WHILE U.S. SOCIETY PORTRAYS ITSELF AS ROOTED IN A HISTORY OF EQUAL opportunity, institutionalized forms of discrimination limit the life chances of minority populations in the United States. The social struggles of the 1960s resulted in the formalization and expansion of social policy interventions intended to promote equal opportunity for socially oppressed groups (Aguirre and Martinez, 1993; Woodhouse, 2002). One of these social policy interventions became known as affirmative action. This public policy has been controversial since its inception in the 1960s because it challenges the racialized production of merit by trying to "close the gap" between the privileged majority (white) and unprivileged minority (non-white) in U.S. society (Greenberg, 2002). It is also controversial because it attacks unequal access to opportunity in society by trying to implement remedies that redress the "lingering effects" of discrimination against racial and ethnic minority persons in U.S. society (Cunningham et al., 2002). Broadly conceived, affirmative action is a term that refers to measures or practices that seek to terminate discriminatory practices by permitting the consideration of race, ethnicity, sex, or national origin in the availability of opportunity for a class of qualified individuals that have been the victims of historical, actual, or recurring discrimination. With its roots in the Wagner Act of the 1930s, affirmative action became racialized in the 1960s, and since then has been the focal point of white Americans concerned with the rise of reverse racism, the stigmatizing effects of affirmative action, and the need for color-blind policies in society (Platt, 1997).
The Regents of the University of California v. Bakke, 438 U.S. 265 (1978), represents the first major attack on, and the first major defense of, affirmative action in the courts and is generally regarded as the nexus for sociolegal discussions of diversity and affirmative action in higher education. Opponents of diversity and affirmative action measures in higher education have used Bakke to challenge the use of race, ethnicity, sex, or national origin in student admissions, financial aid, and staff and faculty employment. In the 1990s, conservative political forces used Bakke as a symbolic tool for promoting statewide referenda, such as California's Proposition 209 and Washington's Initiative 200, to reverse the civil rights gains from the 1960s and 1970s. Our purpose in this essay is to provide an overview of major court decisions that have challenged the context for diversity and affirmative action initiatives in higher education. It is our intent to construct a conceptual framework that guides the reader through the contested terrain of diversity and affirmative action in higher education.
The Notion of Individual Merit
The notion of individual merit has coexisted with racial privilege in the United States since the country's inception. That notion holds that achievement should be recognized and rewarded as the outcome of individual effort, and should be the principal basis for the system of rewards in American society. For Vargas (1998: 1502), the association of merit with racial privilege in American society is rooted in the white ethnic immigrant myth: "The white ethnic immigrant myth--that hard work, assimilation, and virtue can overcome any adversity, including racism--has become the dominant American cultural narrative. The white ethnic immigrant myth is hegemonic because it mandates assimilation, dismisses the power and subordination dynamics of racism, demands conformity with 'American values,' and ultimately constructs a racial/cultural binary that pits the virtuous white assimilated ethnics against the nonvirtuous 'raced' and the culturally different." The white ethnic immigrant myth has resulted in a system of privilege in U.S. society that empowers the majority (white) while denying opportunity to the minority (nonwhite). …