Affirmative action has shaped college admissions for more than half a century. During the Civil Rights Movement, colleges and universities began considering race as a factor when admitting students.
Yet over more than 50 years, colleges, courts, and voters have debated the role that race should play in higher education admissions.
This year, the Supreme Court will hear two key affirmative action cases. These cases have the potential to ban affirmative action completely. Throughout the history of affirmative action, Americans have fought over the role of race in college admissions – but that history also shows the cost of ending affirmative action policies.
What Is Affirmative Action?
Affirmative action policies aim to increase the representation of women and people of color. In the workforce, this can mean policies designed to promote hiring underrepresented groups. In college admissions, it can mean extra consideration for underrepresented students.
“Affirmative action policy has shaped U.S. higher education as we know it.”
Affirmative action policy has shaped U.S. higher education as we know it. In the late 1960s, admissions departments around the country began considering race as a factor when admitting new students. These policies aimed to accept more students of color who had historically been excluded from colleges and universities.
However, affirmative action in admissions only applies to selective institutions. According to a 2019 Pew Research Center study, most U.S. colleges accept over two-thirds of their applicants.
Today, many colleges consider race a single part of their holistic review of applicants. In other states, laws bar colleges from using affirmative action in admissions.
Affirmative Action and the Civil Rights Movement
Affirmative action law grew out of the civil rights movement. The phrase first appeared in 1961, when President John F. Kennedy created the Committee on Equal Employment Opportunity. A Black lawyer named Hobart Taylor Jr. wrote the phrase in the margins of a draft of Kennedy's executive order.
Initially, affirmative action encouraged employers to hire marginalized people. Presidents Lyndon B. Johnson and Richard Nixon both passed executive orders to end race discrimination in hiring.
Johnson's 1966 order told contractors to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin." Later, Nixon's 1969 order promised affirmative action in government employment.
“It is the policy of the Government of the United States to … promote the full realization of equal employment
opportunity through a continuing affirmative program in each executive department and agency.”
— President Nixon, Executive Order 11478
Soon, colleges voluntarily adopted similar policies to combat racial discrimination. In 1969, many elite universities admitted more than twice as many Black students as they had the year before. This change was directly linked to the civil rights movement.
"I don't see how you can understand it apart from the upheavals on campus, racial upheavals in the larger society, the general upheavals around the world," said Jerome Karabel, a UC Berkeley sociology professor and college admissions historian.
With civil rights activists urging schools to admit more Black applicants, colleges responded. Higher education had been almost exclusively white for most of its history, but a growing number of universities were now crafting affirmative action policies in an effort to expand access to higher education.
The current president of Columbia University, Lee Bollinger, joined the institution's law school back in 1968. "In that time, there was a sense, pure and simple, that universities had to do their part to help integrate higher education," Bollinger told The New York Times.
White Students Sue Over Affirmative Action Policies
Despite its rising popularity, affirmative action college policies quickly triggered a backlash, particularly among white applicants. When admissions offices began admitting more Black students, white applicants claimed they were the victims of "reverse discrimination."
Robert L. Kirkpatrick Jr. — Wesleyan University's dean of admissions in the late '60s — reflects on the early years of affirmative action in college admissions in an interview with The New York Times: "Did we really understand or know what we were doing, or could we have predicted what the issues would be? The answer is no. I think we were instinctively trying to do the right thing."
Almost immediately, white students went to court in an attempt to end affirmative action.
“Early legal challenges contributed to a shared negative perception of affirmative action among U.S. citizens ...”
The first legal challenge came in 1971, just two years after schools began adopting affirmative action policies. A white student named Marco DeFunis filed a lawsuit against the University of Washington Law School, citing reverse racism as the reason for his rejection. By the time the case reached the Supreme Court, DeFunis was just one semester away from earning his law degree, leading them to ultimately dismiss the case.
These early legal challenges created a negative perception of affirmative action. In 1975, Harvard's associate dean of admissions, David L. Evans, complained about the pervasive belief that "semiliterate blacks are being accepted at the expense of white geniuses" — which simply was not true.
But the legal system did set limits on affirmative action. In a landmark 1978 case, Regents of the University of California v. Bakke, the Supreme Court forced many schools to change their affirmative action policies. Allan Bakke, a white man, filed the lawsuit after UC Davis rejected his application to the university's medical school, which guaranteed 16 out of 100 spots for students of color.
