Supervised by: Almas Shaikh DPhil Law (Oxon). Almas is a human rights lawyer from India, currently reading as a DPhil candidate at the University of Oxford. She has been awarded the Barbara Mills Graduate Scholarship in Law, Alpa (Rome) Scholarship and the LMH Postgraduate Scholarship. She focuses on the role of intersectionality in Indian affirmative action, under the supervision of Professor Sandra Fredman. She completed her LLM in International Law at the Graduate Institute of International and Development Studies, Geneva; and her undergraduate degree in BA. LLB (Hons.) from the National University of Advanced Legal Studies, Kochi. Almas possesses Bar Council Qualification to practice in India and has worked in dispute resolution.

ABSTRACT

This study explores the effects of affirmative action policies in the United States and the United Kingdom by analysing their advantages and disadvantages. This focuses on two major areas: (1) the impacts of affirmative action on education and (2) the impacts on admissions rates. Furthermore, we will be discussing how the United Kingdom (UK) implements equality law in comparison to the United States (US). To summarise, this paper aims to provide insight into the ongoing discussion of affirmative action, especially after the court case of SFFA v. Harvard in the United States.

INTRODUCTION

Affirmative action policies have always been discussed, particularly concerning education and university admissions, shaping the dynamics of diversity, equity, and inclusion. As nations strive to address historical inequalities and create representative educational environments, implementing affirmative action measures has become a very significant point. This paper undertakes an examination of the “Advantages and Disadvantages of Affirmative Action Policies on Education and Admissions Rate in the UK and US.” By navigating through the complexity of affirmative action in these particular fields, we aim to approach the variation of implications of these policies by showcasing the unique approaches adopted by the UK and the US, the benefits and challenges of not implementing affirmative action in the UK, as well as the impacts of affirmative action in the US. In doing so, this paper aims to create a deeper understanding of affirmative action, contributing to the ongoing pursuit of educational equality and social justice that is being questioned around the world.

Comparison of Affirmative Action in the US and Equality Act in the UK

The UK and the US differ in their stances towards equality law due to the history behind affirmative action adopted by US institutions and the UK’s Equality Act 2010. In the 1960s, the United States adopted affirmative action as a response to historical contexts,wherein discrimination was normalised in society. Affirmative action aims to promote equal opportunities for all individuals, regardless of their ethnic background. It consists of policies that actively factor in race, gender or other predetermined characteristics to combat discrimination. On the other hand, the UK’s Equality Act was established in 2010 to strengthen prior anti-discrimination laws and emphasise equal treatment regardless of characteristics such as race, gender, age and disability. 

While they both aim to promote equality, they differ in their approaches and applications. The US affirmative action programmes centre around representation. These programmes have faced legal challenges, as they were accused of reverse discrimination that would eventually harm their efficiency. In contrast, the UK’s Equality Act focuses on fostering a more comprehensive anti-discrimination culture and implementing positive duties for organisations to eliminate discrimination, promote equality and create solid relations among various groups. It prioritises a broader approach, including the protection of characteristics (for instance race, ethnicity, religion, civil partnership, sexual orientation, disability) and aiming to prevent discrimination at its roots. 

Another distinction lies in the historical context. Affirmative action emerged as a response to deep-rooted segregation and inequality, particularly after Brown v. Board of Education in 1954 (Supreme Court of the United States). Since the state-sanctioned segregation of public schools in response to the violation of the 14th Amendment and sanctioning of laws that promoted African-American barriers, it has been a topic of intense debate, balancing the goals of rectifying historical injustices while ensuring fairness towards all individuals. Meanwhile, the UK’s Equality Act builds on a foundation of pre-existing anti-discrimination laws, seeking to strengthen the protection of various groups and therefore create a more inclusive society (United Kingdom Government, 16 June 2015). It can be understood, with many of the cases that have been related to the Equality Act, that the UK focuses on every aspect of society to promote the integration of all individuals. In 2015, a case named Pnaiser v NHS England occurred, which supported the ability of employees with disabilities to participate and get job references with the same consideration as others. 

