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                Affirmative Action and Post-secondary Education

                                Mark T. Weber

                                 April 4, 2011


                           Mandy Seybold, M.A.ED
AFFIRMATIVE ACTION AND POST-SECONDARY EDUCATION                                                      2

                        Affirmative Action and Post-secondary Education

         The term “Affirmative Action” first appeared in Executive Order 10,925 signed by

President John Kennedy on March 6, 1961. President Lyndon Johnson signed Executive Order

11,246 in 1965 expanding Affirmative Action to include gender and is instituted in government

and educational settings to ensure that minority groups within society are included in all

programs. The justification for affirmative action is to compensate for past discrimination,

persecution, or exploitation (Executive Order No. 10,925, 1961) (Executive Order No. 11,246,


         “’Affirmative action is difficult because it stirs up a lot of emotions,’ says Tummala, a

political science professor and director of the graduate program in public administration (at

Kansas State University). ‘"Rationality often goes out the window’" ( Potucek, 2003, p. 1).

While sometimes referred to as a quota system, quotas are "opposed in the United States

vehemently," Tummala said ( Potucek, 2003, p. 1).

                                              The Issue

         Should the government, in education, give preferred treatment to minorities if the intent

is to benefit the minorities for past discrimination? Although the Constitution says we must treat

all people equally, is affirmative action a way to right the wrongs of the past by treating

minorities preferentially and thus creating a Constitutional dilemma?

                                              The Case

         The Supreme Court first considered that question in 1978 in the case of Bakke v.

Regents, University of California. Allan Bakke is a white male who applied to the University of

California-Davis Medical School in both 1973 and 1974. In both years Bakke's application was

considered under the general admissions program. Bakke was denied admission even though his
AFFIRMATIVE ACTION AND POST-SECONDARY EDUCATION                                                    3

test scores and grades were markedly better than minority applicants who were admitted. Bakke

sued claiming the university was guilty of “reverse discrimination” because of their “two-track”

admissions policies and procedures. The case went through the court system and before the

United States Supreme Court when it ruled in Bakke’s favor stating, “Bakke had been denied

equal protection of the laws by UC-Davis's use of a "two-track" admission system, one track for

whites and one for non-whites” (Bakke v. Univ. of Cal, 438 U.S. 265).

Case Summary

       The admissions procedure requires a candidate to submit their application before July of

the academic year for which admission is sought. On average, there are 100 openings each year

and approximately 2,500 applicants. The candidates are initially screened using their grade-point

average, grade point averages for science courses, their scores on the Medical College

Admissions Test, letters of recommendation and other biographical data (Bakke v. Univ. of Cal,

438 U.S. 265).

       Approximately one out of six are interviewed by five members of the admissions

committee. Each interviewer rates the candidate and in combination with their grade point

averages, MCAT scores, and other data, the candidate is scored on a scale of 1 to 500. Their

score is considered their benchmark score (Bakke v. Univ. of Cal, 438 U.S. 265).

       The special admissions program is operated by a separate committee, a majority of whom

are members of minority groups. On the application form, candidates are asked to indicate

whether they wished to be considered members of a "minority group," which the Medical School

apparently views as "Blacks," "Chicanos," "Asians," and "American Indians." If these questions

were answered affirmatively, the application is forwarded to the special admissions committee.

The same procedure is used as the general admissions committee. The special committee then
AFFIRMATIVE ACTION AND POST-SECONDARY EDUCATION                                                     4

presents its top choices to the general admissions committee (Bakke v. Univ. of Cal, 438 U.S.


        The general admissions committee does not rate or compare the special candidates

against the general applicants. The special committee continues to recommend special

applicants until a number prescribed by faculty vote are admitted. In 1973 that number was 8

applicants and in 1974 was raised to 16 (Bakke v. Univ. of Cal, 438 U.S. 265).

        His 1973 despite a strong benchmark score of 468 out of 500, Bakke was rejected. There

were four special admissions slots still unfilled at that time, however Bakke was not considered

to fill one (Bakke v. Univ. of Cal, 438 U.S. 265).

        In 1974, Bakke once more applied and his benchmark score was 449 out of 500. Again,

Bakke's application was rejected. In both years, applicants were admitted under the special

program with grade point averages, MCAT scores, and benchmark scores significantly lower

than Bakke's (Bakke v. Univ. of Cal, 438 U.S. 265).

