Documente Academic
Documente Profesional
Documente Cultură
Nathan Mack
On Thursday, June 23rd 2016, the Supreme Court of the United States of America released
a final decision in the case of Fisher v. University of Texas, 579 U.S. (Jaschik, 2016a). This
important case, which had already been argued in front of the nations highest court in 2012-
2013, placed a temporary hold on the national discussion regarding the legal standing of
affirmative action in college and university admissions. The plaintiff (Ms. Abigail Fisher) was
denied admission to the University of Texas at Austin in 2008 and subsequently sued the
institution arguing that she was not granted a seat in the class due to her race: her status as a
White woman. In June she, her team of lawyers and affirmative action opponents were dealt a
defeat by the nations highest court prompting reflections on the role of affirmative action in
admissions proceedings. Simply put, this is a dynamic yet uncertain time for institutions
interested in the diversification of their classrooms as there exists legal justification to do so, in
some specific instances. It is worth noting that Fishers challenge to the institutions
consideration of race in its holistic admissions decision-making represents not only herself and
students like her, but rather reflects a centuries-long conversation about race, ethnicity and
diversity within the American university. While the decision may seem simple on the surface,
race and its relation to college admissions specifically and higher education broadly has a
complex legal, social, political, and cultural history. Further, the courts decision has not
concluded the discussion and while affirmative action remains legal, the nations postsecondary
institutions are poised to continue having challenging conversations moving forward. This paper
will serve as a guide to colleges and universities that are interested in learning more about the
the history of diversity and affirmative action in American colleges and universities, highlights
salient issues and the involvement of the courts, discusses steps that an institution can legally
AFFIRMATIVE ACTION 3
and provides analysis and reflection about the implications of Abigail Fisher for all higher
education professionals.
provided. According to the U.S. Commission on Civil Rights (1977), affirmative action is any
compensate for past or present discrimination or to prevent discrimination from recurring in the
future (Statement on Affirmative Action, p. 2). As will be discussed in detail, American Higher
Education does have a discriminatory past. To that end, there exist many colleges and
universities in the United States, like the University of Texas at Austin, that consider a students
race to be one of many important factors in the decision to admit or deny an applicant. (Jaschik,
2015). This practice, as demonstrated in Fisher v. The University of Texas, remains legal under
certain circumstances and in very specific situations. Race, along with other key factors like
standardized test scores, grades, legacy status, and more, can be considered relevant pieces of the
puzzle that determine an applicants fate. When race is a consideration in the admissions process,
it is also often dubbed race-conscious admissions. The alternative to this approach is a race-
neutral admission review where race is not an explicit factor during review (Kaplin & Lee,
2007). Some institutions take a proactive race-neutral stance while they undergo comprehensive
application review while others have simplified the admissions process by only focusing on
academic variables such as grades and test scores. The courts have analyzed and released
decisions about both race-conscious and race-neutral practices on numerous occasions over the
past few centuries (Kaplin & Lee, 2007). If an institution plans to develop an affirmative action
AFFIRMATIVE ACTION 4
plan, its constituents must first understand the overarching legal issues associated with
affirmative action; further, one must review and understand the history of race and higher
education in America. Past discrimination is a key reason why affirmative action is still legal.
Legal Issues
Most of the legal issues surrounding affirmative action in college admissions relate to
both the Civil Rights Act of 1964 and the protections granted under the Fourteenth Amendment
of the US Constitution (Kaplin & Lee, 2007). Each of these provisions serve as an important
foundation for understanding why affirmative action has been upheld in recent court decisions.
