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| Issues: Affirmative Action
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Affirmative Action : Legal Challenges (last updated January 18, 2003) (back to top)
A long-running legal controversy over whether affirmative-action programs in higher education are constitutional may find some resolution when the United States Supreme Court decides cases involving the University of Michigan's college and law-school admissions systems sometime in 2003.
The constitutionality of affirmative-action programs depends on whether they serve a "compelling state interest" and whether they are "narrowly tailored" in doing so. Federal courts across the country have issued contradictory decisions as to whether the benefits of diversity are enough to justify the constitutional use of affirmative action; the Fifth Circuit Court of Appeals (covering Texas) first ruled that diversity was not a compelling interest in 1996, but other courts have followed Justice Louis Powell's lead from the 1978 Bakke case and have found diversity to be sufficient justification.
In briefs submitted to the Supreme Court in January 2003, the Bush administration appeared to be challenging the University of Michigan's admissions programs on narrower grounds. Rather than saying that affirmative-action programs did not serve a "compelling state interest," the Bush administration argued that the University of Michigan's programs were unconstitutional because they were not narrowly tailored. Specifically, the Bush administration argued that race-neutral programs such as those now used in Texas and at the University of California could achieve the same results and that the University of Michigan's programs gave too much consideration to race.
President George W. Bush appeared to make the same distinction in a January 15, 2003 statement in which he criticized the college-admissions system used by the University of Michigan since 1998 as "fundamentally flawed" because students are accepted or rejected "primarily on the color of their skin." He focused his remarks on the system itself and even said that he "strongly" supported racial diversity in student bodies.
Whether Bush would oppose any consideration of race was unclear from his January 15 statement. However, two high-level Bush administration officials who are black, Secretary of State Colin Powell and national security adviser Condoleeza Rice, reportedly said in January 2003 that they did support the use of race as a factor in admissions.
The University of Michigan's college admissions system, which has been used since 1998, has been criticized for automatically giving African-American and other under-represented minority students 20 points on a 150-point range to determine whether they are admitted. The system awards each applicant points based on their grades and classes (98 points maximum), standardized test scores (12 points maximum), and other factors including college essay, leadership, athletic scholarship, or membership of an "underrepresented" minority group (40 points maximum). A district court upheld this 20-point boost as constitutional, but held that prior systems used by the University of Michigan were unconstitutional.
(For comparative purposes, coming from an unrepresented geographic area was worth 6 "other factor" points, leadership and service skills were worth 5 points, having an alumni relationship was worth 4 points, and writing an outstanding essay was worth 3 points.)
The University of Michigan's law-school admissions system has been criticized for deliberately seeking to attain a "critical mass" of students, which law-school officials have described as a number of students sufficient for under-represented minority students to feel comfortable contributing to classroom dialogue. In a 5-4 May 2002 opinion, the Sixth Circuit Court of Appeals upheld this system as constitutional because it was not a quota and because the law school did not codify the value of race beyond it being a "potential plus" factor that can "tip the balance" for some applicants; a dissenting judge however said that race was given too much weight and was worth at least a full grade point of college average or a 11-point boost on the LSAT.
The first major decision striking down affirmative action in education was the 1996 Hopwood case in Texas. There, the Fifth Circuit Court of Appeals (covering Texas) ruled that diversity was not a compelling interest and that affirmative action could thus not be justified under the Constitution. A federal court in Georgia came to the same conclusion in a series of decisions in 1999 and 2000; this decision was upheld by the Eleventh Circuit Court of Appeals in August 2001 on more limited grounds (see Johnson v. Board of Regents of the University of Georgia), and the school then decided in November 2001 not to appeal the case any further.
On the other hand, the Ninth Circuit Court of Appeals (covering the West Coast) upheld the use of affirmative action to promote diversity at the University of Washington in a November 2000 decision (Smith v. University of Washington).
The University of Michigan cases have resulted in some conflicting decisions. In a case involving the college and decided in December 2000 (Gratz v. Bollinger), Federal District Judge Patrick Duggan accepted diversity as sufficient justification for affirmative action but ruled that the University of Michigan’s college admissions policies were not narrowly drawn from 1995 to 1998 and thus were unconstitutional; its policies from 1999 on were narrowly drawn and thus constitutional. A few months later, however, in a case involving the university’s law school (Grutter v. Bollinger), Federal District Judge Bernard Friedman rejected diversity as a sufficient justification and thus ruled that the law school’s admission policy was unconstitutional. Issuing an opinion only in the law-school case, the Sixth Circuit upheld diversity as a compelling state interest in May 2002.
