Affirmative Action

Running head: ENDING INEQUITIES IN PUBLIC UNIVERSITIES 1

Ending Inequities in Public Universities’ Admission Policies:

Treating Public Institutions as Utilities Eliminates the Need to

Resort to Affirmative Action

Michael David Ballantine

Andrews University

ENDING INEQUITIES IN PUBLIC UNIVERSITIES 2

Abstract

After 60 years of desegregation, America remains just as

segregated as it did in 1954 when the Supreme Court ended school

segregation in Brown v. Board of Education. Despite the

resegregation of K-12 programs, public universities continue to

employ merit-based testing regimens to determine admissions.

Recognizing the wide-gap between largely suburban White and

inner-city youth minority performance, public universities must

consider new admissions policies and standards to close-the-gap

in minority participation rates. Further, eliminating merit-

based admission policies would equalize opportunities for

Americans enabling greater percentages of minority and low-income

students to attend and graduate from public universities.

Equality is more than just providing equal funding or equal

opportunity, it also means ensuring equal outcomes as well.


Ending Inequities in Public Universities’ Admission Policies:

Treating Public Institutions as Utilities Eliminates the Need to

Resort to Affirmative Action

Nearly 50 years have elapsed since historic civil-rights

legislation passed in America; despite the passage of time

America remains segregated by race and inherently unequal

(Shapiro, Meschede, & Osoro, 2013). Shapiro, Meschede, and Osoro

(2013) along with many others subscribe to the idea that wealth

inequality is responsible for America’s inequities; whereas,

others point to inherited White racial benefits reflecting

historic traditions and societal patterns (Mustacich, 2013;

Campbell 2010). Clearly these beliefs are symptomatic of the

problem but the foundation of inequality begins with unequal

access to education, limited access to financial resources, and

the resegregation of America’s school system reflecting urban

decay (Orfield, Kucsera, & Siegel-Hawley, 2012; Cowell, 2009;

Bell, 2004; Irons, 2002). The burden of unequal educational

inequality at an early age grows immeasurably, and reduces one’s

future potential achievement (Shapiro, Meschede, & Osoro, 2013).


The educational inequity of urban minority children, particularly

Hispanic and Black Americans, limits their potential to meet the

entry requirements of universities that suburban children,

particularly Whites, find easily achievable (Orfield, Kucsera, &

Siegel-Hawley, 2012; Anderson, 2006; Irons, 2002). Employing a

measurement of merit that reflects the educational environment in

which one lives without consideration for the quality of the

education system is inherently discriminatory toward inner-city

youth (Gore, 2012; Liu, 2011; West-Faulcon, 2011; Committee on

Educational Policy, 2008; Gieser & Santelices, 2007; Hoffman &

Lowitski, 2005; Bell, 2004; Harper, n.d.). To redress this

inherently discriminatory environment, public universities, like

their K-12 brethren, need to become more like utilities, open to

everyone who resides within their service area without regard to

pre-qualifications.

The complexity of this issue necessitates a review of the

legal history of segregation and affirmative action coupled with

a holistic analysis of the Supreme Court’s inexact ruling on

diversity. Within the legal context, one must understand the


meaning of equality as well as the economic and societal changes

in the American landscape. Moreover, one must consider the

American culture experience’s influence on education as well as

the competitive culture and objectives of American universities

compared with the needs of society to integrate minorities fully.

Finally, before one can establish the role of public universities

in American society, one must first determine if access to public

universities is a right rather than a privilege in a post-

industrial economy where education determines one’s future

standard of living (Liu, 2011).

Legal Precedents

For many, segregation or ‘separate but equal’ began with the

end of slavery and became codified in society with the Louisiana

Supreme Court’s holding in Plessy v. Ferguson allowing an inherently

unequal coexistence between Whites and other minorities (Bell,

2004; Irons, 2002). However, segregation began in the North

prior to the civil war as evidenced by the Massachusetts’ Supreme

Court holding in Roberts v. City of Boston (Irons, 2002). In its

holding, the court states: “For half a century, separate schools


have been kept in Boston for colored children, and the primary

school for colored children in Belknap Street was established in

1820, and has been kept there ever since” (Massachusetts Supreme

Court, 1849, p. 199). Clearly segregation was a common and

established practice well before slavery ended and continued in

practice until the passage of the Civil Rights Act by President

Johnson (Anderson, 2006; Bell, 2004; Irons, 2002). Edelman

(2010) relates a conversation that she had with a school board

member after two North Carolina’s school boards ruled in favor of

resegregation indicating that despite 50 years of efforts by the

government and society to normalize race relations, some still

demand separation by color. With the exception of a brief period

in the latter portion of the 20th century during busing’s zenith,

segregation continues throughout America.