All public institutions within the United States are subject to the various protections
granted to students under the U.S. Constitution and the Bill of Rights (Kaplin & Lee, 2007). In
cases related to affirmative action, the Equal Protection Clause of the Fourteenth Amendment
most significantly applies (U.S. Cont. amend. XIV). The amendment does not allow for any
discrimination at public institutions based on race, ethnicity or sex and includes reverse
affirmative action for underrepresented populations, the amendment specifies that anyone in the
majority may not be discriminated against or disadvantaged in the process. In affirmative action
cases related to admissions, this concept refers to potentially affected White or Caucasian
students who may be affected by the consideration of other races and ethnicities such in as
Abigail Fisher (Kaplin & Lee, 2007). Institutions must bear reverse discrimination in mind
when considering a race-conscious admissions process. As will be discussed with some notable
legal cases, the Equal Protection Clause has been utilized by the courts in situations related to the
In response to discriminatory behavior such as Jim Crow laws in many parts of the
country, the Civil Rights Act was enacted in 1964. This act abolished segregation in public
spaces and banned employment discrimination on the basis of race, color, religion, sex or
national origin (Civil Rights Act, n.d.). Title VI of the Civil Rights Act applies specifically to
college and universities and does not allow for discrimination based on race, color or national
origin at any college of university that receives any federal funding or assistance (Education and
Title VI, 2015). Whereas the Fourteenth Amendment only directly applies to public college and
universities, the Civil Rights Act extended protections to students at thousands of additional
institutions. For many years prior, institutions across the United States closed their doors to both
students of color and to women. The Civil Rights Act mandated a proactive response to past
instances of discrimination against minorities and in this way, changed the face of American
higher education.
History
should reflect upon the history of race in American higher education. Many colleges and
universities were stratified from the beginnings of the nation and this fact underscores why
affirmative action in college admissions remains legal; we seek to remedy the wrongs of our past
and have not yet leveled the playing field for underrepresented students in Higher Education.
Beginning in 1636 with the founding of the first colleges, American higher education was
stratified and segregated (Geiger, 2011). The original institutions of higher learning were
established as arms of their respective religious organizations and were created to provide young
AFFIRMATIVE ACTION 6
White men a liberal education that would prepare them for ministry. Over the next few centuries,
the number of institutions grew and the percentage of Americans attending them also increased,
however spots in classes were reserved for wealthy, White males. It was not until the 1800s that
American higher education began to more accurately reflect what we see in our system of
colleges today. The Morrill Land Grant Act of 1862 resulted in the creation of many new
institutions across the nation and the post-secondary study of practical subjects was first
introduced (Geiger, 2011). A few decades prior Oberlin College in Ohio was founded, known to
be the first American institution that admitted both women and Blacks (Key Events in Black
Higher Education, n.d.). Nevertheless, almost all other institutions across the country still
closed their doors on students of color. As a result, over the subsequent decades, many
historically Black colleges and universities were founded in order to provide a newly freed
population of individuals with a chance at higher education (Key Events in Black Higher
Education, n.d.).
Plessy v. Ferguson
In the year 1896, the State of Louisiana was challenged in the Supreme Court due to its
policy that mandated separate train cars for Black and White individuals. Thus, Plessy v.
Ferguson, 163 U.S. 537, addressed the concept of racial equality in public spaces. The court
ultimately created the notion of separate but equal which allowed for legal segregation. The
case and subsequent decisions then extended to education and provided a legal foundation for
schools, colleges and universities and these racially prejudicial decisions would be upheld in
court. Provided the facilities for Whites and Blacks were equal, segregation would be legal for
Desegregation
In 1954, in Brown v. Board of Education, 347 U.S. 483, the Supreme Court of the United
States made a landmark decision that profoundly affected diversity in education. The court
unanimously concluded that segregating students by race in public schools violates the Equal
Protection Clause of the Fourteenth Amendment of the US Constitution (McBride, 2006a). This
decision would have a profound effect on public institutions of higher learning as well, because it
meant that race could not prohibit a student from admission or enrollment. This decision changed
the face of American higher education; universities that had previously been segregated were
unable to remain so and the diversification process for many American universities began.
