Two theories from Justice Lewis F. Powell's opinion from the first legal challenge to affirmative action, the 1978 case of Regents of the University of California v. Bakke, have guided many colleges and universities in establishing race as one acceptable criterion in student admissions.  The first justification for affirmative action is that an institution may take an applicant's race into account to compensate for its own prior discrimination against the minority group to which the applicant belongs.  The second justification is based on the First Amendment's concern for diversity.  Justice Powell stated that diversity contributes to the robust exchange of ideas and to wide exposure to ideas and mores of students as diverse at this Nation of many peoples.

At many colleges and universities, it is acceptable to use preferences in admissions based on student characteristics such as, special talents, geographic origin, and alumni legacy.  The most widely publicized and debated preference, however, is race.  Critics of racial preferences have charged that the nation's most elite public universities, like the University of California at Berkeley, the University of California at Los Angeles, the University of Michigan, the University of Virginia, and the University of Texas at Austin, have applied separate admissions test score requirements and different standards on other criteria to evaluate African-American applicants than to admit Whites and Asians.  While critics of affirmative action do not argue to eliminate all types of preferences, they contend that preferences based upon race are illegal and unfair.

Recent challenges to affirmative action pose a threat to the affirmative action policies of the past three decades, as well as to the progress that has been made thus far.  Within the past two years bills have been proposed in 13 state legislatures to abolish affirmative action programs.  In November 1998 voters in the state of Washington approved I-200, a measure barring public colleges and universities from using racial preferences to admit students, hire employees, or award contracts.  On May 6, 1998, the U.S. House of Representatives rejected by a vote of 249 to 171 an amendment to the Higher Education Act sponsored by California Republican Frank Riggs that would have prohibited public colleges and universities from considering race, sex, color or national origin in the admissions process.  The anti-affirmative action cases of Podberskey v. Kirwan (1994) prohibiting the use of race in awarding Banneker Scholarships at the University of Maryland, the Federal Court's decision in the case of Cheryl Hopwood v. Texas (1996) prohibiting the use of different test scores and other criteria in granting admissions to White, African-American, and Latino applicants, and the Federal Court's 1997 ruling in support of California's public referendum Proposition 209, raise new questions about how race can be used as a criterion for pursuing the racial diversity that the nation's colleges and universities want to achieve.

How Colleges and Universities Use Affirmative Action 
to Increase African-American Representation

As you may remember when you were applying to college, the vast majority of the nation's colleges and universities require applicants to submit admissions test scores, high school transcripts, letters of recommendation, and essays.  High school achievement and test scores are considered to be very important criteria in the admissions process by most of the four-year public degree-granting colleges and universities.  Nonetheless, high school grades and test scores are not only the only factors considered by colleges and universities in the admissions process.  Other factors that influence college admissions decisions include high school rank, being an athlete, alumni connection, extracurricular activities, special talents, and other personal characteristics of applicants.

The way colleges and universities treat admissions test scores, such as the Scholastic Assessment Test (SAT), the American College Test (ACT) and the Advanced Placement (AP) examinations, in the admissions process plays a vital role in the number of African Americans who are admitted and enroll.  Over the past five years, little progress has been made in closing the gap.  If colleges and universities adopted test scores as the most important admission criterion, most African Americans would be shut out of many prestigious institutions of higher education.

Trends in African-American College Enrollment

Because undergraduate admissions is the central focus of affirmative action, it is important to examine the progress of African Americans enrolling as first-time full-time freshmen.  Over the past 20 years, the number of African-American first-time full-time freshmen enrolling in the nation's four-year colleges and universities has increased by 15% from 107,974 in 1976 to 123,993 in 1996, raising the representation of African Americans among first-time full-time freshmen from 10.2% in 1976 to 11.3% in 1996.  Likely explanations for the increased representation of African Americans at America's colleges and universities include higher numbers of African Americans aspiring to attain a baccalaureate degree, growing interest among colleges and universities in recruiting minority students, the availability of financial aid, and affirmative action. 

The number of African-American first-time full-time freshmen increased by 36% (from 40,570 to 55,031) at public four-year traditionally White institutions and by 9% (from 25,231 to 27,518) at private four-year traditionally White institutions (TWIs), between 1976 and 1996. Over the past three decades, African Americans have experienced an increase in access to some of the nation's most prestigious predominantly White colleges and universities.  These increases may be attributed to affirmative action policies in student admissions.  The number of African-American undergraduates enrolled increased between 1980 and 1997 by 24% at Harvard University, 68% at the University of California at Berkeley, and 50% at the University of Texas at Austin.

When Affirmative Action is Abolished

Before the passing of Proposition 209 in California, the colleges and universities in California were becoming models of racial and ethnic diversity.  Access for African- American students to higher education, particularly the most elite public colleges and universities in California, has declined as a consequence of these anti-affirmative action policies.  The number of African-American applicants admitted to the University of California system as a whole declined by 18% between Fall 1997 and Fall 1998, the year after the changes in admission policies that were required by Proposition 209 were implemented.  The decline in access for African Americans appears to be somewhat greater at the more selective campuses within the University of California system.  For example, the number of African-American applicants accepted for admission declined by 67% at Berkeley and 43% at UCLA between Fall 1997 and Fall 1998.  Only 2% of all applicants admitted at the University of California, Berkeley were African American in Fall 1998, down from 7% in Fall 1997.

The impact of the Hopwood v. Texas decision upon the number of African Americans applying to, being admitted into, and enrolling in the University of Texas at Austin Law School.  The number of African-American applicants declined between 1996 and 1997 from 361 to 225.  The University of Texas Law School admitted only 11 African-American applicants for the entering class of 1997 compared to 65 African Americans in 1996 the year before the Court's ruling was implemented.  In 1997, only four African Americans made tuition deposits, indicating their intent to enroll.  By comparison, 31 African Americans enrolled a year earlier in the fall of 1996.  In 1997, African Americans represented .8% (4 of 502) of students planning to enter the law school. 

Conclusion

If all citizens of our nation are not provided with access to an equal opportunity to succeed we will suffer tremendous long-term economic and social costs as a nation.  These long-term costs greatly outweigh any short-term effects of affirmative action-type policies that consider race among several criteria in the college and university admissions process.  After World War II, Congress opened the doors to opportunity for millions of Americans with the GI Bill.  This was in the best interest of America.  We must act now, once again, in the best interest of America to ensure that all people, regardless of race, ethnic origin, or sex, have access to opportunity as we move into the 21st century.