Passing the 14th amendment to the Constitution in 1868

extended equality to all citizens regardless of origin,

specifically former slaves (Irons, 2002). However, despite

legislative action to ensure equality, America remained

segregated. In Plessy v. Ferguson, the Court’s holding reaffirmed


the legitimacy of providing separate but equal facilities

reflecting the ‘wishes of society’ and the commonly held belief

that the two races should not comingle (Irons, 2002; Street Law,

2000). Specifically in his majority opinion Street Law (2000)

reports that Justice Henry Brown stated: “It is at liberty to act

with reference to the established usages, customs, and traditions

of the people, and with a view to the promotion of their comfort,

and the preservation of the public peace and good order” (p. 14).

The history of the Courts’ willingness to allow societal norms to

dictate the measure of equality seriously calls into question the

Courts’ ability to adjudicate the meaning of equality (Bell,

2004; Irons, 2002).

During the 20th century, a number of rulings began to chip

away at legal segregation. The first case to combat successfully

segregation was Buchanan v. Warley when the United States Supreme

Court held that race alone could not be a reason to prevent

someone from buying property (Oyez, 2011). The second major

ruling came from the Maryland Court of Appeals in 1936, where the

Court held in Murray v. Pearson that the University of Maryland


could not deny admission to any student on the basis of race

(Hewitt, 2013; University of Maryland, 2013; Irons, 2002).

Although this ruling only applied to Maryland Schools, it set the

precedent for later arguments in Brown v. Board of Education (Hewitt,

2013; Irons, 2002). The third major ruling before the onset of

World War II occurred in Missouri in 1938 where the State Supreme

Court held in Gaines v. Canada that the state could not deny

admission to a Negro on the basis of his race without providing

alternative equal facilities (Irons, 2002; Legal Information

Institute, n.d.)

Following World War II, President Truman desegregated the

military along with the civil service by executive order setting

the stage for desegregation of government services, including

education (Irons, 2002; Truman Library, n.d.). Two rulings, one

on Sweatt v. Painter (Irons, 2002) and the second, McLaurin v. Oaklahoma

held that denying Black students active participation in White

classrooms represented unequal treatment (Irons, 2002). In the

McClarin case, the University of Oklahoma admitted McLaurin to

its Law School but on an unequal basis requiring segregation


during lectures, meals, and other student activities. The

Supreme Court held in his favor stating that the University of

Oklahoma cannot treat him differently based on his race because

limiting his access to other White students prevented him from an

equal experience (Irons, 2002). According to Irons (2002), this

case set the precedent for future suits brought by the NAACP

supporting school integration because the inability of Black

students to interact socially with White students created an

inherently unequal environment. This same argument supporting

integration at public universities continues today and is one

reason merit-based admission policies may have a disparate impact

on minorities.

In 1956, the Supreme Court held in Brown v. Board of Education

that segregation violated the concept of ‘equal protection’ in

the Constitution (Irons, 2002). Irons (2002) relates how over

the next 10 years, the nation focused on eliminating segregation

from society culminating in President Johnson’s promotion of

civil rights legislation in 1965. Despite efforts to promote

minority participation through executive orders and local


legislation, America could not establish a rebalancing of

societal participation through these efforts known as

‘Affirmative Action’ (Shapiro, Meschede, & Osoro, 2013; Bell

2004, Irons, 2002). In support of America’s efforts to redress

previous wrongs, the Supreme Court in a split-decision required

the University of California to admit Bakke but did not require

the university to end its affirmative action policies (Levinson,

2011). However, in Hopwood v. University of Texas, the Fifth Circuit

Appeals Court held in favor of Hopwood and strongly against the

use of race in university admissions policies (Center for

Individual Rights, 2013; Levinson, 2011).

Ignoring the 200-year history of racial segregation in

America, the Supreme Court in a string of rulings beginning with

Grutter v. Bollinger and Gratz v. Bollinger held that race could not be used

as a criteria for admissions but any use of race as a criteria

must be narrowly defined (Levinson, 2011; University of Michigan,

n.d.). However, the court did not provide specific criteria to

use in university admissions preferring to allow states to

demonstrate flexibility and tailor policies to individual needs.


In a related case, Parents v. Seattle, the Supreme Court held that

Seattle’s use of race in K-12 admissions violated “the Equal

Protection Clause of the Fourteenth Amendment. Chief Justice John

Roberts wrote in the plurality opinion that "The way to stop

discrimination on the basis of race is to stop discriminating on

the basis of race"” (Levinson, 2011, p. 2). In the spirit of his

argument, merit-based admissions, which provide preferential

admission to suburban Whites over inner-city minorities and low-

income students discriminate on the basis of race should end.

In 2013, the Supreme Court reviewed Fisher v. University of Texas.