Affirmative Action became a popular, and in some cases, legally mandated practice within
college admissions in order to undo past discrimination (Kaplin & Lee, 2007). Many institutions
Bakke
In 1978, affirmative action reached the US Supreme Court, with an important decision
related to college admissions in Regents of the University of California v. Bakke, 438 U.S. 265
(1978). It is this decision that provided some clarification on what an institution can and cannot
do, legally, under a race-conscious admissions plan. The case began when the plaintiff, Bakke (a
White student), was denied admission to the medical school at UC-Davis twice and thus sued the
institution based on its affirmative action plan (Olivas & Baez, 2011). In an attempt to provide
greater equity and diversify their class, within each admissions cycle the school saved 16 spots
specifically for minority applicants and these particular applications were analyzed using a
separate admissions process. In what was a complicated set of decisions issued by the Court, the
AFFIRMATIVE ACTION 8
results included the following guidelines for college admissions and affirmative action: a) racial
quotas are not allowed, b) minority applications should not be reviewed separately or differently,
and c) Title VI of the Civil Rights Act represents the ideas embedded within the Equal Protection
Clause of the Fourteenth Amendment and thus it applies to race-based discrimination and reverse
discrimination at all institutions that receive federal funding (Kaplin & Lee, 2007). Justice
Powell created these specific guidelines that have set a legal precedent for universities in their
implementation of affirmative action activities. The court noted that proactive methods were
necessary to ensure equal opportunity in Higher Education but institutions must be extremely
cautious in the implementation. Justice Powell also stressed that institutions are subject to strict
scrutiny, meaning that they must show that racial consideration in admissions must be narrowly
The next two cases brought to the Supreme Court in 2003 involved the University of
Michigan and provided further clarification on legal affirmative action policies, 539 U.S. 306 &
539 U.S. 244. In Grutter, the universitys law school affirmative action plan was challenged and
in Gratz, the undergraduate college of Literature, Science and the Arts served as the defendant.
In Grutter, the plaintiff argued that a students race was given priority consideration in
educational/state interest by ensuring racial and ethnic diversity within the classroom and b) that
it hoped to enroll a critical mass of minority students (Affirmative Action Court Decisions,
2016; Kaplin & Lee, 2007). However, no specific numbers or percentages were utilized as they
AFFIRMATIVE ACTION 9
reviewed applicants. The Supreme Court upheld the law schools admissions policy, thus
preserving the sentiment in Bakke that race is a legal part of the process if it serves a compelling
state interest. Affirmative action therefore was upheld by the nations highest court.
In Gratz, the university was sued on the premise that the colleges policy regarding
diversity consideration was not narrowly tailored and thus would not pass strict scrutiny by the
court (Kaplin & Lee, 2007). The College considered African Americans, Native Americans, and
Hispanics to be underrepresented minorities and under a point system, granted them 20 extra
points during application review specifically for belonging to one of these groups (Olivas &
Baez, 2011). The admissions policy allowed for up to 150 points awarded to an individual
applicant. Further, a separate admissions committee reviewed students that were flagged because
of items like socioeconomic status, race, ethnicity, geography, etc. The court ruled that that the
policy violated the Equal Protection Clause of the Fourteenth Amendment because students were
not considered individually and thus, the policy was not narrowly tailored and failed strict
scrutiny (Gratz, 539 U.S). Further, granting all applicants of a particular group 20 miscellaneous
points did not allow for separate consideration of each application but rather categorized and
Abigail Fisher
In the year 1996, in Hopwood v. Texas, 78 F.3d 932 (5th Cir.) four White students brought
forth a lawsuit to both the state and the University of Texas asserting that they were denied
admission to the law school because of their race. As many before, they sued under the equal
protection clause of the Fourteenth Amendment (as discussed above) and Title VI of the Civil
Rights Act which outlaws discrimination based on race and in this case, refers to reverse
discrimination (Kaplin & Lee, 2007). The Federal District Court first ruled that the affirmative
AFFIRMATIVE ACTION 10
action was overall permissible and necessary as it was a response to past race-based
discrimination in the Texas school system. Then, after an appeal by the plaintiff, a Fifth Circuit
appellate court disagreed and asserted that achieving a diverse student body is not a compelling
interest under the Fourteenth Amendment (78 F.3d). As a result of this decision, the State of
Texas adopted what is now known as the Top 10% Program wherein students that graduate
from any public or private high school in the top 10% of their class are guaranteed admission to
