority groups. Even today, however, the debate over the future of Affirmative Action is unclear. The discrimination of oppressed groups, such as women and African Americans in the past, has raised awareness of the level of injustice and violation of equal opportunity.  Policies and court cases that advocated for minorities have continually accusations of reverse discrimination. The real question is: How has redressing past discrimination affected the minority groups in U.S., particularly African Americans, Hispanics, and Women, and what are the challenges faced by others in education?


Providing opportunities for minorities to advance in society has become the objective of Affirmative Action, especially in higher education. The monumental case that started it all was Brown v. Board of Education (1954) which resulted in the U.S Supreme Court ruling that segregated educational facilities were unconstitutional.  Realizing that the equal protection clause was being violated, the Court mandated desegregation of all public schools in the country.  A central to the Civil Rights Movement, Brown transformed education for all U.S citizens.  Today, opposition to the nation's race/gender sensitive hiring and programs in higher education has skyrocketed.   


President Johnson argued that "You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, 'you are free to compete with all the others,' and still justly believe you have been completely fair…" (President Johnson, 1965).  Simply letting a person go and being "free" means nothing without support. Thus, Johnson signed an Executive Order in late 1965 mandating government contractors to "take affirmative action" in all aspects of hiring and employing minorities (Brunner, 2002).  This initiation was the turning point for many colleges which started recruiting minority students as part of their educational mission.  Such a policy inspired and motivated many underrepresented youth and adults with new opportunities as institutions initiated admission policies that took diversity into consideration. The main objective of higher education was to improve educational opportunities for minorities and equalize admission requirements by including race as one factor in the admission process.  In doing so, the overall objective is to correct past discrimination by promoting educational diversity.  These "remedial" interests are the remedy to past discrimination in contrast to "non-remedial interests" which promote educational diversity, reduce racial isolation, and promote educational research.


Short film for the African American Policy Forum, showing metaphors for obstacles to equality which affirmative action tries to alleviate. All graphics and animation by Erica Pinto.

Affirmative action created an imbalance of equality but it served a greater purpose for those who needed it the most.  The counterattack on affirmative action poses that it creates reverse discrimination against Caucasians and Asians.   In Regents Of The University Of California v. Bakke, the 1978 landmark U.S. Supreme Court case, questioned the university's policy that resulted in the repeated rejection of defendant Bakke.  Allan Bakke, a 35 year old white man, applied twice for admission to the University of California Medical School at Davis and was rejected both times.  The school at the time used a quota, a set percentage, reserving sixteen places in each incoming class of a hundred students for "qualified" minorities, part of the university's affirmative action program.Their goal was to redress longstanding unfair minority exclusions from the medical profession.  Although Bakke's qualifications exceeded many of the minority students admitted in the two years, he was rejected. Justice Powell was the deciding vote ordering the medical school to admit Bakke. In his opinion, he argued that the use of racial quotas violated the equal protection clause of the Fourteenth Amendment.  Instead, he suggested a narrowly tailored plan for admitting minorities and said that race can be considered as one of many factors that can influence admission decisions when the university is trying to achieve overall diversity.  The court found that basing admission decisions solely on race was not an effective way of furthering their interest for a diverse student body.  In my opinion, this was the forefront case that presented the problems with affirmative action.  
The Bakke decision closed the door for race-conscious admission programs and set the mark for countless colleges and universities which have tailored their race-conscious admission policies. After the case, the U.S. Commission, however, continued to support affirmative action and issued a letter to President George H.W. Bush stating:

"The role of institutions of higher education in achieving important national goals is well recognized. In a society such as ours—with a diverse and multi-cultural citizenry—these institutions can and must contribute to the achievement and maintenance of social strength and harmony. The education of a diverse student body, convened on common ground for common purposes, is their primary vehicle for making this contribution. We urge you, therefore, to take a strong stand in support of affirmative action in the recruitment of minority students, including the use of minority-targeted scholarships where necessary to achieve either of two important national interests—remedying the invidious effects of discrimination and attaining the benefits of a diverse student body." USCCR, Letter to the President    The letter goes on to say that if we stop the efforts of minorities by prohibiting the use of affirmative action, which many have found essential, we will further perpetuate racial and ethnic divisions.


Other legal and legislative challenges have created doubt in the nation's commitment to equalize educational opportunity and remedy the effects of discrimination held unconstitutional in Brown. Cases such as Grutter v. Bollinger and Gratz v. Bollinger raise the question of whether it is a violation of the Constitution to consider race as a factor among many others in admitting students.  Both decisions have reaffirmed the use of narrowly tailored race-conscious affirmative admissions policies such as Gratz. It's interesting to see how even though there are problems being raised about allowing race as a factor, the Court continues to support it. The University of Michigan has a policy modeled on race as a factor through a Harvard plan endorsed by Justice Powell.  The university's admissions policy considers race and ethnicity as potential "plus" factors along with factors such as whether a student is related to an alumnus, has taken advanced placement courses, or is from an underrepresented geographic location (The Comission, Affirmative Action).   