In this instance, the University of Texas guaranteed admissions

to its university network to the top 10% of all high school

graduates from every high school (Levinson, 2011). Although on

its face the percentage program does not appear to be an

affirmative action plan, and until 2005 when Texas modified

standards to include race, it appeared to be race-neutral. The

resegregation of Texas schools by concentrating minorities in the

inner-cities created schools with high minority populations. By

guaranteeing admission to graduates from underperforming schools,


a student with higher test-scores may face denial of admission

(Levinson, 2011). The Supreme Court

held that such cases are reviewable under the Fourteenth

Amendment and that they must be reviewed under a standard of

strict scrutiny to determine whether the policies are

‘precisely tailored to serve a compelling governmental

interest.’ If the policy does not meet this standard, race

may not be considered in the admissions process. The Court

held that it was the duty of the reviewing court to “verify”

that the University policy in question was necessary to

achieve the benefits of diversity and that no race-neutral

alternative would provide the same benefits (Oyez, 2013,

para. 5).

Despite the Supreme Court’s willingness to consider narrowly

tailored affirmative action policies, it is clear that they are

hostile to race-based criterion. Justice Thomas in his minority

opinion went as far as to say, “that there is nothing “necessary”

about the benefits that flow from racial diversity in higher

education, so there in no compelling state interest to promote


it” (Oyez, 2013, para. 6). The current Court believes that

equality requires one to be color-blind (Levinson, 2011) but

ignores the resulting unequal outcomes resulting from its

rulings. If everyone began life with the same wealth, the same

social status, and the same family life, one may give credence to

a theory of equality based on merit. However, very few people

come from the same exact circumstances and inequality is a

natural consequence of these disparities.

Systematic Inequality

The Declaration of Independence promulgated the idea that

“all men are created equal” and with that sentiment in mind, the

American Constitution attempts to meet that standard for its

people through various amendments, specifically the 14th

amendment. Despite the early years of slavery for Blacks and

years of ‘separate but equal’ treatment for them, America is

reaching its goal of legal equality for all its residents.

Although some in America like the English Only Movement prefer

limiting people’s rights for ideological reasons, the majority

support expanding rights for all to minimize inequalities


(Zuckerman, 2009). However, one question remains for Americans,

what does ‘equal’ or ‘equality’ mean? Merriam’s (n.d.) defines

the word ‘equal’ as “of the same measure, quantity, amount, or

number as another … identical in mathematical value or logical

denotation: equivalent … like in quality, nature, or status”

(para. 1). For some, equality represents the same share of

funding by the government for everyone (Cowell, 2009). Cowell

(2009) describes a number of standards for equality, such as the

same opportunities in life to succeed or realizing the same

outcomes regardless of time and money. The Supreme Court

attempts to interpret the meaning of equality but must do so

within the context of historic meanings and current social

preferences (Feder, 2012; Fowler & Jeon, 2008). However, by any

measure, America is not equal when its residents cannot expect

equal treatment under the law, equality in education, access to

health care, or any other measure of society (Cowell, 2009; Bell,

2004; Irons, 2002).

Economic Equality


The American capitalist system values highly the concept of

merit rewarding individual performance over group performance

(Stewart & Bennett, 1991). Many value wealth as a measure of

success; whereas, others value social position but capitalism

does not promote equality by its very nature (Freeman, 2010; Bell

2004). Capitalism seeks to maximize profit and concentrate

resources among a small number of businesses to create vast

economies of scale (Freeman, 2010; Smith, 1776). American

capitalism flows from the misunderstood Puritan concept that

wealth is an expression of God’s favor; hence, only the wealthy

will go to Heaven (Weber, 2005; Stewart & Bennett, 1991).

Moreover, American capitalism is diametrically opposed to

equality and to counter this natural tendency to reward merit,

the Supreme Court promotes the concept of diversity but not

racial quotas (Feder, 2012; Bell, 2004; Irons, 2002). However,

diversity results in preferences provided to one race over

another with the unintended consequences some claim as reverse

discrimination (Feder, 2012; Davidson, 2011; Bell, 2004). To

understand fully the issue of equality in America, one must not


only consider the cultural influences of America’s founders but

also the cultural influences of America’s minorities.

Social Networks

With the advent of social media, people are paying more

attention to concept of social networks and the value of social

capital. Coleman (1988) writes “person’s actions are shaped,

redirected, constrained by the social context; norms,

interpersonal trust, social networks, and social organization are

important not only in the functioning of the society but also of

the economy” (p. S96). Expanding upon Coleman’s theory, one’s

social capital or network limits one’s full participation in

society and promotes systematic inequality. This systemic

inequality constrains one’s behavior and limiting one’s ability

to participate fully (Liu, 2011). When combining cultural

limitations, economic limitations, and social capital

limitations, inequality becomes the norm rather than the

exception.