the state university or universities of their choice (Kaplin & Lee, 2007). This plan represents a
When Ms. Fisher applied to the University of Texas at Austin in 2008, she did not meet
the Top 10% threshold to guarantee admission based on her class rank and thus her application
was reviewed holistically by the institution. She was ultimately denied admission and Fisher
claimed that she was a victim of reverse discrimination due to her race as a White woman
(Jaschik, 2016a). Her main argument was that the consideration of race violated the Equal
Protection Clause of the Fourteenth Amendment. Her case was reviewed by the Supreme Court
in 2013 but the justices ruled that strict scrutiny was not applied in the lower courts and the case
was referred back to the appeals court (Liptak, 2016). When the case returned to the Supreme
Court in 2016, the justices ruled 4-to-3 that the use of affirmative action in college admissions
remains legal and constitutional based on the precedent of previous court decisions. They
specifically noted that the University of Texas demonstrated narrow tailoring in their review of
applicants and through the decision the court reinforced the notion that strict scrutiny applies in
affirmative action cases. The decision reaffirmed the argument that there is a compelling interest
in ensuring a diverse student body and that there exists legal justification to consider a students
Both prior to Gratz and Grutter and in the time period that immediately followed, racial
American society (Olivas & Baez, 2011). Over the past few decades, many states have created
legal barriers to race-conscious admissions policies that have often reflected public opinion;
these policies now serve as a guideline to their institutions of higher education. In the State of
California, affirmative action at public institutions was banned in 1996 after a state-wide vote on
Proposition 209, which occurred only one year after the University of California system ended
race-conscious admissions for their related institutions (Blume & Long, 2013). In 2011, a bill
was presented to the Governor to revive the practice however it was vetoed as the Governor
asserted it would violate Proposition 209 and cost too much to litigate. In a bill with incredibly
similar wording, voters in the state of Washington also passed a ban on affirmative action in
public education with Initiative 200. In 1999, Florida also eliminated affirmative action not only
in higher education but also employment and state contracts. In the years to come, through a
variety of methods (referenda, state legislatures), Michigan, Nebraska, Arizona, Oklahoma, and
New Hampshire would also ban affirmative action (Blume & Long, 2013). These are important
legal and cultural considerations for any institution exploring race-conscious admissions.
The Future
Justice Sandra Day OConnor noted, in her decision on Grutter v. Bollinger in 2003, that
We expect that 25 years from now, the use of racial preferences will no longer be necessary to
further the interest [in student body diversity] approved today (Rothstein, Krueger, & Turner,
2006), 539 U.S. 306, pp 31. In 2016, in his opinion in Fisher, Justice Kennedy noted that while
affirmative action is still subject to strict legal scrutiny, there still exists a compelling interest in
AFFIRMATIVE ACTION 12
ensuring a diverse student body. He noted however that we must always balance the pursuit of
diversity with the constitutional promise of equal treatment and dignity, 579 U.S, pp. 19. These
two quotes poignantly describe the Supreme Courts current position on the consideration of race
in college admissions. The court sees a future in which affirmative action is no longer necessary,
but asserts that we currently do not live in that world. For now, affirmative action in college
admission remains constitutional and allows institutions of higher education to make an effort to
create and support diverse student bodies. However, the challenges have not dissipated as the key
player behind Abigail Fisher noted recently that he has not finished challenging affirmative
action in the courts (Mencimer, 2016). There are currently lawsuits challenging affirmative
action at Harvard University and the University of North Carolina Chapel Hill (Kahlenburg,
2015). The future of these and similar policies is unknown and it is plausible, given the courts
carefully worded decisions, that someday the entire country may have policies similar to those in
California and Florida. Any institution exploring an affirmative action admissions policy should
be prepared for change in future years, particularly if future lawsuits approach the courts.
Now that the complex legal and political history of affirmative action and college
admissions has been discussed, a brief overview of legally approved affirmative action will be
discussed. It is important to note that if any institution is located in the states discussed above, an
affirmative action plan would not be legal even for private institutions. The primary allowances
from the Justices over time have consisted of the following: if race is a factor, student
applications must be reviewed individually and within review, race or ethnic background can
only be considered a plus or, an additional factor, 428 U.S. 265 (1978). An institution cannot
review all students of color as a homogenous group nor can race be the sole factor at play.