The affirmative action programs have improved diversity in higher learning, although legal and political challenges have already limited its action in states such as California, Texas, Louisiana, Mississippi, Florida, Maryland, Washington, and Georgia.  Changes include the creation of "percentage plans" in California, Texas, and Florida.   According to these states, the percentage plans guarantee admission to a set percentage of students based on high school class rank.  The problem with this plan, however, is that it's inadequate in achieving the goal of diversity and equalizing higher education opportunity.  The Commission reported in its 2000 report that percentage plans have significant flaws and are "experimental responses to the attacks on affirmative action." In November 2002, Beyond Percentage Plans: The Challenge of Equal Opportunity in Higher Education found that:

  • Black, Hispanic, and Native American enrollment declined at the two University of California campuses after the state banned affirmative action.  Both medical and law schools had large drops in the number of applicants and admissions for the three underrepresented minority groups (Black, Hispanics, and Native Americans).
  • Florida's plan failed to achieve significant increases of Blacks and Hispanics at the state's flagship schools. The percentage of Black and Hispanic high school graduates exceeds their percentage as enrollees at elite Florida universities. 
  • The Texas plan diminished by its fourth year of operation and admission numbers were down for all minorities ever since the 1996 Hopwood decision, outlawing the use of race-conscious affirmative action in the state's college admission programs.

The Commission emphasizes the importance of the growing percentage of minorities making up the working population and how the nation's economic condition will depend on how well the minority youth is educated.  Affirmative action is then a key source that "the nation cannot afford to abandon" which encourages minority students to pursue college education.  I strongly believe that the "minorities," so to say, are rapidly becoming a strong force and will eventually have to take charge of the responsibilities of this nation. 


The fact that race has been a key component of affirmative action in redressing discriminatory offenses does not exclude gender by any means.  I, along with most of society, realize that gender, sexual orientation, and religion should all be protected equally and fairly under the law.  Women, in particular, have been denied the right to vote or have the right to own property.  They have been denied their right to equal pay in the workforce and representation; for example, in the case United States v. Virginiathe Virginia Military Institute (VMI) boasted a long and proud tradition as Virginia's only exclusive male public undergraduate higher learning institution. The United States brought a suit against VMI, alleging that their policy was unconstitutional and violated the 14th Amendment's equal protection clause.  The court held that VMI failed to show "exceedingly persuasive justification" for their gender biased admissions policy.  Failing to support their claim that single sex education contributes to educational diversity, VMI proposed to create the Virginia Women's Institute for Leadership as a parallel program, although VWIL could not offer women the same benefits as men.  Since VWIL would not provide women with the same rigorous military training, faculty, courses, facilities, financial opportunities, or alumni reputation that VMI affords its male cadets, the "substantive comparability" standard between VMI a VWIL was a displacement of the Court's standard.  The creation of VWIL was not sufficient nor did it give women the equal opportunity for growth in comparison to men.  In this case, we notice that race isn't the only factor that contributes to discrimination but that gender has the same amount of importance. The court required that "all gender-based classifications" be evaluated with "heightened scrutiny" which means that when there is a need to base gender as a classification, it should be carefully inspected to abide by the Constitution.    


Anti-affirmative action lawsuits continue to expand.  In Fisher v. University of Texas at Austin, Abigail Fisher, a young Caucasian woman from Texas, was denied admission to the University of Texas for the Fall 2008 entering class.  Fisher argues that the denial violated her Fourteenth Amendment right to equal protection because she was denied admission in favor of minority applicants with lesser credentials.  She contends that the university's admissions policy cannot survive strict scrutiny as required by Grutter v. Bollinger, but made clear with her lawyers that they were not asking the Court to overrule its 2003 decision. The University of Texas guarantees undergraduate admission to all in-state applicants in the top ten percent of their high school class. Students outside the top ten percent are evaluated based on Academic and Personal Achievement Indices, which didn't consider race until 2005.  Fisher suggests that even if UT has a compelling interest in a racially diverse student body, it could achieve it through the Top Percent Law without having a race-conscious admissions policy. According to UT, the Top Ten Percent Law has increased overall racial diversity at the university because Texas's high schools are highly segregated.  Therefore, most racial minority students admitted under the law come from predominantly minority high schools. UT argues that by considering the race of applicants not admitted under the law, they can achieve increased diversity within racial groups, which wouldn’t be beneficial to non-minorities at the school.  The Asian American Legal Foundation argues that UT's admission policy discriminates against students like Asian applicants, treating them as members of an overrepresented race.  Again, this shows that the disadvantages of Affirmative Action towards groups considered overrepresented and presents challenges for those students who aren't minorities at the school. The final decision didn't outlaw the program; however, the Court made clear that courts can no longer "rubber stamp" a university's determination and needs to use affirmative action to have a diverse student body.  Instead, the courts need to confirm that the use of race in college admission policies is necessary, meaning that there is no other realistic alternative to create a diverse student body.  Justice Clarence Thomas had a particularly interesting opinion stating that he joined the majority's opinion that the lower courts did not sufficiently apply strict scrutiny, but also argued that the Equal Protection Clause of the Fourteenth Amendment prohibits a state's use of race as a factor in higher education: "I would overrule Grutter v. Bollinger, and hold that a State's use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause" (570U.S. __2013).  The fact that there are justices that believe there is no necessity for the benefits that flow from racial diversity in higher education means that the use of race as a factor should be completely withdrawn.  


