Means To An End: On Affirmative Action

Melody Torres By Shruthi Vasudevan

Melody is a first-year political science major from El Monte, CA. She is involved in other organizations on campus, such as Legal Education Association for Diversity, and has done advocacy work as a UCAN ambassador. Her goals after undergrad are to attend law school, in hopes of pursuing a career in criminal or intellectual property law.

ABSTRACT

The court case of Regents of the University of California vs. Bakkebecame a landmark U.S. supreme court case involving the agendas of race, education, and affirmative action. Argued on October 12, 1977, a 35-year-old white man by the name of Allan Bakke presented the court with two medical school rejections and a statement that accused the UC Davis School of Medicine of violating the Title VI of the Civil Rights Act of 1964, in addition to the fourteenth amendment’s Equal Protection Clause. Ending in a no single majority opinion, the 8-1 decision for Bakke presented by Justice Lewis Franklin Powell, addressed the university’s use of racial quotas during its admission process as unconstitutional. This ruling also ruled the school’s use of affirmative action to accept more minority applicants as constitutional only in certain circumstances. Although this court case was tried several decades ago, the discussions that once reached their peak regarding affirmative action remain prevalent today. Using the court cases of Grutter vs. Bollinger and Fisher vs. University of Texas, the arguments that are made against affirmative action continue to rise substantially as more students express that affirmative action represses opportunity, rather than obtaining it. Affirmative action can be viewed as a step in a positive direction by some, due to increasing representation amongst marginalized racial, ethnic, and socioeconomic groups. The effects of affirmative action have displayed themselves through socioeconomic status, and the changing narrative for

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minorities. The arguments presented have caused a phenomenon of discourse that continues to this day.

INTRODUCTION

Affirmative action began as a phrase in the workplace and evolved to being formally used within college admissions cycles. The issue of racial representation sparked during John F. Kennedy’s presidency, when he issued an executive order regarding affirmative action in the workplace. This executive order was meant to establish an Equal Employment Opportunity1 that was founded as a catalyst to the Civil Rights Act of 1964.2 During the Civil Rights Movement, there was a high desire for equalizing opportunity for African Americans and people of color.3 Following Kennedy’s presidency, Lyndon B. Johnson and Richard Nixon’s presidential eras experienced an influx of discrimination against minorities in the United States, as the Civil Rights movement highlighted the voices of marginalized communities by emphasizing the need to end inequality.4 Richard Nixon’s domestic policies often originated from his willingness to end discrimination in the workplace against minority groups.5 His policies ranged from the conservation of environmental protection to lowering the voting age to 18 per the Voting Rights Act of 1965.6 The court cases of Regents of the University of California vs. Bakke, Gutter vs. Bollinger, and Fisher vs. The University of Texas, demonstrate how the effects of affirmative action have contributed to the changing narrative for minorities within college admissions cycles.

1 U.S. Equal Employment Opportunity Commission, “Laws Enforced by EEOC”, https://www.eeoc.gov/statutes/laws-enforced-eeoc (last visited March 12, 2022). 2 Ibid., (last visited March 12, 2022). 3 Anti-Defamation League, “Civil Rights Movement”, https://www.adl.org/education/resources/backgrounders/civil-rights-movement (last visited March 12, 2022). 4 Kent B. Germany, “Lyndon B. Johnson and Civil Rights”, (2014), https://prde.upress.virginia.edu/content/CivilRights 5 Dean J. Kotlowski, “Richard Nixon and the Origins of Affirmative Action”, Taylor & Francis, Ltd, (1998), https://www.jstor.org/stable/24451639?seq=1 6 Richard Nixon Foundation, “Richard Nixon’s Top Domestic and Foreign Policy Achievements”, https://www.nixonfoundation.org/richard-nixons-top-domestic-andforeign-policy-achievements/ (last visited May 2, 2022).