AFFIRMATIVE ACTION 13
Additionally, an institution may not establish quotas for certain races or ethnicities. The
institution must also be able to prove that there exists compelling interest to serve a specific
purpose, such as ensuring a diverse class or remedying past discrimination. Lastly, the
affirmative action policy must very narrowly (otherwise put, specifically) address that particular
compelling interest. Institutions must be very careful and conscientious as they explore race-
conscious admissions policies so that they remain in compliance with the law. To that end, this
report recommends that the institution proceed only after having involved legal representation
Other Considerations
Once an institution has thoroughly considered the laws regarding affirmative action in
their community and has consulted their legal department/general counsel, they must also
consider important external and internal factors that will affect the effectiveness of their policies.
Michele S. Moses, in Living with Moral Disagreement: The Enduring Controversy about
Affirmative Action (2016) notes that our society significantly overlooks the importance of wealth
as a hidden factor in admission review. For institutions that employ a selective admissions
process, implementation teams must understand that wealth often disproportionately benefits
White students. They typically receive significant attention from third parties in the admissions
process and hold an intrinsic, competitive advantage (Stevens, 2007). They often attend better-
funded public schools, pay for private schools or consult private for-hire college counselors. As a
result the process has essentially forgotten many students, particularly low income and
underrepresented populations (Stevens, 2007). This reality may affect students ability to submit
the process. Additional outreach to those populations by both the admissions office and the
marketing department may be necessary to attract a more diverse student body (Stevens, 2007).
Economics
Implementation teams must either consult with or include both university finance and
financial aid staff in order to understand the economic impact of affirmative action policies.
budget accordingly. Institutional Researchers are best suited to help the team gain a better
understanding of the costs associated with the current class of students and potentially assess
how a more diverse demographic could affect the bottom line (Brinkman, 2006). An unfortunate
consequence of the Great Recession of 2008 was that many institutions are not able to support
low-income students as they once were (Geiger, 2011); if an institution is able to provide
significant financial assistance, they may find an increasingly competitive place within the
shrinking marketplace. The best action plan would be either the consideration or continuation of
a need-blind policy; these have been shown to help increase the diversity of student bodies
(Seltzer, 2016).
Public Opinion
Public opinion does not always agree with the courts and institutions should consider that
race-conscious admissions may not prove popular within their state or community. Public
accountability measures being introduced by state governments across the country (McGuinness,
2011). After the decision handed down in the Abigail Fisher case, a Gallup poll was conducted in
order to assess the opinions of American citizens on the importance of the consideration of race
and ethnicity in college admissions. The poll discovered that the majority of Americans, 65%,
AFFIRMATIVE ACTION 15
disagreed with the courts decision and do not think that universities should consider race to be
an important factor (Jaschik, 2016b). These results were surprising, particularly as Blacks and
Latinos also disagreed to an alarming degree. Further surveys have indicated that the most recent
generation of young people approves of affirmative action to a lesser degree than their parents
generation. Four in ten young people agree that affirmative action should remain legal in society
at large however a study published by Georgetown University found that far fewer, only 20%,
approve of affirmative action in college admissions specifically (Jones et al, 2012). These data
suggest that support for affirmative action in Higher Education is tenuous. Many states, citizens
and even some institutions believe colleges and universities should focus on simple academic
measures when evaluating students and further assert that race-neutral approaches are more
appropriate. Thus, any institution pursuing affirmative action policies must be aware of
potentially negative sentiments in their environment; the university should gain an understanding
of public opinion within its local community and develop a communication and outreach plan
based on these findings. This outreach may help mitigate any miscommunication or backlash.