The United States Supreme Court declined in 2001 to review the University of Washington case and the University of Texas case, but agreed in late 2002 to hear the University of Michigan cases. Whether the ruling will focus on the University of Michigan's programs in general or on broader questions is unclear.
For more information on affirmative action, go here.
Sources: President George W. Bush's January 15, 2002 statement on affirmative action is on-line here. Court opinions referenced above can generally be found via Findlaw.com. Other resources can be found via websites for the various state schools affected by the changing landscape of affirmative action. The University of Michigan collects information about its lawsuit here. The University of California system collects policy changes here, and admissions statistics are available here. The University of Texas has collected information about the Hopwood case here, and the latest report on the 10-percent admissions plan is here. The University of Washington maintains statistics here. The University of Georgia collects status updates on its admissions lawsuit here.
Overview (legal challenges, referenda, percentage-based plans) (last updated February 2, 2002) (back to top)
Affirmative action is an umbrella term for race-conscious programs that seek to attain a racial distribution within areas such as college admissions and government contracting closer to the racial distribution of the general population. Such programs were first enacted in the 1960s and 1970s in response to changes in the political and cultural environment, as well as demographic changes, and have been controversial from the beginning.
Since the mid-1990s, affirmative action has faced many legal and political challenges, most visibly in the area of college admissions. Federal courts across the country have issued contradictory decisions as to whether the benefits of diversity are enough to justify the use of affirmative action under the Constitution, and the Supreme Court is likely to take up an appropriate case (most likely, one of the cases currently underway involving the University of Michigan) within the next few years and decide the issue.
Politically, voters in California and Washington passed referenda in 1995 and 1998 banning the use of affirmative action, and state schools there have implemented new admissions policies such as percentage-based admissions and minority recruitment to attain the same goals as before through permissible means. The top state schools in these states saw a decline in black and Hispanic representation in their incoming classes immediately after these decisions, but have recovered somewhat since then. Florida was to have voted on a similar referendum in 2000 but Governor Jeb Bush banned affirmative action and proposed a percentage-based plan via executive order a year earlier.
The most important developments nationwide are these:
- Legal challenges have had conflicting results, but generally find affirmative action programs unconstitutional. Legal challenges are eroding the idea that the benefit of having a diverse student body can justify affirmative action admissions policies, which was established by Justice Louis Powell in deciding the Bakke case of 1978. Affirmative action policies are justified under the U.S. Constitution only when they address a "compelling government interest" and are "narrowly drawn" to meet that interest. Courts have rejected the idea that remedying society's past discrimination is sufficient justification, leaving only diversity, and they have come to dramatically different results in recent years as to whether even that is enough.
The first major decision striking down affirmative action in education was the 1996 Hopwood case in Texas. There, the Fifth Circuit Court of Appeals (covering Texas) ruled that diversity was not a compelling interest and that affirmative action could thus not be justified under the Constitution. A federal court in Georgia came to the same conclusion in a series of decisions in 1999 and 2000; this decision was upheld by the Eleventh Circuit Court of Appeals in August 2001 on more limited grounds (see Johnson v. Board of Regents of the University of Georgia), and the school then decided in November 2001 not to appeal the case any further.
On the other hand, other courts, such as the Ninth Circuit Court of Appeals in a case challenging the University of Washington and decided in November 2000 (Smith v. University of Washington), have upheld the use of affirmative action to promote diversity.
Cases involving the University of Michigan have resulted in some conflicting decisions. In a case involving the college and decided in December 2000 (Gratz v. Bollinger), Federal District Judge Patrick Duggan accepted diversity as sufficient justification for affirmative action but ruled that the University of Michigan's college admissions policies were not narrowly drawn from 1995 to 1998 and thus were unconstitutional; its policies from 1999 on were narrowly drawn and thus constitutional. A few months later, however, in a case involving the university's law school (Grutter v. Bollinger), Federal District Judge Bernard Friedman rejected diversity as a sufficient justification and thus ruled that the law school's admission policy was unconstitutional. Both cases have been appealed and were argued before the Sixth Circuit Court of Appeals in December 2001.