Literature Review


Understanding the historic relationship between Whites and

Blacks is important when developing administrative responses to

minority affairs. Peter Irons (2002) in his book, Jim Crow’s

Children, provides a detailed timeline beginning with the early

legislative initiatives in the 19th century supporting

segregation to the 21st century Supreme Court decisions to allow

resegregation. He provides an exhaustive account of the NAACP’s

work to end segregation and promote integration highlighting a

specific goal of ending ‘separate but equal’ institutions. He

highlights Justice Huxman’s argument that based on McLaurin, if

segregation is not appropriate within a school, how can it be

appropriate in the community? Irons believes that integration is

the best way to solve the education deficit faced by the black

community.

School integration became the single-minded pursuit of

African Americans during the latter half of the 20th century

believing that through integration, they would achieve a measure

of equality (Bell, 2004). Derrick Bell (2004) in his book, Silent


Covenants, critiques the efforts of Blacks to achieve equality

through an educational prism and surmises that eliminating is

nearly impossible because it contains an economic component that

education does not overcome. Like Irons (2002), he recounts the

history of the civil rights movement but approaches it from a

sociological perspective rather than a historic one. Bell leaves

his readers wondering if genuine equality can exist within the

current capitalist paradigm. Unfortunately, Bell’s viewpoint

focuses on the economic considerations more than the cultural gap

between Blacks and Whites in America. He circles the issue but

does not consider the possibility that to become equal, Blacks

must wholly assimilate into American culture (Stewart & Bennett,

1991). Clearly many Blacks do not see assimilation into the

dominant White culture as a positive outcome (Hyland, 2005; Bell,

2004), but is the one that other minorities have successfully

undertaken to achieve equality (Hyland, 2005; Stewart & Bennett,

1991).

Resegregation


Despite legal efforts to end desegregation many communities

continued to resist full integration of their schools (Edelman,

2010). Urban centers employed a form of gerrymandering to push

Blacks and other minorities into select schools enabling defacto

segregation. To combat this trend, Bell (2004) and Irons (2002)

relate how citizens petitioned the courts for relief and courts

responded by implementing busing programs to move students from

one school to another. Initially busing caused significant angst

for parents with some resisting it; whereas, others chose to move

from urban centers to the suburbs initiating what became known as

white flight (Bell, 2004; Irons, 2002).

Court ordered busing programs attempted to overcome

centuries of prejudice between Whites and Blacks (Henry &

Hankins, 2012; Danns, 2011; Bell, 2004; Irons, 2002). However,

Bell (2004) and Irons (2002) describe how this left the

management of the school systems in the hands of the courts

instead of with trained professionals inhibiting the operations

of school programs. Moreover, children would spend hours each

day on buses instead of studying or engaging in extracurricular


activities (Bell, 2004; Irons, 2002). Busing had the intended

effect of eliminating White majority schools in many communities,

but it also resulted in a return to Black majority schools and a

hallowing out of the tax-base (Dans, 2011; Henry & Hankins, 2012;

Bell, 2004). Bell (2004) relates that once Whites began to move

from urban centers, property values stagnant or fell in many

communities limiting the ability of school boards to raise taxes

to cover rising expenses. As taxes increased more businesses

relocated to the suburbs precipitating financial crises across

the nation (Danns, 2011). Busing’s initial effects yielded the

desired blending of the community but its unintended consequence

was to resegregate the nation with minorities living in urban

centers and Whites living in the suburbs and rural communities

(Danns, 2011; Bell, 2004; Irons, 2002).

Ending busing programs nationwide reflects both economic

changes in communities and the Supreme Court’s rulings on

desegregation (Edelman, 2010). North Carolina as in most of the

South supported segregation despite Civil-Rights legislation.

Edelman (2010) relates how with the return of school board


authority to the urban centers and the end of judicial oversight,

schools are following ‘neighborhood policies’ to both reduce cost

and simplify school management. The consequence of this action

is resegregation and Edelman (2010) laments that, “the sad truth

is that the dream Dr. King rightly considered one of the greatest

victories of the Civil Rights Movement--the desegregation of our

nation's schools--is unraveling before our eyes” (para. 2).

Unless the states are willing to bus students to suburbs,

resegregation is inevitable as urban centers become more

concentrated with minority populations 9Bell, 2004; Irons, 2002).

Urban schools lack the financial strength as well as the

human capital necessary to educate their youth as well as

suburban schools do (Henry & Hankins, 2012; Bell, 2004). Despite

this, public universities insist on applying a standard of

measurement for entrance that does not reflect this reality.

Many believed that by encouraging schools to improve performance,

more students could reach the expectation level of universities

and gain entrance (Orange, 2012). However, Orange (2012)

suggests that the efforts by Washington through the promulgation


of the No Child Left Behind Act (NCLB) to impose a standard of

performance on the nation did not produce the intended results.