In order to attract a more diverse class, both student and academic affairs must be
engaged in order to create a welcoming environment for underrepresented students. There has
been heated conversation regarding race relations for the past few years and these discussions
have been particularly pronounced on many college campuses, from Missouri to Yale, Occidental
and more (Wong & Green, 2016). Demands for a more diverse student body, a more diverse
faculty, and more tolerant campus communities are often forefront of the issues at hand. Overall,
while students of color are enrolling at higher rates, many have a negative impression of their
campuses as compared to White students (Quaye, Griffin, & Museus, 2015). Depending on the
AFFIRMATIVE ACTION 16
racial and ethnic make-up of an institution, its affirmative action team must be aware of these
realities and address them directly in order to successfully attract minority students in the
application process and ultimately, encourage them to enroll. Important factors to consider are
institutional history, current demographics, and campus climate (Milem, Chang, & Antonio,
2005). Some worthwhile and proven suggestions to address any potentially negative factors
include: conduct a campus climate audit in order to assess how students, staff and faculty of
color feel at the institution; hiring and supporting faculty and staff (particularly admissions
employees) of color; create peer networks and safe spaces for students of color; and engage
faculty and staff in diversity trainings in order for them to more fully understand the challenges
that minority students face (Museus, 2007; Quaye et al., 2015; Stevens, 2007). These actions can
all contribute to an institutions efforts to increase racial diversity in its future classes and will
It is not enough to simply recruit and enroll students, but rather institutions must assist
them as they progress towards graduation. It is important to note that in 2014, while completion
rates had increased overall since the year 1990, Black and Hispanics earned degrees at
significantly disproportional rates compared to their White and Asian peers: 22% of Blacks and
15% of Hispanics in relation to 41% of Whites and 61% of Asian/Pacific Islanders (Fast Facts:
Educational Attainment, 2014). Another report just released by The Education Trust (2017)
found only 41% of Black students earn a bachelors degree within six years. Due to many of the
have to consider proactive measures to address potential retention and graduation issues for
underrepresented populations. The Education Trust posits that in order to address these issues,
AFFIRMATIVE ACTION 17
colleges must a) improve graduation rates where Black students enroll, b) encourage selective
institutions to enroll more Black students, and c) address issues of inequity on all college
campuses (A Look, 2017; New, 2017). There also exists a great deal of literature that verifies
the positive relationship between campus involvement and retention and graduation rates
therefore institutions must provide opportunity for our students of color to remain connected and
engaged at the institution (Kuh, 2009; Quaye et al 2015). For example, Black students are
engaged at low levels at predominantly White institutions which can create a negative
association with their campus environment and effect retention. These issues affect students
ability to persist and must be addressed by any institution wishing to increase access to and
success of students of color on its campus. Just as a college or university must understand its
racial climate to simply attract minority students, it should be similarly proactive in its efforts to
create a supportive community and in turn, retain and graduate its young men and women.
This paper has discussed many issues related to implementing affirmative action in
college admissions. There are many compelling reasons to consider race-conscious admissions
programs from both legal and sociocultural perspectives. Courts have agreed with many colleges
and universities that have long asserted that there is a compelling interest to ensure diversity in
the classroom (Smith, 2011). Further, the court has also set a legal precedent that if the institution
ever discriminated against minorities or women, it must use affirmative action if the wrongs of
their past have any modern-day effects (Kaplin & Lee, 2007). Scholars also assert that diversity
within the classroom can help better prepare students for our increasingly diversified world
(Smith, 2011). Diversity on a campus has also been associated with positive educational
outcomes such as overall learning, student retention and general satisfaction on campus (Smith,
AFFIRMATIVE ACTION 18
2015; Smith, 1997). Smith goes on to assert that without diversity in the classroom, these
positive educational benefits will not be realized by students at a particular college. Attracting
and enrolling students from diverse backgrounds has positive effects on all students regardless of
From an admissions perspective, one study found that when instituting race-neutral
policies such as a minimum test score or GPA, persistence and graduation rates increase overall
but the representation of Hispanic Black, and low-SES students plummets (Black, Cortes, &
Lincove, 2014). Likewise, in California the passing of Proposition 209 significantly altered the
study pointed out that race-neutral options may simply not work as a substitute for proactive
student populations, which concerns the completion rates discussed above (Long, 2015). Further,
as eloquently stated by Olivas and Baez, there exists an incredible disparity in income and
educational achievements for most racial and ethnic minorities in the United States. Thus racial
As evidenced by issues in public opinion as explored above, there are also assertions that
affirmative action is no longer needed in college admissions. Many institutions already utilize
race-neutral admissions policies by focusing on academic variables such as grades and test
scores; they do not consider personal factors in the admissions process at all. Texas Top 10%
Program, relevant in Fisher v. The University of Texas, Californias Eligibility in Local Context
guarantee and Floridas similar Talented 20 Program (which operate similarly) are great
examples of such an approach to college admissions. Generally, there exists little research on
whether these policies can increase diversity on college campuses (Danielson & Sander, 2014.