Although the United States Supreme Court is widely expected to reject diversity as sufficient justificiation, it has so far declined to review any appropriate cases for such a decision. It declined in May 3001 to review the University of Washington case, and it declined in June 2001 to review the University of Texas case. Since the University of Georgia has decided not to appeal the case any further, the only case left that the Supreme Court could use to decide the issue - if it actually wants to - would be one of the cases involving the University of Michigan.
- Referenda were successful in California and Washington. Some have turned to political measures to ban affirmative action in some states. On November 5, 1996, California voters passed by a margin of 54 to 46 percent an amendment to their state constitution (the California Rights Initiative, better known as Proposition 209) prohibiting discrimination or preferential treatment based on race, sex, color, ethnicity, or national origin. Two years later, voters in Washington state passed a similar measure (Proposition 200) with 58 percent of the vote. Florida voters were to have decided a similar referendum in 2000, but Governor Jeb Bush decided to eliminate affirmative action and implement new plans a year earlier. Houston voters rejected a referendum that would have eliminated affirmative action in city contracting and hiring (the measure did not apply to college admissions) in 1997 by 55 percent.
- Percentage plans are spreading. Reacting to the changing landscape for affirmative actions, state schools are beginning to adopt a percentage-based system wherein schools ignore SAT scores and simply accept the top students from each high school.
- Texas adopted a 10% version after the 1996 Hopwood decision, by which any student graduating in the top 10 percent of his or her high school graduating class would receive automatic admission to state schools, and all other students would be evaluated by many factors not including race; under this program, the number of black and Hispanic students at the University of Texas at Austin has slightly increased since 1996.
- California has seen a variety of new admissions policies and programs since the mid-1990s. In 1998, it also implemented a percentage-based program, the "eligibility in the local context" program, under which it would grant UC eligibility to the top four percent of students in each California high school. In July 2001, UC approved a program by which students between the top 4 and 12.5 percent in each California high school would also be admitted, as long as they completed a one-year transfer program at a community college first, but has delayed implementation of this program until more funding is secured.
- Florida Governor Jeb Bush issued an executive order banning the use of affirmative action and has proposed that the state adopt a 20-percent plan, and Florida's state schools in 2000 reported increases in minority enrollment throughout the system, with black enrollment increasing by 21 and 33 percent at Florida State University and the University of Florida, and Hispanic enrollment increasing by 24 and 19 percent at the same schools.
- Statistics. It has not been easy and not always successful, but many of those state schools which are adjusting to a post-affirmative action world are slowly managing to bring the numbers of black and Hispanic students back up to the levels they were at before recent developments. Schools have done this primarily through more active recruitment of minority applicants and special preparation programs designed to help students who may have done well at their high schools but are not fully ready for a competitive college. However, the best schools in the University of California system (Berkeley and UCLA) are still behind and their share of the student body is still lower than before.
The following graphs show how freshman enrollment (not admissions) has changed since the mid-1990s for some state schools that were affected by the changes in affirmative action and for which sufficient data was available on-line.
Sources: Court opinions referenced above can generally be found via Findlaw.com. Other resources can be found via websites for the various state schools affected by the changing landscape of affirmative action. The University of Michigan collects information about its lawsuit here. The University of California system collects policy changes here, and admissions statistics are available here. The University of Texas has collected information about the Hopwood case here, and the latest report on the 10-percent admissions plan is here. The University of Washington maintains statistics here. The University of Georgia collects status updates on its admissions lawsuit here. Information about the One Florida Initiative is here. An April 2000 report by the U.S. Commission on Civil Rights on percentage-based plans in education is on-line here.
State by State
- California (last updated February 2, 2002) (back to top)
Unlike Texas, California saw its system change step by step and its massive state university system is still working on ways to revise its admissions policies.
Changes began when the University of California system voted in 1995 to prohibit consideration of race and sex in admissions policies, a policy that would take effect in 1998 (this policy was later rescinded). That schedule was accelerated by the passing in 1996 of Proposition 209, which prohibited consideration of race and sex in hiring, contracting and university admissions.