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I. AGAINST AFFIRMATIVE ACTION

In order to assess the divide between Americans’ stances on affirmative action, it is important to highlight college admissions cycles and the associated controversy throughout the years. Affirmative action is most associated in reflection of the Kennedy presidency, remaining true to advocate for minorities within college admission cycles. However, Kennedy’s advocacy had led to claims that affirmative action is meant to help disadvantaged individuals. These claims are premised on the fact that minorities are “disadvantaged” in the first place, based on case studies on intergenerational poverty amongst people of color in the United States.7 In a survey on intergenerational poverty amongst African-Americans and white Americans, statistics display that 71.7% of white Americans never lived in poverty as opposed to 29.6% of African-Americans.8 The effects of discrimination in America has branched out from its systemic origins of intergenerational poverty into college admissions cycles. The court case of Regents of the University of California vs. Bakke prompted the discussion of affirmative action and the violation of the Civil Rights Act of 1964.9 In terms of the arguments made surrounding affirmative action, there is more in play than simply ending discrimination. Students’ wills to pursue a higher education, engulfing themselves in the college admissions cycle where they wait and see if they are a university’s best fit is at stake. Some argue that affirmative action poses a divide within the admissions process, as bias is likely to occur, because it enables minorities and underrepresented individuals to pursue higher education. This, in turn,

7 Tricia Young, A Change Must Come: The Intersection of Intergenerational Poverty and Public Benefits, 14 DePaul J. for Soc. Just., 1, (2021), https://via.library.depaul.edu/cgi/viewcontent.cgi?article=1242&context=jsj 8 Robert L. Wagmiller Jr. “Childhood and Intergenerational Poverty”, (November 2009), http://www.nccp.org/wp-content/uploads/2020/05/text_909.pdf 9 U.S. Department of Labor, “Legal Highlight: The Civil Rights Act of 1964”, https://www.dol.gov/agencies/oasam/civil-rights-center/statutes/civil-rights-act-of-1964 (last visited March 12, 2022).

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creates the claim that there are limited spots in university classes.10 The negative take to affirmative action is that admissionsprocesses for universities are often founded on the ideals of being under a “holistic review”.11 Under holistic review, it takes the application submitted by an individual and highlights their unique experiences through multiple components including essays, personal statements, grade point average, and transcripts, but not the component of race. Despite this, there have been accusations against prestigious universities across the nation such as Harvard College, as they have been accused of discriminating against Asian American applicants.12Affirmative action defies these “accusations”, as race is considered, causing those outside of the minority to question if their chances of getting into the same university are lessened simply because they are not a person of color or have indigenous background.

II. FOR AFFIRMATIVE ACTION

Affirmative action has historically caused a divide across racial and socioeconomic groups in the United States. For instance, affirmative action enables disadvantaged students of minority backgrounds to attend and reap the benefits of a higher-ranked university.13 There has been a discussion of evident racial gaps when it comes to higher-end education in the United States. In a research study conducted by Stanford University, the achievement gap has significantly declined in all grades, ranging from 4th to12th, amongst

10 Walter Feinberg, “On Higher Ground: Education and the Case for Affirmative Action”, Teachers College Press, (November 30, 1997), https://eric.ed.gov/?id=ED423800 11 Stanford University Contributors, “AI and Holistic Review: Informing Human Reading in College Admissions”, (February 7, 2020), https://dl.acm.org/doi/abs/10.1145/3375627.3375871 12 Adam Liptak, “ Supreme Court Will Hear Challenge to Affirmative Action at Harvard and U.N.C.”, (January 24, 2022), https://www.nytimes.com/2022/01/24/us/politics/supreme-court-affirmative-actionharvard-unc.html 13 Peter Arcidiacono, Michael Lovenheim, “Affirmative Action and the Quality-Fit Tradeoff”, National Bureau of Economic Research, (2015), https://www.nber.org/system/files/working_papers/w20962/w20962.pdf

