Has the College Board Found a Way to End the Controversy Behind Affirmative Action?
In August of 2019, the College Board—a company that administers standardized tests used in college admissions—announced its plan to include a new “environmental context dashboard” on every student’s SAT score report. [1] The dashboard, named Landscape, will detail numerous factors in a student’s educational opportunities such as the quality of their high school and the crime and poverty rates in their community. Varying from the previously proposed adversity score, Landscape will provide similar data points, but will not combine them into a single indicator. While the College Board’s intention is to contextualize an applicant’s relative performance on their SAT exam, the role that Landscape plays in admissions processes is left up to individual institutions. [2] As a result, this new process raises new concerns regarding affirmative action, a set of policies aimed at decreasing discrimination in employment and education, something the Supreme Court has struggled to establish a clear framework for. [3]
The phrase “affirmative action” was first used by former President John F. Kennedy in 1961, in the midst of the Civil Rights Movement. He issued Executive Order 10925 which stated that government contractors will take affirmative action to ensure equal employment opportunities for all Americans, “without regard to [one’s] race, creed, color, or national origin.” [4] Essentially, the use of affirmative action can be viewed as a measure to prevent discrimination. While the initial intent was to create equal employment opportunities for all Americans, the policy was soon extended to college admissions because students from ethnic minorities often lacked equal access to higher education, hindering their socioeconomic mobility.
The idea of affirmative action applied to colleges was first tested by the Supreme Court in Regents of the University of California v. Bakke (1978). Allan Bakke, a white man, sued the University of California Medical School at Davis after being rejected twice. Both years Bakke applied, the University reserved sixteen out of the one hundred spots for ethnic minority applicants, even though these applicants had significantly lower test scores than Bakke. He argued that the University violated the 14th Amendment’s Equal Protection Clause by denying him admission based upon his race. [5] In an 8-1 decision, the Court ruled in favor of Bakke: the system of quotas employed by the University was unconstitutional. However, they set the precedent that race may continue to be considered in admissions, as long as it is not the sole factor. [6]
As the first case to address affirmative action in college admissions, Bakke set a precedent for future cases: if race is the primary factor for an applicant’s rejection, then the University’s affirmative action policy is in violation of the 14th Amendment and thus, unconstitutional. [7] This precedent gives little guidance to universities regarding how much weight they may place on an applicant’s race. However, the College Board’s new supplemental data obtained from Landscape could potentially provide a more holistic approach to college admissions.
With Landscape accounting for the multifaceted nature of an applicant’s identity, it would be more difficult to argue a 14th Amendment violation. The Equal Protection Clause applies to discrimination based upon race, gender, religion, etc., but has not been extended to discrimination based upon socioeconomic factors and educational opportunity. Thus, the holistic nature of the dashboard could survive the Court’s stringent tests for affirmative action.
The precedent set in Gratz v. Bollinger (2003) can be used to further clarify how Landscape may affect an applicant. When Jennifer Gratz, a white woman, was denied admission to the University of Michigan in 1995, she sued, arguing that she was rejected on the basis of her race. At the time, the University used a point system to evaluate applicants. While the system considered multiple factors, applicants of racial minorities were automatically granted twenty points, leading to nearly all being admitted, creating an inherently unfair advantage. [8] The Court ruled that the University’s point-based admission policy did not holistically evaluate individual applicants and violated the 14th Amendment rights of Gratz. [9] Evidently, the Court placed much emphasis on whether an institution’s admissions process is holistic. Gratz clarifies that an affirmative action policy cannot provide an advantage to applicants from minority groups that leads virtually all of them to be admitted. [10] Thus, the indicators that Landscape provides cannot be assigned point values that are disproportionate to those of other factors, such as test scores and grades. But instead, it can be used to enhance demographic context in the admissions process to give socioeconomically disadvantaged applicants a more equal opportunity.
In its most recent affirmative action opinion, the Court clarified a final parameter in evaluating a policy’s constitutionality: the standard of strict scrutiny. In Fisher v. University of Texas (2013), a caucasian applicant, sued the University for their special consideration of minority students. The Court ruled that affirmative action policies are subject to a standard of strict scrutiny, evaluating if they truly serve the government’s interest, which in this case, is to increase student diversity. Because the University’s race-based affirmative action program was not proven to serve that interest, the Court ruled that the policy was unconstitutional. [11] Applying this precedent to Landscape, it seems likely that universities can use the provided data in admissions processes if it ultimately increases diversity among their student population. Considering the dashboard’s holistic nature of including a multitude of socioeconomic and demographic factors, it seems to be more permissible by a standard of strict scrutiny as it serves to increase diversity on multiple levels.
Landscape provides a more holistic approach to affirmative action, one that will likely pass the Court’s stringent standards. Per the precedent set in Regents of the University of California v. Bakke, universities cannot reserve spots for applicants with certain demographic data points. [12] Additionally, applying the decision in Gratz v. Bollinger to test the constitutionality of the new tool, universities cannot assign a weight to data that is disproportionate to other factors such as grades or essays. [13] When applied within these parameters, Landscape provides increased context in admissions processes, allowing minority students more access to education and subsequently, greater chances of social mobility. The College Board’s environmental context dashboard may very well be the next step in bringing America’s educational institutions closer to creating equal admissions opportunities for all.
[1] “SAT ‘Adversity Score’ Is Abandoned in Wake of Criticism.” New York Times, August 27, 2019. Accessed August 30, 2019. https://www.nytimes.com/2019/08/27/us/sat-adversity-score-college-board.html
[2] “Landscape™: College Board.” The College Board, August 27, 2019. Accessed August 30, 2019. https://pages.collegeboard.org/landscape
[3] “Affirmative Action.” Legal Information Institute. Accessed August 11, 2019. https://www.law.cornell.edu/wex/affirmative_action
[4] Executive Order 10925. Accessed July 22, 2019. https://www.eeoc.gov/eeoc/history/35th/thelaw/eo-10925.html
[5] “Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978).” Justia. Accessed July 23, 2019. https://supreme.justia.com/cases/federal/us/438/265/
[6] "Regents of the University of California v. Bakke." Oyez. Accessed July 23, 2019. https://www.oyez.org/cases/1979/76-811
[7] “Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978).” Justia. Accessed July 23, 2019. https://supreme.justia.com/cases/federal/us/438/265/
[8] “Gratz v. Bollinger.” Oyez. Accessed July 23, 2019. https://www.oyez.org/cases/2002/02-516
[9] “Gratz v. Bollinger.” Legal Information Institute. Accessed July 23, 2019. https://www.law.cornell.edu/supct/html/02-516.ZO.html
[10] “Gratz v. Bollinger.” Oyez. Accessed July 23, 2019. https://www.oyez.org/cases/2002/02-516
[11] “Fisher v. University of Texas at Austin." Supreme Court of the United States. Accessed July 23, 2019. https://www.supremecourt.gov/opinions/15pdf/14-981_4g15.pdf.
[12] "Regents of the University of California v. Bakke." Oyez. Accessed July 23, 2019. https://www.oyez.org/cases/1979/76-811
[13] “Gratz v. Bollinger.” Legal Information Institute. Accessed July 23, 2019. https://www.law.cornell.edu/supct/html/02-516.ZO.html