Instead, the NCLB act promoted the Charter School Movement and

the privatization of the public school system (Orange, 2012).

Weaknesses in K-12 Programs

The No Child Left Behind Act signed by President Bush did

not directly influence higher education, instead it focused on K-

12 programs forcing accountability on schools. This particular

legislation requires schools to meet an arbitrary standard

reflecting national performance with the intent that all students

will graduate with sufficient preparation for postsecondary

studies (Orange, 2012). Orange (2012) identifies a number of

“unintended consequences from the Act’s passage and

implementation, including a narrowing of the curriculum, teaching

to the test, cheating on tests, increased teacher turnover, and

decreased teacher autonomy” (p. i). After more than a decade,

students lack preparation for a liberal arts environment that

requires critical-thinking and a broader understanding of

history. Further, there is an inherent imbalance between the


needs of school administrators to maximize high school graduation

numbers and the needs for postsecondary institutions to enroll

quality students in their programs (Megan, 2010). The main

problem for K-12 is a reliance on social development and

discovery along with a focus on teaching to the test instead of

building the broad knowledge skills required in a liberal arts

program (Orange, 2012).

Within the K-12 system, modifications made for students

enrolled in English as a second language provide some relief.

However, these preferences only occur over a short-period

regardless of a student’s performance and rarely promote English

fluency (Faltis, 2011; Ruiz, 2011). ESL students do not receive

sufficient preparation in their native languages, nor do they

employ culturally relevant materials in the classroom (Faltis,

2011). Faltis (2011) concludes that Hispanic students

particularly are at higher risk for failure than their White

counterparts. Black student education historically does not

employ cultural equivalents in the classroom, limiting student’s

interest in the curriculum employed at most public schools (Merry


& New, 2008). Preparation for a liberal arts program requires

students to have a basic knowledge of traditional western texts

that do not relate to secondary education curriculum for

minorities, making higher education more difficult for aspiring

minorities if they learn with culturally relevant materials.

There is an inherent conflict between the need to provide

culturally relevant materials for students enrolled in secondary

education and the need to prepare students for a liberal arts

education at public universities (Faltis, 2011). Further, an

emphasis on social justice by teachers may not adequately prepare

minority students for traditional liberal arts programs in math

and science (Cochran-Smith, Shakman, Jong, Terrell, Barnatt, &

McQuillan, 2009). One particular concern of inner-city parents

is the racial and gender distribution of teachers.

White Teachers and White Professors

Despite efforts to diversify employment in teaching, Whites

dominate the teaching profession. Among K-12 teachers, Whites

represent 83% of total teachers and women represent 75% of total

full-time teachers (NCES, 2012). Among university and college


professors, Whites make up 70% (NCES, 2011) and women make up

nearly 48% of university and college professors (AFT, 2010;

Conklin & Robbins-McNeash, 2006). Further, Asians dominate the

teaching positions at universities and colleges among minorities

(NCES, 2011; Conklin & Robbins-McNeash, 2006). Unless teachers

and professors engage in diversity training and multicultural

expectations, they lack the ability to provide minority students

equality in the classroom (Shapiro, Meschede, & Osoro, 2013;

Anderson, 2006; Shapiro; 2006; Bell, 2004; Chemerinsky, 2003).

There is a school of thought that White female teachers in

general lack the ability to provide a Black or Hispanic male

student with a cultural role-model (Pabon & Kharem, 2011;

Chmelynski, 2006; Bell 2004); whereas, others suggest that race

and gender do not make a measurable difference (Rezai-Rashti &

Martino, 2009). This lack of empathy and commonality by teachers

is one reason minority students fail or drop out in higher

numbers than Whites do. Bell (2004) suggests a variety of

educational institutions, including single-gender and all-Black

ones to meet the needs of students.


Many inner-city schools give preference in hiring to

minority teachers in their attempt to rebalance the racial

profile of teachers (Ingersoll & May, 2011; Chmelynski, 2006).

“Some 20 percent of new public school teachers leave the

profession by the end of the first year, and almost half leave

within five years” (NEA, 2013, para. 1). Despite these efforts,

these teachers with high potential become frustrated with

administrative systems that focus on process more than tangible

results as well as perceived low salaries (Ingersoll & May, 2011;

Kissel & Meyer, 2004). Local school administrators require new

teachers to follow prescribed teaching methods and curriculum

regardless of the needs of students to meet the constantly

changing standards (Williams, 2007). Williams (2007) recounts

how young teachers recognizing that the system is failing the

students quit and move-on to better employment-opportunities at

private schools or local businesses (Ingersoll & May, 2011).

