Beyond Percentage Plans: The Challenge of Equal Opportunity in Higher Education

(Staff Report)

Chapter 1

The Struggle to Achieve Diversity in Higher Education: Setting the Stage for Percentage Plans

INTRODUCTION

The U.S. Commission on Civil Rights has throughout its history been concerned about college admissions policies and has sought to further those that provide all members of society equal access to higher education.[1] In April 2000, the Commission released Toward an Understanding of Percentage Plans in Higher Education: Are They Effective Substitutes for Affirmative Action? In it, the Commission examined the use of high school class ranks as a means of increasing the presence of minorities in public higher education in the states of California, Florida, and Texas. Currently, each of those states has in place what is generally referred to as a “percentage plan.”[2] With some variation in procedures between the states, these percentage plans guarantee first-time college applicants who have graduated within a predetermined percentage of their high school class rank automatic admission into their resident state schools.

After a thorough review, the Commission concluded in 2000 that percentage plans had significant flaws and failed to create diversity in undergraduate education. The premise of the plans—that automatic admission of high school students ranked at the tops of their classes will result in racially diverse college populations—is contingent upon continued racial segregation of the nation’s high schools. The Commission further found that the percentage plans made no provision for professional or graduate education and recommended such plans be used in conjunction with affirmative action.[3]

This staff report updates and expands upon the Commission’s previous assessment of percentage plans in California, Florida, and Texas and examines the pattern of racial/ethnic diversity among first-time students and graduate, law, and medical students. The critical question guiding this analysis is: Can percentage plans alone achieve the goal of equal educational opportunity? The findings of this staff report mirror those of the Commission’s earlier one: percentage plans as they are currently administered do not improve diversity and must be implemented in conjunction with affirmative action and other supplemental recruitment, admissions, and academic support programs. The ideal percentage plan program would include targeted outreach, institutional choice, and an emphasis on improving public elementary and secondary education.

To assess access to higher education beyond percentage plans and affirmative action, this report also examines other gatekeepers, such as the admissions process, financial resources, and college preparation. While there are programs in place to assist students in overcoming these barriers, such as the federal TRIO outreach programs and financial aid, disturbing patterns in minority enrollment remain. States and the federal government must commit to a multifaceted and inclusive admissions process, incorporating adequate financial aid and academic support services, if a college education is to be available to all members of society.

METHODOLOGY

Commission staff obtained application, admissions, and enrollment data on first-time students and graduate, law, and medical students for different racial groups from the Office of the President of the University of California; Information Resources Department of the Texas Higher Education Coordinating Board; and Office of Research and Policy Analysis of the Florida Board of Education. In some instances, staff contacted state and university officials to request supplemental materials. Staff also obtained pertinent data and documents from various official sources on the Internet. Staff then performed analyses drawing on this array of information. On several occasions, staff interviewed federal, state, and university officials to seek clarification as the report progressed. Finally, for the purpose of this study, the staff established that a first-time student is an entering freshman who has never formally attended any college. The terms “freshman” and “first-time student” are used interchangeably depending on the terminology used in the source data.[4]

PROMOTING DIVERSITY THROUGH AFFIRMATIVE ACTION

Throughout most of the 20th century, long-established discriminatory admissions policies at the nation’s universities prevented minority individuals from completing their education or even attending the institution that would best prepare them academically for their desired career.[5] Not until 1950 was the University of Texas School of Law forced to admit African Americans, and it did so as a result of the Supreme Court’s decision in Sweatt v. Painter.[6] More than a decade passed before prospects began improving for minority individuals who had the goal of attending college, an improvement that can be largely attributed to the establishment of affirmative action programs.

When President John F. Kennedy first used the term affirmative action in 1961 he did so in reference to increasing the racial integration of workforces employed in federally financed projects.[7] The political and social movements of the 1960s further eroded the color barrier and granted minorities greater access to higher education.[8] However, it was not until the 1970s that affirmative action found its place in college admissions policies, and substantively redressed the entrenched discrimination against racial and ethnic minorities and women in the admissions process. Admissions policies were amended to consider gender and minority status as assets and not, as had been done in earlier periods, liabilities to gaining college admission.[9] From this period on, affirmative action increased minority access to the nation’s colleges and universities.[10]

