AAUP Principles and the Long Struggle for Equality

Since its founding, the AAUP has viewed higher education as necessary to support the production and dissemination of knowledge, which benefits students as well as society as a whole. Higher edu­cation also serves the common good through the development of a well-informed and thoughtful electorate and through faculty contributions to public service in and outside the university. The AAUP is known for its work on the key elements that are essential to promoting these democratic and social goals: academic freedom, strong job security for all fac­ulty, due-process protections, shared governance, and collect­ive bargaining. The AAUP has also coauthored and endorsed a Joint Statement on Rights and Freedoms of Students that outlines standards for students’ academic freedom and their participation in campus governance.

Achieving academic excellence for the public good requires a dynamic system of higher education that will continue to question the status quo and seek to expand knowledge and understanding in existing, developing, and new academic disciplines. This aspira­tion is consistent with—and indeed dependent on—the elimination of discrimination that limits full access to colleges and universities for students and faculty mem­bers, including on the basis of race, gender and gender identity, national origin, ethnicity, immigration status, disability, and class. These goals require understand­ing AAUP principles as interwoven with the values and goals of eliminating discrimination and achieving equality in higher education.

Consistent with this understanding, the AAUP has taken actions to support and strengthen antidiscrimi­nation and affirmative action law and policy in higher education institutions. This article traces the AAUP’s engagement with these issues in various forms, includ­ing amicus briefs filed with the US Supreme Court and multiple policy documents and reports on discrimi­nation and affirmative action, from the early 1970s through the present. The importance of these issues has never waned, although they are particularly urgent in the wake of last year’s Supreme Court ruling against affirmative action in student admissions and at a time when higher education is under attack by external forces that seek to turn back the clock on progress that has been made toward racial and gender equality in student access and faculty employment and in the study of race and gender.

Affirmative Action in Admission

Over the more than forty years of US Supreme Court precedents on affirmative action in student admissions, the AAUP has filed or joined numerous amicus briefs to the court discussing the benefits of student diversity as furthered by an admissions process that is carried out through a holistic individualized assessment of a wide range of candidates’ academic accomplishments, interests, and life experiences.¹ In four decisions since 1978, beginning with Regents of University of Cali­fornia v. Bakke in that year and continuing through Grutter v. Bollinger in 2003 and the two Fisher v. Uni­versity of Texas at Austin cases in 2013 (Fisher I) and 2016 (Fisher II), the Supreme Court upheld the con­stitutionality of affirmative action that considers race as a positive factor that furthers public universities’ compelling interest in achieving a diverse student body. The court consistently noted its deference to higher education institutions and faculty members, who have used their expertise to conclude that a diverse student body provides significant educational benefits, promotes cross-racial understanding, helps break down racial and gender stereotypes, and prepares students for participa­tion in a diverse workforce and society.

Even in these precedents upholding affirmative action, however, the court imposed legal constraints that flow from tensions that have persisted through­out the history of affirmative action cases. The first tension concerns the difference between the use of race to exclude groups and race-conscious policies to expand inclusion. In Bakke, the court was divided on this issue, with four justices arguing that the UC Davis medical school’s affirmative action program impermis­sibly created an admissions quota, while four other justices argued for a more permissive constitutional intermediate scrutiny test for race-conscious admis­sions programs with the purpose of “remedying the effects of past societal discrimination” and address­ing the substantial underrepresentation of minority students. Justice Lewis F. Powell wrote the controlling opinion, concluding that the UC Davis affirmative action program created an unconstitutional quota based on race but that under a strict scrutiny test there could be a compelling state interest to consider race as a positive factor in an admissions process. Since Bakke, the court solidified its position that race could be used as a positive factor in a holistic admissions process to further a “compelling interest” in diversity of the student body. In Fisher II, the court’s conserva­tive majority increased the rigor of the strict scrutiny test by requiring that universities demonstrate that they had attempted to use “race-neutral” alternatives that proved inadequate to promote the compelling state interest in student diversity.

A second and related tension concerns the justi­fication for affirmative action, specifically whether affirmative action is an appropriate means to address the perpetuation of prior societal or systemic discrimi­nation. From Bakke onward, a majority of the court has consistently rejected the argument that ongoing societal discrimination provides grounds for using affir­mative action programs. As a result, the constitutional approval of affirmative action in student admissions has rested on the benefits of a diverse student body.

