In 1978, the Supreme Court opened the doors of America's elite campuses to a generation of minority students when it ruled that universities' admissions policies could take applicants' race into account. But the decision, by a narrowly divided court drawing a hair-splitting distinction between race as a "plus factor" (allowed) and numerical quotas (forbidden), did not end an often bitter and emotional debate. A quarter of a century after the ruling in Regents of the University of California v. Bakke, affirmative action is still being challenged by disappointed applicants to selective colleges and graduate schools, and still hotly defended by civil-rights groups. Now that two such cases, both involving the University of Michigan, have reached the Supreme Court, the issue can no longer be evaded: when, if ever, should schools give preferential treatment to minorities, based solely on their race?
It's a measure of how far we've come that the desirability of improving opportunities for black and Hispanic students is a given in the debate. But the fundamental question of where "fairness" lies hasn't changed, and the competition keeps growing. Each year, more students apply to the top universities, which by and large have not increased the sizes of their classes in the past 50 years. The court will have to decide who deserves first crack at those scarce resources. (Right now, about one sixth of blacks get college degrees, compared with 30 percent of whites and 40 percent of Asians.) And if the court allows affirmative action to continue in some form, it will only set the stage for future debate over even more perplexing questions. Do all minorities deserve an edge or just those from disadvantaged backgrounds? What about white students from poor families? And how do you balance the academic records of students from the suburbs and the inner cities? As the controversy heats up, here's a 10-step guide to sorting out the issues at stake:
1. What is affirmative action?
When President Kennedy first used the term in the early 1960s, "affirmative action" simply meant taking extra measures to ensure integration in federally funded jobs. Forty years later, a wide range of programs fall under this rubric, although all are meant to encourage enrollment of underrepresented minorities--generally blacks, Hispanics and Native Americans. Schools vary in how much weight they assign to the student's race. For some, it's a decisive consideration; for others, it's just one among a number of factors such as test scores, grades, family background, talents and extracurricular activities. After the Bakke decision emphasized the importance of campus diversity as a "compelling" benefit to society, colleges quickly responded with efforts not just to attract minorities but to create a broader geographic and socioeconomic mix, along with a range of academic, athletic or artistic talent.
In 2003, the debate over the merits of affirmative action essentially boils down to questions of fairness for both black and white applicants. Critics say it results in "reverse discrimination" against white applicants who are passed over in favor of less well-qualified black students, some of whom suffer when they attend schools they're not prepared for. But Gary Orfield, director of Harvard University's Civil Rights Project, argues that emphasizing diversity has not meant admitting unqualified students. "I have been on the admissions committees of five different universities," he says, "and I have never seen a student admitted just on the basis of race. [Committees] think about what the class will be like, what kind of educational experience the class will provide." Opponents also say that with the expansion of the black middle class in the past 20 years, these programs should be refocused on kids from low-income homes. "It just doesn't make sense to give preference to the children of a wealthy black businessman, but not to the child of a Vietnamese boat person or an Arab-American who is suffering discrimination," says Curt Levey, director of legal affairs at the Center for Individual Rights, which is representing the white applicants who were turned down by the University of Michigan.
Despite the public perception that affirmative action is rampant on campuses, these programs really only affect a very small number of minority students. It's a legal issue mainly on highly selective public campuses, such as Michigan, Berkeley or Texas. Even at these schools, the actual numbers of minority students are still small--which is why supporters of affirmative action say race should still matter. Blacks account for 11 percent of undergraduates nationally; at the most elite schools the percentage is often smaller. For example, fewer than 7 percent of Harvard's current freshman class is black, compared with 12.9 percent of the overall population.
2. How did the University of Michigan become the test case?
Both sides say it was really a matter of chance more than anything else. "It's not like we studied 1,000 schools and picked them out," says Levey. To have the makings of a test case, the suit had to involve a public university whose admissions information could be obtained under the Freedom of Information Act. It also had to be a very large school that relied on some kind of numerical admissions formula--unlike the more individualized approach generally used by private colleges with large admissions staffs.
In fact, Michigan is just one of a number of public universities that have faced legal challenges in recent years. In 1996, the U.S. Court of Appeals for the Fifth Circuit banned the use of race in admissions at the University of Texas Law School. The Supreme Court declined to hear the law school's appeal, but by that time, the university had changed its admissions procedures anyway. The University of Georgia dropped race as a factor after a similar suit. But when Michigan's admissions policy came under challenge in the mid-1990s, university officials decided to fight back--all the way to the Supreme Court.