Both of these programs seek to end injustice and nurture a society where every person can manifest the lives they want to lead or the goals individuals wish to accomplish.

Advantages of Not Having Affirmative Action in the UK

This section will explore how a lack of affirmative action implementation in the United Kingdom positively impacts the university admissions rate of individuals from different ethnic backgrounds. It highlights the structural differences of the UK’s admissions system in comparison to the US, the reasons why affirmative action is not required, and the impact of affirmative action on individuals from minor ethnic backgrounds.

To understand the benefits of not having affirmative action, it is crucial to first recognise why affirmative action does not currently exist in the UK. In the US, applicants are accepted to universities regardless of their intended major since US universities evaluate applicants based on the same overarching criteria. This is demonstrated by the similarities shown in the admissions process for both Harvard and UNC, which is conveyed in the SFFA v. Harvard case (Students for Fair Admission., Inc. v President and Fellows of Harvard College, 600 U.S. 181 (2023)). For instance, according to Harvard’s director of admissions, Harvard’s selection process involves an initial screening in which the applicant’s race is considered to ensure that there is no “dramatic drop-off” in minority representation. Similar criteria across US universities enable affirmative action to be effectively executed nationwide.

Contrarily, in the UK, applicants are admitted to specific courses offered by various universities. This results in application acceptances being heavily reliant on the requirements and expectations of students’ chosen courses. According to a study conducted in 2015, ethnic minorities with the same grades as white students only faced lower acceptance rates at some of England’s top universities because they applied for more competitive courses (UCAS Analysis Notes 2015/05). This indicates that the selection of courses by students significantly influences their acceptance rate. Although each course often does have its method of enabling racially diverse applicants to access further education, affirmative action policies could be difficult to implement uniformly, due to the varied requirements of each course. 

Moreover, census data (UK Government, Entry Rates into Higher Education 2021) shows that more state school students from racially diverse backgrounds are being accepted into higher education. White pupils were shown to be the lowest percentage of applicants who were accepted to university, at 33.3%, whereas 48.6% of black students were accepted to universities in 2021. This suggests that implementing affirmative action may be futile, as its purpose to increase racial diversity among university acceptances has already been achieved.

If affirmative action were to be implemented in the UK, this could subsequently lead to applicants from ethnic minorities questioning whether they were accepted to create equality of opportunity for all races, or due to their academic accomplishments, along with similar accusations from majority students. Therefore, there are positive consequences of not implementing affirmative action in university admissions. For example, this addresses the stigma, stereotyping and prejudices towards racial minorities in regards to their accomplishments.

Disadvantages of Not Having Affirmative Action in the UK

Although it has been conveyed in the previous section that the absence of affirmative action in the UK encompasses countless benefits, there are equally countless consequences, in regards to the diversity of university undergraduates and levelling off the imbalance of education across years of age-old ignorance. Prevalent unconscious bias within society leaves the UK university selection criteria vulnerable to attack. This is inherently due to a lack of enforcement and upstanding procedures such as affirmative action to protect equal opportunities for all applicants.

This section will analyse the disadvantages of not utilising affirmative action within UK university admissions and the long-standing impacts that this can have in stunting the utopian dream of achieving a society of equal opportunities.

Equality law, specifically within the UK, is a somewhat contemporary topic: a founded, untouched expanse of law that has only emerged in recent years following numerous riots and social outcries for the betterment of treatment amongst all races and in all facets of life. In the early 1960s, following mass immigration from Commonwealth countries to war-torn Britain, campaign groups such as the “Campaign against Racial Discrimination” in 1964 (Brown, 2018) were created to address the growing social dilemma of increased hostility towards migrants and the infectious plague of far-right, nationalist ideologies.