Minority teachers who remain in public schools routinely receive

offers from recruiters for other school districts or private

schools. Ingersoll and May (2011) identify recruitment activity


by suburban schools as one reason there is high turnover among

minority teachers.

With fewer minority students graduating from university,

there is a smaller pool of graduate students for universities to

choose among for new faculty positions (Ingersoll & May, 2011).

Institutions must balance the need for diversity among their

instructors with the need for quality instructors. Statistical

evidence suggests that universities select Asians more than other

minorities when considering potential new hires (Conklin &

Robbins-McNeash, 2006). Conklin and Robbins-McNeash (2006)

suggest that although universities are doing a better job at

recruiting females for faculty positions, their inability to

target Hispanics or Blacks reflects inequality in their

recruitment efforts (Shapiro, Meschede, & Osoro, 2013; Anderson,

2006; Shapiro; 2006; Chemerinsky, 2003). Further, legislation

prevents them from allocating positions for specific racial

groups limiting institutional flexibility. Without appropriate

role-models and cultural understanding by faculty, public

universities cannot meet the needs of a diverse student-body


(Ingersoll & May, 2011). To meet the needs of Black and Hispanic

students, postsecondary institutions must adjust their

recruitment policies to attract more nonAsian minority faculty.

Many White teachers believe they possess the necessary

training and personal characteristics to teach minority children;

however, their interaction with Black students and parents

suggests a position of superiority (Hyland, 2005). Hyland (2005)

presents a summary of four different teachers all of whom believe

they are fair and unprejudiced. Unfortunately, in her analysis,

all four persist in promoting stereotypes and racism

unintentionally. Morris (2005) conducted a study in Texas to

identify if poor White students received preferential treatment

over Black students. His analysis suggests that White teachers

employ income-class distinctions more than racial ones; whereas,

Black teachers continue to view issues through racial

differences. Hyland’s study of the subject Pam supports that

notion that White teachers tend to work toward color blindedness

but cannot escape employing wealth distinctions in their

relationships. Both Hyland and Morris’s studies raise questions


about the education and preparation of White teachers and their

ability to identify with their Black students calling into

question the equality of preparation for inner-city students for

high-stakes tests.

Affirmative Action as an Integration Strategy

With the passage of Civil-Rights legislation, many

universities adopted affirmative action policies in the spirit of

the times (Bell, 2004; Irons, 2002). Bell (2004) and Irons

(2002) explain how the justification for these policies reflected

the desire to correct historic wrongs and provide opportunities

to people less fortunate. In the petition 12-225 in the

Minnesota Law Review, the petitioner (2011) writes “proponents of

affirmative action note that the racial diversity in higher

education furthers twin goals (1) it enhances classroom

discussion by presenting varied viewpoints; and (2) it increases

the workplace diversity of future leaders” (p. 5). Although this

argument has merit, the same argument supports the initiation of

a multicultural environment at a university. These arguments do

not address the historic discrimination that occurred in public


universities, nor do they address the current discriminatory

effects created by resegregation.

Others contend that affirmative action is unconstitutional

because it violates the equal protection clause. The petitioner

(2011) suggests that “the Court has articulated two principles of

equal protection: (1) the Constitution is color blind; and (2)

the constitution tolerates no caste system” (p. 2). Many Whites

consider Affirmative Action unfair reflecting their cultural

viewpoint that one should achieve one’s own way based on merit.

They maintain a Libertarian ideal that government should not

interfere in the daily lives of people. Others suggest that they

oppose it because “race preferences stigmatize and create racial

hostility” (Levinson, 2011, p. 31). Levinson (2011) relates that

the Court prefers to focus on the rights of an individual rather

than the rights of a group.

Some suggest that a ‘White Privilege’ exists and that

Affirmative Action efforts are necessary to combat this inherent

privilege (Campbell, 2010). This concept reflects the social

capital and wealth that Whites accumulated in America over the


past 200 years. However, vilifying a present generation for the

sins of past generations will not lead to a path of racial

harmony (Campbell, 2010), only one as Levinson (2011) suggests

the Court fears of racial hostility. In its holdings in Gratz v.

Bollinger, Grutter v. Boolinger, Parents v. Seattle, and Fisher v. University of Texas,

the Court makes clear that “only past ‘identified’ discrimination

will suffice—if the entity adopting the affirmative action

program has not participated directly or indirectly in past race

discrimination, its program will be held invalid” (Levinson,

2011, p. 20). This limits the potential implementation of any

generalized Affirmative Action Program and presents challenges to

public universities intent on opening their doors to more

minority students.