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Hispanic and Black students in the United States.14 This decline was credited to educational opportunity, furthering the argument that affirmative action serves as a contingency for minorities and those of lower-income families. In defiance against this argument that affirmative action benefits those of lower socioeconomic status, the use of racial quotas has initiated this divide amongst Americans that introduces the vindication of universities admitting “less qualified candidates.”15 The importance of higher education in today’s society makes it imperative to understand how drastic an opportunity such as a college education can open up to a family of a minority or lower class.16 Given the elitist stigma that surrounds the college admissionsprocess in terms of financial factors17, we see that affirmative action can have positive effects on socioeconomic status amongst minorities. For years, these cycles have become more competitive as admissions rates for higher education continue to decrease.18 With affirmative action allowing a door to open for minorities, they are able to move upwards towards the social ladder, and towards a better socioeconomic status. In a 2019 survey, it is displayed that a white household in the United States is more likely to afford to send their children to four-year institutions, whereas minorities are not able to afford these institutions.19 This alone furthers the stance of a divide across racial and socioeconomic groups within the United States. As an effect of minorities being able to attend and receive a higher education, affirmative action minimized the

14 David Elliott, “This is what the racial education gap in the US looks like right now”, (October 16, 2020), https://www.nber.org/system/files/working_papers/w20962/w20962.pdf 15 Khrista Sayo, Elissa Choi, “How Race PLays a Role in College Admissions”, (December 15, 2016), http://studentpress.org/nspa/wpcontent/uploads/sites/2/2017/09/121516-p06.pdf 16 National Center for Education Statistics, “College Enrollment Rates”, (2020), https://nces.ed.gov/programs/coe/pdf/coe_cpb.pdf 17 Elise Brezos, “Elitism in Higher Education and Inequality: Why Are the Nordic Countries so Special?”, (2018), https://www.intereconomics.eu/contents/year/2018/number/4/article/elitism-in-highereducation-and-inequality-why-are-the-nordic-countries-so-special.html 18 Ibid., (2018) 19 National Center for Education Statistics, “Indicator 19: College Participation Rates”, (2019), https://nces.ed.gov/programs/raceindicators/indicator_rea.asp

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unemployment rate in the United States.20 This is so because those who were able to pursue higher education and receive the proper credentials such as a bachelors or masters degree, paved the way for more opportunities, despite the racial gap that prevailed.21

III. UC REGENTS v. BAKKE

The court case of theRegents of the University of California vs. Bakke22 fueled the ongoing conversation about the use of affirmative action within college admissions cycles. This case began when a thirty-five-year-old white man by the name of Allan Bakke brought up his rejections from the medical school at the University of California, Davis. Given that his test scores were considered to be above the average admitted, his application was denied which in turn made him question the racial quota of the admissions system at the University of California, Davis. Bakke had taken his rejections to the Supreme Court as he filed and sued the university for using racial quotas. His main argument hinged on the university's practice of reserving approximately 16 seats for minority students.23 These 16 seats for minorities out of 100 for the University of California, Davis School of Medicine were viewed as a violation by the Supreme Court as it did violate the laws that were heavily applied to this case being the United States Constitution Amendment XIV, and Title VI of the Civil Rights Act of1964. This led to the court ruling that the university was in violation of the Equal Protection Clause. When describing the context of this case, we see that the University of California,

20 Noriko Amano, “What are the Effects of Affirmative Action Regulation on Workers’ Careers?”, (January 12, 2017), https://isps.yale.edu/news/blog/2017/01/what-are-theeffects-of-affirmative-action-regulation-on-workers’-careers 21 Jon Marcus, “Racial Gaps In College Degrees are Widening, Just When States Need Them To Narrow”, (August 13, 2021), https://hechingerreport.org/racial-gaps-incollege-degrees-are-widening-just-when-states-need-them-to-narrow/ 22 Oyez, “Regents of the University of California v. Bakke”, https://www.oyez.org/cases/1979/76-811 (last visited March 12, 2022). 23 Supreme Court of the United States, “Regents of the University of California v. Bakke”, (1978), https://aishouzuo.org/en/Regents_of_the_University_of_California_v._Bakke4622422624

