Running head: DEVELOPING AN AFFIRMATIVE ACTION PLAN AFTER FISHER 1

Developing an Affirmative Action Plan after Fisher

Nathan Mack

The Pennsylvania State University

Developing an Affirmative Action Plan after Fisher

AFFIRMATIVE ACTION 2

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

development of an affirmative action plan in a post-Fisher environment. This document outlines

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
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undertake, presents arguments related to the implementation of a race-conscious admissions plan,

and provides analysis and reflection about the implications of Abigail Fisher for all higher

education professionals.

Defining Affirmative Action

Before a substantive analysis can be pursued, an explanation of key terms must be

provided. According to the U.S. Commission on Civil Rights (1977), affirmative action is any

measure, beyond simple termination of a discriminatory practice, adopted to correct or

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
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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.

The Fourteenth Amendment

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

discrimination on students within the majority. Otherwise stated, by actively pursuing

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

constitutionality of race-based decision making in college admissions.

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The Civil Rights Act

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

In order to implement an affirmative action plan in admission processes, institutions

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.

Early Colleges and Universities

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
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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

segregation in American institutions (McBride, 2006b). Students could be divided by race in

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

over 50 more years.

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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

were attempting to then increase the representation of underrepresented students, primarily

Black, at the nations colleges and universities.

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
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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

tailored to serve a particular and compelling educational/state interest, such as remedying

historic discrimination, ensuring equal opportunity, or underscoring the importance of a diverse

educational environment for its students (Kaplin & Lee, 2007).

Grutter v. Bollinger & Gratz v. Bollinger

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

admissions decisions. The institution argued that a) it was dedicated to a compelling

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
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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

treated minority students as homogenous groups.

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
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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

proactively race-neutral approach to the admissions process.

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

race or ethnicity as part of a students application (Jaschik, 2016a).

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Current State of Affirmative Action

Both prior to Gratz and Grutter and in the time period that immediately followed, racial

consideration in college admissions was an increasingly controversial conversation within

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
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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.

Overview of Legal Standing of Affirmative Action

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.
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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

such as their General Counsel.

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.

Admissions Methods and Bias

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

competitive applications to an institution, even if their race or ethnicity is considered a plus in

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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.

Regardless of an institutions financial aid procedures, every department must be prepared to

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

institutions should be particularly conscientious of any change efforts due to increasing

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%,
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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.

Attracting Minority Students

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
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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

require participation from many individuals outside of the admissions office.

Supporting and Graduating Minority Students

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

aforementioned factors, (campus climate, demographics, institutional history), institutions may

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,
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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.

Arguments Surrounding Affirmative Action

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,
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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

their race or ethnicity (Now is the Time, 2005).

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

representation of underrepresented populations on its UC campuses. (Perez, 2012). Another

study pointed out that race-neutral options may simply not work as a substitute for proactive

affirmation action policies in ensuring equal opportunity for historically underrepresented

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

equity has yet to be achieved (2011, pp. 181).

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.
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Most analysis concerns the State of Texas where, since implementing the percentage plan,

enrollment of underrepresented students on non-elite public university campuses has increased;

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

have examples of potentially fruitful and successful initiatives.

The Strategic Plan and Institutional Mission

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

race-conscious admissions plan on a university or college campus. Recently, a common method

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
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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

leadership, changes can be successfully implemented on a campus (Dickeson, 2010; Zemsky,

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

mission. Resources should be allocated with this fact in mind.

Conclusion

Fisher represented an important moment in the history of affirmative action in college

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

institution interested in affirmative action and if race-conscious admission policies are to be

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

and after implementation.

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