Last spring, the University of Arkansas at Fayetteville changed the name of its Office of Affirmative Action to the Office of Equal Opportunity and Compliance. The University said in a news release that the new name “better reflects the office’s roles and responsibilities.” Possibly true, but the change was timely in another way as well. University officials know there’s a good chance that “affirmative action” in higher education will soon be ended by court order.

The end of affirmative action — the end of reverse discrimination, in plain talk — could have a huge impact, not just on colleges and universities but on American society at large. It might mean a greater separation of the races, contrary to what has been official national policy for half a century. Relevant data suggests there would be fewer black students in the more select and prestigious universities if affirmative action ends. And fewer students in these schools could mean fewer black people in the middle and upper classes. The greatest impact would be felt in the professional schools that produce the black doctors and black lawyers for black children to look up to. The possibility of there being fewer such role models is something that most higher educators, confirmed believers in affirmative action, don’t like to think, or talk, about. They suggest theories as to why it won’t happen, though some of these sound more hopeful than realistic, and others would require a genteel evasion of court rulings.


The term “affirmative action” was coined in the ’60s, as policy-makers came to believe that simply ending the centuries-old discrimination against black Americans was insufficient compensation for centuries of injustice, that it provided too little opportunity for today’s black Americans to advance in education and employment. So, affirmative action was created, and officially defined as “the encouragement of increased representation of minority-group members.” In practice, “encouragement” often came to mean the granting of certain preferences to members of minority groups, at the expense of members of the white majority, when members of the two groups were in direct competition. The reasoning was that a people who’d been oppressed so harshly and so long should now have the scales weighted in their favor, at least for a while, until they could catch up.

Many educators still express that belief today, at a time when affirmative action has come under serious attack and the U.S. Supreme Court seems on the verge of quashing it. G. David Gearhart, chancellor of the University of Arkansas at Fayetteville, the state’s oldest and largest university, says “I’m a proponent of affirmative action. I would hate to see the court completely throw it out. There’s no question that before the mid-’60s, the nation didn’t really have a commitment to equal opportunity. We have an obligation to have an affirmative plan now that supports African-Americans. That may change down the road, but I think we still have miles to go.”


A reporter remembers legislative committee meetings in the 1970s, when officials of the University of Arkansas medical school were accused by legislators of admitting black applicants whose test scores weren’t as good as those of the children of legislators — or legislators’ rich constituents — who had been denied admittance. The med school administrators admitted in those days that they reserved a certain number of seats for black medical students. They said that if they didn’t save spots for blacks, the state would have no black doctors, or hardly any, and the administrators believed that would be detrimental to the state as a whole. Thirty years later, the Supreme Court outlawed black quotas and the arbitrary awarding of “points’ to black applicants, and the med center people had to change their tune: No black seats saved here. But …

The Court said in the 2003 decision that race still could be considered by college officials for the purpose of achieving racial diversity, but considered only in a restrained sort of way, and only in connection with other non-test-score factors. Officials of the University of Arkansas for Medical Sciences, to use the current name of the institution, no longer overtly favor black applicants over whites, though some whites suspect it’s still done covertly. UAMS and other institutions do openly seek “diversity,” and an all-white class could hardly be considered diverse.


Texas has caused a lot of problems over the years, and the current legal challenge to affirmative action comes out of Texas too. The University of Texas is a huge institution, and it receives far more applications than it can accept. Race is still a factor in the UT admissions policy, as it is in the UA admissions policy. Abigail Fisher, a white student, sued UT saying she was denied admission because of her race. Her lawsuit says that any consideration of race in admission policies is unconstitutionally discriminatory. Lower federal courts ruled in UT’s favor, but the U.S. Supreme Court has agreed to hear an appeal. And the Supreme Court of today is quite different from the one that ruled 5-4 in 2003 that race could be considered.

Justice Sandra Day O’Conner, a moderate who wrote the majority opinion in 2003, has left the Court. She was replaced by Justice Samuel A. Alito Jr., a consistent member of the Court’s conservative faction, which has generally opposed the government’s use of racial classification. He has written, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Chief Justice John G. Roberts Jr. surprised and disappointed conservatives when he cast the deciding vote upholding President Obama’s health-care reform. A similarly surprising vote in the affirmative action case would be harder to pull off. Roberts is already on record, in a 2007 school desegregation case, saying that “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’ “

It’s possible the Fisher case will be resolved by Justice Anthony M. Kennedy, often the swing voter on the Court who decides cases when the liberal and conservative factions are at a standoff. Kennedy has never voted to uphold an affirmative action program.