AFFIRMATIVE ACTION 19
Most analysis concerns the State of Texas where, since implementing the percentage plan,
nevertheless, studies are conflicted as to whether the overall increase in the proportion of
minority high school graduates in the state or the percentage plan itself are to thank for greater
diversity (Liptak, 2016; Flores & White, 2015). If an institution wishes to explore affirmative
action but finds itself limited by legal, political or social complications, while there exists little
research at this time, it could explore race-neutral options that allow for greater diversity on its
campus. As lawsuits continue to reach the courts, given the Justices carefully worded decisions,
researchers may need to explore viable race-neutral options so that colleges and universities will
Having reviewed information about history, the law, external factors, and arguments for
and against affirmative action, it is important to discuss how best to plan for and implement a
of instituting dramatic change is by integrating the actions into a greater, comprehensive strategic
plan (Dooris, Kelley, & Trainer, 2004; Fish, 2004). Strategic planning means that the institution
has thought about its past, present and future and will consider and address important issues
moving forward. In the case of affirmative action, this requires an institution to reflect on its past
and decide why the diversification of its classes will serve as a new goal. Effective strategic
planning will then offer a blueprint and a framework from which all decisions, large and small,
may emanate. Planning is not a one size fits all activity but rather should address issues of local
importance, i.e. to the campus and its surrounding area (Keller, 2007). Such planning allows for
all campus entities to understand their role in accomplishing and achieving goals. The timeline
AFFIRMATIVE ACTION 20
for a plan should be neither short-term and reactive nor long-term and abstract; medium-range
goals can allow for the most buy-in and the best results.
When developing an affirmative action plan, the institution must understand all legal,
cultural and financial implications and then institute a program that addresses concerns specific
to itself and its constituents. If an endeavor is to be successful, it must align directly with the
unique educational mission of the institution itself; coupled with supportive and engaging
Wegner, & Massy, 2005). In fact, in Fisher v. The University of Texas, Justice Kennedy opined
that any institution that utilizes an affirmative action plan must do so within the context of their
specific institution and its unique educational goals, 579 U.S. Considerable deference is owed to
a university in defining those intangible characteristics, like student body diversity, that are
central to its identity and educational mission (p. 19). Adherence to mission is a key component
of the legal justification for race-conscious admissions. Further, the opinion by Justice Kennedy
explicitly states that it required institutions to undergo ongoing assessment and evaluation of its
efforts to ensure that affirmative action remains narrowly tailored to accomplish the goals of its
Conclusion
admissions in the United States of America. To date, the courts have agreed that under strict
scrutiny and if narrowly tailored to serve a very particular purpose, institutions of higher
education may work to create diverse student bodies by actively considering race and ethnicity
within the admissions process. Therefore, until the next legal challenge, race-conscious
admissions will remain constitutional in many parts of the country. As a guide to institutions of
AFFIRMATIVE ACTION 21
Higher Education, this document outlined the complicated history of race and higher education,
explained the salient legal issues surrounding affirmative action, discussed educational
considerations beyond the admissions department, and further reflected on important strategic
aspects of a successful implementation. There are many important considerations for any
pursued, significant research will be required by many campus constituents in order to address
the matter with adherence to mission and sensitivity to the conditions of the local environment. A
comprehensive and thorough plan must be in place to ensure success at all stages: before, during
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