Reverse-Discrimination in Higher Education

Getting accepted by a prestigious university is a goal shared by millions of high school seniors across the United States and in order to achieve this feat, many of the aforesaid sacrifice much of their time and resources in an effort to build a candidate profile which might have the good fortune of appealing to an admissions officer at one of fifty top tier schools. For these enterprising students looking to advance their educations it might come as a great surprise that admission to elite institutions of higher education in the United States had, until the early 20th century, been largely a matter of an applicant’s ability to pass a simple admissions test or come from one of a handful of top New England boarding schools.

Over the course of the last hundred and fifty years, the supply of competent applicants has increased to the point where there are far fewer seats in America’s most vaunted universities than there are applicants. Simultaneously, the gender, social class, and racial background represented in this pool of applicants has become ever more varied. The unpleasant question, of which applicants are to be admitted into a given institution, is often given an unique and nuanced answer by each of the ones that face it. For public institutions, the answer given is often more limited in that they, as opposed to purely private universities, are required to fully comply with the Equal Protection Clause of the 14th Amendment and the Civil Rights Act of 1964, which means that, unless a discriminatory policy were to further a compelling state interest and be narrowly tailored to do so, a state university or college may not treat, an applicant of one race differently than they would one of another. Since the landmark Supreme Court ruling in Bakke, many of our nation’s most prestigious public universities have partly geared their admissions offices to increase diversity on their campuses by implementing ‘race conscious’ admissions programs.

These new programs’ seeds were originally sown by both discrimination cases brought to the Supreme Court, such as Sweatt or Sipuel, as well as a recognition of the historical forces that disadvantaged certain groups. The mechanism by which these many programs operate has changed drastically since their inception, from racial quotas engineered to meet proportional campus representation, to direct point benefits designed to help those who by reason of institutional inequality have not achieved as much compared to those of other groups, and further to the contemporary use of race as a factor in ‘holistic admissions’ to realize the contemporary aspiration for ‘diversity’ on campus for the supposed benefits which it brings. While the affirmative action programs present at universities across the country have doubtlessly been designed and implemented with the most noble and upstanding of intentions, many, including myself, propose that there may be good reason to believe that these admissions systems have promulgated unintended and unjust consequences.

Currently there exists an argument in the legal community espoused by legal theorists such as Robert Chang and David Schwartz, which asserts that the entire notion of and the movement against reverse-discrimination is something that ought to be viewed with incredulity. In contrast to the latter, I will be arguing in the paragraphs to follow, that there do exist such conditions under which a claim of reverse-discrimination could be substantiated and that individuals and organizations that bring suit with such claims are doing so in a manner that is as ‘sound’ as those who would bring suit in ‘regular’ discrimination cases.

At this point it is important to establish a few important definitions relevant to the topic at hand. In the context of this discussion on reverse–discrimination in higher education, I will use the term ‘reverse-discrimination’ to mean a circumstance in which a majority or previously privileged group has become maltreated as a result of a policy or practice put in place in order to give preference to a minority or historically disadvantaged group. Furthermore, I will use the phrases ‘race conscious admissions’ and ‘affirmative action’ to refer to any system which gives preferential treatment to an applicant or potential applicant on the basis of race.

Over the last three decades since Bakke in 1978, alongside the numerical rise of those who claimed to be victims of reverse-discrimination came the upsurge in the popularity of the notion that reverse-discrimination was in and of itself, a false banner behind which those with ulterior motives could rally. A fairly representative example of this general view is demonstrated in an oft cited paper by Robert Chang, a professor at the Seattle University School of Law and the Executive Director of the Korematsu Center for Law and Equality, titled: “Reverse Racism!: Affirmative Action, the Family, and the Dream that Is America.” In his paper he states, “I see this sentiment [the claim that race conscious admissions often constitutes reverse-discrimination] as part of an attempt to return to an (imaginary) American past, to restore America to its former glory. This would entail a return to a former racial and gender order” (Chang 1133). In the paper, Chang proposes that claims of reverse-discrimination are conducive to the achievement of what he describes as “the nativists dream of return” (Chang 1121). His line of reasoning can be summed up in the following argument: without race conscious admissions, elite institutions of higher education and the population of well-educated people would proportionally be significantly Whiter, a state of affairs from which the White community would purportedly benefit, therefore Whites and White interest groups make false claims of reverse-discrimination so as to better their potential lot. Chang’s claim rests not on evidence that Whites are unharmed by affirmative action, but rather on the gains that a deceitful league might make by use of a clarion call to end reverse-discrimination. In order to gauge both the harm caused by and the intent behind those who claim to be victims of affirmative action, let us evaluate the Brief for Petitioner Abigail Fisher in Fisher v. University of Texas, 570 US (2013), and the mission statement of the Project On Fair Representation (the group providing resources for her suit) along with pertinent empirical observations, admissions statistics, and legal argument.