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Davis had instilled an Affirmative Action Program24 prior to Bakke’s admission cycles. Allan Bakke had applied for the UC Davis School of Medicine during the admission cycles of 1973 and 1974, ultimately getting rejected in both cycles. It is important to emphasize the fact that the University of California, Davis had an explicit compliance to affirmative action.25 The Executive Vice Chancellor had released this document, and this affirmative action program specifically catered to employment opportunities for minorities and females, similar to how affirmative action first started during Kennedy’s presidency. In addition, Allan Bakke’s rejections relied on his age as he was in his early 30s applying to medical school.26 By the institution's standards, his applying at this age catered to his ultimate decision of getting rejected. After receiving his initial rejections, Bakke had brought his case to a state court and incorporated the topic of affirmative action, highlighting it as the reason for not being admitted into the school in the first place.

This court case had fractured the court, a result of becoming politicized throughout United States history. This case specifically had divided the court, as nine justices had issued a total of six different opinions. The decision that was written by Justice Lewis Franklin Powell hadcome to the ruling that the inclusion of race as a factor for university admissions was plausible to promote “educational diversity”. However, this inclusion of race must be a factor amongst all other factors including test scores, personal statements, etc.so the applicant can be based on an all-round rather than the singular use of racial quotas.27According to the Equal Protection Clause, the decision that the University of California Davis had against the 16 out 100 being minority applicants was discriminatory towards whites. The court was

24 University of California, Davis, “Affirmative Action Program for Minorities and Females”, (December 31, 2017 - December 30, 2018), https://compliance.ucdavis.edu/sites/g/files/dgvnsk5096/files/inlinefiles/UCD%20AAP%20Women%20Minorities%20FINAL%204.18.18_2.pdf 25 University of California, Davis, “Compliance and Policy; Affirmative Action”, (November 30, 2021), https://compliance.ucdavis.edu/affirmative-action 26 NCC Staff, “When the Supreme Court First Ruled on Affirmative Action”, (June 26, 2021), https://constitutioncenter.org/blog/when-the-supreme-court-first-ruled-onaffirmative-action 27 Robert E. Knowlton, “Commentary: Regents of the University of California v. Bakke”, heinonline.com (last visited March 12, 2022).

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in favor of Allan Bakke due to the fact that the racial quotas used by the university were a violation of the Equal Protection clause under the 14th amendment, leading to the final decision of Bakke being admitted into the University of California, Davis School of Medicine. The precedent that this case had set was the variables considered during the admissions process of universities and how the racial quotas are a violation of said clause mentioned previously. It was seen as a violation, however race in itself can be factored into an application, but it must not outweigh the other characteristics and merit of a university application. This landmark case helped to highlight the true boundaries of the Equal Protection Clause and the definite decision of racial quotas being unconstitutional in admissions cycles by universities, in the eyes of the Supreme Court. With that precedent, this sparked court cases further down the road with the introduction of Grutter vs. Bollinger and Fisher vs. University of Texas .

IV. GRUTTER v. BOLLINGER

As discussed in the previous court case of Regents of the University of California vs. Bakke ,thediscussion of affirmative action in other universities became prominent as there had been precedent set-inplace in terms of racial quotas being involved and them being unconstitutional in a sole use of a university’s admission cycle. The case of Grutter vs. Bollinger28, had been set in Michigan revolving around the University of Michigan Law School. In 1997, a white woman by the name of Barbara Grutter applied for admission to the University of Michigan Law School. Given her statistics with a 3.8 undergraduate GPA and an LSAT score of 161, she was ultimately denied admission, despite her statistics being significantly on par with those who get accepted into the University of Michigan Law School.29 The University of Michigan Law School had formally admittedto using race as a component of their overall applicant pool. However, unlike in the court case with Bakke and

28 Oyez, “Grutter v. Bollinger”, https://www.oyez.org/cases/2002/02-241 (last visited March 12, 2022). 29 David L. Chambers, Terry K. Adams, “Who We Were and Who We Are: How Michigan Law Students Have Changed Since the 1950s: Findings from 40 Years of Alumni Surveys”, (2009), https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1749&context=articles

