Every single year, millions of high-school seniors in the US apply to universities all across the US, in hopes of getting into a prestigious university, and having a brighter future ahead of them. For university officials, however, the difficulty of the task is often compounded by the higher institution's goals of affirmative action, or the encouragement of diversity in the education of students. Therein lies one of the big questions of the First Amendment: should universities base their admission decisions upon racial discrimination?
The first question to tackle is the issue of First Amendment jurisdiction. For every university admissions process, the mere process of evaluating the application based upon a set of criterion is already stepping into the realms of regulation based upon content. While nobody would argue that this process is necessary, the goal of affirmative action steps even farther. The fact that different racial information provided could lead to different admission decisions, shows that affirmative action counts as viewpoint regulation. For a viewpoint regulation to be considered constitutional, it must pass the test of Strict Scrutiny.
Strict Scrutiny:
1) There must be a compelling governmental interest furthered by the regulation
2) The regulation must be narrowly tailored, and acceptable in scope with regards to alternatives, vague, and overbroadness.
In 1978, the Supreme Court delivered a landmark ruling on the case of Regents of University of California vs. Bakke [1], ruling on the admissions process of universities. In this case, Bakke was an applicant to the Medical School of the University of California at Davis, where he was turned down despite having higher academic scores than "special applicants" from minority groups. In the 5-4 decision, the Supreme Court ruled that UC Davis cannot use race as the only factor in the admissions process, but that it is allowed to use race as one of the factors in the determination of the admission decisions of applicants [2]. This ruling is called a landmark ruling because governmental institutions of any kind have traditionally not been allowed to discriminate based upon race based on the Equal Protection Clause, applied through the 14th Amendment[3]. This Clause states that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws", and is viewed as prohibiting discrimination of minority groups by using the "All men are created equal" proposition.
With the Bakke ruling, many universities have begun to adopt affirmative action in their admissions process. In every case, affirmative action that universities can take needs to pass the strict scrutiny test, most importantly the narrowly-tailored requirement. In 2003, two Supreme Court rulings, both dealing with the University of Michigan, further defined the scope of affirmative action in universities. In Grutter v. Bollinger [4], where a UM Law School applicant named Grutter was denied admission despite having high academic achievements, the Supreme Court ruled in favor of the use of race as a factor in admissions. The Supreme Court again cited the compelling interest of "attaining a diverse student body" [5] in their decision to uphold the regulation. However, in Gratz v. Bollinger [6], the Supreme Court struck down the use of a points-based system of admission, which gave an absolute number of bonus points given to some racial minorities, as being "not narrowly tailored to achieve respondent's ... interest in diversity." [7]. These duo rulings present universities with a very tricky path to navigate in keeping their affirmative-action-based admissions process constitutional.
I would like to argue that, while the government does have a compelling interest in furthering diversity in educational and professional environments, they should consider taking a different approach to doing so. Firstly, from a neoliberal point of view, governments absolutely have the ability to choose to fund viewpoints that it finds compelling for the public interest. As the Supreme Court has already ruled on Rust v. Sullivan, government can regulate its "agents", which receive money from the government, to engage in government speech that it finds prudent. It is clear that, through the rulings of the many affirmative action cases in the past, the government has a vested interest in promoting diversity. Combining the rulings and the decision of Rust v. Sullivan, we can argue that first test of the strict scrutiny is valid.
However, I do not believe that using ad-hoc rules and regulations at the gates to universities is the correct method to solving the issue of promoting diversity in the educational atmosphere. From both Bakke and Gratz, the Supreme Court has already ruled on the unconstitutionality of two different concrete methods of quantifying racial contributions to the admissions process. In Bakke, UC Davis used a yearly quota system to determine the number of applicants from each race that it can take, in a segregated admissions process, while in Gratz, the UM Law School gave bonus points to minorities which helped lower the bar of admission for them. It is quite ironic that the Supreme Court has found specific affirmative action plans, such as UC Davis's quotas and UM Law School's points system, as being not narrowly-tailored enough, while finding vague assertions of "individuals with intriguingly different backgrounds" from UM's Undergraduate Admissions Policy [8], or "undertaking affirmative action" from UC Davis's Medical School [9], as being narrowly tailored enough.
With the indecisiveness that the Supreme Court has shown, I do not believe that anything other than a vague affirmative action pledge will ever be deemed acceptable. In my opinion, while affirmative action is important, the vague language in the admissions policies of universities should make it not narrowly-tailored and therefore unconstitutional. That the Supreme Court has ruled constitutional the vague language as stated above should show the extent it believes in the neoliberal compelling interest in fostering diversity.
Some states, such as Texas, have completely moved away from using content regulation of the applicant's race in the factor of determining affirmative action. When an Appeals Court ruled University of Texas's affirmative action admissions process as unconstitutional in 1996, minority enrollment plummeted. In 1998, Texas state lawmakers came up with a meritocratic method of ensuring minority enrollment into the state universities without discriminating based on race [10]. Looking at the fact that Texas's high schools remained largely segregated by race, lawmakers instituted an automatic admissions process for the top 10% of all seniors in each high school, which would ensure that schools that were primarily dominated by minorities would have a large population that could enroll at state universities.