If it is demonstrable that Whites suffer  on account of their race and are deprived of the protections afforded to them by the Equal Protections Clause of the 14th Amendment and the Civil Rights Act of 1964  due to race conscious admissions, then there is good reason to assert that Chang’s account of the intentions of the  reverse-discrimination movement are less likely to be valid, than the possibility that by and large, Whites go to court in reverse-discrimination cases because they themselves are harmed and that the groups who aid them in the bringing of their suit, such as The Project On Fair Representation, are interested in seeing the government become more just. It should be noted, that even if it is the case that there does exists a sound basis for the bringing of reverse discrimination suits, that the legal process could still be abused for unjust gain, however, since Chang’s argument is not that reverse-discrimination is only occasionally used for illicit means, but rather that its prime use is for illicit gain and not the rectification of wrongs, the demonstration of a common practical basis from which a reverse-discrimination suit could be brought, will be sufficient, given the scope of this article, to deflate the weight of his claim.

In the beginning of the aforesaid brief’s argument section, the brief reads, “In applying for undergraduate admission to UT, Petitioner [Fisher] was handicapped by her race in derogation of the ‘central mandate’ of equal protection” (Fisher v. U. Texas Brief for Petitioner 24). While it is arguable that disadvantaging a member of an institutionally dominant group is justified when it brings benefit to the oppressed, it is untenable that this said line of reasoning could concurrently, with any logical consistency, assert that the one who had suffered the unfortunate disadvantage could not have genuine intention when seeking to bring suit to court. The group that supported Fisher in her suit, The Project On Fair Representation, writes in the spirit of this notion, that its mission “is to facilitate pro bono legal representation to political subdivisions and individuals that wish to challenge government distinctions and preferences made on the basis of race and ethnicity” (Blum 1). While the question of whether or not the government should be allowed to discriminate on the basis of race for the sake of the greater good or justice is an open subject, the notion that those who hold the negative opinion are doing so out of deceit seems, in the face of even the most superficial analysis, an unnecessary assumption. Chang, holds the view that even in cases like the aforementioned, activists are taking a narrow view of race based discrimination, instead of a broad view of the role that affirmative action plays in regards to racial justice (Chang 1119).  Perhaps Chang is right, and reverse-discrimination only constitutes discrimination in a narrow sense of the term. In order to evaluate whether or not this is the case, let us take a ‘broad view’ of all the relevant factors that affect or pertain to Whites and admissions in higher education in order that it can be seen if reverse-discrimination exists only in a ‘narrow’ sense, which will be taken to mean an existence characterized by merely a trivial effect unlikely to seriously plague the average White university applicant, and not an institutionally ‘wide’ sense, which will conversely, be taken to mean something that would significantly affect the average White university applicant.

One university which stands as an especially useful resource in the study of this article’s focus is the University of Michigan. In an Amicus Curia brief submitted in support of Abigail Fisher during her 2013 Supreme Court case, Alan Gura noted that preceding Michigan’s statewide ban, the University of Michigan admitted 92% of Black applicants and 88% of Hispanic applicants who possessed a 3.2 GPA and a 1240 SAT score while only 10% of White applicants with similar scores were admitted (Gura 7). Additionally, Althea K. Nagai in her paper, “Racial and Ethnic Preferences in Undergraduate Admissions at the University of Michigan,” found in a study that focused on the years: 1999, 2003, 2004, and 2005 (all of which preceded the statewide ban on affirmative action), that in all the years examined, “Black admittees had substantially lower SAT scores, ACT scores, and high school GPAs compared to Asians and Whites. The range of Hispanic admittees’ test scores (SATs and ACTs) and high school GPAs fell between those for Blacks and those for Asians and Whites (Nagai 1).” In order to control for the possibility that these applicants were similarly qualified for collegiate success by some metric not included in her study, Nagai looked into the development of all the admitted students and found that:“

[1] For every year, median cumulative GPAs for Black and Hispanic students were significantly lower than those for Asians and Whites.

[2] Proportionately fewer Blacks and Hispanics were in UM’s honors program.