In June 2023, seven years after Fisher II, the US Supreme Court handed down its 6–3 decision in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina, prohibiting the use of race as an independent factor in student admissions processes.² This Supreme Court decision applies to all higher education institutions, as the court found that public universities’ use of race in admissions violates the Fourteenth Amendment’s Equal Protection Clause and that the use of race in admissions at private colleges and universities violates Title VI of the Civil Rights Act. This was a cataclys­mic legal decision, upending decades of Supreme Court precedent that had permitted higher education institutions to consider race as a positive factor in the admissions process to further their compelling interest in increasing diversity in the student body.

The court’s six-member conservative majority opinion used a formalist and ahistorical approach to the issues. The court now concludes that diversity of the student body, while “a commendable goal,” is not compelling. Further, the court found that Harvard and UNC had failed to prove that a race-conscious admissions policy is necessary to advance their goals for diversity. The court did not even consider the extensive record showing that a narrowly tailored use of race in admissions is effective in advancing the goal of diversity in student admissions. The conservative majority also revealed its entrenched position that the Fourteenth Amendment is “color-blind,” thus barring the use of race as a positive factor in admissions to achieve a diverse student body.

In sharp dissenting opinions, Justices Sonia Soto­mayor, Elena Kagan, and Ketanji Brown Jackson targeted the deep flaws in the majority’s constitutional interpretation, which disregards the Fourteenth Amend­ment’s purpose to remedy systemic racial inequalities. As Justice Sotomayor explained, “The Reconstruction era marked a transformational point in the history of American democracy. Its vision of equal opportunity leading to an equal society ‘was short-lived,’ however,” due in significant part to Supreme Court post–Civil War decisions that “‘sharply curtailed’ the ‘substan­tive protections’ of the Reconstruction Amendments and the Civil Rights Acts.”³ It was not until Brown v. Board of Education in 1954 and subsequent Supreme Court decisions that the court recognized that “affir­mative steps . . . are constitutionally necessary when mere formal neutrality cannot achieve Brown’s promise of racial equality,” including in schools, colleges, and universities.⁴ By overturning the decades of precedents upholding affirmative action in student admissions, the court’s “superficial rule of colorblindness as a constitutional principle . . . subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.”⁵ As Justice Jackson explained, “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.”⁶ Instead, race-consciousness in areas such as student admissions is a necessary means to dismantle systemic inequalities and to move toward substantive equality, which seeks to achieve equitable outcomes in the lived conditions and experiences of marginalized groups.

The dissenting opinions emphasized, however, that higher education institutions have two avenues remain­ing for pursuing their diversity goals. The majority stated that “nothing in this opinion should be construed as prohibiting universities from considering an appli­cant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,” But it added that “the student must be treated based on his or her experiences as an individual—not on the basis of race.”⁷ The Harvard/UNC decision thus retains higher education institutions’ ability to provide appli­cants the opportunity to describe the values, goals, and experiences that have shaped their lives.

As Justice Sotomayor emphasized, the majority’s decision also “leaves intact holistic college admissions and recruitment efforts that seek to enroll diverse classes without using racial classifications.”⁸ Prohibit­ing affirmative action clearly creates a serious setback to efforts to achieve diversity in student admissions, as it did in California following the approval in 1996 of Proposition 209, which prohibits consideration of race, sex, ethnicity or national origin in public employ­ment, public education, and public contracting. But as California has also shown, there are multiple ways to regain ground after the prohibition of affirma­tive action in admissions. California’s universities, for example, have expanded diversity and inclusion efforts within the legal strictures imposed by Proposi­tion 209, including through recruitment and retention policies and holistic admissions processes where they are supported by deep institutional commitment and adequate resources.⁹ A holistic admissions process can consider socioeconomic and geographic diversity and status as first-generation college applicants as factors in recruitment. Public colleges and universities can also adopt policies that guarantee admissions to in-state applicants from the top percentages of their graduating classes. All colleges and universities can actively recruit applicants from community colleges and high schools in economically disadvantaged areas, can provide increased financial assistance and sup­port to students, and can eliminate or reduce legacy admissions.¹⁰

What are the lessons learned from the long legal struggle for affirmative action in student admissions? The changing ideology of the court majority creates, at best, an uneven and uncertain legal path toward social goals of systemic equality and inclusive higher education institutions. Even so, the AAUP’s engage­ment in the legal process remains an important tool for supporting institutional policies designed to increase diversity and broad access to higher educa­tion. Amicus briefs grounded in AAUP principles of academic freedom and education for the common good can support advocacy for affirmative action and expanded access to higher education for underrepre­sented groups.