Currently, Schuette v. Coalition to Defend Affirmative Action focuses on the November 2006 election where a majority of Michigan voters adopted Proposal 2 to amend the state constitution to prohibit "all sex and race based preferences in public education, public employment and contracting." Interests groups, such as Coalition to Defend Affirmative Action, responded to Proposal 2 by filing a suit against Governor Jennifer Granholm, Regents of the University of Michigan, and the Board of Trustees of Michigan State University.  They claimed that the proposal violated the Equal Protection Clause while BAMN (Fight for Equality By Any Means Necessary), another interest group, sued Michigan Attorney General Bill Shuette addressing Proposal 2's public education provision.  The Supreme Court has agreed to determine whether a state violates the Equal Protection Clause by amending its constitution to prohibit race and sex-based discrimination in public university admissions.  Although this case has not yet been decided, it will contribute to the cases that have shaped the scope of race-conscious admissions in the United States.  From the perspective of a supporter of Proposal 2, the view is: treat all people equally without treating other groups, such as non-Hispanic whites and Asians, without disadvantage. Opponents of Proposal 2, however, argue that the Proposal doesn't violate the political restructuring doctrine because college admissions are not a part of the political process.  From this perspective, the view is: "to bring back the original purpose and meaning of the Constitution's Equal Protection Clause which is to protect minority rights against a white majority" (Williams and Arkin, NBC News). Overall, this case would grant the right of a particular state to self-govern affirmative action. 


  Affirmative Action has had an overwhelming impact in alleviating past discrimination.  The educational efforts to create a diverse student body has empowered young adults to work amongst themselves regardless of race.  The benefits of a diverse campus not only promotes the growth of minorities, but all students in general because it helps them communicate effectively with people of varied backgrounds.  Challenging stereotypical preconceptions encourages the acceptance of other people which prepares students to become open-minded citizens in an increasingly diverse society.  In the long run, greater diversity in schools leads to a more diverse government and greater participation in the global market.  The cases brought against affirmative action have been a call to improve this program, outlawing quotas but keeping in place race as a balance against other admissions criteria with the use of narrowly tailored race affirmative admission policies.  Today, we realize how diverse our classrooms are in some places and sometimes forget the importance of affirmative action in creating those spaces.  It continues to help disadvantaged minorities that have the desire and the capability to compete with other students, giving them an opportunity they might not otherwise have. 

DRAFT: This module has unpublished changes.
Annotated Bibliography
DRAFT: This module has unpublished changes.

Deslippe, Dennis. Protesting Affirmative Action: The Struggle Over Equality After The Civil Rights Revolution. Johns Hopkins U. Press, 2012. 

In this book, Dennis Deslippe focuses on American political history and the opposition in the 15 years before the Bakke case, the beginning of affirmative action programs.  He argues that the challenges to affirmative action come from three sources: "labor unionism, colorblind liberalism, and colorblind conservatism" with unionists and liberals initially leading the opposition.  Dennis examines the separate basis and strategies towards affirmative action among these groups and presents two case studies.


This book is important for my research because it sets the time of affirmative action and its beginning.  I could use this book to compare the view of maintaining equality after the Civil Rights revolution and what it currently is at the moment.                     

FISHER v. UNIVERSITY OF TEXAS. The Oyez Project at IIT Chicago-Kent College of Law. 05 November 2013.

The case law deals with petitioner Abigail Fisher, a Caucasian female, who applied for undergraduate admission to the University of Texas in 2008.  The university admitted all high school seniors who ranked in the top ten percent of their high school classes.  However, Abigail was not in the top ten percent and therefore competed for admission with other non-top-ten-percent students in state applicants.  She was rejected and, thus, filed a suit against the university claiming that the use of race as a consideration in admissions decisions was in violation of the equal protection clause of the Fourteenth Amendment.  The district court ruled in favor of the University of Texas under a standard of strict scrutiny.  The court ruled that the policy was "precisely tailored to serve a compelling governmental interest" achieving the benefits of diversity. 