Since then, the UC system has reviewed its admissions policies and implemented new and revised plans. Such plans include a percentage-based admissions policy as in Texas. UC first implemented the "eligibility in local context" program in 1998 with the top 4% of each school, and it plans to fund a program to offer admission to the top 4 to 12.5 percent from each school as long as these students take a one-year transitional program at a community college first.
UC is also considering a proposal to stop considering the SAT in favor of subject-specific standardized tests; President Richard Atkinson publicly made this proposal in 2001, and a UC panel backed this proposal in January 2002.
Immediately following Proposition 209, the number of black and Hispanic students dropped dramatically in the UC system, but the numbers have generally risen back to about their pre-1995 levels, except for the top UC schools such as Berkeley and UCLA.
- Florida (last updated February 2, 2002) (back to top)
Rather than waiting for court challenges or a referendum, Florida leapt into the post-affirmative action world headfirst, with Governor Jeb Bush issuing Executive Order 99-281 on November 9, 1999, a year before voters were to approve or reject a referendum like California's Prop 209. Bush then proposed the "One Florida Plan" to guarantee state college admissions to the top 20 percent of each high-school class. The current plan increases financial aid, helps low-performing schools, and gradually phases out the "alternative admissions" program which used to admit candidates based on diversity in favor of a straight numbers plan.
- Georgia (last updated February 2, 2002) (back to top)
The University of Georgia has seen many different kinds of legal challenges. One set of such challenges led a federal district judge to declare UGA's admissions policy from 1990 to 1995 unconstitutional for its "blatant" use of racial quotas; the judge subsequently came very close to invalidating the school's follow-up policy as well. This decision was upheld on more limited grounds by a federal appellate court; the University of Georgia decided in November 2001 not to try appealing the case to the Supreme Court.
Even more lawsuits are being filed to hammer away at the school's policies regarding admissions and scholarships; the school has settled some but intends to still consider race as a factor and to fight this issue to higher courts. A less successful set of challenges targeted Georgia's support of historically black institutions; the judge dismissed this suit out on the grounds that the plaintiffs here had not suffered any particular harm from these schools and could not use a lawsuit just to express a general complaint.
- Michigan (last updated February 2, 2002) (back to top)
The University of Michigan has now become the definitive battleground for legal challenges to affirmative action, with two conflicting cases that are likely to go to the Supreme Court for ultimate resolution. In December 2000, a district judge ruled that diversity did justify affirmative action in the college's admission policy and that the college's current process was appropriate, while rejecting the two-track admissions policy used from 1995 to 1998 as unconstitutional. A few months later, in March 2001, another judge ruled that diversity did not justify affirmative action at all.
Both cases have been appealed and were argued before the Sixth Circuit Court of Appeals in December 2001. Whatever the result, the cases are expected to be appealed to the Supreme Court and are the only cases that could force the Supreme Court to resolve the question as to whether diversity justifies affirmative action; the Supreme Court declined in 2001 other cases from Texas and Washington that it could have used to decide the issue.
- Texas (last updated February 2, 2002) (back to top)
This state saw its system change because of a lawsuit by four white applicants who were denied admission to the University of Texas law school. In 1996, the Fifth Circuit Court of Appeals ruled in that case that nothing justified affirmative action in Texas. Since then, Texas has adopted an admissions policy that admits the top 20% of students from each high school in the state, thus ensuring some measure of diversity. This policy has been criticized (in part for relying on segregation at the high school level) but it does seem to be successful in maintaining a certain level of diversity in the enrollment.
- Washington State (last updated February 2, 2002) (back to top)
Voters here approved Initiative 200 (a referendum similar to Prop 209) in November 1998, and it became law a month later. Since then, the University of Washington has put major new efforts on adapting admissions criteria, heavier and more active recruiting of qualified applicants, and revising financial aid policies. In October 2000, UW President William McCormick, university regents and administrators, and student leaders signed a Diversity Compact which pledged to improve diversity through 19 specific initiatives. See here.
Sources: See sources for the overview section.
The Legality of Affirmative Action (last updated February 2, 2002) (back to top)
When can the government legally make decisions based on race?
