Changing Climate for Affirmative Action on Campus

September 1995

Signaling the changing climate for affirmative action on campus, on July 20, 1995, the University of California (UC) Board of Regents voted to end a 30-year policy of utilizing affirmative action in decisions on student admissions. Earlier this spring, on May 23, 1995, the U.S. Supreme Court refused to consider an appeal of a lower court ruling that invalidated a scholarship program limited to African-American students at the University of Maryland. These actions place at risk admissions and financial aid policies used for decades by higher education institutions to foster diversity in their student bodies. They reflect the national debate on affirmative action that has been underway since the Republican party gained control of Congress earlier this year, which also affects processes for hiring of faculty and staff as well as purchasing and contracting at colleges and universities across the country. The threat to affirmative action, the original purpose of which was to help overcome the vestiges of past discrimination, has intensified since June 12, 1995, when, in a 5-4 decision in Adarand Constructors Inc. v. Pena, a minority vendor set-aside case, the United States Supreme Court ruled unconstitutional federal programs that classify people by race unless "narrowly tailored" to achieve a "compelling government interest." Among the areas potentially affected by the Supreme Court decision are 40 federal programs involving higher education.

While President Clinton has reaffirmed his commitment to affirmative action, as have several Republican leaders including New Jersey Governor Christine Todd Whitman, steps to dismantle affirmative actions programs already are underway in some states. In California, Republican Governor and Presidential candidate Pete Wilson has taken an aggressive anti-affirmative action stance. By Executive Order, on June 1, 1995, Wilson eliminated 150 boards that previously provided advice to state agencies on hiring based on race and sex. Since the recent Executive Order does not extend to affirmative action programs established by state or federal law, Wilson, who has made the issue a centerpiece of his 1996 Presidential platform, strongly supports the California Civil Rights Initiative (CCRI). Expected to appear on the November 1996 state ballot, the initiative reads "The state will not use race, sex, color, ethnicity or national origin as a criterion for either discrimination against or granting preferential treatment to any individual or group in the operation of the state's system of public employment, education or public contracting." Public opinion analyst Louis Harris concluded that, despite polls showing apparent support for the initiative by 78 percent of California voters, most do not construe the wording of the CCRI to mean the end of affirmative action, which only 31 percent favor. Other states, including Delaware, Colorado, Kentucky, North Carolina, and Texas, also are considering legislation or referenda that would undo affirmative action.

Public higher education in California, which comprises the University of California (UC), the California State University and the Community College systems, was beyond the purview of Wilson's Executive Order, since policies for these systems are determined by separate governing boards. Spearheaded by Regent Ward Connerly, on July 20, the UC Board of Regents considered its affirmative action policy during an emotional day of demonstrations and testimony on both sides of the issue. Connerly, an African-American housing developer appointed to the Board by Governor Wilson, believes affirmative action has outlived its usefulness because "today we're not an institutionally racist society as we were in 1965." Wilson, attending a Board of Regents meeting for the first time since January 1992, called for the Board to eliminate affirmative action, while the Reverend Jesse Jackson testified that, "To ignore race and sex is racist and sexist." Although some urged the UC Regents to await voter action on the CCRI, the Connerly proposal was approved by a 14 to 10 vote. Consequently, beginning in 1997, 50 to 75 percent of all UC freshmen will be admitted solely on the basis of academic merit, with the balance admitted based on other factors, including socioeconomic status but excluding race. As a result, it is expected that UC's proportion of Asian-American students will increase, white students will remain about constant, and the percent of blacks and Latinos will decline.

Under 1988 guidelines, the UC sought to enroll students "geographically, culturally, racially, economically and socially diverse as the state itself." Despite this goal, Latinos and African-Americans continue to be under-represented in the UC schools, which are the most selective of California's public higher education system. Latinos comprised over 30 percent of public high school graduates in California in the spring of 1994, but only 15.7 percent of UC freshman last fall, while African-Americans were 7.3 percent of high school graduates and 4.4 percent of UC freshman.

