As federal contractors, academic institutions are responsible for abiding by the regulations enforced by the Office of Federal Contract Compliance Programs (OFCCP), which include taking affirmative action with respect to employment. The additional challenge for academic institutions is implementation of affirmative action in admissions. This is under the jurisdiction of the Department of Education’s Office of Civil Rights (OCR). Several recent court cases have clarified what can and cannot be done, and more recent challenges to affirmative action in admissions have just made things less clear.
 

History of Affirmative Action in Academia

Affirmative action in college admissions was first addressed by the Supreme Court in the case of Regents of the University of California v. Bakke, 438 U.S. 265 (1978) ("Bakke"), in which Allan Bakke, a 35-year-old white man was twice denied admission to the Medical School at the University of California, Davis. Bakke’s college GPA and test scores exceeded those from any of the minority students admitted – both years – so he argued that he was rejected on the basis of race.

The school had reserved 16 places in each entering class of 100 for "qualified" minorities, as part of the university’s affirmative action program. This quota system was held to be unlawful, but the court held that consideration of race was permissible, so long as it was one of several factors. "An institution of higher learning may have a compelling interest in taking race into account so as to foster diversity on campus," the court said. Justice Powell mentioned the "Harvard College Program" as an example of an acceptable program in this landmark decision.

For the next 25 years, the United States Supreme Court consistently held that academic institutions could use affirmative action in admissions, but it had never approved a program challenged in court. In 2003, the Supreme Court rendered decisions in two University of Michigan cases. In the case of Gratz v. Bollinger, 539 US 244 (2003), the court ruled that the University of Michigan’s undergraduate college affirmative action program was unlawful. The plan, which simply awarded members of designated underrepresented racial or minority groups 20 of the 100 points needed to guarantee admission, was not narrowly tailored.

In the case of Grutter v. Bollinger, 539 US 306 (2003) ("Grutter"), the Supreme Court reviewed the University of Michigan’s Law School affirmative action program, and, for the first time, found a program that met its constitutional standard, as it was narrowly tailored and furthered a compelling interest in obtaining the educational benefits that flow from a diverse student body. In contrast to the undergraduate admission program, the Law School conducts a highly individualized review of each applicant, and race is one of many factors considered in the decision. The court also clarified that such programs would be subject to strict scrutiny.

After the decision in Grutter, college admissions programs across the country made adjustments to adhere to the standards and principles outlined in the decision, including the University of Texas at Austin and Texas Tech.
 

Fisher v. University of Texas

The University of Texas at Austin ("UT") used two processes for evaluating applications for admission. The first was the "top ten percent plan." This meant that any Texas high school student in the top ten percent of his/her class was automatically admitted to UT. The second was the Academic Index/Personal Achievement Indices. In this program, applicants’ standardized test scores and grade point averages were measured with application essay scores and other relevant factors. One of the many factors considered was the applicant’s race. This was considered a "holistic" approach. The goal under these evaluation systems was to create a diverse student body.

Abigail Fisher, a white female, was denied admission to UT for the entering class of 2008, and she challenged the admissions process as a violation of the Equal Protection Clause of the 14th Amendment and other federal statutes. The Supreme Court, in Fisher v. University of Texas (2013) ("Fisher I"), 570 U.S. ____ (2013), was unable to reach a plurality decision, so it punted the case to the lower court, with guidelines for evaluating UT’s admission program, including a "careful judicial inquiry" as to whether the university had exhausted all possible alternatives before resorting to the affirmative action program it had implemented. The lower court found that the UT had indeed fulfilled its obligations in this regard.

Fisher appealed, bumping the case back up to the Supreme Court, and in Fisher v. University of Texas (2016) ("Fisher II"), 579 U.S. ____ (2016), the Supreme Court concluded that UT had made the requisite showing that it had explored race-neutral alternatives, and justified the use of race, among other factors (as part of a holistic approach), in order to achieve a diverse student body.
 