The Supreme Court declared this type of quota system an unconstitutional violation of the Equal Protection Clause of the 14th Amendment and outlawed the practice. While college admissions offices could not use racial quotas after 1978, they could still consider race as one factor among many others.
The historic ruling effectively shifted the focus of affirmative action policy away from advocating for social justice and toward promoting diversity as a benefit for the entire student body.
Voters have also weighed in on affirmative action policies. In 1996, California voters approved Proposition 209, which banned affirmative action at public colleges and universities.
Since 1998, when the amendment went into effect, the number of Latino/a and Black students "has not kept pace with the diversity of students in California K-12 schools or with the overall California population," according to the UC Board of Regents.
In 2020, Californians voted on a ballot measure that would repeal the ban and once again allow affirmative action in college admissions. The measure failed by a wide margin.
The Supreme Court Weighs Affirmative Action Law (Again)
In reality, Regents of the University of California v. Bakke did not completely settle the issue of affirmative action in education. Over the past three decades, 10 states have banned affirmative action in college admissions. And in many cases, voters approved those bans.
The U.S. government has also weighed in on the policy more than once.
“Over the years, the Supreme Court has shifted its stance on affirmative action, sometimes in support of it, sometimes against it.”
In 2003, the Supreme Court told colleges they may consider race as part of a "holistic review," but minority applicants could not receive a set number of points because of their race. Four years later, the court prohibited public high schools from using race as a "tiebreaker." In 2014, the Supreme Court upheld a Michigan ban on affirmative action at state universities.
Many predicted that the Supreme Court would end affirmative action in the 2016 Fisher case. In Fisher v. University of Texas, white high school student Abigail Fisher challenged the University of Texas policy of taking race into consideration when an applicant wasn't in the top 10% of their graduating class. Fisher claimed the policy discriminated against white students.
In a narrow ruling, the Supreme Court decided that schools should be allowed to consider race in admissions as one part of a broader affirmative action plan to promote diversity.
For decades, the Supreme Court has handed down a succession of 5-4 decisions that warned colleges to create narrow affirmative action policies. These close rulings have left many universities fearful that each new challenge could upend affirmative action law.
Today, SCOTUS once again has the potential to upend admission policies. In a pair of cases on the docket for the 2022/2023 term, the court will weigh in on whether affirmative action policies discriminate against Asian American applicants.
Experts predict that the conservative court will likely end affirmative action in college admissions. How would the ruling affect higher education? In states that have banned affirmative action, like California, Texas, and Florida, minority enrollment dropped at public colleges and universities.
The Current State of Affirmative Action in Education
In 1976, white students made up over 80% of all U.S. college students. By 2016, that number had dropped to 57%.
Affirmative action has played a central role in increasing diversity in higher education. The clearest proof comes from states like California that ended affirmative action in admissions. A 2013 study reported a 23% drop in students of color at top public colleges following an affirmative action ban.
Yet most Americans disapprove of affirmative action in college admissions, believing that schools should only consider merit — even if it means admitting fewer students of color.
To Shirley J. Wilcher, executive director of the American Association for Access, Equity, and Diversity, the key word in affirmative action is "action."
"Affirmative action has taken on negative connotations through the media and those that would like to do away with it or oppose the concept, but the impetus is on action, not nondiscrimination," Wilcher told Smithsonian Magazine.
“A 2016 Gallup poll revealed that 60% of Americans support affirmative action as a whole — but 70% don't believe race should be a factor in college admissions.”
Rather than simply banning discrimination, affirmative action policies have tried to actively benefit excluded groups.
"The terrible paradox of the civil rights movement is that outlawing racial discrimination made it harder to remediate its effects," writes Harvard professor Louis Menand in the The New Yorker.
Civil rights legislation banned treating people of color differently than white Americans, but promoting a race-blind system has made it impossible to selectively help marginalized groups without claims of reverse discrimination.
"Our name for this paradox," Menand declares, "is affirmative action."
In a 2016 Gallup poll, 60% of Americans said they favored affirmative action programs — but 70% said college admissions should only consider merit and not race, even if it results in fewer students of color.
This tension between supporting affirmative action in theory but opposing preferential treatment has defined the history of affirmative action in higher education, and will likely continue to do so.