The case would be beneficial to my research project because it emphasizes the importance of diversity in higher education.  Judge Ruth  Bader points out that the University's admission policy treats race as merely one factor in the overall decision to admit a student.  This argument would help reach the goal of affirmative action and include race as a factor rather than ignore its role. 


Rostron, Allen. Affirmative Action, Justice Kennedy, and the Virtues of the Middle Ground. Northwestern University, 2012.

The following John Jay database document is presented as a Colloquy in which Justice Kennedy, a participant in the case of Fisher v. University of Texas, highlights his "middle ground" position.  Rostron uses this discussion to make clear that the Court is split between four "reliably liberal jurists" and an equally solid "four conservatives" leaving Kennedy as the swing voter.  By taking a middle ground position, the judicial scrutiny of affirmative action programs significantly sharpens the issue.  Kennedy deals with the situation in a way that accommodates the American public's conflicted feelings about racial preferences, but simultaneously forces everyone to start thinking more seriously about how racial components can be phased out. 


Rostron uses this discussion to present a possibly new generation of policy decisions in regards to affirmative action.  This would be helpful for my research paper because it points out the challenges brought forth through affirmative programs.  The frustration and uncertainty of the programs leave the majority of Americans in a contradicting result of being in favor but at the same time opposing racial preferences.      


Sander, Richard and Taylor Jr. Stuart. "The Painful Truth About Affirmative Action." The Atlantic. October 2012. 

The article by Sander and Taylor is a clear example of a different view point towards affirmative action and how it "hurts minority students -- and shrouds the education system in dishonesty." They focus on the racial preferences being used at selective schools and consider it to be a problem in which students can "neither learn nor compete effectively."  The problem presented is "mismatch" which happens when a school reaches out to students with weaker academic preparation and places them in classes they aren't prepared for.  The term of mismatch is viewed as a threat to affirmative action and to racial peace on campuses.  Data is suppressed, even often excluding faculty who attempt to point out the seriousness of mismatch.


Sander and Taylor create this article to formulate a different view point, one different from the direction I was going.  They present the problem of mismatch which is a challenge being faced in education; however it doesn't seem to fit into my research.  I want to focus on the effect of affirmative action on minorities, the positives, and then the challenges faced by others in school and the workforce.  This article seems to be opinion-based and isn't something that would help me point out the facts.      


SCHUETTE v. COALITION TO DEFEND AFFIRMATIVE ACTION. The Oyez Project at IIT Chicago-Kent College of Law. 06 November 2013.

The case law is a recent challenge to Proposal 2, a 2006 Michigan ballot initiative that created a state constitutional ban on race-conscious college admission policies and state constitutional ban on race-conscious college admission criteria.  In 2012, the proposal was declared unconstitutional because it places an unfair burden on those seeking to have race considered as one of many factors in university admissions.  In Michigan, racial and ethnic minorities and those who support greater student body diversity in these areas are effectively banned from doing so.  The day after the proposition passed, interest groups and individuals formed the Coalition to Defend Affirmative Action.  The Coalition sued the governor by arguing that the proposition, as it related to public education, violated the equal protection clause. 


This case would be favorable to my research paper because the fairly recent challenge to the state's amendment to prohibit race and sex-based discrimination and preferential treatment in public university admission decisions would result in the future of affirmative action. The support the policy receives and the outcome of this case would play an important role in determining the possibly new outcome of phasing out racial components.  With a lawsuit like this, I would be able to further point out the challenges still present today. 

DRAFT: This module has unpublished changes.

About the Author


 Coming into John Jay, I knew I wanted to take Criminal Justice and expand into the field of law.  Originally I started out high school in the Computer Science program which was an interesting course, but not what I wanted to do in my future.  After freshmen year in hugh school, we were given the opportunity to switch our program and Law immediately stood out to me given our school's Jacob Javits Law Academy.  I learned the difference between Criminal and Civil law, finding criminal law to be most interesting.  Going into my junior year, Constitutional Law was a course where we looked further into the constitution and made frequent reference to the amendments.  Joining my school's Moot Court Team taught me how to incorporate my knowledge of law from the previous years into my performance during Moc Trial presentations. In reality, the whole world revolves around politics and without an understanding of its system, there is no way to be a part of it.  

DRAFT: This module has unpublished changes.

How to Cite this: 

Tetecatl, J. (Fall 2014). “Prosperity through past discrimination: Affirmative action.” Digital Spectrum: First Year Digital Essays, Stories, and Projects, 1,2. Retrieved https://johnjay.digication.com/digital_spectrum/Jonathan_Tetecatl

DRAFT: This module has unpublished changes.