Higher Education as a Public Good

If one presumes that higher education is a public good,

refusing someone entry into a public university would violate his

or her rights under the 14th amendment of the Constitution. The

employment of entrance tests to determine fitness or eligibility

to enroll necessarily impedes a person’s access to higher


education (Gore, 2012; Hoffman & Lowitski, 2005; Bell, 2004;

Harper, n.d.). Fitness or merit tests do not exist for access to

public education for K-12 public education, nor tests for access

to electricity, water, or other utilities. The only requirement

is that one must have the ability to pay for the service; hence,

access to higher education should not be different. Clearly, one

must have a testing regimen to determine which programs one may

enroll in to avoid failure and learned helplessness but admission

to a public university is a right, not a privilege (Beauvais,

2006). Assuming it is a right, affirmative action or diversity

measures are unnecessary because all residents of the state

should have equal access and demographics will reflect the racial

composition of the local population within the service area.

The primary determination of a successful higher education

program is the percentage of students who graduate and receive

employment within six months of graduation (Deming, Golden, &

Katz, 2012). In many instances, these numbers reflect economic

factors beyond the institutions control but setting aside

economic considerations because all institutions exist within the


same economy, one can use this measure as a standard of

comparison. Unfortunately, universities provide education in

areas of interest that do not reflect the needs of society

(Fischer, 2013) only the interests of the students versus

community colleges that focus on programs that employers demand

(Anderson, 2006). A successful institution has to provide

programs that attract students, ones that students can master,

and ones that lead to employment upon graduation. The current

focus on admissions belies the need for institutions to focus on

results instead of enrollments (Deming, et al., 2012).

For-Profit Colleges and Universities

The raison d’etre for the for-profit university (FPU)

market given by industry participants is that they provide

education to students when public universities cannot or will not

(Deming, et al., 2012). Deming, et al. (2012) relate that the

traditional role of community colleges in the community was to

provide specific technical education or preparation for the

larger public universities and FPUs are filling an apparent void.

The FPU schools supplanted the role of community colleges because


they accepted all comers without requiring merit-based testing

providing programs that students wanted to meet specific

employment objectives (Deming, et al., 2012). Removing merit-

based testing to determine admissions would eliminate the need

for FPUs. However, according to Deming, et al. (2012), a second

role that FPUs play in the marketplace is their ability to offer

a variety of choices and options for working adults. FPUs

provide extensive online programs that meet the needs of

professionals without the rigid structure of public universities.

Further, they provide certificate programs and popular associate

degree programs that community colleges do not (Deming, et al.,

2012). Public universities prefer not to offer online programs

to avoid tarnishing their brand or undercutting the perceived

value of face-to-face instruction.

A clear difference between FPUs and other institutions is

the participation rate of women and minorities. Deming, et al.

(2012) highlight that FPUs enroll 20% more women and nearly twice

as many minorities as community colleges and public universities

(p. 8). When comparing FPUs with public universities’


enrollments of minorities, the disparate impact of merit testing

as well as program choices stands out. The expectation that all

students should have a liberal arts education at university has a

disparate impact on minorities and their educational choices.

One may question the motive of the FPUs enrollment of at-risk

minorities in their programs but one cannot dispute the role they

play in the community (Deming, et al., 2012).

Budgetary Limitations

A common refrain from HEIs is that budgetary limitations

prevent them from offering more enrollments to qualified

students. However, typical fees and tuition at FPUs are

substantially higher than most community colleges as well as

public universities (Deming, et al., 2012). The current silo

model of higher education limits institutional flexibility for

budgeting along with faculty structures that make it difficult to

employ instructors on a per course basis much like FPUs do.

Clearly based on student enrollments at FPUs, students are

willing to pay more for programs that meet their needs and less

for programs that do not. Moving beyond the one-size fits all


liberal arts program and to one offering flexible pricing based

on popularity would allow HEIs to increase enrollments and

broaden participation rates of minorities.

Steps to Reduce Inequality in Higher Education

The most obvious step to eliminate or reduce inequality in

admissions is to eliminate all standards for enrollment much like

FPUs do. Every student who applies to public universities from a

specific residency has a right to admission much like a student

applying for enrollment in a K-12 school. Once accepted, student

testing can provide sufficient data to determine course subjects

that students are capable of attending. Awarding grants and

student loans in sufficient amounts will enable students to

participate in the program without impoverishing themselves.

Programs offered by public universities should reflect student

interests and desires, not institutional preferences (Anderson,

2006). Offering programs in a variety of formats and time

schedules reflecting the needs of students will enable public

universities to expand minority participation (Deming, et al.,

2012). Engaging faculty on a per-course basis instead of fixed


tenure will enable public universities to meet the demands of

students and match interests to community needs (Anderson, 2006).