        Bakke sued alleging the Medical School's special admissions program exclude him on the

basis of his race, in violation of his rights under the Equal Protection Clause of the Fourteenth

Amendment and § 601 of Title VI of the Civil Rights Act of 1964 (Bakke v. Univ. of Cal, 438

U.S. 265). On June 28, 1878 the United States Supreme Court found that University of

California-Davis Medical School’s two-track admissions system to be unlawful and ordered that

Mr. Bakke be admitted to the school (Bakke v. Univ. of Cal, 438 U.S. 265).


        James Rachels defends the racial preferences in Affirmative Action as a way to neutralize

unearned advantages by whites. In his opinion, “the pervasiveness of racial discrimination is the
AFFIRMATIVE ACTION AND POST-SECONDARY EDUCATION                                                       5

cause for the superior credentials offered by white applicants and do not reflect greater effort or

even ability” (Rachels, 1978, p. 155).

               Rather, the credentials reflect their mere luck at being born white. Some white

               [applicants] have better qualifications…only because they have not had to

               contend with the obstacles faced by their African-American competitors. Reverse

               discrimination might do injustice to some whites; yet its absence would result in

               injustices to African-Americans who have been unfairly handicapped by their

               lesser advantages (Rachels 1978, p. 162)

       Reading Title VI of the Civil Rights Act this author would have thought this case was an

easy call. In a five to four vote, the Supreme Court ordered Bakke admitted to the Medical

School. The majority opinion led by Justice Stevens saw, “ the racially segregated, two-track

scheme at the Medical School (a recipient of federal funds) as a clear violation of the plain

language of the Title” (Stanford Encyclopedia of Philosophy, 2008, para. 4). However, four

members of the court in their affirming part and dissenting opinion, disregarded Title VI (“no

person shall be subjected to…on the grounds of race”) and turned to interpreting the broad

language of the Fourteenth Amendment which provided them with more room for interpretation

for justifying racial preferences (Stanford Encyclopedia of Philosophy, 2008).

       The debate about Affirmative Action wages on with some arguing the poor, white, male

from the hills of Appalachia is as disadvantaged as any minority in America. “We cannot avoid

the reality of race and gender privilege” (Lawrence & Matsuda 1997, p. 190). Yet, it is an

individual not a group, who gains or loses in Affirmative Action selections.

       If a neurosurgeon's son, because of his race, can advance each of these goals and the coal-

miner's son, because of his race, cannot, then isn't the selection decision easy? But if the
AFFIRMATIVE ACTION AND POST-SECONDARY EDUCATION                                                        6

African-American neurosurgeon's son’s qualifications are less than those of the white, coal-

miner's son, has the intent of Affirmative Action actually been fulfilled? In the real world, does

Affirmative Action right the wrongs of the past and “level the playing field” for all minorities?

The test lies in the preventing of discrimination, promoting diversity or integration, and the

moral rightness of its means and even today; these remain very much in dispute.


       Affirmative Action in admissions policies will have both positive and negative effects on

my ability as a facilitator in post-secondary education. My classes will be more integrated and

diverse bringing richness to the classroom that only a board range of experiences can do.

Students from inner-city, urban areas, the mountains of Appalachia, from other countries and

cultures, will bring a wealth of experiences and points-of-view that will enrich the learning

experience for all.

       The downside is my students may be less qualified to learn the material presented. Less

qualified students will bring challenges in terms of the underlying knowledge necessary to

complete the work required and the ability to comprehend the concepts presented. This

challenge may be difficult at times, it is one a facilitator must face to ensure that the spirit and

intent of Affirmative Action is met.
AFFIRMATIVE ACTION AND POST-SECONDARY EDUCATION                                                    7


Affirmative action: History and rationale. (2004). nara.gov, (2.1 – 2.4), . Retrieved from


Bakke v. Univ. of Cal, 438 U.S. 265, 1978

Lawrence, Charles R. III and Matsuda, Mari J., 1997. We Won't Go Back: Making the Case for

       Affirmative Action. Boston: Hougton Mifflin Company

Potucek, R. (2003). Affirmative action: Pros and cons. K-State Perspectives, Fall(), . Retrieved

       from http://www.k-state.edu/media/webzine/0203/aapros&cons.html

Rachels, James, 1978. “What People Deserve,” in John Arthur and William Shaw (eds.), Justice

       and Economic Distribution, Englewood Cliffs, New Jersey: Prentice-Hall, 150–163.

Stanford Encyclopedia of Philosophy. (2008). Affirmative action. Retrieved from


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