It is perhaps symptomatic of divisive social issues that the protagonists sharply disagree about terminology.  Proponents of the use of race in higher education admissions almost always use and prefer the term “affirmative action” as a broadly descriptive term of these proactive efforts.  Opponents and critics of the use of race generally distinguish between “affirmative action” and a narrower term, “racial preferences.”  This tab explores that controversy.

History

To the critics, there are both historical and logical reasons for the distinction between “affirmative action” and “racial preferences.”  The term “affirmative action” came into use in the early 1960s, when the Kennedy administration pushed federal agencies to do a better job of finding and actively considering Black-owned firms for government contracts.  Executive Order 10925, which established the President’s Committee on Equal Employment Opportunity, directed agencies to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.” 

In effect, these early steps were procedural, efforts to eliminate practices that had the effect of ignoring or excluding otherwise qualified applicants or entities. During this same period, many universities were eliminating discriminatory practices and, to some degree, launching pro-active efforts to improve outreach to Black and other disadvantaged applicants. This included the adoption and use of “preferences,” which are designed to favor one group over another. Racial preferences in particular came into play in the late 1960s and early 1970s, when some colleges and graduate programs began extending the use of differential admissions standards (as they long had for legacy applicants and athletes) to Black and sometimes other minority applicants in an effort to achieve greater racial diversity.  Similarly race-conscious efforts arose in various government programs, which began to use minority status as a positive factor in awarding contracts.

Law

Litigation around affirmative action in higher education has focused almost exclusively on preferential admissions policies, race- or gender-based scholarships, quotas, and other practices where different standards are applied by colleges and universities on the basis of race or gender that confer entry or other substantive benefits.  Given the nation’s history of pervasive race and gender discrimination, the Supreme Court has held that any use of those characteristics must survive exacting forms of judicial scrutiny. That approach reflects the belief that such practices are almost always motivated by inappropriate biases and stereotypes and have little to do with actual “merit.” On the other hand, an admissions boost for athletes or the children of alumni — so-called “legacies” — do not require heightened scrutiny, arguably serving valid institutional interests. Thus, while controversial, these policies have to the best of our knowledge not been attacked in the courts and, if they were, would almost certainly be affirmed.

Public Support

A striking finding from public opinion research is that many Americans draw a distinction between “affirmative action” and “racial preferences.”  Surveys in the U.S. consistently find that large majorities of respondents express support for “affirmative action” – usually by margins of more than 2:1 – but similarly large majorities express opposition to the granting of “racial preferences” in admissions. This large difference holds regardless of the race of the respondent.  The disparity provides support for the view that “racial preferences” in higher education are a distinct, and more controversial subset of general affirmative action policies. Notably, in many of the state-level battles over initiatives that ban the use of preferences, supporters and opponents of these bans have fought for language in ballot measures that parallels the “affirmative action” versus “preferences” divide. 

What Preferences Do

Colleges and universities routinely use preferences in hiring and admissions decisions, giving extra consideration or more favorable treatment to members of groups deemed essential to their educational missions.  But what do these preferences actually mean?  This can vary widely across institutions, and are often hard to objectively measure.  This brief discussion highlights six different ways that preference-like dynamics operate in distinct university contexts:

            1)  Traditional affirmative action. These policies are designed to improve practices like outreach and the selection process.  For example, many such programs make no use (or only incidental use) of actual preferences.  A university might make special efforts to engage in outreach to high schools from which it has received few applications in the past.  A fellowship programs might change procedures, so that instead of asking a few highly-ranked faculty for nominations (which can favor the “old boys’ network”) they institute some more systematic method of identifying promising talent.  Such efforts are often consciously aware of specific disparities the institution is trying to remedy, but are not about granting an actual preference. Instead, they try to reform practices that more or less preferred “in-groups”.

            2)  Preferentially creating opportunities. A common way to address diversity in faculty hiring is to apply the same quality standard to all appointees, but relax some of the normal processes for minority or women candidates.  For example, an engineering department may have decided that it will focus its recruitment efforts on one subfield – e.g., chemical engineering – in the coming year, but if a promising “diversity” candidate comes along in another field, it will relax the subfield requirement.  Or, a university may tell its engineering department that it can only make one hire in the coming year, but will provide funding for an additional hire if at least one of the new faculty is a diversity candidate.  Such processes do create a “preference” for diversity candidates, but do not necessarily relax of quality standards.

            3)  Diversity fields. An especially controversial way of expanding diversity is through the creation of special departments or programs devoted to, for example, “ethnic” or “gender” studies.  Students admitted to such programs, and faculty hired into them, are much more likely to themselves be members of a favored demographic group.  The question such programs raise is whether the scholarship of faculty, or the academic achievement of students, is high (because it is addressing previously ignored topics and issues), or low (because the field is in an uncritical bubble insulated from rigorous evaluation and the competition of new ideas).

            4)  Preferences in salary, scholarship, and support. Another way to use preferences to increase diversity, without compromising quality standards, is to use racial or gender preferences in salary offers, start-up packages for faculty, added research support, or student scholarship support.  Of course, such measures may also be used in conjunction with other preferences.

            5)  Ethnic or gender diversity as “one among many” diversities. Universities that concede that they take race/ethnicity into account in admissions decisions almost always make two claims.  One is that a student’s race (or, sometimes, gender) is simply “one among many” diversity characteristics the school considers, along with geography, prior work experience, special interests, socioeconomic background, and so on.  A second is that all admissions are made from a pool of students who can clearly “do the work” at the university, with the implication that selection among this large pool of qualified students is essentially a tie-breaking exercise.

             6)  Race, Ethnicity, or Gender given heavy weight. Much of the research and litigation surrounding racial admissions preferences is based on the belief that universities often give substantial weight to some groups, in particular on the basis of data obtained from public law schools, for example, suggests that, at many schools, 90% of Black enrolled students have combined LSAT/grade indices that are lower than almost all of the white and Asian-American admittees.  For example, the plaintiff’s expert in the UNC lawsuit contends that an out-of-state Asian-American with a 5% chance of admission has a 98% chance of admission if only her race is changed.  Much of the battle over affirmative action revolves around this sixth category of preferences – how widespread they are, how they operate, and what their effects on outcomes might be.  

List of Citations

Executive Order 10925, 26 Fed. Reg. 1977 (1961).

Expert Report of Peter S. Arcidiacono, Students for Fair Admissions, Inc. v. University of North Carolina, No. 14-cv-954 (M.D.N.C.).

Additional Readings

Sanford Levinson. Wrestling with Diversity. 2003: Duke University Press.