Lowering Standards

One myth considered fact is that eliminating merit-based

standards for admissions would result in a lowering of academic

standards (Kahlenberg & Potter, 2012). Kahlenberg and Potter

(2012) relate concerns by faculty members who without standards

many students would need remedial education presenting too

difficult a challenge for them to complete the programs. Liu

(2011), Kahlenberg & Potter (2012), and West-Faulcon (2012)

demonstrate that current measures, such as SAT-scores are poor

predictors of performance. Instead of providing remedial

programs to at-risk students, postsecondary schools should offer

credited coursework (Scott-Clayton, 2012) over twice the standard

number of hours. Scott-Clayton (2012) recounts how remedial

coursework does not count toward graduation but students must pay

for the time presenting a serious barrier to entry for poor

students. Efficiently designed credited coursework employing

less expensive faculty can bridge the gap for poor students


without causing them undo-hardship or social stigma (Vedder, et

al., 2010). Vedder, et al. (2010) highlight that reevaluating

the cost matrix for universities is essential to making

postsecondary institutions more affordable. Further, moving away

from the tendency of postsecondary institutions to charge a flat

rate for each credit hour forcing students to subsidize less

popular programs offers postsecondary institutions the

opportunity to expand minority participation.

Disparate Impact

When a collective policy results in a negative outcome for

either a minority group, one gender versus another, or implied

discrimination one can demonstrate disparate impact. In Brown

versus Cohen, the courts held that cutting programs can create a

disparate impact on one group creating the need for equity in

decisions in postsecondary education (Open Jurist 991, n.d.).

Anderson (2006) and Irons (2002) provide a wealth of statistics

demonstrating that the K-12 program in public schools does not

adequately prepare students for university reflecting the

substantial differences in college-entrance examination testing


results. Employing test results while not the sole-determining

factor influence greatly the determination of one’s admission

into public and private universities (Gore, 2012; Scott-Clayton,

2012). Bell (2004) highlights the correlation between wealth and

test-scores, indicating preferential treatment toward the wealthy

at the expense of the poor and minorities. Hoffman and Lowitzki

(2005) suggest that high school grades are better at predicting

success in college than standardized test scores. They relate

“that students’ experiences after they arrive on a college’s

campus are more important than students’ background

characteristics when considering persistence; high school GPA and

test scores had no direct influence on persistence” (p. 457).

Moving away from standardized testing is essential to

reestablishing equity in postsecondary institution admission

policies.

After the University of Califronia’s admission policies

changed to become race-neutral, admissions of Blacks and

Hispanics dropped precipitously. Employing merit-based factors

to determine admissions resulted in a higher graduation rate for


Blacks and Hispanics but fewer opportunities for minorities in

general (Santos, Cabera, & Fosnacht, 2010). Santos, et al.

(2010) describe how these new admission policies have a disparate

impact on Blacks and Hispanics with no resulting benefit for the

community. With only 4% of Blacks enrolled in public

universities (Harper, n.d.), Blacks whom make up 13% of the

general population are underrepresented disproportionately at

these institutions. Irons (2002) and Bell (2004) relate that the

Supreme Court’s acceptance for neighborhood schools when legal

segregation no longer exists is permissible by local school

districts despite the resulting resegregation that occurs.

Hence, the only true nondiscriminatory policy that postsecondary

institutions can justify is proximate residence. Enabling the

student to succeed at the institution is the responsibility of

teachers and administrators, requiring public universities to

develop new curricula to meet the needs of resident students.

Conclusion

Employing alternative admissions procedures will not solve

the deficit in minority participation at postsecondary


institutions alone. Instead, universities must develop

alternative programs that meet the needs of students, provide

them with desirable remedial credit programs, and take steps to

recruit Black and Hispanic faculty members (Deming, et al.,

2012). Ending merit-based admission policies will allow

minorities to enroll in greater numbers (Anderson, 2006; Bell,

2004) and end their dependence on FPUs. Although postsecondary

institutions are not responsible for the education deficit among

minorities in K-12 programs, unless they begin to enroll greater

numbers of Blacks and Hispanics that deficit will continue for

generations. Resegregation resulting from White flight prevents

integration of K-12 programs (Bell, 2004; Irons, 2002); however,

nothing prevents public universities from rebalancing their

enrollments by ending policies that limit minority participation

(Gore, 2012; Hoffman & Lowitski, 2005; Bell, 2004; Harper, n.d.).

Ultimately, public universities must take responsibility to

ensure student success as well as admittance. Graduation

statistics are more important than admission ones and without

intervention for at-risk students, removing admission


requirements will only repeat the current problems associated

with FPUs (Deming, et al., 2012). Initiatives like the NCLB may

push local school districts to improve K-12 programs but without

qualified minority graduates to fill the need for minority

teachers, these efforts will not succeed. America has come a

long way from its beginning to overcome racism and despite Bell’s

(2004) cynicism, America has the capacity to become a true multi-

racial democracy offering equality for all its residents.


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