At the same time, the AAUP should take an expansive approach to advancing its enduring prin­ciples and social justice goals even in the face of legal constraints. Reading the dissenting opinions in the Harvard/UNC cases is a reminder of how important it is to educate the public about the purpose of the Fourteenth Amendment to dismantle the systemic racial inequality, which stands in contrast to the court majority’s ahistorical and indeed fictional view that the Equal Protection Clause mandates “race neutrality.” As Justice Sotomayor further noted in her dissenting opinion, the “compelling interest in student body diversity is grounded not only in the Court’s equal protection jurisprudence but also in principles of ‘academic freedom,’ which ‘long [have] been viewed as a special concern of the First Amendment.’”¹¹ The Association can also dis­seminate information about the paths that remain available to implement diversity goals and do so in a way that is consistent with AAUP values and goals. As the voice of the academic profession, the AAUP can bring its expertise to public discussions of these issues through statements, reports, webinars, and other resources.

Affirmative Action in Employment

The lessons from the Supreme Court’s treatment of affirmative action in student admissions can also be applied in the context of faculty employment. Although the Harvard/UNC case did not concern issues of affirmative action in employment, the court’s hostility to race-conscious measures to achieve diver­sity has raised anxiety about the implications of the court’s decision for faculty recruitment and hiring processes. It should be noted, though, that even as the Supreme Court has upheld the permissibility of affir­mative action in employment, it has also narrowed its use in ways that reflect the same tensions found in the precedents on affirmative action in student admissions set by the court between 1978 and 2016. In its 1979 decision in Steelworkers v. Weber and its 1987 deci­sion in Johnson v. Transportation Dep’t, Santa Clara County, the Supreme Court held that Title VII of the Civil Rights Act permits affirmative action plans as a temporary measure in employment but only to address a “‘manifest imbalance’ that reflected underrepresenta­tion of [a protected group] in ‘traditionally segregated job categories.’”¹² Affirmative action plans designed to address such conditions may consider protected status as a positive factor in employment decisions, but not in ways that “unnecessarily trammel” rights of majority groups. Constraints on affirmative action measures are more severe in public employment, where the court has applied a strict scrutiny test to invalidate policies such as set-aside plans and public contracts for minority-owned businesses unless there is a strong evidentiary basis of prior discrimination by the public entity.¹³ These types of legal requirements reveal a suspicion that affirmative action provides an unearned preference for racial minorities or women to the detriment of members of majority groups. Such already existing legal constraints, combined with the Harvard/UNC decision, will likely create a chilling effect on recruitment and hiring practices for faculty, although this should be tempered to some degree by the obligation of colleges and universities to adopt affirmative action plans as federal contractors under Executive Order 11246.¹⁴

In January 2024, the AAUP published a new statement, On Eliminating Discrimination and Achiev­ing Equality in Higher Education, which focuses on diversity in faculty employment. The initial impetus for drafting a new statement was the AAUP’s plan to publish a new edition of the Association’s Policy Docu­ments and Reports (better known as the Redbook), which entails reviewing existing AAUP policy docu­ments and making decisions about which statements and reports should be included, and perhaps updated, in the next edition. As part of this process, a joint subcommittee was assigned the task of reviewing the AAUP’s statements and reports concerning discrimina­tion and affirmative action. The seven members on the joint subcommittee came from Committee A on Academic Freedom and Tenure, the Committee on Gen­der and Sexuality in the Academic Profession, and the Committee on Historically Black Institutions and Schol­ars of Color.¹⁵ I served as chair of the subcommittee.

The joint subcommittee made two key decisions about the scope and content of its work. First, rather than continue the AAUP’s past approach of addressing discrimination and affirmative action in separate state­ments, the subcommittee decided that it would issue a new statement that addressed both issues to provide an integrated understanding of how to move toward the broader goal of inclusion and equality.¹⁶ In bringing the two issues together, the statement stressed the urgency in this historical moment of addressing the political backlash against movements for equality. Second, the subcommittee chose to develop a statement based on the AAUP’s enduring principles and values rather than one linked to the uneven and changing legal treatment of the issues. In particular, the subcommittee returned to the AAUP’s 1973 report Affirmative Action in Higher Edu­cation as a model. That report was drafted by a Council commission appointed based on the “Association’s sup­port for institutional compliance with affirmative action programs and strong federal enforcement program.”¹⁷ Affirmative Action in Higher Education, which was pre­sented to the AAUP’s Council and the annual meeting in 1973, sets forth a vision of the potential of colleges and universities to become the institutions that they purport to be—that is, institutions that serve the public good through the excellence of their faculty and the reliability and integrity of their standards in faculty recruitment, hiring, and promotions.