Not often. According to well-established rules of constitutional law, the government is generally NOT allowed to treat people differently because of their race, whether positively or negatively. But an exception is allowed when considering race serves a compelling government interest, and when the way race is considered is done narrowly enough.
Deciding what these terms mean in actual practice is extremely tricky.
In fact, most people now think the United States Supreme Court got it wrong the very first time it set out these tests. The Court first used this rule to approve the interning of Japanese-Americans in the wake of Pearl Harbor. At that time, preventing a potential internal military threat was considered a compelling enough interest, and interning masses of American citizens who happened to be of a specific ethnic background in the desert - without any due process - was considered a narrow enough means to survive constitutional scrutiny.
History has not been kind to that decision. These are dangerous waters for constitutional analysis.
So, when is it constitutional for a college or school to consider race in its admissions decisions?
1. What makes for a compelling interest justifying affirmative action in admissions policies?
There are not a lot of possibilities left here. Courts have generally ruled that making up for general societal discrimination is not good enough (though rectifying specific discrimination can be); nor is achieving some social engineering.
That leaves diversity as perhaps the only viable justification. Supreme Court Justice Lewis Powell endorsed this view in the famous Bakke case of 1978, and schools have relied upon Powell's words ever since.
In recent years, however, many courts have taken an opposing view and thus placed diversity on the run. Most importantly, in 1996, the Fifth Circuit Court of Appeals ruled in the Hopwood case that diversity was not a compelling interest, thus ending the use of affirmative action in Texas schools. In July 1999, a federal district judge in Georgia said diversity was "amorphous" and stigmatized white applicants for largely "symbolic" benefits; he probably would have declared diversity not a compelling interest and thus invalidated the University of Georgia's policies except for procedural problems in the case.
On the other hand, a federal district judge held in December 2000 that a diverse college student body was indeed a compelling interest and thus justified the use of affirmative action in college admissions at the University of Michigan. The Ninth Circuit Court of Appeals also re-affirmed Powell's view that diversity justified affirmative action in December 2000.
"We are well aware of the fact that much has happened since Bakke was handed down. Since that time, the Court has not looked upon race-based factors with much favor. Still, it has not returned to the area of university admissions, and has not indicated that Justice Powell's approach has lost its vitality in that unique niche of our society. As we see it, regardless of what we think the Supreme Court might do, we must let it decide," Judge Ferdinand Fernandez wrote for the Ninth Circuit. "We, therefore, leave it to the Supreme Court to declare that the Bakke rationale regarding university admissions policies has become moribund, if it has. We will not."
The big controversy here, as many judges have been noting for years, is that diversity is an amorphous concept. It's hard to define what it means, and it's hard to pin down exactly what its benefits are. And how can we use something so fuzzy and subject to "definitional drift" to justify an exception to basic constitutional principles of equal protection and individual fairness? Some people, like Derek Bok and William Bowen in their book "Shape of the River," have tried, but their efforts are still not solid.
Take the Michigan case. There, the judge's ruling is based on psychological studies which sound kind of fuzzy: one study said that diversity "eliminates a problem termed 'group think,' an organizational situation in which students mindlessly conform," and that students at more diverse schools have higher "intellectual engagement and motivation index[es]" and higher "citizenship engagement index[es]."
This may fit with some conventional wisdom, but is this enough legally to justify an exception to general constitutional principles? How many minorities are needed to prevent group think? And if all this is true, then how can we also justify historically black colleges and women's colleges? The existence of these schools undercuts the argument that diversity is a "compelling interest" rather than just one of many good things to consider when choosing which college to attend.
In the end, diversity is where the line has been drawn and it's not a very solid one. But if diversity goes, so does affirmative action in school admissions. The United States Supreme Court (which has been skeptical of diversity in non-education concepts such as government contracting and is not likely to become any more receptive in a post-Clinton era) has avoided the issue so far but it will hear this case sometime soon. And then things will probably change.
2. Assuming it is constitutional to have any affirmative-action program at all, what makes for a narrowly-drawn one?
This area is marginally less controversial. Courts have regularly invalidated policies which use quotas and dual-track systems which consider minority and nonminority candidates separately and by different standards. They generally have approved policies like the so-called Harvard plan, which looks at each student individually and gives them "pluses" or bonus points for many factors, one of which is race.