[3] Proportionately more Blacks and Hispanics were on academic probation at some point during their enrollment at UM” (Nagai 2).

It seems evident that at the University of Michigan, the race conscious admissions employed by the University gave serious preferences to Black and Hispanic students who were relatively far less qualified for admission than their White and Asian counterparts. Following the statewide ban on affirmative action in 2006, Black and Hispanic enrollment rates have steadily declined to about half of their former level while White, and to a slightly larger degree, Asian enrollment has correspondingly increased (Geva 1).

More generally, across America, White applicants are also likely to face reverse-discrimination during the admissions process. In an article by Thomas J. Espenshade and Alexandria Walton Radford called “Evaluative Judgments vs. Bias in College Admissions,” the authors found that “Black applicants have an admission advantage compared with Whites equivalent to 310 SAT points (on the old 1,600-point scale), while the advantage for Hispanic candidates is 130 points. Asian-American applicants face a disadvantage of 140 SAT points” (Espenshade). In light of the data concerning admissions at the University of Michigan, these statistics are wholly consistent with what might be expected if institutional reverse-discrimination were the case across American universities and colleges.

Another and less often discussed way in which universities or colleges may reverse-discriminate against White applicants is in the way in which they inform and educate their potential applicant base with pertinent admissions information. Laura Perna in her paper, “Differences in the Decision to Attend College among African Americans, Hispanics, and Whites,” found that “…as measured by high-school location and region, African Americans and Hispanics appear to be more likely than Whites to have information available to them about college” (Perna 130). Perna suggests that this situation is often the case because college affirmative action programs “have effectively increased the amount of information about and interest in college” among minority groups (though she notes that Blacks received slightly more information than Hispanics) (Perna 136). One possible weakness of this study is the exclusion of statistics on information distribution to potential Asian applicants. Reverse-discrimination, it appears, may not just hurt White applicants as their applications sit on a desk inside an admissions office, but also preceding the submission of those selfsame applications.

David Schwartz, in his paper “The Case of the Vanishing Protected Class: Reflections On Reverse Discrimination, Affirmative Action, and Racial Balancing,” asserts that there are two camps of legal thought in regards to affirmative action, the first, “protected class theorists” and the second “color blind theorists” (Schwartz 664). The first camp refers to those who see it as just that the law grant protections to any group of people who for one reason or another face institutional oppression, and the second refers to those who see it as unjust for the law to allow for legal discrimination to occur on the basis of race. Schwartz notes that even the most “liberal” of all the justices, have already “adopted the fundamental premise [i.e. that discriminating solely on the basis of race in order to benefit a given group is fundamentally wrong] of colorblindness” (Schwartz 684). Like Chang, Schwartz shares the popular sentiment that “most Whites who attach a stigma to affirmative action are simply seizing on affirmative action as a convenient handle for attitudes of racial superiority they harbor anyway” (Schwartz 669) (Chang 1133). According to Schwartz, one of the central tenants of “protected class” theory regards “discrimination against minorities as worse than discrimination against White males” (Schwartz 664).  In terms of legal thought, it is evident that of the two camps which regard discrimination and reverse-discrimination, one recognizes both as intolerable and the other recognizes the latter as the bitter medicine given to society in order to mitigate the effects of the former.

Of these binary perspectives, only the ‘protected class’ theorists are likely to find serious contention with the legitimacy or sincerity of claims of reverse-discrimination. At its foundations, ‘protected class’ theory necessarily concedes that the eyes of the law ought to discriminate, in order that the adverse effects of institutional racism be mitigated. In response to the ‘protected class theorist’s’ formulation of justice, Justice Antonin Scalia wrote a short counter argument in his concurring opinion in Adarand Construction Inc. v. Pena, in which he wrote: “To pursue the concept of racial entitlement- even for the most admirable and benign of purposes is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred” (Adarand v Pena 239). For there to exist an entire camp of legal thought which not only justifies some measure of discrimination, but delegitimizes the claims of those who suffer the aforesaid’s effects is absolutely key to understanding the debate between those who recognize or reject the existence and legitimacy of reverse-discrimination.

