State Affirmative Action Bans on College Campuses
On Dec. 9, the U.S. Supreme Court held oral arguments on Fisher v. University of Texas at Austin, an important case that addresses the constitutionality of considering race in public university admissions decisions. Fisher v. Texas dates back to 2008 when Sugar Land High School student Abigail Fisher was denied admission to the University of Texas at Austin, or UT-Austin.1
- After not qualifying for admission to UT-Austin as part of the state’s Top 10 Percent program–through which students who graduate in the top 10 percent of their high school class are automatically admitted to any public university in the state, regardless of test scores–Fisher filed a discrimination lawsuit against the university.2
- Because UT-Austin is a highly selective university, the vast majority of in-state residents who are accepted gain admittance through the Top 10 Percent rule. The year following Fisher’s rejection, for example, 86 percent of the university’s incoming freshman class were applicants granted automatic admission under the law.3
- In 2013, the Supreme Court ruled that courts “must confirm that the use of race is necessary, [essentially] there is no other realistic alternative that does not use race that would also create a diverse student body.” Since the lower court had not applied this “strict scrutiny” test, the Supreme Court remanded the case back to the Fifth Circuit to determine whether UT-Austin fulfilled this new requirement.4
- The Fifth Circuit Court of Appeals ruled in favor of the university’s admissions policy for the second time. On appeal by Fisher, the case was heard again by the Supreme Court again in December 2015.5
The facts in Fisher v. Texas reflect the decades-long evolution of the use of race as a factor in university admissions.
- The term “affirmative action” was first used in 1961 by President John F. Kennedy as part of Executive Order 10925, which established the President’s Committee on Equal Employment Opportunity and prohibited discrimination in hiring practices by government contractors. Kennedy, and later President Johnson, spoke of affirmative action in the scope of employment only.6
- It was not until 1978, however, that the Supreme Court heard its first challenge to using race in university admissions. In Regents of the University of California v. Bakke, the court held that racial quotas are unconstitutional, but race may be one of several factors considered in making admissions decisions.7
- In 1996, the Fifth Circuit Court of Appeals ruled in Hopwood v. State of Texas that UT-Austin’s law school’s admission procedure, in which substantial weight was given to racial factors, violated the Equal Protection Clause, offering the first significant challenge to the Bakke decision. In 2003, a similar decision was made for the University of Michigan in Gratz v. Bollinger.8
- In 2014, the Supreme Court ruled in Schuette v. Coalition to Defend Affirmative Action that voters have the right to decide on issues related to affirmative action in their respective states.9
Currently eight states ban race-based affirmative action at all public universities.10
- Arizona, California, Michigan, Nebraska, Oklahoma and Washington all passed bans via voter referendums.11
- Former Florida Gov. Jeb Bush issued an executive order creating the ban–One Florida–while the New Hampshire legislature passed a bill banning the consideration of race.12
- Additionally, Texas had a ban in place from 1996-2003, as a result of Hopwood, and the University of Georgia voluntarily dropped consideration of race.13
Despite the bans, public flagship universities in nearly all of these states have implemented alternative methods to promote racial, ethnic and socioeconomic diversity on campus.14
- Texas, California and Florida all created “percent” programs, in which top graduates from each high school in the state are guaranteed admission to public colleges.15
- Colleges have also added socioeconomic factors to admissions decisions. For example, the University of Washington started asking applicants to answer questions about any personal hardships they have faced and have offered advantages to those students who have faced obstacles and still performed strong academically.16
- Some states have created financial aid policies to increase support for low-income students and encourage them to apply. Collegebound Nebraska offers free tuition at any University of Nebraska campus for state residents who are Pell Grant recipients. Furthermore, colleges have created recruitment programs designed to attract more first-generation college students.17
- The University of California system, the University of Georgia and Texas A&M University have all dropped legacy preferences, a policy that previously disproportionately benefited white, wealthy applicants.18
1 Matthew Watkins. “Supreme Court to Again Hear Challenge to UT’s Admissions Rules.” Texas Tribune. June 29, 2015.
3 Eric Nikolaides. “Top 10 Shuts Out Out-of-State Students.” The Daily Texan. February 21, 2013.
4 Amy Howe. “Finally! The Fisher Decision in Plain English.” SCOTUSblog. June 24, 2013.
6 Executive Order 10925. March 6, 1961.
7 Klinton W. and Kern Alexander. Higher Education Law: Policy and Perspectives, pg. 440.
8 Ibid, 440-448.
9 Halley Potter. “What Can We Learn from States that Ban Affirmative Action?” The Century Foundation. June 26, 2014.
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