PART I Introduction CHAPTER 1 THE SEARCH FOR AN ALTERNATIVE AFFIRMATIVE ACTION POLICY The Search for an Alternative Affirmative Action Policy in American Higher Education In 1973 and 1974, a white U.S. military veteran named Allan Bakke applied to medical school at the University of California–Davis (UC Davis) and was twice rejected. At the time the student bodies of most American colleges and universities were overwhelmingly white, especially the professional schools, such as law and medical schools. In an attempt to remedy the underrepresen- tation of minorities, UC Davis had established an affirmative action program in the early 1970s, with the multiple goals of “reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical pro- fession,” “countering the effects of societal discrimination, increasing the number of physicians practicing in underserved communities,” and “obtain- ing the educational benefits that flow from an ethnically diverse student body.”1 In furtherance of these aims, the medical school at UC Davis created two separate admission pools: one for standard applicants and another for minority applicants. Sixteen of the one hundred seats in the entering class were reserved for the latter group.2 Bakke was born in Minneapolis in 1940 to a middle-class family of Scan- dinavian descent and was raised in Florida. His father was a postal carrier and his mother was a schoolteacher. He received a bachelor’s degree in engineer- ing from the University of Minnesota in 1962 and joined the U.S. Marine Corps after graduation. He served as an engineer in the Marines for four years, including a seven- month stint in Vietnam, earning the rank of captain. 4 RACE, CLASS, AND AFFIRMATIVE ACTION After his discharge, he worked as an engineer at NASA and completed a mas- ter’s degree in engineering at Stanford University in 1970.3 Bakke first applied to medical school in 1973 at the age of thirty-three, a relatively late age at a time when medical schools throughout the United States were known to discriminate against older applicants.4 After twice being rejected, Bakke sued the university, claiming racial discrimination, because his grades were higher than those of some of the school’s minority admits. His lawyers argued that the minority quota at the medical school violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, as well as the 1964 Civil Rights Act. After several appeals, this case eventually reached the U.S. Supreme Court in 1977. Representing UC Davis, Archibald Cox argued that considering race as a positive factor in ad- missions, with the goal of overcoming the vestiges of slavery and discrimina- tion, was legal and constitutional. The case, Regents of the University of Cali- fornia v. Bakke (1978), represented the first Supreme Court challenge to affirmative action policy in the history of American higher education. ELITE COLLEGES AND UNIVERSITIES IN THE UNITED STATES UC Davis was not alone in adopting affirmative action practices. In the late 1960s, toward the end of the civil rights era, several colleges and universities in the United States started to give black students special consideration in admissions. These schools, for the most part, were among the most selective in the nation. In fact, most U.S. postsecondary institutions do not need to give special treatment in admissions because they admit all applicants who seek admission; only 20 to 30 percent of four- year colleges in America have enough applicants to be able to pick and choose among them.5 A very small percentage are so selective that they reject the majority of applicants, includ- ing the historic Ivy League universities, most of which were founded centuries ago. These eight bastions of the elite in the Northeast—Brown University, Columbia University, Cornell University, Dartmouth College, Harvard Uni- versity, Princeton University, the University of Pennsylvania (UPenn), and Yale University—are the traditional symbols of academic excellence and se- lectivity. In 2014 the undergraduate divisions of Harvard and Yale admitted only 6 percent of applicants, while the University of Pennsylvania admitted 10 percent. THE Search FOR AN Alternative Affirmative ACTION Policy 5 Today there are several other four-year institutions around the country, most of them private, that are on par with the Ivy League in terms of prestige and selectivity, such as Stanford University (5 percent acceptance rate) and Rice University in Texas (14 percent). Several public state universities have also managed to enter the circle of elite schools—among them the University of California–Berkeley (UC Berkeley), the University of California–Los An- geles (UCLA), the University of Michigan (UMich), and the University of Texas–Austin (UT Austin). These public institutions were established to pro- vide students with a top-notch education—tantamount to what the most distinguished private universities offer—but at a much lower price. Nonethe- less, as more and more