Affiramtive Action and the Courts

Ever since the advent of affirmative action under title VII of the civil rights act of 1964, which prohibited

discrimination in employment and public education based on race, color, religion, sex and national origin. There

has been numerous courts cases and decisions that have argued the constitutional basis of affirmative action

and its fairness to minorities, women and whites. A lot of these court cases have raised some rather

controversial issues about whether or not it really does curb discrimination or imply a system of inferiority against

minorities. But with each court case and decision raises yet another series of contradictory issues that do not

provide a clear or precise criterion about the true constitutionality of affirmative action policies.

One of the most recent cases attacking affirmative action was in California’s voter ballot of proposition 209 in

which the Regents board banned the use of racial preference in employment and college admission policies.

This case made it illegal to accept minority students into college on the basis of race and ethnicity.

Since affirmative action is used not only in college admission but also in hiring practices and tenure for faculty

will be affected, a lot of colleges think it would make it difficult to recruit top-notch faculty members.

Many colleges claim diversity to be the basis on which most of their affirmative action policies are based

because different students bring different perspectives to the learning experience and thereby providing

well-rounded perspective to the educational experience.

Another case was a March ruling in Texas, by the U.S. Court of Appeals for the Fifth Circuit, which declared

unconstitutional the use of racial preferences in admissions to the University of Texas Law School. But the ruling

also affects Louisiana and Mississippi by banning the use of racial preferences in college admissions in all

three states. And the U.S Supreme Court has let the hearing stand by refusing to hear it in July of 1996.

Most colleges up till the Texas and California rulings have cited the 1978 supreme court ruling in the case of

University of California vs. Bakke which states that “a college can use race as one factor among many in

admissions but only to remedy the present effects of past discrimination or to shape a more diverse class of

students” as the basis of most of their affirmative action policies. (chronicle of higher education, april 1996)

Since the Texas ruling, there has been more court decisions challenging the use of racial preferences. For

example Last May in the case of Podberesky vs. University of Maryland at College Park, the U.S. court of

appeals for the fourth circuit “invalidated a scholarship program for black students in Maryland”(p. A28). Also in

June in the case of Adarand Contractors Inc. vs. Pena the Supreme Court again promptly limited the use of

racial preferences in federal programs. But this case was based on the 1989 court ruling of the city of Richmond

vs. J.A Croson Inc. which stated that “all cities and state agencies must meet strict legal standards to use

race-based preferences.

But even with these cases backlashing affirmative action, many college chancellors believe diversity is a very

important criterion very necessary in higher education and worth fighting for.

In conclusion, with so many attacks on affirmative action by the courts, but with the courts providing no

guidelines on how to structure affirmative action in American colleges the court is opening the way to colleges

to choose who to educate. And thereby not providing an opportunity of equality for minority groups.