In terms of trajectory, reverse discrimination cases are slowly eroding away the degree to which public universities and colleges can employ race conscious admissions. The first reverse-discrimination case to land in the Supreme Court, Regents of the University of California v. Bakke, resulted in a ruling that racial quotas were impermissible. 18 years later in Hopwood v. Texas, the 5th district court ruled that the use of race in admissions was, like racial quotas, unconstitutional. Later, that judgment was abrogated by the Supreme Court, though it still is in effect for states within the fifth district’s jurisdiction (Louisiana, Mississippi, and Texas). Seven years following the latter, in Grutter v. Bollinger, the Supreme Court upheld the use of race-conscious admissions for the sole purpose of promoting class diversity which the court accepted as a legitimate compelling state interest. Very recently in Fisher v. University of Texas, The Supreme Court avoided ruling on the constitutionality of race as a factor in admissions and remanded the case back to the lower court for a failure to apply strict scrutiny. At the state level, nine states have undertaken some form of statewide ban on affirmative action programs (Desilver). All indications point towards a near future wherein race conscious admissions at public institutions are a thing of the past.

From the statistics, data, and examples discussed, it seems perfectly clear that there exists a definite and real basis from which White applicants could, in many instances, legitimately claim that they were the victims of reverse discrimination.  That is not to say, that all the alleged cases of reverse-discrimination are in fact entirely genuine, either in their claim or in the intention of those who brought them to court. It is possible that Chang, Schwartz, and other likeminded academics who allege that behind every banner rallying against reverse-discrimination, there lies some cabal who want nothing more than to see a restoration of White privilege and increased control over all spheres of American life,  are indeed right. However, when one considers the admissions data from the University of Michigan, the findings of Espenshade and Radford concerning SAT points, and the findings of Perna concerning the unequal distribution of admissions information, it must be conceded that there do exist widespread conditions under which a White applicant could bring a legitimate reverse discrimination suit to court without ulterior motive and that the latter is likely the case for the majority of claimants in such cases.

There are some important implications to the findings detailed above, namely that there is a prevalent misconception about the legitimacy of reverse-discrimination and that there exists data to support the cases of those who claim reverse-discrimination is a real problem that faces White applicants across the country. As more information comes to light, the claims that I have made above may be either further validated or vice versa.

Works Cited:

Adarand Construction Inc. v. Pena 515 U.S. 200, 239 (1995) retrieved from:

http://www.law.cornell.edu/supremecourt/text/515/200

Blum, Edward. Project on Fair Representation. ProjectOnFairRepresentation.org. Web. 30 Oct 2014.

Chang, Robert. “Reverse Racism!: Affirmative Action, the Family, and the Dream that is America.” Hastings Constitutional Law Quarterly Vol.23:1115 (1996): 1115-1134. Web. 6 Oct 2014

Brief for Petitioner Abigail Noel Fisher, Fisher v. University of Texas, 570 US (2013).  Retrieved from: http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/11-345_pet.pdf

Perna, Laura. “Differences in the Decision to Attend College among African Americans, Hispanics, and Whites.” The Journal of Higher Education Vol. 71, No. 2. (2000).117-141. Web. 6 Oct 2014.

Schwartz, David. “The Case Of The Vanishing Protected Class: reflections On Reverse Discrimination, Affirmative Action, and Racial Balancing.” Wisconsin Law Review Vol:2 (2009) 657- 2000. Web. 6 Oct 2014.

Ryan, Julie “How Getting into College Became Such a Long, Frenzied, Competitive Process: A history of the college application, from 1856 to today.” The Atlantic. Nov 11 2013. Web. 3 Oct. 2014

Espenshade, Thomas, Radford, Alexandra Walton. “Evaluative Judgments vs. Bias in College Admissions.” Forbes. 12 Aug 2014. Web. 4 Oct. 2104

Desilver, Drew. “Supreme Court Says States Can Ban Affirmative Action; 8 Already Have.” Pew Research Center. April 22nd 2014. web. 8 Oct. 2014

Gura, Alan. Brief Amicus Curiae of the  Louis D. Brandeis Center for Human Rights Under Law, 80-20 National Asian-American Educational Foundation, National Federation of Indian American Associations, Indian American Forum for Political Education, and Global Organization of People of Indian Origin, in support of petitioner. Retrieved From: http://www.projectonfairrepresentation.org/wp-content/uploads/2006/11/Fisher-v-University-of-Texas-Amicus-Brief-Louis-D.-Brandeis-Center-for-Human-Rights-Under-Law-80-20-National-Asian-American-Educational-Foundation-et-al.pdf

Nagai, Althea K. “Racial and Ethnic Preferences in Undergraduate Admissions at the University of Michigan.” Center for Equal Opportunity. 2006. Web. 19 Oct. 2014

Geva, Shoham. “University continues to struggle with minority enrollment.” The Michigan Daily. Oct 29 2014.web. 19 Oct. 2014