Since its earliest days, however, affirmative action has been controversial, and many judicial and legislative attempts have been made to dismantle it. These attempts have limited the scope of acceptable practices, particularly in higher education admissions. Supporters of affirmative action argue that it is a necessary policy, having as its purpose undoing historical discrimination. Diversity in the workplace and educational environment is critical to the social, economic, and political success of America’s increasingly multicultural society. Supporters also argue that considerations of race, ethnicity, and gender help level the playing field for women and persons of color who do not have equal opportunities to achieve higher education.[11] Opponents of affirmative action argue that such policies result in dual standards for minorities and nonminorities, with lower standards for minority students. They suggest that the goal of multicultural and gender diversity and fairness is misplaced and that educational access should be based solely on merit, not color or ethnicity. They further argue that admitting less qualified students to more challenging institutions sets them up to fail because they are not academically prepared.[12]

During the period prior to the retreat from affirmative action on college campuses, minorities had increased their enrollment at postsecondary institutions, if not necessarily at prestigious universities in proportion to their population numbers, owing to race-conscious admissions policies. In 1965, less than 5 percent of 18- to 24-year-old college students were African American. Today, African Americans make up roughly 12 percent of undergraduate students.[13] The affirmative action measures of the 1960s and 1970s are credited with steadily increasing the college enrollment rates of people of color.[14] However, recent challenges to the use of race or gender and other factors in college admissions likely will “erode the gains that women and minority group members have made in postsecondary education thus far.”[15] While Supreme Court precedent supports the limited use of affirmative action, the judicial landscape is changing rapidly.

Legal and Legislative Challenges to Affirmative Action

In 1978, the Supreme Court’s ruling in Regents of the University of California v. Bakke buttressed affirmative action in admissions policies by establishing that race could be one factor considered in admissions decisions for the purpose of promoting diversity in higher education.[16] Although this decision upheld the constitutionality of affirmative action, it also stipulated that race could not be the sole arbiter in determining admissions.[17] Despite the consideration of race in the admissions process, by the 1980s it was evident that minorities and women were more commonly admitted to less prestigious institutions. That is, affirmative action had done little to open the doors of top-tier universities for most minority group members and women.[18] This situation remained largely unchanged at the close of the millennium for many minority groups, especially African Americans.[19] Nonetheless, vocal opponents of racial and gender preferences continued to challenge the necessity of affirmative action.

The mid-1990s brought organized efforts against admissions policies that strove for equal access through affirmative action. Among these was admissions policy SP-1, adopted in California in 1995, which ended the use of race as a factor in admissions to the University of California.[20] Although this policy was formally rescinded in 2001, California voters had passed Proposition 209 in 1996, which ended all forms of affirmative action in the state, rendering SP-1 superfluous.[21] One educator at the University of California stated that the elimination of affirmative action in the state university system “severely intensified problems of inequality in access to post-secondary and professional education.”[22] He noted that the numbers of black, Hispanic, and Native American students in the system have since decreased and that the system has begun to segregate into more and less elite campuses, with white and Asian Pacific American students enrolling in the former.

In 1996, the same year Proposition 209 passed in California, the University of Texas School of Law lost a challenge against its admissions policies. The Fifth Circuit ruling in Hopwood v. State of Texas,[23] which applies to Texas, Louisiana, and Mississippi, prohibits the use of race or ethnicity as an admissions criterion or in the recruitment, provision of financial assistance, or retention of college students.[24] The Hopwood decision, although applicable to only three states, has had broader implications for colleges and universities across the country, as it raised the question of whether the promotion of diversity is a compelling interest that justifies taking race into account in all university admissions decisions.[25] However, the Supreme Court declined to review the circuit court decision, and it therefore applies only to the states in the circuit.

An initiative similar to California’s Proposition 209, Initiative 200 (I-200), was passed by voters in the state of Washington in November 1998. Unlike the California proposition, I-200 was not a constitutional amendment, therefore it is uncertain whether the law will supercede existing state and local laws that allow the use of race in employment and contracting decisions.[26] Nonetheless, after the passage of I-200, the University of Washington eliminated the consideration of race, ethnicity, and gender in admissions. It is estimated that this decision resulted in an immediate 15 percent decline in African American and Hispanic student enrollment at both the undergraduate and graduate levels. A year prior to I-200, four white applicants who had been denied admission filed suit against the University of Washington School of Law challenging its use of race in the admissions process. Although provisions in I-200 rendered certain claims in the case moot, the district court ruled that Bakke, which allowed the consideration of race and gender, was still good law. In December 2000, the Ninth Circuit Court of Appeals upheld the district court’s decision and reiterated that educational diversity is a compelling government interest.[27] The Supreme Court subsequently declined to review this case as well.[28]

Inspired by the initiatives in California and Washington, Florida Governor Jeb Bush signed an executive order in November 1999, the One Florida Initiative, eliminating race and ethnicity as an admissions factor in the state university system.[29] According to the plan, minority representation in the state’s universities was adequate, therefore race- and ethnic-based admissions policies could be replaced with achievement-based policies, “while still improving and enhancing the diversity” of the system.[30] This staff review reveals that this assertion has not held true. In fact, the proportions of minority first-time students enrolled in the state system did not increase, particularly African American students.

