Affirmative action, the practice of enhancing opportunities for historically disadvantaged groups in hiring or college admissions, has been controversial since its inception in the 1960s, and has triggered numerous lawsuits and Supreme Court rulings over the years.
Now, a memo obtained by the New York Times indicates that President Donald Trump’s Department of Justice, led by Attorney General Jeff Sessions, may be planning to wade into the controversy head on.
The memo asks for staff interested in conducting “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.” That’s been interpreted by advocates and proponents of race-based affirmative action alike as a plan to investigate programs that advantage applicants who are racial minorities.
The Justice Department declined to provide details to the Times, so it’s not clear, exactly, what these investigations would look like. But if they do, as advocates fear, take aim at affirmative action policies, then Minnesota institutions of higher learning that take race into account for admissions — including the University of Minnesota — will want to pay attention.
The legal status of affirmative action
Affirmative action grew out of the civil rights movement, but it wasn’t long after higher education institutions started adopting policies on campuses that they were challenged in court. A series of Supreme Court rulings, starting in the 1970s, has given some guidance as to what sort of race-related considerations are permissible for college admissions, and which are not.
In 1978, the Supreme Court ruled in Regents of University of California v. Bakke that race could be used as one of many factors in considering applicants for college admissions, but that the use of racial quotas was not constitutional.
In 2003, the court again ruled in Grutter v. Bollinger, a Michigan case, that race could be used as one of several factors considered in admissions policy, as long as it was used to further the compelling educational interest of the school in diversifying its student body (research shows that students’ educations are enhanced by exposure to people who are different from them). The same year, the court ruled in Gratz v. Bollinger, another Michigan case, that awarding additional points to minority applicants was not a constitutional way to diversify a student body.
Last year, in Fisher v. University of Texas at Austin, the Supreme Court again upheld the use of race as one consideration among many. The court ruled that UT’s program passed muster because it was aimed at a compelling government interest in diversity on campus, that the policy was narrowly tailored to achieve that end, and that the policy was the least restrictive means of doing so.
“[Fisher] really put institutions on notice that they need to demonstrate with evidence that they continue to need the consideration of race,” said Liliana Garces, an associate professor in the College of Education at the University of Texas at Austin. “What that means is that they need to demonstrate that other ways, other alternatives that may not look at race as explicitly don’t result in the same kind of racial diversity.”
Nationally, the use of race-based affirmative action in colleges admissions has declined, according to a paper on affirmative action in American higher education by Brown University and University of Toronto researchers. In 1994, 60 percent of nearly 1,000 selective colleges and universities declared publicly that race was taken into account as part of admissions. By 2014, that number declined to 35 percent. Today, more selective institutions are much more likely to consider race as part of their admissions criteria than less selective institutions, the researchers found. Institutions in several states are prohibited from considering race by state law.
Affirmative action in Minnesota
In Minnesota, the use of race as a factor in admissions varies by institution. It is not used in any way at Minnesota State, formerly MnSCU, college and university campuses. It is used at some private schools, include the College of St. Benedict and St. John’s University, and not in others, such as Bethany Lutheran College, Concordia University in St. Paul and Bethel University.
The University of Minnesota is the biggest institution of higher learning in Minnesota to use race in its consideration of students’ applications for admission.
Under its guiding principles, the U’s affirmative action policy states that “a diverse student body enhances the academic and social environment for all students and prepares students to thrive in an increasingly diverse workforce and society.” Toward implementing its goals toward diversity, the U’s policy states that the school shall “advocate and practice affirmative action consistent with law” and “develop affirmative action admissions programs, where appropriate, to achieve the University’s educational mission.”
Today, there are two main facets to the U’s affirmative action efforts at its Twin Cities campus, said Heidi Meyer, executive director of admissions: recruitment and admissions.
In order to recruit a diverse student body, the University of Minnesota does outreach in minority communities in order to encourage underserved students to apply to colleges, whether it’s the U or others, Meyer said.
Once students apply to school, affirmative action can come into play in admissions decisions. Meyer called the Twin Cities campus' admissions review process a holistic one (this is a word the Supreme Court has also used to describe affirmative actions admissions policies it has upheld).
But first, the review of applications takes into account things of an academic nature, like GPA, ACT score and courses taken.
“We’re making sure they have the foundation to be successful here at this point in time,” Meyer said.
Only then does the U look at other things, which Meyer called “secondary review factors.”
“Those are what makes the student who they are. That might include diversity of any type, it might include racial and ethnic diversity, it might include where the student is from,” among other types of things that make a student stand out, she said. There are no quotas or point systems — those have been ruled unconstitutional.
Decisions never come down to one factor, and it’s a misconception that, if two students were basically the same in all regards except for race, a nonwhite student would be admitted over a white student, Meyer said.
“If all other things were equal we would actually admit both students. It never comes down to just one space,” she said.
Diversity at the U
Whether linked to affirmative action policies or not, student diversity at the University of Minnesota has been on the rise. The share of nonwhite students enrolled increased from 27 percent to 35 percent between 2006 and 2015, according to the school.
In 2015, University of Minnesota students were 65 percent white, 9 percent Asian, 4 percent black, 3 percent Hispanic and 1 percent American Indian.
That’s actually more diverse than the state of Minnesota as a whole, though with a different breakdown of groups. Minnesotans are about 85 percent white, 6 percent black, 5 percent Hispanic or Latino, 5 percent Asian and 1 percent American Indian.
But while the proportion of students who are not white at the University of Minnesota has increased over the years, it’s not entirely clear that the U’s affirmative action policies are responsible. Minnesota’s state universities, which do not take race into account in admissions, have seen a bigger proportional jump, from just 8 percent nonwhite students in 2006 to 18 percent in 2015.
At Minnesota’s state colleges, which include two-year and technical schools and also do not take race into account for admissions, 31 percent of students were nonwhite in 2015.
The University of Minnesota keeps an eye on what’s going on in the nation’s capital and is aware of the DOJ document, Meyer said.
“In terms of this memo specifically, there isn’t policy around it and we feel really strongly that we are doing the right thing in our admissions process,” she said.
Thomas Berg, a professor who teaches constitutional law at the University of St. Thomas, said in an email he doesn’t know of any lawsuits filed over race-based affirmative action against higher education institutions in Minnesota.
For now, schools that want to use race as part of affirmative action policies should adhere as closely as possible to Kennedy’s court opinion in Fisher, said Jesse Choper, professor of public law emeritus at the University of California at Berkeley School of Law and a former law clerk to U.S. Supreme Court Chief Justice Earl Warren.
That is, to narrowly tailor their use of race in admissions to advance the goal of diversifying their student bodies, and to be able to show that ways of diversifying the student body without using race would not achieve the same diversity.
If the Justice Department does file suits against schools that use race as a consideration in admissions, what’s likely to happen is a lot like what happened with President Donald Trump’s immigration policies, Choper said: more litigation. Likely, he said, the losing side in the lower courts would try to get the case heard at the Supreme Court.
Even if the Justice Department doesn’t go through with investigations of race-based affirmative action policies, that it may be considering doing so at all could have ramifications in schools across the country, Garces said.
“With this announcement, whether it happens or not, I think ultimately the message is that institutions could be intimidated by the threat of legal action and essentially end up not considering race in their admissions,” she said.