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the University of California, Davis, Michigan Law School factored in race, along with the other holistic traits, during its admissions cycle. Even on their website, the school presents a continued bannered message that states, “At Michigan Law, we view our commitment to diversity, equity, and inclusion as central to our mission as an educational institution and we seek to ensure that each member of our community has full opportunity to thrive in our environment”30 . Ultimately, the Supreme Court decision had rejected the district court’s finding that Michigan Law had violated the use of any racial quotas. Just two decades after the Regents of the University of California vs. Bakke court case, in a 5-4 opinion that was delivered by Justice Sandra Day O'Connor, the court made the ultimate ruling that the Equal Protection clause does not explicitly prohibit the Law School’s use of race in admissions tofurther their educational diversity. The Court took into consideration that The University of Michigan Law accounts for all aspects of an applicant, not just race. The difference between Grutter and Bakke include many factors, but the key distinction is that the University of California, Davis Medical School had already 16 slots out of 100 dedicated to minority applicants (use of racial quota). Not only does that go against the Equal Protection Clause31 , but it solely focused on race when admitting those 16 students, without heavily considering other factors. In opposition to Bakke, “in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School’s race-conscious admissions program does not unduly harm nonminority applicants”32, the non-minority applicant being Barbara Grutter. It is important to consider all factors when admitting an applicant into a prestigious school and Law program, and perhaps the holistic review of personal statements had been what made other applicants stand out as opposed to Grutter, and not race. Despite Justice O'Connor's ruling, there had been other justices that had thought that the University’s “plus” system

30 “Diversity, Equity, and Inclusion”, https://michigan.law.umich.edu/student-life-andcommunity/diversity-equity-and-inclusion (last visited March 20, 2022). 31 “Citizenship Rights, Equal Protection, Apportionment, Civil War Debt”, https://constitutioncenter.org/interactive-constitution/amendment/amendment-xiv (last visited March 20, 2022). 32 Grutter v. Bollinger, Supreme Court of the United States, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2002/02-241.pdf (last visited March 20, 2022).

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was an unconstitutional quota system. There had been evidence to depict that the number of minority applicants mirrored accepted applicants, stating how the statement of being racially diverse is a statement to up the ante and diversity depiction in the Law School. Chief Justice Rehnquist, Kennedy, Scalia, and Thomas hadall dissented that the Court had failed to apply strict scrutiny, as opposed to Justice Powell’s decision during the Regents of the University of California, vs. Bakke. Nonetheless, Grutter was not admitted into the University of Michigan Law School and the Law School continues to pride itself in being progressive in the sense that they consider race, along with other factors, to make their program as diverse as possible.

V. FISHER v. THE UNIVERSITY OF TEXAS

In a more present-day scenario, a 2013 court case, Fisher vs. The University of Texas33 incorporated precedent from previous court cases such as Regents of the University of California vs. Bakke, to defy the stance on racial quotas in university admissionscycles. In 1997, the Texas legislature enacted a law that initially required the University of Texas to admit the top ten percent of high school seniors, ranked in their respective classes.34 This law brought out the discussion of whether or not this law is biased as minority students were not given a fair chance as statistics showed how the top ten percent of classes were not diversified. Given this, the University of Texas had decided to modify its race-neutral admissions policy that continued to admit students in the top ten percent of their class, however, the factor of race was included in the overall holistic review during the admissions process, whereas before the law, it was not. This case features Abigail N. Fisher, a white female who had applied for undergraduate admission to the University of Texas in 2008. Fisher was not in the top ten percent of her class, which made her compete in an applicant pool with more in-state students outside of the top ten. Ultimately, Fisher’s application was denied and she filed a suit against the university, stating how they used racial quotas, a call back toGrutter vs. Bollinger. By filing a suit for the use of racial quotas by the University of Texas, this decision had brought

33 Oyez, “Fisher v. University of Texas”, https://www.oyez.org/cases/2012/11-345 (last visited March 20, 2022). 34 Rute Pinhel, “Texas Top 10% Law”, (February 15, 2008), https://www.cga.ct.gov/2008/rpt/2008-R-0116.htm