In August 2001, the U.S. Court of Appeals for the 11th Circuit determined that the admissions policy of the University of Georgia was unconstitutional because it gave a fixed preference to nonwhite applicants.[31] In rendering its decision, the appellate court called into question whether the Bakke ruling provided justification for the use of race in admissions decisions.

In May 2002, in the case of Grutter v. Bollinger, the U.S. Court of Appeals for the Sixth Circuit upheld the University of Michigan’s law school admissions policy, citing Bakke as the law of the land and opening the door for the Supreme Court to rule on the issue of affirmative action.[32] The appellate court, in its 5–4 decision, stated that colleges may consider race in admissions as a way to enroll a sufficient number of minority students and found diversity to be a compelling state interest. Another pending suit, Gratz v. Bollinger, challenges the University of Michigan’s undergraduate admissions policy.[33] A federal judge ruled in favor of the university, but that ruling is currently being reviewed by the court of appeals. On October 1, 2002, the plaintiffs in the case filed a petition asking the Supreme Court to review the case even though the appellate court has not yet ruled.[34] Legal commentators speculate that the Supreme Court will review the Grutter case, and now possibly the Gratz case, in its 2002–2003 session, but in the meantime, institutions outside the Fifth Circuit continue to have the flexibility to use race as one of many factors in determining admissions, as outlined by the Bakke decision.

“Softer” Affirmative Action Programs

Often the discussion around affirmative action programs focuses on admissions criteria and decisions. It is noteworthy, however, that many states have other initiatives in place to recruit, enroll, and matriculate minority students. A broader definition of affirmative action includes initiatives such as outreach to low-income, inner-city, and high-minority populations, recruitment of underrepresented groups, and targeted scholarships and financial aid. While these “soft” forms of affirmative action remain more widely accepted and are less susceptible to legal challenges than are revised admissions policies, they have not been immune to scrutiny.

Specifically, questions have arisen about the legality of race-specific financial aid. In the 1970s and 1980s, the Department of Education (DOEd) authorized colleges to take race into account to a greater degree in awarding student aid than in admissions, if the minority-targeted aid was a small proportion of total student aid funds.[35] In 1994, DOEd again endorsed “appropriately-crafted minority-targeted” financial aid, but the U.S. Court of Appeals for the Fourth Circuit had a different opinion.[36] In Podberesky v. Kirwan, the court ruled that a University of Maryland scholarship program for African American undergraduates, which the school adopted in response to a DOEd finding that it had historically discriminated, was not narrowly tailored to overcome minority underrepresentation.[37] The court held that the school failed to demonstrate that there were continuing effects of past discrimination that would warrant such a scholarship.[38] In anticipation of challenges to any form of affirmative action, in August 2001, the University of Florida announced it would no longer award scholarships based on race.[39] More than 50 race-based scholarships available at the school were recast to become race neutral.

With these legal and legislative challenges percolating up through the courts and statehouses across the country, and because the Supreme Court has yet to revisit its decision in Bakke, the legal uncertainty of affirmative action has led schools to reassess admissions standards and seek new methods for achieving diversity apart from using race as a factor. For example, in 2000 Rutgers Law School in Newark, New Jersey, created a new admissions policy that does not consider race as an isolated factor. Instead, the school recruits students based on non-race factors, such as overcoming economic and educational disadvantages.[40] All applicants to the law school have the option of applying under one of two admissions standards. Applicants can choose to be considered (1) mainly on test scores and grades, or (2) on the basis of education and employment experiences, personal and academic accomplishments, socioeconomic background, family circumstances, and potential contributions to the diversity of the school.[41] Other schools, some of which are mentioned in this report, also now take into consideration educational experiences and life situations in the admissions process.[42]

Finally, and most importantly for this review, localized movements away from affirmative action have resulted in the adoption of percentage plans in three states—California, Texas, and Florida. Are they effectively providing equal access to education? The following is a detailed assessment of the effects of percentage plans on college diversity.