Similarly, the Bristol Bus Boycott was a landmark event in awakening a white British population from their racial slumber and birthing the landscape of equality law. Succeeding the Bristol Omnibus Company’s fatal decision to ban ‘coloured’ people from working as bus conductors and drivers in 1955 (Dresser), campaigning groups and key figures such as Paul Stevenson began to emerge from the shadows. The horrors of maltreatment Commonwealth migrants faced under a disintegrating immoral Britain became apparent to the public. In response to years of lobbying for legislation to prevent the discrimination and exploitation that citizens of colour faced (Brown, 2018), the UK Parliament released their first step in achieving racial equality: the Race Relations Act 1965.

Although this new legislation only extended to public areas, amendments to the act – such as in 1968, 1976, and 2000 – ensured that legislation concerning equal treatment of all races was practised in all dimensions of society: jobs, housing (Race Relations Act 1968), indirect discrimination (Race Relations Act 1976) and even tackling institutional racism within the Metropolitan Police (Race Relations Act 2000). Come 2010, the most recent legislation (Equality Act 2010) finalised the protection of not only race but all protected characteristics, including but not limited to age, religion, and sexuality. As a result, this law is now implemented amongst all social constructs. 

However, juxtaposing the US’s stance on affirmative action, this particular programme has been made illegal under the very same act that promotes racial equality in the UK. This ultimately raises questions about whether UK equality law is in dire need of affirmative action to avoid this confusing and contrasting interpretation of the seemingly multifaceted Equality Act 2010.

It’s crucial to implement affirmative action programmes to promote equal representation in top universities. Without them, single-race groups like the dominating white population can easily take over, leaving little opportunity for diversity. For example, Oxford University’s Undergraduate Admissions Statistics show that 76.4% of the 2020-2022 student cohort was white, while only 23.6% consisted of Black and Minority Ethnic (BME) students (Tracey, 2023). This is a result of institutional racism, which undermines decades of equality rights activism aimed at creating a more inclusive society. The absence of affirmative action programmes has led to underrepresentation of the true diversity of British society in higher education. This has led to a university student cohort that fails to represent British society and its rich cultural heritage and depicts an unjust depiction of the bias universities have towards white applicants. 

To address this, the UK Parliament must take action by implementing affirmative action policies. By doing so, we can ensure that university campuses are inclusive and safe spaces that inspire the next generation of young adults. This will concurrently provide role models for future undergraduates, who can look up to and be inspired by individuals from diverse backgrounds.

Furthermore, the deprivation of affirmative action in the UK university admissions system not only harms the diversity of students but also social mobility. The lack of equal opportunities for all applicants undermines the idea of meritocracy and perpetuates the cycle of inequality. 

A report found that students from disadvantaged backgrounds are significantly less likely to attend top universities than their more privileged peers, even with the same qualifications (Sutton Trust, 2019). This is due to several factors, including unequal access to educational resources, cultural capital and social networks. The absence of affirmative action programmes only exacerbates these issues, as it allows for the continuation of a system that is already skewed in favour of the privileged.

Without affirmative action, the admissions process in the UK perpetuates the cycle of inequality and limits social mobility. This is particularly problematic for students from underrepresented groups, who may not have the same access to resources and opportunities as their peers. Affirmative action would provide a framework for ensuring that all applicants are given a fair chance, regardless of their background, and would help to level the playing field.

In conclusion, the absence of affirmative action programmes in the UK university admissions system harms both diversity and social mobility. It perpetuates the cycle of inequality and undermines the idea of meritocracy. The UK Parliament should take action by implementing affirmative action policies to ensure that all students have equal opportunities to succeed, regardless of their background. This will result in a more diverse and inclusive higher education landscape, which is essential for promoting social mobility and creating a more equitable society.

Advantages of Affirmative Action in the US

The following section will delve into the legal origins of affirmative action in the US, the advantages of its implementation in US employment and education, along with a holistic approach.

