Race-based affirmative action began with President John Kennedy's 1961 creation of a Committee on Equal Employment Opportunity (EEOC). Following that, Congress passed the Civil Rights Act of 1964. Then in 1965 President Lyndon B. Johnson issued Executive Order 11246 that prohibited employment discrimination based on race, color, religion and national origin by organizations that received federal contracts.
In what is considered the first legal challenge to race-based affirmative action policies in university admissions, Defunis v. Odegaard reached the Supreme Court in 1974. The plaintiff was a Sephardic Jew who had been rejected by the University of Washington law school while the school admitted racial minorities with inferior credentials. The Court ruled the case moot because the law school had later agreed to admit Defunis, and he was about to graduate. The case did, however, stir up considerable animosity between the Jewish and Black communities, and was ironic for the Jewish community, which had for decades been subjected to quotas limiting their own participation in higher education.
Several Supreme Court decisions from 1978 through 2003 addressed higher education race-based admissions policies. In 1978 Regents of University of California v. Bakke ruled unconstitutional the use of outright racial quotas in admissions, but held that affirmative action programs could be constitutional because creating a diverse classroom environment is a compelling state interest.
In 1996 the Court ruled unconstitutional the University of Texas's affirmative action program, arguing in Hopwood v. University of Texas Law School that there was no compelling state interest to warrant using race as a factor in admissions. Following that, two decisions addressing affirmative action at the University of Michigan were issued in 2003. The Court ruled in Gratz v. Bollinger that the UM undergraduate admissions policy violated the 14th Amendment, but in Grutter v. Bollinger that the admissions policy of the UM law school did not.
Justice Sandra Day O'Connor wrote the majority opinion in this latter case, famously and presciently commenting that "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
In 2023, after less than the 25 years cited by Justice O'Connor, the Court decided two cases, Students for Fair Admissions v. President and Fellows of Harvard College and SFFA v. University of North Carolina, challenging the Grutter decision. These decisions both overruled the Court's previous affirmative action outcomes, ruling that current policies violated the 14th Amendment. Succinct summaries of these several relevant cases can be found here and here.
These Supreme Court decisions on race-based affirmative action admissions policies point out how equivocal and ambiguous these rulings have been. One can only hope that the 2023 cases offer more uniformity, with Supreme Court Chief Justice John Roberts contributing a note of finality with his statements that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” and “Eliminating racial discrimination means eliminating all of it.”
Yet the history of discrimination in collegiate admissions policies causes one to wonder. During the early twentieth century, before racial discrimination had become an issue, many institutions favored so-called “legacy” applicants whose parents or other family members had attended the institution. Applicants whose families had made large donations were also treated favorably. These admission policies are still largely in place today, never having been a target of lawsuits, although institutions are now under public pressure to discontinue them in light of the 2023 affirmative action decisions.
Many selective institutions, particularly the Ivy League and elite women's colleges, began shifting their admissions policies in the 1920s and 30s from legacy and donor gift factors to focus on academic merit, which resulted in large numbers of Jewish students admitted to these institutions. Then in response to older alumni objections to high numbers of Jewish students on campuses, institutions established Jewish quotas to limit Jewish admissions. Few specifics were known of these quotas, which varied among the Ivy League universities, elite women's colleges, and other selective institutions. Though most Americans were generally aware of these quotas, no one wanted to speak out loud about them.
Amidst alumni complaints about Jewish admissions, Lawrence Lowell, Harvard president from 1909 to 1933, proposed recruiting students from western states, in the name of “geographical distribution”. His brainchild follows from the reality that fewer Jewish residents live in western states than on the eastern seaboard, and the policy was considered a suitable solution to the sensitive Jewish quota issue without actually spelling out the underlying rationale. Thus the Ivies and elite women’s colleges implemented the policy for some years in the postwar era.
This is where my own experience in this environment becomes relevant, and I will share with you my story of applying in 1960 to Vassar College, from which I graduated in 1964. I was a white high school senior from an unknown public high school in Oregon. Neither a “legacy” applicant nor a national merit scholar, I had high grades and test scores, and demonstrated acceptable relevant extracurricular activities. Few students in my high school had ever applied to elite east coast institutions.
To my benefit, moreover, I applied to Vassar under an active recruitment campaign by the Seven College Conference, a consortium of eastern women’s colleges seeking applicants from the western US to fulfill “geographical distribution” diversity goals. The recruitment effort included some scholarship funds supplied by the respective colleges, which included Barnard, Bryn Mawr, Mt. Holyoke, Smith, Radcliffe, Vassar, and Wellesley. Applicants were invited to apply to three of these colleges (for the price of one application fee, which my parents appreciated), with each college separately determining whether an applicant first met admission qualifications, and then secondarily was a candidate for income-based financial aid.
In my applicant interview, I was asked about my family’s religion (a topic that would almost certainly be off-limits today). In my teenage naivete, unable to understand the relevance of one’s religion when applying to an elite eastern women’s college with high academic standards, I nonetheless dutifully answered the question. But it is now quite clear that an indication that my family was Jewish would most likely have jeopardized my application, since the geographical distribution recruitment was designed specifically to garner non-Jewish applicants.
The result for me was admission offers from two of the three women's colleges to which I had applied, and a financial aid offer from one, Vassar, that I ultimately accepted. Then during my four years as a Vassar student, I heard sotto voce references to Jewish quotas, not fully realizing until some years later that my admission was directly related to the existence of these quotas.
I confess that I have at times over the years felt a pang of guilt that my admission to Vassar perhaps came at the expense of one fewer Jewish girl’s admission. I have shared my story with many of my fellow Vassar alumnae, including some who are Jewish, but never detected any such reaction from them.
My story is, however, a revealing example of admissions policies at selective elite collegiate institutions experimenting with merit, discrimination, and an early variant of “diversity” in mid-century America. And the story now becomes an ironic comment on race and ethnicity in higher education, particularly in light of today's apparent anti-semitism among college students.
While history may not repeat itself, it often rhymes, as Mark Twain allegedly suggested. Now the question becomes whether and how any of this may be incorporated into the future of DEI on campuses looking ahead.
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