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Bakke, Fisher, Sessions, and the Future of Affirmative Action

To fully understand the actions of the Trump administration vis-a-vis affirmative action in college admissions, two legal cases need to be considered. In 1978, the U.S. Supreme Court ruled in the University of California v. Bakke that while affirmative action was legal as a way to address racial segregation in higher education, a quota that set aside a specific number of seats in a public university’s medical school for minority students was “impermissible.” The results of the court case were somewhat confusing because affirmative action in a changed form was affirmed by the court while Allan Bakke was admitted to the U.C. medical school.

The Supreme Court has taken many affirmative action cases since the Bakke decision and most recently and surprisingly voted 4 to 3 to “uphold a race-conscious program at the University of Texas at Austin (Fisher v. University of Texas) that had been challenged by a white student who had been denied admission” (“Trump administration is taking aim at affirmative action in college admissions. Why it won’t fix what’s broken,” Washington Post, August 2, 2017). Much of the court’s attention over the years has been in answer to ballot initiatives in both California and Texas that have attempted to roll back affirmative action programs.

Given the Trump administration’s hostility to affirmative action and their overt attempts to discriminate openly against minority groups in many areas of public policy including education and voting, I recently interviewed the former head of admissions at a liberal arts college about the role of affirmative action in admissions decisions over the course of his career.

Bill (a fictitious name) began the interview with an observation about a meeting he had with a group of his college’s alumni. One graduate said: “I certainly hope that you’re not lowering the standards of the college for the sake of diversity.” Bill responded that the alumni’s son or daughter already was a member of a group that enjoyed the benefit of affirmative action by being part of a class of applicants that are so-called legacy students. While the school at which Bill worked was not in the highest tier of elite colleges and universities in the U.S., the issue of legacy considerations is a well-known admissions policy in those institutions.

Bill views affirmative action as “taking a step to achieve something in a forward direction.” He sees affirmative action working within a range of students. Some advantaged students have either professional college counselors to assist them in their college applications, such as getting them on the calendars of admissions’ offices for early interviews once school lets out in June, or professional coaching that assists students with application essay writing. Bill views the real world as having “far more affirmative action in favor of many other populations” than those in need. In contrast, some public high school counselors have caseloads of 500 students, severely limiting the counselors’ ability to give college-bound students the counseling that they may need compared to professional counseling during the college application process.

Our discussion turned to other issues of equity in admission decisions. SAT scores and financial aid were issues that Bill addressed. Bill’s admissions office admitted prospective students with a full range of SAT scores since some minority students historically score lower on that test. The quality, or lack of quality of the public secondary schools that students come from also factors into admission decisions. Schools with a host of advanced and difficult courses tend to produce students who are in a better position for college work than some other schools. And some schools with difficult courses tend to have fewer minority students.

Bill’s office also was keenly aware of the fact that his school had a finite amount of financial aid to offer students in need and that some students faced daunting choices because of the cost of a college education. The college where Bill worked now costs more than $65,000. per year for tuition and room and board. Bill stated that he would like to have had a need-blind financial aid program that some elite schools can offer, but that was not a possibility given the endowment of the college for which he worked.

Bill turned to a topic that few admissions counselors are likely to talk about. He noted that college professors want diversity in their classes to enable their courses to reflect the critical level of reading, thinking, speaking, and writing that is seen as the most desirable kind of college classroom. Bill stated that if his office spent large amounts of time in a state like California, for example, the result could be an affirmative action program for California students and that is not what professors want. No one wants to go to class only to learn that he or she is entirely surrounded by students from his or her home state or high school.

Bill used the metaphor for trying to establish a diverse student population on campus compared to the school’s purchasing decisions about which vehicles will be used for various purposes on campus. Schools want some good-mileage cars and they also want some vehicles with four-wheel drive. In other words, they want student diversity.

Bill’s first trip as an admissions office employee was to the D.C. area. He was amazed at the incredible differences in the quality of schools within a relatively small geographical area. There were elite private schools and there were inner-city high schools and he presented the college’s programs at both kinds of schools. He says that these first experience “opened his eyes” to the vast differences of what kinds of education were available to students.

Bill presented an essay writing assignment as an example of what some students in different school environments might be asked produce. Elite schools can afford to present demanding courses that give lots of individual teaching attention to students writing a particular essay. Some public schools, however, could require a more superficial treatment of the same essay topic in their courses.

The issue of affirmative action was recently addressed by the chief law enforcement officer of the U.S., Attorney General Jeffrey Sessions (“Sessions’s move to take on affirmative action energizes Trumps’s base,” (Washington Post, August 2, 2017). “The Justice Department is seeking to curb affirmative action in a university case… Sessions’s apparent intention [is] to prohibit intentional race-based discrimination.”  In other words, he wants affirmative action for white students.

Brett O’Donnell, a Republican consultant, said, addressing affirmative action: “… folks who look at college admissions and believe slots for their kids are being taken, whether by illegal immigrants or by other groups” (Washington Post, August 2, 2017).

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Howard Lisnoff is a freelance writer. He is the author of Against the Wall: Memoir of a Vietnam-Era War Resister (2017).

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