Nevertheless, in recent years, courts have struck down policies on this prong, rather than dealing with the diversity prong. The Eleventh Circuit Court of Appeals thus upheld the district court opinion finding against the University of Georgia on this basis in August 2001, and even the federal district judge that upheld diversity as an interest in the college-admissions case at the University of Michigan struck down the policy in place from 1995 to 1998 on this basis.
(NOTE: In most cases, the government is allowed to differentiate between people on non-racial bases as long as the reasons for doing so are not completely irrational. Some factors, such as sex, age and citizenship require somewhat better reasoning to be constitutional, but the standards are not as high as for race.)
Sources: Court opinions referenced above can generally be found via Findlaw.com.
A Short History of Affirmative Action (last updated March 2001) (back to top)
Affirmative action in the education and employment contexts began as an outgrowth of other civil rights programs in the 1960s and 1970s. The federal government began requiring contractors to undertake affirmative-action programs in the 1960s, first in the construction industry and then in non-construction contexts. Colleges and professional schools started with outreach and recruitment programs but began modifying its admissions standards in the late 1960s in order to bring blacks into the student body; such race-conscious policies were more or less officially approved by the Supreme Court in the famous Bakke case of 1978.
Education
Affirmative action in its current form emerged in the middle to late 1970s, as colleges and professional schools continued to revise their efforts to admit black students in numbers better reflecting their share of the overall population.
Efforts to increase black enrollment largely began in the 1950s and 1960s, initially due to the black migration from the South to northern cities. Colleges began in the 1960s to see increased black enrollment as a worthy goal and took more pro-active measures to admit and enroll more black students. According to Elizabeth A. Duffy and Idana Goldberg, who studied college admissions policies in their book "Crafting a Class" (Princeton University Press, 1998), colleges initially wanted to enroll more blacks to give them the same opportunities as their white peers; black students also became a mark of how elite and forward-thinking a college was. By the late 1960s, colleges began to see black students as contributing to the overall education of all students by making for a more diverse student body; colleges also saw increased black enrollment as a way to give blacks an opportunity to become leaders after graduation. Some colleges also changed policies specifically to rectify past racial injustices or in response to campus protests.
To accomplish the overall goal of increased black enrollment, colleges and professional schools implemented recruiting programs, hired admissions officers whose primary jobs were to recruit minority students, and increased financial aid programs.
More controversially, some schools set goals for the number of blacks in incoming classes. And many schools began to admit black students with lower test scores than their white classmates. These policies evolved and by the late 1970s, colleges were looking for black students who more closely fit the overall profile of the class; race thus remained a factor in admissions decisions but assumed a less prominent role than it had in the early days of race-conscious admissions policies. This general position was effectively approved by the Supreme Court in the Bakke decision of 1978, though this decision's foundation is facing renewed scrutiny through court cases and may be overturned by the current Supreme Court.
Professional schools also implemented recruitment and affirmative-action programs in the late 1960s. In 1965, less than 1 percent of all law students and less than 2 percent of all medical students in the United States were black, with more than one-third of black law students and more than three-quarters of black medical students enrolled at all-black schools. Harvard Law School led the way in recruiting black students, first in 1965 with a special summer program to attract black college students to law school, and then in 1965 by admitting black students with lower test scores than their white classmates.
Employment Context
The federal government has tried several approaches to increasing the representation of blacks (and later, women) in areas related to government contracting, specifically employment and ownership. While some agencies use remedial measures to enforce the nondiscrimination laws, the federal government has also used affirmative-action programs to force more integration.
Government contractors' affirmative-action obligations are set out in an executive order from 1965 and in various federal regulations, particularly Revised Order No. 4 issued by the Nixon administration in 1969.
Under Executive Order 11,246 (issued by President Lyndon B. Johnson in September 1965), contractors will not discriminate against any employee or applicant and will take "affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin."
This order, as amended by later orders, is implemented through the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP), which has jurisdiction over about 20 percent of the total civilian workforce.
Under OFCCP regulations, non-construction (service and supply) contractors with more than 50 employees and a federal contract of more than $50,000 must develop a written affirmative-action program for each of its establishments. Acceptable programs require an analysis of areas where a contractor is deficient "in the utilization of minority groups and women" and an explanation of "goals and timetables to which the contractor's good faith efforts must be directed to correct the deficiencies." Construction contractors must follow goals and timetables set by the OFCCP.