The 1973 AAUP report centers affirmative action goals as essential to achieving a vision of excel­lence in higher education for the common good. The strength of the report’s assertions is bolstered by its straightforward and clear-eyed assessment of the lack of progress in higher education institutions toward their professed goals. While explicitly supporting the value of affirmative action, the report sets forth a more general approach that relies on practices that all col­leges and universities should follow to ensure that they are vibrant institutions. Most important, the report calls for faculty to engage in an ongoing critique and reassessment of institutional standards and criteria of merit. The report argues that, rather than assume that existing standards for hiring and promotions are sound, faculty members should engage in continual self-critique and ask whether those standards are reliable and inclusive of the full range of intellectual engagement and developments. This approach, the report explains, is consistent with best practices gener­ally and with a commitment to affirmative action as a means of expanding diversity in the faculty.

What may be most notable about the 1973 report is its argument that the AAUP’s fundamental values necessitate a serious commitment to affirmative action in faculty employment practices. The report was not intended as a blueprint for writing affirmative action plans; rather, it serves as a call to action for faculty members and their institutions to demonstrate that their professed commitment to affirmative action is more than lip service or box-ticking. It is also a call for members of the academic profession to hold themselves and their institutions accountable for the recruitment, hiring, and retention of a diverse faculty. This visionary but grounded approach may be attributable largely to the members of the Council commission that drafted the report, including Mary Frances Berry, a professor of history who served as the assistant secretary for educa­tion in the US Department of Health, Education, and Welfare from 1977 to 1980 and subsequently was a member (1980–92) and then chair (1993–2004) of the US Civil Rights Commission.¹⁸

While strongly influenced by the 1973 report, the subcommittee that drafted the 2024 statement On Elimi­nating Discrimination and Achieving Equality in Higher Education also drew from the subsequent AAUP report Affirmative-Action Plans: Recommended Procedures for Increasing the Number of Minority Persons and Women in College and University Faculties, approved by what was then the AAUP’s Committee W on the Status of Women in the Academic Profession and adopted by the AAUP’s Council in 1983.¹⁹ This report provided guid­ance to faculty members and their institutions on the implementation of affirmative action plans. In addressing affirmative measures to improve faculty employment processes, the 2024 statement is also mindful of the legal implications of the Supreme Court’s Harvard/UNC decision invalidating race-conscious affirmative action in student admissions.

In drafting the 2024 statement, the subcommit­tee thus considered the AAUP’s prior statements and reports as well as the context of legal treatment of discrimination and affirmative action. The statement, while aspirational, is also grounded in a robust under­standing of systemic discrimination and the affirmative measures needed to dismantle it and move toward substantive equality. Moreover, the statement empha­sizes that excellence in higher education scholarship and teaching depends on a diverse faculty exercising academic freedom. Quoting the 1973 report, the 2024 statement reaffirms the earlier report’s assertion that “further improvement of quality in higher education and the elimination of discrimination due to race or sex are not at odds with each other, but at one,” and the report’s description of affirmative action: “What is sought in the idea of affirmative action is essentially the revision of standards and practices to ensure that institutions are in fact drawing from the largest market­place of human resources in staffing their faculties and a critical review of appointment and advancement criteria to ensure that they do not inadvertently foreclose consideration of the best-qualified persons by untested presuppositions which operate to exclude women and minorities.” The 2024 statement identifies the following actions as essential to making progress toward diversity and equality in higher education institutions:

• adopting a “more capacious conception of discrim­ination, emphasizing substantive and not simply formal equality, [which] is now both accessible and essential thanks to analyses of systemic discrimina­tion produced over the past decades,” including by feminist and critical race scholars;

• addressing the systemic nature of discrimination by recognizing the corresponding need for systemic change “not only to remedy past and existing dis­crimination, but also to achieve, as the 1973 report put it, ‘the highest aspirations of universities and colleges for excellence and outstanding quality’”; 

• recognizing that the interdependence of academic freedom, academic excellence, and diversity means “that scholarship produced by faculty members from previously excluded groups is not supplemental but fundamental to knowledge production itself”; and 

• grounding these understandings in faculty gover­nance through affirmative measures that will aid in the continuing recruitment and retention of a diverse faculty with the job security necessary to fully exer­cise their academic freedom, including “education and training for faculty members and administrators about the nature of discrimination and unconscious bias,” “ongoing review of the validity of crite­ria and standards defining merit,” “reinstituting tenure-track positions as the norm,” and reviewing promotion processes “to make them fairer and more open,” to provide “greater clarity about criteria, standards, and procedures,” and to ensure “protec­tion of academic freedom in evaluations.”

