Affirmative Action

Affirmative action is defined as specific actions in recruitment, hiring, and other areas designed either to eliminate the present effects of past discrimination or to prevent discrimination. In its most general usage, affirmative action refers not only to hiring practices but also to recruitment and admissions in higher education. Typically, this policy involves granting some sort of preference in hiring or admissions to members of a minority group based on sex or race. This is not to be confused with “quotas”—specific numbers or percentages of a whole group who must have a minority status—which are illegal in the United States.

As a policy, affirmative action has been extremely controversial. Some observers believe that affirmative action is reverse discrimination: By giving hiring and admissions preference to members of the minority group, corporations and universities are in fact discriminating against Caucasian males. Others argue that, at its core, affirmative action is meant to prevent new discrimination or to eliminate the negative effects of past or ongoing discrimination.

One of the most common arguments against affirmative action or race-conscious admissions programs is that these programs violate Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. Title VI promises that citizens should not be subject to discrimination in any program receiving federal financial assistance on the grounds of race, color, or national origin. The Equal Protection Clause ensures that the government provides the equal protection of the laws to its citizens. The Equal Protection Clause has been interpreted to mean that similar individuals should be treated in a similar manner by the government. Affirmative action admissions programs have typically been challenged by white plaintiffs who claim that such admissions programs violate the Equal Protection Clause because minority applicants (similar individuals) are given a preference based on race (dissimilar treatment).

When a court considers the constitutionality of a government action, it will apply one of three standards. The easiest standard to satisfy is the rational basis standard. When the court applies this standard, it will uphold the governmental action if the government is pursuing a legitimate governmental objective and if there is a rational relation between the means chosen by the government and the stated objective. The next highest standard of review is known as mid-level review. Under this standard, the governmental objective has to be important, and the means chosen by the government needs to be substantially related to the important government objective. Strict scrutiny is the highest standard of review used by the courts. Courts have reviewed affirmative action cases, including [Page 45]race-conscious admissions programs and employment issues, under strict scrutiny analysis.

Under strict scrutiny, the state must first show that its decision to treat people differently is justified by a compelling state interest. For example, in affirmative action admissions cases, the court first examines whether promoting diversity in higher education is a compelling governmental interest. Second, the court explores if the means chosen to obtain a diverse student body, through a race-conscious admissions program, are narrowly tailored. In other words, a raceconscious admissions plan may not utilize a quota, but it may use race as a plus-factor. In so doing, the admissions program must be flexible in considering several elements of diversity for each applicant. To be constitutional, a racial classification must satisfy both parts of strict scrutiny. This encyclopedia entry will primarily discuss affirmative action within the context of higher education admissions programs.

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