With pending federal lawsuits and a new conservative majority on the United States Supreme Court, the future of affirmative action in college admissions is as tenuous now as any time since 1978. 

What is Affirmative Action? 

Following the end of post-Civil War reconstruction in the American South, Jim Crow laws emerged that renewed and codified segregation of public spaces on the basis of race. 

“Public schools and universities are some of the first types of institutions in which you see this segregation,” said Tyina Steptoe, a professor of history at the University of Arizona. 

When the Civil Rights movement emerged, civil rights groups pushed to eliminate the inequalities created by racial segregation. Starting during World War II, desegregation of schools and opening access to education became a key goal of the movement, according to Steptoe.  

Organizations like the National Association for the Advancement of Colored People effectively challenged segregation in public schools through federal lawsuits, resulting in the famous 1954 Supreme Court ruling, Brown v. Board of Education which found the principle of segregation with “separate but equal” accommodations based on race was unconstitutional. 

That victory for racial equality was not the end. 

“Inequalities persisted in education,” Steptoe said. 

The concept of affirmative action was established in 1961 following an executive order by President John F. Kennedy that called for government contractors to take affirmative action to ensure job applicants receive employment and employers not discriminate on the basis of “race, creed, color or national origin.” 

Following the executive order, universities began to implement quota systems into their admission processes to ensure minority representation in their schools was beyond desegregation requirements. Yet this policy quickly came under legal scrutiny. 

The University of California Davis School of Medicine set aside a certain number of seats for black applicants. This racial quota was challenged at the Supreme Court in 1978. The narrow 5-4 decision, authored by former Associate Justice Lewis Powell, upheld the constitutionality of affirmative action broadly but eliminated strict racial quotas. 

“Current constitutional doctrine requires that the use of race in public university admissions must meet strict scrutiny,” said Toni Massaro, Regents’ professor and Milton O. Riepe, chair in constitutional law at the UA. 

Along with eliminating quotas, Regents of the University of California v. Bakke required affirmative action admission policies only take race into account as part of a holistic set of criteria that includes many other factors such as public service, life experiences and extracurricular activities according to Massaro. Universities are also required to provide an educational, rather than inclusive or equitable, justification for their policy. 

“The burden is on the university to show that its race-conscious admissions policy promotes a compelling educational purpose and is narrowly tailored to advance that purpose. Student body diversity has been held to be a ‘compelling reason’ for affirmative action,” Massaro said. 

Using the standards established by Powell’s opinion, the U.S. Supreme Court has previously upheld affirmative action admission policies at the University of Texas. The court has also struck down policies placing too much emphasis on race in admission, as in the case of the University of Michigan. 

While narrow affirmative action admission policies have withstood past constitutional challenges, recent cases brought against high-profile universities, such as Harvard University, are likely to result in further restrictions on universities. 

“Most people expect the new conservative majority on the court to further narrow the circumstances under which a public institution can take race into account, as one factor among many, in determining admissions,” Massaro said. 

How will this affect Arizona?

After the UC Davis decision, Californians voted to ban affirmative action in public employment and education in a 1996 citizen proposition. 

Arizonans followed suit, voting to amend the state’s constitution in 2010 to prevent universities and the government from considering race, sex, color, ethnicity or national origin in admissions or employment. 

Currently, eight states ban affirmative action in public university admissions. Yet in a 2017 Pew Research Survey, 71 percent of Americans view college affirmative action programs positively. 

“Affirmative action policies benefit all students, even those who are not racial minorities,” Steptoe said. 

Businesses want students who have a wide array of cultural experiences and have developed skills to thrive in diverse environments, according to Steptoe. She saw firsthand businesses shy away from recruiting at her alma mater, the University of Wisconsin, due to concerns over its lack of diversity. 

Beyond individual benefits, keeping universities accessible benefits society as a whole, according to Steptoe. Education is the way to a better life, a cornerstone of the American dream. Increasing diversity at research institutions like the UA also helps enrich research with new perspectives and new questions to pursue. 

While the benefits of diversity in higher education have been constitutionally upheld, affirmative action policies have largely failed to increase access to higher education or diversity in college admissions. 

“Affirmative action has not worked. Our system of higher education has not diversified. Affirmative action has not created increased access to education,” Steptoe said. 

After the end of affirmative action in Arizona, UA still maintained a commitment to increasing diversity. 

“The UA strongly believes in diversity, not only racial diversity but also cultural backgrounds, socioeconomic and gender,” said Kasey Urquidez, UA dean of undergraduate admissions. “The University of Arizona has always taken into consideration all aspect of students during the admissions process, never using race as a deciding factor.”

In fact, UA admitted its most diverse and highest achieving class of freshman students in 2017 and was named a national Hispanic Serving Institution in 2018. The majority of Arizona students admitted to UA in 2017 are from a “diverse background,” according to a UA admissions report. 

The UA still has a ways to go in terms of representation, openness and equal access on campus.

In order to increase diversity on campus, the UA has a number of community orientated programs that educate high school students about the university, its resources and opportunities, as well as help students prepare for their future, according to Urquidez. 

“My colleagues at other universities work hard to view student applicants as a whole, from their volunteering to their grades and test scores, and will continue to do so,” Urquidez said. 

Steptoe believes programs that physically introduce high schoolers to universities are some the best programs to pick up the mantle of affirmative action. 

“Increasing the visibility of universities in certain communities, where, for example, college may not seem like a viable option, can help increase access to higher education,” Steptoe said. 

Even with these holistic admission processes, students from lower socioeconomic or historically disadvantaged communities are still not as represented as their peers and are disadvantaged in college admissions, even with affirmative action policies as they stand. The end of affirmative action will not improve this. 

The expansion of outreach programs, like those developed by the UA, offer a path forward after affirmative action. 

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