The Affirmative Action Debate

Legal Background

In 2003 (Grutter v. Bollinger, which clarified the Bakke decision (1978)), the Supreme Court ruled that an admissions preference system that uses numerical point systems quota systems to allocate admissions slots based on race is not permitted but that universities can take race into account during admissions in more subtle ways:

Tamara Lewin and Richard Perez-Pena, June 30, 2015, Colleges Brace for Supreme Court Review of Race-Based Admissions, New York Times, DOA: 9-9–1

Over the last three decades, the court has issued several decisions on affirmative action in higher education, and most have limited considerations of race. In 2003, the Supreme Court held that public colleges and universities could not use a point system to increase minority enrollment but could take race into account in more vague ways to ensure academic diversity.

In Grutter, the Supreme Court said that the University of Michigan Law School could consider race in individual applications but in Gratz they said that the undergraduate school could not automatically assign 20 points to every minority. So, again, a specific point system is not acceptable, but subtle consideration is.

Although the US Supreme Court made significant rulings on the issue, it took it up again in 2015 in Fisher vs. the University of Texas due to a new lawsuit that challenges the University of Texas’ decision to continuing to factor in race in college admissions:

Abigail Fisher, a white female, applied for admission to the University of Texas but was denied. She did not qualify for Texas’ Top Ten Percent Plan, which guarantees admission to the top ten percent of every in-state graduating high school class. For the remaining spots, the university considers many factors, including race. Fisher sued the University and argued that the use of race as a consideration in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the University’s admissions process was constitutional, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The case went to the Supreme Court, which held that the appellate court erred by not applying the strict scrutiny standard to the University’s admission policies. The case was remanded, and the appellate court reaffirmed the lower court’s decision by holding that the University of Texas’ use of race as a consideration in the admissions process was sufficiently narrowly tailored to the legitimate interest of promoting educational diversity and therefore satisfied strict scrutiny.

Strict Scrutiny is a legal standard that says that government policies can only discriminate if there is a compelling state interest and no least restrictive alternatives are available. In this case the lower court found both of those were the case.

Most universities continue to consider race as a factor in admissions in this more subtle ways, though such usage is banned in eight states. Universities in these states, as well as other universities that continue to take race into account, also use additional measures to ensure racial and economic diversity. This measures include taking students who rank high in their class regardless of the high school’s own ranking, which can reflect neighborhood and socioeconomic status, and accepting more transfer students from community colleges.

Tamara Lewin and Richard Perez-Pena, June 30, 2015, Colleges Brace for Supreme Court Review of Race-Based Admissions, New York Times, DOA: 9-9–1

Eight states now ban race-based affirmative action, and their top public universities have different approaches to ensure racial and economic diversity. Some give preference to working-class students, those from troubled high schools and those whose parents did not attend college. Others have increased financial aid. The flagship public universities in Texas and Florida — and other states, to a lesser extent — began offering admission based primarily on how high students ranked within their own high schools, rather than statewide, which often meant that poor and minority students competed with others from similar backgrounds. The University of California system greatly increased the number of transfer students it accepted from community colleges.

Another article provides a similar explanation —

Richard Kahlenberg, May 18, 2015, Chronicle of Higher Education, For the Safe of Working Class Students, Give Fisher another chance, DOA: 9-9-15 Richard D. Kahlenberg is a senior fellow at the Century Foundation and editor of The Future of Affirmative Action: New Paths to Diversity After Fisher v. University of Texas (Century Foundation Press, 2014).

Instead, a majority of people believe in using alternatives to race when feasible — policies like providing a leg up to economically disadvantaged students, boosting financial aid, increasing transfers from community colleges, ending legacy preferences, and reducing an emphasis on tests in favor of students in the top portion of a state’s high schools.

Arguments in Favor of Consideration of Race

The primary argument in favor of consideration of race in college admissions is that eliminating it would reduce the number of minority applicants, particularly Blacks, who are accepted.  This has happened in other states where race was banned.

Tamara Lewin and Richard Perez-Pena, June 30, 2015, Colleges Brace for Supreme Court Review of Race-Based Admissions, New York Times, DOA: 9-9-15

The state bans on considering race have struck hard at elite public universities seeking to maintain a pool of minority students. The three most selective institutions in the states with bans — the University of Michigan; the University of California, Los Angeles; and the University of California, Berkeley — have all lost ground in diversity since their state bans went into effect. “Those three compete on a national level with universities like Stanford and Harvard,” said Richard D. Kahlenberg, the author of the Century Foundation report. “They’re in an impossible situation, since they have to play by one set of rules and the private universities have a different set of rules.”

Some argue that a ban on the use of race in college admissions would encourage universities to do more to help struggling high schools but many do not have the resources to do that.

Tamara Lewin and Richard Perez-Pena, June 30, 2015, Colleges Brace for Supreme Court Review of Race-Based Admissions, New York Times, DOA: 9-9-15

Anthony P. Carnevale, the director of the Center on Education and the Workforce at Georgetown, said most race-neutral diversity efforts were difficult and expensive. “The fact is, a lot of universities couldn’t afford to do a lot more,” he said. Ultimately, each university will have to decide where to put its energies and its dollars.

Beyond the argument that eliminating race based considerations in admissions hurts individual applicants, a strong argument that it hurts university decision-making.


Because a reasonable argument can be made that universities should be able to set their own admissions criteria and that the only relevant admissions factors are not grades and scores. For examples, universities also want to encourage diverse communities so that students can learn from each other through real life experiences.  In order for universities to provide that experience, they have to have admissions processes and standards that make the admission of diverse student populations possible.

The Problem with Allowing Race Considerations in Admissions

The primary problem with allowing the consideration of race in admissions is that it results in reverse discrimination against whites who are disadvantage simply by the fact that they are white.

So, yes, as noted, universities should be able to use admissions standards that further their own aims in terms of what type of communities they want to build, but we can also all agreed that they shouldn’t be able to use discriminatory admissions standards. For example, everyone would agree that universities should not be allowed to ban African Americans from attending their universities if the university is founded by whit supremacists, so if admissions criteria disadvantage a group in a way that doesn’t serve a compelling state interest (racism is not a compelling state interest (or a state interest at all)), then it makes sense that it should not be accepted as one. Opponents of affirmative action in college admissions think it has a discriminatory purpose (or at least a discriminatory outcome) and should not be accepted.


The debate over affirmative action is a long one and it will not end soon. To win it, Pro teams should focus on the benefits of admissions to the historically disadvantaged as well as the benefits of a diverse university. Con teams should focus on the reverse discrimination that occurs as a result of affirmative action.