UC Berkeley, which pioneered affirmative action in 1964 through its Educational Opportunity Program, is the most selective college within UC, attracting more applicants with perfect 4.0 high school grade-point averages (GPA) than it has slots in its freshman class. At present, 39 percent of Berkeley students are Asian, 32 percent are white, 14 percent are Hispanic, 6 percent are black, 1 percent are American Indian, and the balance are other groups or unknown. Berkeley utilized a complex admission formula, selecting about half of those accepted solely based upon academic merit, and another 45 percent considering academic merit coupled with other factors, such as essays, extracurricular activities and whether the student has had to overcome cultural or economic disadvantages or physical disabilities. These two groups, who collectively constituted 95 percent of the freshman admitted, came from the top eighth of high school students. The remaining five percent of students were admitted based upon special talent in athletics or other areas, or because they fit the university's diversity needs. Of this last group, 34 percent are black, 38 percent Hispanic, 10 percent Asian and 17 percent white. Berkeley's chancellor, Chang-Lin Tien, a Chinese-American who strongly supports affirmative action, believes, "Especially in a university, it's about creating the best educational atmosphere for all students. Affirmative action isn't for under-represented minorities. It's for the benefit of the larger society."

A California medical school, UC Davis, was the setting for the lawsuit that established the current legal standard for affirmative action--the Bakke case, in which Allan P. Bakke contended he was denied admission because space had been reserved for a less-qualified minority student. In a 5-4 ruling in Bakke v. Regents of the UC, in 1978, the Supreme Court held that it was permissible to take race into account in admissions so long as there were no quotas and race was not the sole or primary factor. Cornelius Hopper, the university's vice president for health affairs, reacting to a recent study by a conservative think tank, the Pacific Research Institute, which found that applicants considered under-represented minorities--African-Americans, Mexican-Americans, Puerto Ricans and American Indians--were four times as likely to be admitted to UC medical schools than other applicants, stated, "It comes down to a matter of public policy, to whether a publicly funded university should be educating a physician cadre that is diverse and reflects the state they live in." Said Gary Morrison, a UC attorney, "Medical schools have to decide who is going to fulfill the most pressing needs of society, and that doesn't correlate extremely well with test results and grades."

The legality of minority scholarships has been a contentious issue since 1990, when the Bush administration briefly took the position that most race-based financial aid programs violated federal anti-bias laws. At the time, proposed guidelines intended to limit the use of minority scholarships encountered vigorous opposition from the academic community, even though less than one percent of all scholarships are awarded solely on the basis of race. Under the Clinton administration, the Department of Education has taken the position that race-based scholarships may be used to remedy past discrimination or diversify student bodies. However, minority scholarships are in jeopardy in the states within the U.S. Court of Appeals for the Fourth Circuit--Maryland, North Carolina, South Carolina, Virginia and West Virginia--since the U.S. Supreme Court refused to consider an appeal of a 1994 lower court decision that a race-based scholarship program at the University of Maryland was unconstitutional absent a specific finding that discrimination still exists at that particular institution. Maryland was one of 19 states to use race-exclusive scholarships, originally developed under settlements with the U.S. Department of Education as a means to desegregate predominantly white institutions. Institutions in other regions may continue to award race-based financial aid to disadvantaged students, if authorized by federal law, if designed to remedy past discrimination, to create diversity, or if provided by private donors.

The challenge to the academic community in the current climate is to maintain diversity and access, and achieve its social goals, within more proscribed parameters. Said Larry N. Vanderhoef, chancellor of UC at Davis of the Board of Regents' action, "What happened is that one of the major tools in the toolbox of pursuing diversity has been removed." Attorney Martin Michaelson, who heads the higher education practice of the firm Hogan & Hartson, stated in The Chronicle of Higher Education of July 28, 1995, "The hope for preserving pluralism in American higher education now rests on our ability to marshal specific evidence that the institutions' core needs and values require special efforts for racial and ethnic minorities, and that the strategies narrowly correspond to those needs."

Dr. Stanley S. Bergen, Jr.