Adam Liptak wrote in the New York Times that the consequences of a Supreme Court decision ending racial preferences in higher education would be striking: “It would, all sides agree, reduce the number of African-American and Latino students at nearly every selective college and graduate school, with more Asian-American and white students gaining entrance instead.” Indeed, this is already happening in a few states that have on their own prohibited the use of race in admission policies. Note the “selective,” though. A student denied admission to the University of Michigan, say, can still attend Eastern Michigan. Abigail Fisher herself is now attending LSU.


Arkansas educators such as Gearhart and Joel Anderson, chancellor of the University of Arkansas at Little Rock, say that because undergraduate schools in Arkansas are not highly selective, the abolition of affirmative action would not have as great an effect in Arkansas as in other states. Even UAF, the most selective, is still trying to increase its enrollment, black and white, not turning people away. Just about anyone who meets the minimum academic requirements can get in; whites aren’t being denied admission so that blacks may enroll.

“We don’t really have a lot of those issues,” Gearhart said. The University believes that a diverse student body is good for the students and the state, he said. The University tries hard to recruit African-American students, and has had some success, he said, though the percentage of blacks in the student body is still low. Recruitment of minorities is “a particularly important mission for this institution,” Gearhart said. “We want to change the culture here. I’m not sure we’ve always projected as friendly an attitude toward minority groups as we should have.” (Old alums can vouch for that, although the UA attitude was no worse than that of other state universities in the South, and better than some.)

Charles Robinson is the vice provost for diversity affairs at UAF. “We want people from different backgrounds,” he said. “Many studies have shown that people learn more and better when they’re studying with people unlike themselves. I’m not just talking about race, but about gender, religion, economic background …” He said the University likes to pull students from the southern and eastern parts of the state, the poorest and blackest areas, to the UA campus in Northwest Arkansas. It likes to attract students who are the first in their family to attend college, and students who plan to major in areas in which their sort has been underrepresented, such as males in nursing.

(University administrators advocating diversity often mention studies purported to show that students learn better when they’re in class with people different from themselves. Skeptics doubt there are valid studies showing that medical students, for example, learn a subject like organic chemistry better when they study with people of a different race or economic background.)

Most of the university’s financial-aid programs are merit- and income-based, so that any student can apply, Robinson said, although there are some, like the Silas Hunt Scholarships, that are intended for minority groups. Silas Hunt became the first black student to attend a major Southern public university since Reconstruction when he was admitted to the UA Law School in 1948. A monument to Hunt was recently installed on-campus.

Robinson said 5.4 percent of the UAF enrollment is African-American. The Arkansas population is about 16 percent black. “We have more African-Americans on campus than we’ve ever had, but the percentage remains fairly low because the campus has grown,” Robinson said. An enrollment of 24,700 is expected for the fall semester, which would be a record, and Gearhart hopes for 28,000 within a few years. There’s no specific goal for African-American enrollment, Robinson said, but by 2021, the university’s sesquicentennial, the goal is for minorities (black, Latino, Asian, Native American, etc.) to account for 20 percent of the enrollment.

While officials at undergraduate institutions think that an end to affirmative action would have a greater impact on professional schools, professional-school officials in Arkansas say they expect little if any effect, though their reasoning isn’t always clear.

The University of Arkansas Law School at Fayetteville usually gets about 1,200 applications a year, and accepts about 400 applicants, of whom 130 to 140 will actually start classes. About 13 percent of the Fayetteville law students are black.

Stacy Leeds, dean of the Law School, said “We’re trying to seat the most diverse class we can. We look at all kinds of diversity — race, gender, economic status. We want some of them to have work experience — a law officer, maybe. The last thing you want is a class where everybody’s had the same kind of experiences.”


What would happen if the Supreme Court threw out race? “I think we would get the same number of applications, and we’d still have a class that was fairly diverse. There’s diversity besides racial diversity.” (But to a black student seeking admittance, racial diversity is the most important.) Still, Leeds wouldn’t like to see the removal of race from the mix entirely. “The Court has already thrown out quotas. Now they’re talking about us not even knowing an applicant’s race. I think knowing the whole picture helps us do a better job with admissions.”

Paula Casey, interim dean of the William H. Bowen School of Law at UALR, foresees even less impact at her institution. “We’re looking for people we believe can succeed here,” she said. “Race is not necessarily a factor. We ask a question about race, but the answer is optional. We might not know an applicant’s race. … We like to have a diverse student body, but I don’t think we’ve had preferences based on race.”