3. How does the Michigan system work?
Although President George W. Bush reduced Michigan's complex admissions process to a single sound bite--comparing the relative values given to SAT scores and race--a student's academic record is actually the most important factor. For undergraduate applicants, decisions are made on a point system. Out of a total of 150 possible points, a student can get up to 110 for academics. That includes a possible 80 points for grades and 12 points for standardized test scores. Admissions counselors then add or subtract points for the rigor of the high school (up to 10) and the difficulty of the curriculum (up to 8 for students who take the toughest courses). Applicants can get up to 40 more points for such factors as residency in underrepresented states (2 points) or Michigan residency (10 points, with a 6-point bonus for living in an underrepresented county). Being from an underrepresented minority group or from a predominantly minority high school is worth 20 points. So is being from a low-income family--even for white students. The same 20 points are awarded to athletes. Students also earn points for being related to an alumnus (up to 4 points), writing a good personal essay (up to 3 points) and participating in extracurricular activities (up to 5 points). Admissions officials say the scale is only a guide; there's no target number that automatically determines whether a student is admitted or rejected. Michigan also has a "rolling" admissions policy, which means that students hear a few months af-ter they apply. The number of spaces available depends on when in this cycle a student applies.
At the law school, there's no point system, but the admissions officers say higher grades and standardized test scores do increase an applicant's chances. Those factors are considered along with the rigor of an applicant's courses, recommendations and essays. The school also says that race "sometimes makes the difference in whether or not a student is admitted."
4. Does the Michigan system create quotas?
This is an issue the court will probably have to decide. Awarding points could amount to a quota if it resulted in routinely filling a fixed number of places. Levey claims that the fact that the number of minority students admitted is relatively stable from year to year proves there is a target Michigan tries to hit. Michigan's president, Mary Sue Coleman, is adamant that that's not the case. "We do not have, and never have had, quotas or numerical targets in either the undergraduate or Law School admissions programs," she said in a statement issued after Bush's speech last week. At the law school, the most recent entering class of 352 students included 21 African-Americans, 24 Latinos and 8 Native Americans. The year before, there were 26 African-Americans, 16 Latinos and 3 Native Americans. The university says that over the past nine years, the number of blacks in the entering class has ranged from 21 to 37. On the undergraduate level, the university says that blacks generally make up between 7 and 9 percent of the entering class.
In general, few outright quota systems exist anymore. "The only legal way to have quotas today is to address a proven constitutional violation," says Orfield. "For instance, if you can prove that a police or fire department intentionally did not hire any blacks for 25 years, and you can prove discrimination, a judge can rule that there can be a quota for the next five years."
On campuses, some education experts say that what appear to be quotas may actually just reflect a relatively steady number of minority applicants within a certain state. "I don't know of a public or private institution that uses quotas," says Alexander Astin, director of the Higher Education Research Institute at UCLA. "That's a red herring. There is always a consideration of merit given." Nonetheless, admissions officers at public and private universities admit that they are always very conscious of demography--and work hard to make sure that the number of minority students does not decline precipitously from one year to the next.
5. How can the court rule?
The short answer is: the Supreme Court can do whatever it wants. The options range from leaving the Bakke decision intact to barring any use of race in college admissions. Or the court could issue a narrowly tailored opinion, one that would affect only Michigan's point system and perhaps only the number of points the university assigns to race. "I think it's a good guess that they may say that they cannot give minorities a specific number of points, or say points are fine, but they can only award 10," says Levey.
The experts agree that the key vote will belong to Justice Sandra Day O'Connor. Some court watchers predict that she will try to find a very specific solution that will leave affirmative action largely intact. "She probably won't buy anything that's open-ended," says Sheldon Steinbach, general counsel of the American Council on Education, a consortium of the nation's leading research universities. "Maybe she will say that it can be done in some narrowly defined way." Steinbach doesn't think the court will order schools to disregard everything but the supposedly objective criteria of grades and test scores. Such a ruling "would tie the hands of admissions officers from shaping the kind of class they want to fulfill the academic mission of the institution," Steinbach says. Another possibility is that the court will order schools to give preference to students who are economically disadvantaged, which would cover many minority applicants.
6. Will the decision affect private universities and colleges?
The answer really depends on what the justices rule, but legal experts generally agree that private institutions would have to follow the court's guidelines because virtually all receive some federal funding. However, the ruling would have a noticeable impact only at elite institutions since most colleges in this country accept the vast majority of applicants. And the elite schools--no more than several dozen around the country--generally employ multistep admissions procedures that leave plenty of room for subjective judgments. Unlike the numerical formulas used by large public universities, these would be difficult to challenge in court.
Already, several landmark state cases have pushed private schools to make changes. In the wake of the Texas decision, officials at highly selective Rice University in Houston, on the advice of the state attorney general, banned the use of race in all admissions decisions. Clerks were told to strip any reference to a student's race or ethnicity from admissions and financial-aid applications before they were forwarded to the admissions committee. Although the proportion of minorities dropped right after the change, it's now back up to the levels before the ruling, officials say--about 7 percent black and 10.5 percent Hispanic. That was accomplished through "significant" recruiting, a Rice spokesman said.
7. How would an anti-affirmative-action ruling affect other preferences for legacies and athletes?
Some educators think legacies (the children or grandchildren of alumni) could become unintended victims of an anti-affirmative-action ruling. On the face of it, providing preferential treatment to these applicants does not violate the Constitution, but as a matter of fairness--and politics--legacies would be hard to defend, since they are usually white and middle class. However, many colleges would probably resist the change because legacies bring a sense of tradition and continuity to the school. (They also are a powerful inducement to alumni donations.) Athletic preferences are a different story. They don't disproportionately favor whites so they're probably not as vulnerable.