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out the precedent of the Equal Protection Clause of the fourteenth amendment. The question of the hour was whether or not a race-based affirmative action admissions policy at the University of Texas really violates the 14th Amendment Equal Protection Clause. The court with a 7-1 majority delivered by Justice Anthony M. Kennedy, the opinion that the government policy is unconstitutional and violates the 14th Amendment Equal Protection Clause. However, with an affirmation of the lower court, that the University’s admission policies had permitted the consideration of race in undergraduate admissions decisions, under a standard of strict scrutiny.35 Strict scrutiny is essentially a form of judicial review that the courts use to determine the “constitutionality” of laws.36 Thus, the University of Texas affirmative action policy did not violate the equal protection clause under the 14th amendment and is unconstitutional. The University of Texas had won,and Abigail Fisher lost, resulting in her initial rejection. Fisher did not get rejected due to affirmative action, but because she was not considered within the top ten percent of her graduating class. According to the statistics for the years that she applied to the University of Texas, about three-fourths of the spaces went to the top ten percent of students and automatically she was not eligible for that spot, Throughout the case, the University of Texas was put through a series of questions on their goals to compel the state interests. They ended up trying to promote cross-racial understanding as well as preparing their students to continue diversifying their narratives within the workforce. Their concept had not been the same as the racial quota discussed in previous cases which had caused them to win the case because they did not illegally admit students just based on race. They had used a highly holistic individualized review of each application that does not undergo a racial quota that can be seen in the University of California, Davis with Bakke back in 1973/1974. When reviewing the court’s finaldecision, the constitutionality of a public university’s affirmative action must be controlled through strict scrutiny and the goal that their educational motive is to ensure a diverse student body first,

35 Fisher v. University of Texas at Austin, Supreme Court of the United States, https://www.supremecourt.gov/opinions/15pdf/14-981_4g15.PDF (last visited March 20, 2022). 36 Cornell Law School, “Strict Scrutiny”, https://www.law.cornell.edu/wex/strict_scrutiny (last visited March 20, 2022).

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without the use of a racial quota. With this in mind, the topic of affirmative action oscillates as the university must withstand strict scrutiny if they continue to use affirmative action, and if they are true to their statement on abiding by the student body and its diversity.

VI. AFFIRMATIVE ACTION IN THE WORLD OF MODERN LAW

Without a shadow of a doubt, affirmative action will always benefit marginalized groups. It will always appear as if minorities are getting more opportunities solely on the basis of their race, but that has not always been the case.Our social justice system today lacks what it is meant to serve. Equal economic opportunity. Equal political opportunity. Social rights. The role of universities and how social justice comes into play is when these universities are meant to provide highereducation for everyone, no matter their race. For decades, the topic of affirmative action has brought a sufficient amount of challenges to universities and their admissions programs. Despite lawsuits from white applicants, to claims of reverse racism, our American institutions have been founded upon the idea that represses those of minority background and rejects the concept of equal opportunity. More recently, during the Trump administration (2016-2020), there was action taken to abandon the Obama administration policies that had universities considering race as a factor, otherwise properly referred to as affirmative action policies.37 The Education and Justice Departments had claimed that these policies were beyond the Constitution in itself. In regard tothe Constitution, it is important to highlight that throughout these cases discussed, Regents of the University of California vs. Bakke, Grutter vs. Bollinger, and Fisher vs. The University of Texas, the precedent that was used for all three cases was the Equal Protection Clause of the fourteenth amendment. It states that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law”38. The Equal

37 Eric L. Green, Matt Apuzzo, Katie Bennter, “Trump officials Reverse Obama’s Policy on Affirmative Action in Schools”, (July 3, 2018), https://www.supremecourt.gov/opinions/15pdf/14-981_4g15.PDF 38 Fourteenth Amendment, https://constitution.congress.gov/browse/amendment14/section-1/ (last visited March 20, 2022).