Conclusion

For more than fifty years, the AAUP has been consid­ering how to address discrimination and affirmative action in higher education institutions through law and policy. Engagement in the legal arena is a necessity as the AAUP advocates for positions consistent with its principles. The AAUP has long held that the ability to create open and inclusive colleges and universities with a diverse faculty and student body depends upon strong antidiscrimination policies and affirmative action. Building a foundation with these principles and values is essential to achieving excellence in higher education and ensuring that faculty members can fully exercise their academic freedom in developing new ideas and theories in their research, experimenting with pedagogy in their classrooms, speaking publicly, and engaging in shared governance and union activity. AAUP principles can influence the law, but they are not tied to the legal inter­pretations of any particular moment. The AAUP’s recent statement On Eliminating Discrimination and Achieving Equality in Higher Education sets forth enduring AAUP principles and goals that can be pursued within the cur­rent legal context but that are also broadly aspirational for the future of higher education. These goals must be grounded in shared governance and collective bargain­ing aimed at adopting policies and practices to recruit and retain a diverse faculty with academic freedom, job security, and academic due process.

Risa L. Lieberwitz is professor of labor and employment law in the Cornell University School of Industrial and Labor Relations and general counsel of the AAUP. Her email address is [email protected].

Notes

1. For a summary of amicus briefs in this area filed over the last twenty-five years, see “AAUP Amicus Briefs: Discrimination and Sexual Harassment,” https://www.aaup.org/our-work/legal-program/amicus-briefs/discrimination-sexual-harassment.

2. Justice Ketanji Brown Jackson recused herself from participation in the Harvard case due to her former position on the Board of Overseers, which is a high-level Harvard governing body. Justice Jackson did participate in the UNC case and authored a dissenting opinion pertaining to that case.

3 . __ U.S. __, 143 S.Ct. 2141, 2230 (Sotomayor, J., joined by Kagan and Jackson, JJ., dissenting).

4. 143 S.Ct. at 2231.

5 . 143 S.Ct. at 2226 (Jackson, J., joined by Sotomayor and Kagan, JJ., dissenting).

6. 143 S.Ct. at 2227.

7. 143 S.Ct. at 2176.

8 . 143 S.Ct. at 2252 (Sotomayor, J., joined by Kagan and Jackson, JJ., dissenting).

9. See Zachary Bleemer, Diversity in University Admissions: Affirmative Action, Percent Plans, and Holistic Review, Research and Occasional Paper Series (Berkeley, CA: Center for Studies in Higher Education, 2019).

10 . Gary Orfield, ed., Alternative Paths to Diversity: Exploring and Implementing Effective College Admissions Policies, ETS Research Report No. RR-17-40 (Princeton, NJ: Educational Testing Service, 2017).

11. 143 S.Ct. at 2234.

12 . Johnson v. Transportation Dep’t, Santa Clara County, 480 U.S. 616, 631 (1987) (quoting Steelworkers v. Weber).

13. See City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).

14. See Susan Sturm, “The Architecture of Inclusion: Advancing Workplace Equity in Higher Education,” Harvard Journal of Law and Gender 29 (2006): 247, 259–61, 264–68.

15. The joint subcommittee members were Risa L. Lieberwitz (Law), Cornell University, chair; Marcus Alfred (Physics), Howard University; Emily M. S. Houh (Law), University of Cincinnati; Mark S. James (English), Molloy College; Henry Reichman (History), California State University, East Bay; Saranna Thornton (Economics), Hampden-Sydney College; Charles Toombs (Africana Studies), San Diego State University; and Anita Levy, staff.

16. In 1976, the AAUP issued its statement On Discrimination, condemning discrimination “including, but not limited to, age, sex, disability, race, religion, national origin, marital status, or sexual orientation.”

17. Quotation from “The AAUP and Affirmative Action” (March 1979) by Lesley Francis Zimic (associate secretary, Washington office staff), American Association of University Professors Papers, Special Collections Research Center, George Washington University.

18. The members of the Council commission were Marx W. Wartofsky (Philosophy), Boston University, chair; Ivar E. Berg Jr. (Industrial Relations), Columbia University; Mary F. Berry (History), University of Maryland; Butler A. Jones (Sociology), Cleveland State University; Beatrice G. Konheim (Biological Sciences), Hunter College; William W. Van Alstyne (Law), Duke University; and Margaret L. Rumbarger, staff.

19. The members of the Council Committee on Affirmative Action Guidelines were Ernst Benjamin (Humanities), Wayne State Univer­sity, chair; Rose Ann Grundman (Mathematics), University of Illinois Medical Center; Henry L. Mason (Political Science), Tulane University; Kenneth S. Tollet (Law), Howard University; and Alfred D. Sumberg, staff.