8. Whom does affirmative action hurt and whom does it help?
Opponents of affirmative action claim it actually hurts some minority students, particularly those who end up struggling to compete in schools they're not prepared for. And, they say, it unfairly tars well-qualified minority students with the suspicion that they were admitted because of their race. Supporters say that's a spurious argument because race may sometimes be the deciding factor between qualified applicants, but it is never the only reason a student is admitted.
The more obvious potential victims, of course, are white students who have been denied admission--like the plaintiffs in the Michigan suit. But there's no guarantee that these students would have been admitted even if there were no black applicants. In their 1998 book "The Shape of the River," William Bowen and Derek Bok (former presidents of Princeton and Harvard, respectively) analyzed the records of 45,000 students at elite universities and found that without race-sensitive admissions, white applicants' chances of being admitted to selective universities would have increased only slightly, from 25 to 26.2 percent. But Bowen and Bok also found that black applicants' chances were greatly enhanced by affirmative action, and the vast majority of black students went on to graduate within six years--even at the most selective institutions. The black graduates were more likely to go to graduate or professional school than their white counterparts and more likely to be leaders of community, social service or professional organizations after college.
Supporters of affirmative action say both white and black students benefit from living in a diverse academic environment, one that closely resembles the increasingly diverse workplace. Opponents say schools don't need affirmative action to create a diverse campus; instead they say that other admissions strategies, such as "affirmative access," can accomplish the same goals.
9. What is "affirmative access"?
In the wake of lawsuits, several states have adopted alternative ways to bring minority students to campus. Modern political marketing seems to require a label for everything, and "affirmative access" has emerged as the label for these plans. Each operates differently. In California, the top 4 percent of students at each in-state high school is guaranteed admission to the University of California (although not necessarily to the most prestigious campuses, Berkeley and UCLA). For the University of Texas, it's the top 10 percent, and in Florida, the top 20 percent. The success of these new initiatives varies. California's plan was enacted after the passage of Proposition 209, which forbids using race in admissions. In 1997, the last year before the use of race was banned, 18.8 percent of the class consisted of underrepresented minorities. Last year that number was 19.1 percent systemwide. But some individual campuses, like Berkeley and UCLA, have not returned to pre-1997 levels. At the University of Texas, the percentage of black and Hispanic entering freshmen has remained fairly steady, but officials say the 10 percent law alone isn't enough. "You have to add some targeted procedures that work in tandem with the law," says University of Texas president Larry Faulkner. "And for us that's been pretty aggressive recruiting programs aimed at top 10 percent students in areas where minority students live, and carefully tailored scholarship programs aimed at students in areas or schools that have not historically attended UT."
Opponents of affirmative access like lawyer Martin Michaelson, who specializes in higher-education cases, say these programs rest on the dubious premise that "residential segregation patterns are a better method for choosing a college class than the judgment of educators" and create, in effect, a built-in constituency for continued segregation. Critics also worry that a program that mixes schools of widely different qualities may reward less-qualified students than more-traditional programs. At the University of Texas, Faulkner says no; he believes that class rank is a better predictor of collegiate success than test scores, even at high schools with large numbers of disadvantaged students. But Orfield, who is in the final stages of completing a formal study of these programs, disagrees; he says that less-qualified students are being admitted under the percentage programs. Often, Orfield says, 60 percent of kids at suburban high schools have better credentials than the top 10 percent of kids at inner-city schools (sidebar). The affirmative-access approach would also be hard to apply in nonstate colleges and graduate schools that draw students from all over the country.
Another approach would be to target students from low-income homes, regardless of race. That would eliminate the problem of giving middle-class blacks an edge. But Orfield says that being middle class does not protect black students from the effects of racism, and they are still often at a disadvantage in the admissions process. "Race still matters," he says. "It's fine with me if we apply affirmative action to poor people, but I think we need it for middle-class blacks as well."
10. So what is the most equitable way to select the best-qualified applicants?
In judging admissions policies, it's important to remember that schools aren't just looking to reward past achievement. They want to attract students who will create the richest academic and social communities, and who have the best odds of success in college and later life. As a result, admissions officers say, what they really look for are signs of intellectual energy and personal enthusiasm--qualities that can show up in grades, scores, essays, recommendations, extracurricular activities, or a mix of all these. "Merit" has become particularly difficult to define in an era when elite colleges are getting many more well-qualified applicants than they can possibly accept, and when distrust of standardized admissions tests is growing. And making hard and fast distinctions based on race isn't going to get any easier as the growing trend toward racial mixing increases over the next century and people choose to identify with more than one group. The only thing educators who have struggled with these issues agree on is that there is no magic formula, not even for the Supreme Court.
In a caption accompanying a photo of the 1941 University of Michigan football team in our Jan. 27 issue, we said that 4.3 percent of the players on the team were black ("What's at Stake"). The correct figure (for the varsity team) is 1.7 percent. We also said that 45 percent of the 2002 team was black; the correct number is 42 percent.