Whether set by the contractors themselves or by the OFCCP, such goals are not considered quotas. The OFCCP is not authorized to enforce such goals or to penalize contractors who fail to meet such goals, though it is authorized to penalize contractors with discriminatory policies by canceling contracts and declaring non-compliant contractors ineligible for future government contracts. According to the OFCCP, it recovered more than $217 million in total financial settlements for victims of discrimination from 1994 to 1999.
These orders and regulations came about slowly and with controversy during the 1960s.
John F. Kennedy was the first president to use the phrase affirmative action, issuing Executive Order 10,925 in March 1961. This order established the President's Committee on Equal Employment Opportunity and ordered every federal contract to include a pledge that the contractor "will take affirmative action, to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin."
President Lyndon B. Johnson then issued Executive Order 11,246 in September 1965, stating that federal policy was to have equal opportunity and nondiscrimination in federal employment, and "to promote the full realization of equal employment opportunity through a positive, continuing program in each department and agency." The order abolished Kennedy's committee, transferred its responsibilities to the Department of Labor, and authorized the Secretary of Labor to adopt implementation rules and regulations. Earlier this year, he had given a commencement speech at Howard University urging more pro-active measures to ensure racial fairness. "You do not take a person who for years has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, 'you're free to compete with all the others,' and still justly believe that you have been completely fair," he said.
Nevertheless, it was President Richard Nixon's administration that implemented affirmative action in federal contracting through the Office of Federal Contact Compliance in 1968. The OFCC (later renamed the OFCCP) required contractors to submit written affirmative action plans and established minority-hiring goals and timetables for the construction industry in a few cities, particularly Philadelphia. Such plans sparked widespread controversy and achieved mixed results, but the Nixon administration expanded the scope of such plans by issuing OFCC Order No. 4, which stated that "the rate of minority applicants recruited should approximate or equal the rate of minorities to the applicant population in each location."
As described above, such measures still largely remain in place but have been challenged and modified through various court challenges. Other programs, such as minority set-asides in which certain amounts of government contracts must go to minority-owned businesses (first enacted in the Public Works Employment Act of 1977), have also faced legal challenges.
Sources: Elizabeth A. Duffy and Idana Goldberg, Crafting a Class (Princeton University Press, 1998). Michael J. Zimmer et al., Cases and Materials on Employment Discrimination (Fourth Edition, Aspen Publications, 1997). Herman Belz, Equality Transformed: A quarter-century of affirmative action (Transaction Publishers, 1991). An affirmative-action fact sheet by the Department of Labor's Office of Federal Contract Compliance Programs is on-line here.
A Look at the Four Would-Be Lawyers who Brought Down Affirmative Action in Texas (last updated February 2, 2002) (back to top)
Logic demands that there are white people out there who have actually been hurt by affirmative action, that there are people who are really qualified and really would have gotten into that specific college or law school if not for affirmative action.
But the four test plaintiffs in the Hopwood case who brought down the affirmative action in Texas, Louisiana and Mississippi (the states covered by the Fifth Circuit's 1996 ruling) as they sued the University of Texas at Austin law school for millions of dollars in lost wages are not among them.
In fact, Federal District Judge Sam Sparks ruled in 1998 that even if UT had not considered race at all when the four plaintiffs applied in 1992, none of them would have been admitted. And in December 2000, an appellate court upheld that decision.
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In 1992, Cheryl Hopwood, Douglas Carvell, Kenneth Elliot, and David Rogers - all considered Texas residents - applied to the UT law school, along with 4,490 other people, to fill about 500 available spots. They were ultimately denied admission, along with more than 3,500 other people, including some 1,500 other Texas residents. (Everything here is based on the public record, primarily the findings of a federal district court in the case of Hopwood v Texas, decided March 20, 1998. The appellate case was decided on December 21, 2000.)
At that time, the UT law school went through applicants first by using their GPA and LSAT scores to assign each a Texas Index (TI) score. Based on the TI score, applicants would be presumptively admitted, presumptively denied, or placed in a discretionary pile. Nonminority applicants needed a 199 to get a presumptive admit; 192 or less would be a presumptive denial. Black and Hispanic applicants needed 189 to get a presumptive admit; 179 or less would be a presumptive denial.