Harvard

As mentioned above, the Supreme Court in Bakke indicated approval of Harvard’s affirmative action program. In 2014, the Students for Fair Admissions, Inc. (SFFA) filed suit against Harvard, stating that its admission program discriminates against Asian-Americans, because though the admission rate is well above the representation rate of Asians in the general population, it is below the proportion of Asians in the applicant pool. Thus, the plaintiffs allege that Asian-Americans must meet a higher standard, compared to applicants of other races, to gain admission to Harvard. The case has not yet reached the Supreme Court.

The US Department of Justice (DOJ) subsequently opened an investigation to review Harvard’s admission program. The investigation is ongoing. Meanwhile, in July 2018, the DOJ and the Department of Education rescinded several sets of guidance issued by the Obama administration addressing the consideration of race in college admissions (which had been based on the Fisher cases), arguing that they "advocate policy preferences and positions beyond the requirements of the Constitution."
 

Texas Tech

In the aftermath of the Grutter decision, Texas Tech introduced race into its holistic approach to admissions. The Center for Equal Opportunity filed a complaint in 2005 with the Department of Education’s Office of Civil Rights (OCR), alleging that Texas Tech had not established that the goals of diversity had not already been achieved, nor had Texas Tech explored other race-neutral alternatives.

In 2014, Texas Tech eliminated its consideration of race in admissions for most of the university, but the Texas Tech Health Sciences Center (TTUHSC) School of Medicine (SOM) continued to use race as a factor in admissions. Accordingly, OCR dropped its investigation of the main campus on November 30, 2018, but continued to investigate the entity that retained race as a factor in admissions.

As a result of the OCR Complaint investigation, in February 2019, the TTUHSC agreed to discontinue all consideration of an applicant’s race and/or national origin in the TTUHSC School of Medicine (SOM) admissions policies.

Further, If SOM or any other TTUHSC school wishes to institute or re-institute consideration of an applicant's race and/or national origin in admissions policies or processes, TTUHSC will ensure, prior to any such institution or re-institution, that it provides a reasoned, principled explanation for its decision and identifies concrete and precise goals, as well as fully considers:
 

• the degree to which race-neutral measures could achieve its educational goals;
• how to tailor race-conscious measures, if a determination is made that such measures are necessary, to afford flexible and individualized reviews of applicants and ensure no undue burden is imposed on applicants of any racial group;
• and, by what process and on what regular schedule the need for and scope of race-conscious measures, if any, will be periodically reviewed and assessed.

The agreement between OCR and Texas Tech does not have the weight of a court decision, but the elements of the agreement may provide a path for compliance that could hold up in court for other academic institutions.
 

Guidelines for Establishing an Affirmative Action Plan for Admissions

The best information we have regarding acceptable affirmative action plans comes from the Fisher case(s). Though the guidance provided by the Department of Education was rescinded, the agency didn’t provide any alternatives. Thus, the following guidelines are valid until further notice, or until the Fisher case is overturned. Stay tuned!
 

1. University’s diversity goals and objectives should be concrete and precise.
   • Not based on a diversity admissions quota.
   • Must explain how the university benefits from having a diverse student body.
   • Identify and document areas (i.e. fields of study) of underrepresentation and which groups are affected (i.e. African Americans).


2. Develop all possible means, short of AA, for eliminating the underrepresentation.


3. Universities must actively review their admissions policies and procedures.
   • Collect data to analyze whether the affirmative action policy is actually having an impact over time.
   • Review data periodically. (Annually?)


4. If underrepresentation still exists, and the only means for eliminating it is AA, develop a holistic approach in which race is only one of many factors.
   • Race can be one of a number of factors.
   • Quotas are still impermissible.

Please note: Nothing in this article is intended as legal advice or as a substitute for any professional advice about your organization's particular circumstances. All original materials copyright © Schuyler Affirmative Action Practice 2019.