However, problems are still abound in the realm of affirmative action in university admissions processes. Arguments against affirmative action range from the ineffectiveness of race-based admission policies [11] to the degradation of democracy [12]. In my personal opinion, because universities are not allowed to set down concrete guidelines on how to utilize race in admission decisions, the vague affirmative action plans that universities have seem similar to a licensing system. Its vagueness allows for the possibility of abuse, under the auspice of "fostering diversity". Even though there is consideration to GPA and other academic records, the weighted importance of race in the admissions process is undefined ; because race is an attribute that is attached to everybody, not just minority groups, one can seemingly make arbitrarily admission decisions to everybody under this shield of vagueness. I believe that the task of fostering diversity in education should begin in earlier stages of a person's educational path, and belong in the hands of those knowledgeable about education, instead of being in the hands of the judiciary branch of government. Otherwise, I can foresee no reasonable solution to the problem of affirmative action in university admissions processes.
-David
Bibliography
[1] http://en.wikipedia.org/wiki/Regents_of_the_University_of_California_v._Bakke
[2] http://www.oyez.org/cases/1970-1979/1977/1977_76_811/opinion
[3] http://en.wikipedia.org/wiki/Equal_Protection_Clause_of_the_Fourteenth_Amendment
[4] http://en.wikipedia.org/wiki/Grutter_v._Bollinger
[5] http://www.oyez.org/cases/2000-2009/2002/2002_02_241/opinion
[6] http://en.wikipedia.org/wiki/Gratz_v._Bollinger
[7] http://www.oyez.org/cases/2000-2009/2002/2002_02_516/opinion
[8] http://www.law.umich.edu/prospectivestudents/admissions/Documents/admissionspolicy.pdf
[9] http://www.ucdmc.ucdavis.edu/pathology/education/cls_training_program/admission.html
[10] http://aad.english.ucsb.edu/docs/hockstader.html
[11] http://aad.english.ucsb.edu/docs/wydick.html
[12] http://www.openmarket.org/2006/12/22/government-has-no-first-amendment-right-to-discriminate/
Subscribe to:
Post Comments (Atom)
It has been extremely difficult for admissions offices to find the acceptable balance between affirmative action, especially as the amount of enrolled college students increases each year. They strive to create a diverse student body while at the same time preventing reverse discrimination on an applicant who displays a stronger academic standing. The schools must avoid using points systems or quotas, but what system can they use then? This issue presents a dilemma for the admissions office because frankly they may not reach their “diversity” numbers if the applicants that year are not as academically successful as other non-minority students. Although Texas created a system which allows the top 10 percent of each school to be automatically admitted, I don’t believe that fixes the issue either. Students in the 11th percentile of one school may be denied a spot at a University due to room being reserved for the top ten percent of another school, all who have lower academic standings than that 11th percentile portion. I also thought of Rust v. Sullivan when you brought up the point that the affirmative action was viewpoint based because many public universities, like the University of Illinois, receive funds from the government and can therefore be forums for government speech if they accept the funds.
ReplyDeleteThis is actually a topic that I've thought about a lot, but not through the lens of the First Amendment. On more than one occasion, I've thought to myself, "If I were an eskimo, there's no way that University X would deny me."
ReplyDeleteHowever, I don't think that accepting students based on their race is unfair to the other candidates. A college is like a business. Each college wants to attract the most well-rounded group of people that it can in order to maintain a certain reputation that would attract the most successful donors, professors, and students. In order to make the business successful, they must make sure that their student population appeals to a wide variety of people. Therefore, when they accept students for admission, they must consider students within their own racial categories and compare them to each other. Is that wrong? Probably, but if the university needs to look a certain way, then it all starts from admissions.
As for the Court accepting only the most ambiguous phrasings of affirmative action, it makes sense. If the statements are vague, then it can encompass more meanings and interpretations, therefore eliminating the possibility of singling specific groups or people out. As we've seen in the past, the more vague something is, the less likely it is to be attacked due to content regulation. Also, college admissions aren't the only scenarios where people accepted in one group aren't necessarily as talented as people accepted in another. Take musicals, for example. Both males and females are needed to produce an appealing performance. In junior highs and high schools, the males are very often no where near as talented in singing and dancing as their female counterparts. Should the directors assign the male leads to females instead? Of course not. So males compete against themselves and females compete against themselves. Naturally, there's more competition amongst the females since there are more of them. Same situation as with college admissions.
As an aside, let me share my own personal anecdote with college admissions. I was your pretty typical straight A student with across the board activities and leadership experiences. However, the first two months of senior year found me unable to attend school due to an arthritic flare up. At the end of first semester, my grades were all A's except for the one class I couldn't quite finish the work for, which had an I for incomplete. I was going to finish the work, but at my own pace (which I eventually did). Because of that Incomplete, every single college except for the University of Illinois rejected me. You can argue that I was a diverse candidate, not racially, but I was physically disabled for that time being as was explained in my application essays. My grades were just as good, if not better than most of the applicants except for the Incomplete. Apparently, the colleges didn't need an immobile female for their quotas. But, truly, I don't regret coming here. My first year has been an amazing experience that I don't think I could get anywhere else.