All four plaintiffs in the Hopwood case fell into the discretionary range. Hopwood got a 199 TI score. Carvell, Elliot, and Rogers all got a 197. This meant that they would be reviewed along with hundreds of other applicants. One important factor here was how good was the applicant's college, based on the average LSAT score students from that college got; a low average score indicates the school is not very competitive and makes a good GPA there less impressive and meaningful.
Cheryl Hopwood was almost presumptively admitted with her good grades and an LSAT score in the 83rd percentile, but school officials downgraded her application when they looked more closely. Hopwood's 3.8 GPA was based on attending first a community college and then a noncompetitive college, and the "bulk" of her education was described as more "technical 'how-to' courses rather than academic courses requiring analytic skills." She had no letters of recommendation and her application was handwritten.
Ironically, she was not denied admission outright but was initially placed on UT's wait list for diversity reasons; one reviewer thought that it would add something to the school to admit an older, married woman who was working as an accountant while taking care of a daughter with cerebral palsy.
Douglas Carvell also had his numbers downgraded upon careful study. First of all, he had taken the LSAT twice and done poorly the first time; averaging those scores put his LSAT score into the 76th percentile and his TI score down to 191 or 192 and his application into the presumptive denial category. On top of that, he had a low GPA of 3.28 from a mediocre school in Arkansas. He submitted four letters of recommendation, two from professors, two from professionals. One faculty letter was vague and not strong; the other explicitly described Carvell was disappointing and mediocre.
As for the other two plaintiffs, they had high LSAT scores but they also had low GPAs and weak academic records. Such candidates are what admissions officials call "disparity" candidates. Occasionally these applicants are worth a chance; these two were deemed not worthy of one.
Kenneth Eliot himself admitted his academic weaknesses in his application to UT. Explaining his college years at UT, he wrote that he "was an average student, studying when I needed to, partying more than I should, and not managing my time efficiently." His 2.8 GPA showed more than his LSAT score in the 95th percentile. He did not submit any recommendation letters.
David Rogers also had a high LSAT score, but his academic record raises eyebrows immediately. He initially attended the University of Texas, but was placed on scholastic probation once and flunked out twice over a period of years. He did not turn himself around afterwards. He went to the University of Houston-Downtown, which had the lowest LSAT mean score that some reviewers had ever seen, and he did not even get high grades there, attaining just a 3.13 GPA. He also did not submit any recommendation letters (oddly enough, he portrayed himself as a proponent of minorities in his application, writing that "as a white who attended an all-minority school for several years and who was raised by a single mother, I have an unusual understanding of the challenges faced by women and minorities"). A federal district judge said that he was "convinced beyond any doubt that Rogers would never be admitted to the law school under any circumstances."
All in all, not exactly the most obvious candidates for admission to a law school that is generally ranked among the 20 best in the country, according to U.S. News & World Report.
Not only did these four plaintiffs think they would have been admitted but for affirmative action (Elliot's father even wrote the school a letter blaming the denial on "mandatory minority and women quotas" and managed to scare the school into re-evaluating Eliot and placing him on the wait list), they sued the school for, all together, more than $2.46 million in lost wages and other compensatory damages, and $3 million for the mental anguish they suffered from not being accepted.
Such claims were largely based on the salaries they would have earned as lawyers, though most of them never really tried very hard again to become a lawyer. Only Carvell did anything more than sue; he did go to a different law school and he did become a lawyer while the others simply asked for hundreds of thousands of dollars for the salaries they supposedly would have gotten if they had been admitted (Hopwood herself asked for $1.5 million in lost wages, though given some horrific personal tragedies that unfolded during the years she might have been a law student, the judge found that she probably never would have finished law school at all).
Given the judge's finding that none would have been accepted even if UT had conducted admissions policies without any regard to race, each was awarded just $1 in nominal damages. Plaintiffs sought to appeal the court's decision, and the University of Texas finally settled the matter in November 2001 by paying the plaintiffs about $1.17 million for court-ordered attorney fees. The plaintiffs received no other relief, including admission to the law school
Sources: The University of Texas has collected information relating to the Hopwood case, including the court cases used for this article, here.
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