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Protection clause enabled states to practice equal protection.39 With this equal protection, the cases regarding affirmative action in opposition to the federal or state government were able to bring their lawsuit as a guaranteed right, given the Equal Protection clause. In addition to the Equal Protection Clause, the Title VI of the Civil Rights Act of 1964 was also considered a precedent when discussing cases that dealt with affirmative action. This Title VIprohibits discrimination on the basis of race, color, or national origin in any circumstance that involves Federal funds or Federal financial assistance.40 This is important when discussing affirmative action since it takes place in a university setting. Attending college is a costly investment, and typically a reason why most underprivileged students, predominantly minorities, are more likely to not attend college in the first place. However, as time has progressed, there have been more efforts to providethese students with more financial opportunities such as taking out subsidized/unsubsidized loans and work-study programs.

CONCLUSION

The basis upon which affirmative action stood was initially meant to bring about equity and opportunity to underprivileged groups. As time progressed, however, the divide between those of different socioeconomic status in the United States became more visible, causing the discussion of affirmative action to deviate from its intent of closing that gap. Affirmative action, stemming from John F. Kennedy’s presidency, was a means to end discrimination within the workplace and on college campuses. The progression of racial discrimination throughout history has been ever progressing.41 There is still systemic inequality within the workplace and evidently within our very own universities as communities of color are

39 Cornell Law School, “Equal Protection”, https://www.law.cornell.edu/wex/equal_protection (last visited March 20, 2022). 40 Title VI of the Civil Rights Act of 1964, https://www.justice.gov/crt/fcs/TitleVIOverview (last visited March 20, 2022). 41 Pew Research Center, “Deep Divisions in Americans’ Views of Nation’s Racial History - and How To Address It”, (August 12, 2021), https://www.pewresearch.org/politics/2021/08/12/deep-divisions-in-americans-viewsof-nations-racial-history-and-how-to-address-it/

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undermined continuously.42 “Fairness” when it comes to this subject comes down to whether or not universities are implementing affirmative action in a way that is constitutional. Using the precedent that cases such as Fisher vs. The University of Texashas set forth, affirmative action can be implemented into college admissions cycles, based on intermediate scrutiny.43 Given the more recent years and the historical context of affirmative action, there have been propositions made specifically to disregard the affirmative action initiative. For example, California Proposition 209 has banned the use of affirmative action since 1996.44 This proposition caused a domino effect for admissions to the University of California. Since the proposition was put into effect, the admissions rate forunderrepresented minorities at the University of California, Berkeley has dropped significantly. The percentage of the number of applicants who were underrepresented minorities fell from 18.9% to 16.0% between three years after the California Proposition 209 was passed. This led to the admission rates for these underrepresented minorities dropping from 54.6% to 20.2% per the University of California statistics.45 These statistics demonstrate how affirmative action changed the narrative for minority students as they were able to have an opportunity if anything to attend a prestigious university. With the discourse around affirmative action and propositions put in place to derail it, the divide amongst racial and socioeconomic groups in the United States is accentuated as underserved minorities continue to face systemic issues. Affirmative action is andwill continue to be a never-ending course of action to the inequity that minorities face as it evolves for less privileged groups in America.

42 American Council on Education, “Enrollment in Undergraduate Education”, (2016), https://www.equityinhighered.org/indicators/enrollment-in-undergraduateeducation/race-and-ethnicity-of-u-s-undergraduates/ 43 Cornell Law School, “Intermediate Scrutiny”, https://www.law.cornell.edu/wex/intermediate_scrutiny (last visited March 20, 2022). 44 BallotPedia, “California Proposition 209, Affirmative Action Initiative,” (1996), https://ballotpedia.org/California_Proposition_209,_Affirmative_Action_Initiative_(199 6) 45 Respondents, “Brief of the President and the Chancellors of the University of California As Amici Curiae in Support of Respondents”, (November 2, 2015), https://universityofcalifornia.edu/sites/default/files/14981bsacThePresidentAndTheChancellorsOfTheUniversityOfCalifornia.pdf

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