applicants were attracted to these world-class public research universities, they became more expensive and even more selective.6 The undergraduate acceptance rate at UC Berkeley was 17 percent in 2014, similar to that at Cornell University. Today UCLA admits 18 percent of its college applicants, and UMich admits about one- third. Social elitism has always been associated with selective colleges and univer- sities in the United States—most glaringly at the Ivy League schools, which until a few decades ago catered largely to the traditional American upper class: white Anglo- Saxon Protestants, especially the “old money” families of the Northeast. But today even selective public universities, which were founded on the principles of mass higher education and social mobility, are becoming more elitist as they become more competitive. The percentage of affluent students whose fathers and mothers have college degrees is rising in these schools, while the number of Pell Grant recipients (a form of federal financial aid given to students with financial need) is declining.7 These public universities have also become bastions of privilege. Once a magnet for prospective teachers and ministers, the Ivy League to- day, like other selective schools, draws its elite status from being the training ground for the nation’s leaders and high- rung professionals. The alumni of elite colleges are more likely than other bachelor’s degree holders to enter graduate and professional programs. Over half of those who entered a bach- elor’s program at one of thirty elite colleges in 1976 went on to complete an advanced degree, compared with fewer than one-quarter of their counterparts at other four- year colleges.8 An education at an elite school is also closely as- sociated with some of the most prestigious positions in the country. Fourteen of the forty- three U.S. presidents graduated from an Ivy League university: eight had degrees from Harvard, five from Yale, three from Columbia, and 6 RACE, CLASS, AND AFFIRMATIVE ACTION two from Princeton. The last four presidents all attended Ivy League schools for at least part of their education: George H. W. Bush was a Yale undergrad; Bill Clinton attended Yale Law School; George W. Bush attended Yale Col- lege and Harvard Business School; and Barack Obama was a Columbia un- dergrad and completed Harvard Law School. All nine sitting Supreme Court justices have a law degree from either Harvard or Yale. Three were undergrads at Princeton, two were at Stanford, and the rest studied at Harvard, Cornell, Georgetown, and College of the Holy Cross. The common denominator at elite institutions in the 1950s and early 1960s was the notable absence of African American students.9 Blacks consti- tuted only 0.8 percent of the entering freshman classes of nineteen of the most selective colleges in 1951.10 Jerome Karabel, a sociologist at Berkeley who studied the “Big Three” universities—Harvard, Yale, and Princeton, all Ivies—noted that the homogenous student body at these schools largely com- prised the sons of alumni and members of the social and economic upper crust. In 1960 only fifteen blacks were in the entering class at the Big Three, among more than three thousand students. At Princeton only one black stu- dent could be found in the freshman class of over eight hundred students.11 Even as late as 1965 blacks made up only 1 percent of enrolled students at selective colleges in New England.12 RACE- BASED AFFIRMATIVE ACTION In the United States in the late 1960s, toward the end of the civil rights era, most leading colleges and professional schools—where the paths to leader- ship roles in America tend to be found—began to acknowledge their crucial role in facilitating the social and economic mobility of minorities and level- ing the playing field between blacks and whites. They also began seeking di- versity on campus as they discussed the importance to the education process of having an array of talents, backgrounds, and opinions in the classroom. For these reasons, elite institutions started to give black students special con- sideration in admissions. In the five decades since these policies were first implemented, the term “affirmative action” has become synonymous with admissions policies that consider race or ethnicity—that is, that adopt as a main criterion applicants’ membership in specific racial and ethnic groups. During this period, race-based affirmative action has dominated policymak- ing, research, courts of law, and the public’s attention in the United States. THE Search FOR AN Alternative Affirmative ACTION Policy 7 (For the sake of parsimony, I refer here to any policy based on race or ethnic origin as a “race” or “race- based” policy—that is, “race” in this context can also denote ethnicity.) Yet this model of preferential treatment—based on an ascribed trait (a characteristic that an individual is born with, such as gender, race, ethnicity, or caste)—is not a uniquely American phenomenon.