What if there are two applicants more or less equal in all other aspects, and one is black and one is white? Will the minority candidate inevitably be chosen, in the name of diversity? “I don’t think so,” Casey said. “But you never have two candidates who are exactly alike anyway.”

A Supreme Court ruling against affirmative action would most directly affect public institutions, but it likely would be extended to private institutions too. Most private colleges and universities now get federal money one way or another, and the Civil Rights Act prohibits discrimination in programs that receive federal dollars.

But when the Times called Hendrix College at Conway, a private school often suspected of liberal tendencies, we were told, somewhat surprisingly, that a court-ordered end to affirmative action apparently would not affect Hendrix.

“Race is not a factor for admission or financial assistance at Hendrix,” Rob O’Connor, the college’s communications director, said in an e-mail. “We do award one full-tuition international scholarship to an entering student each year, but race is not a factor in the award. Other international students and all domestic students are considered for our merit scholarships at the time of admission to Hendrix. Applicants have the option to provide race information when applying, and it is one of three optional items on the Common Application.”

Hendrix has an enrollment of 1,426, of whom 43 identify themselves as black. Some students don’t list their race, and some list two or more, O’Connor said. Hendrix also has students who are classified as “non-resident aliens,” who may or may not be dark-skinned.

And so to UAMS, which some off-campus observers believe is the Arkansas institution most likely to be affected by a court decision against the use of race in an admissions policy. The College of Medicine receives about a thousand applications every year, and admits 174 students. The most recent class of 174 includes seven blacks. Four more black students were accepted for admission, but chose to attend school elsewhere.

Billy Thomas is the vice chancellor for diversity and inclusion at UAMS. He said the institution looked at “10 or 12” factors in admitting students. Race is one. Others are standardized test scores, gradepoint averages in undergraduate schools, letters of recommendation from those schools, and whether the applicant had to overcome obstacles to get where he or she is. If the applicant is the first of his or her family to attend college, “That’s a plus.” None of the factors is weighted, Thomas said.

“We tend to look at groups that are under-represented,” Thomas said. “We want a diverse group of students, and a diverse faculty. We can learn from each other. We all know that the population is becoming more diverse. In the future, people of color will be in the majority.” In the end, the aim is “to turn out the best doctors,” Thomas said. “We look for students who are altruistic, humane, who connect with patients. Those are the best doctors, not necessarily those with a four-point [GPA], although some of them are too.”

UAMS, and all professional and graduate schools, can only choose from those who come through the undergraduate system, Thomas said. A court ruling that limited diversity, “might be more of an issue back downstream at the undergraduate level,” he said.

UAMS, which encompasses not just the College of Medicine but nursing, pharmacy, dental hygiene and other fields as well, has many more applicants than it can admit, according to Jeanne Heard, the vice chancellor for academic affairs. In choosing among the applicants, “Our focus is to have a diverse population of students who can be successful in their programs. Race and ethnicity are factors. Gender is a factor. We need a well-rounded student body because they’ll be taking care of the people of Arkansas.” Having said all that, when asked if a court order banning race as a factor in admission policy would have a significant impact on UAMS, Heard replied “Not at all.”

Pulaski Circuit Judge Wendell Griffen of Little Rock is a UAF alumnus and a former adjunct professor at the Bowen Law School in Little Rock. He is also black, and an outspoken proponent of black causes. He does not share the university officials’ belief that an end to affirmative action would have little effect. “I certainly don’t think their assessment is accurate,” Griffen said. “It may be the conventional wisdom.

“We’ve had 250 years of slavery in this country, and 100 years of Jim Crow segregation,” Griffen said. “Even today, we still see disparities of opportunity. People in higher education who say that the end of affirmative action will have no effect either don’t know history or don’t believe it. It’s wishful thinking.

“Nobody expected Germany to come back after World War II without a Marshall Plan. To suggest that affirmative action is no longer necessary is ridiculous. To suggest that there’s something illicit about the idea of including race and gender and other issues of diversity in considering who gets access to education opportunities is ridiculous. The people who’ve always had affirmative action, white males, don’t want to talk about ending their privilege.”

If the Supreme Court orders an end to affirmative action and the decision indeed has little or no effect, it probably will be because the universities continue to consider race sub rosa. After all, if affirmative action makes no difference, why was it adopted in the first place? Indeed, it’s not improbable that the Supreme Court, influenced by a swing voter like Kennedy, will deliver a decision that ends affirmative action symbolically, placating conservatives, while leaving the universities with room to maneuver. “Diversity” is the new affirmative action.