Affirmative action in America emerged as a response to persistent discrimination against underrepresented groups, particularly in education and employment. President Lyndon Johnson initially proposed affirmative action to eliminate discrimination and enhance opportunities for African Americans, coinciding with civil rights legislation dismantling the legal foundation for discrimination. On March 6, 1961, President John F. Kennedy issued Executive Order 10923, directing government contractors to “take affirmative action to ensure that applicants are employed and employees are treated during employment, without regard to their race, creed, colour, or national origin.” This order reaffirmed the government’s commitment to equal opportunity and the pursuit of true equality for all. Consequently, the Civil Rights Act of 1964 and a 1965 executive order prohibited employment discrimination against African Americans in companies receiving federal contracts and subcontracts (Office of Equal Opportunity and Diversity, UCI).

In the SFFA v. Harvard case, the Supreme Court ruled that Harvard College and the University of North Carolina violated the Equal Protection Clause of the Fourteenth Amendment through their race-based admission programs (Students for Fair Admissions, Inc v President and Fellows of Harvard College, 600 U.S. 181 (2023)). This landmark decision led to numerous colleges and universities shifting towards a more neutral policy, considering the hardships and experiences of individual applicants rather than solely focusing on race. Chief Justice John G. Roberts Jr. succinctly captured the essence of the Equal Protection Clause, stating, “Treating someone differently because of their skin colour is not like treating them differently because they are from a city or a suburb, or because they play the violin poorly or well” (Los Angeles Times, 29 June 2023). While this court case may imply to the public that affirmative action could lead to increased injustice and inequality, there are compelling reasons to view affirmative action positively.

Affirmative action has gone hand in hand with education and employment in the US as there has been corresponding discrimination against ethnic minorities in both of these aspects. Some notable advantages of advocating affirmative action policies include promoting fairer hiring and admission practices, fostering diversity, combating systemic discrimination, and cultivating an inclusive work and learning culture. By adopting affirmative action policies in education and employment, institutions consider the diversity and representation of marginalised groups, supporting equality laws and ensuring that individuals – regardless of race or gender –have equal access to education and job opportunities (Vittana.org, 16 December 2019) (Helpful Professor, 13 June 2023). For example, in education, the number of Hispanic students enrolled in postsecondary institutions in the United States has increased exponentially from 1.5 million in 2000 to 3.8 million in 2019 (Pew Research Center, 7 October 2022). Affirmative action also contributed to the notable increase in the percentage of women business managers and professionals, growing from 41% to 48%, and the doubling of the number of female police officers, from 6% to 13% (U.S. Department of Commerce, Bureau of the Census 1995, Table 649). A 1995 study highlighted that around six million women, predominantly white, owe their current job positions to affirmative action (Cose 1997, 171).

In addition, equality law addresses systemic discrimination and arising tensions from discriminatory behaviours during recruitment and admission processes. Its primary goals include establishing welcoming workplaces and learning environments and providing equal opportunities for all employees and students to thrive. Affirmative action in education and employment encourages the presence of marginalised groups, serving as motivation for others to see diverse backgrounds striving in leadership roles. Employers may also use it as an opportunity to create a better workplace (Helpful Professor, 13 June 2023), as evidenced by a study showing that employees who believe their organisation strongly supports affirmative action also perceive it as fair and providing the best career opportunities (Affirmative action in employment). When it comes to education, it is crucial to assess the practical considerations linked to the implementation of affirmative action policies in U.S. education, such as the costs involved in implementing the policies (the week, 15 November 2022).

Taking a holistic perspective on implementing affirmative action policies reveals two significant advantages: upholding the spirit of civil rights legislation and promoting social cohesion (UOL LLB First Class Law Notes). In the US, affirmative action and equity law align strongly with the principles of civil rights legislation, working towards creating a fair and just society. (Students For Fair Admissions, Inc v President and Fellows of Harvard College, 600 U.S. 181 (2023)). It supports equal changes and endeavours to address historical injustices by promoting equality, irrespective of an individual’s background. To summarise, equality law recognizes a socially cohesive society as one that encourages diversity and equality, therefore making affirmative action overall beneficial to society (WallStreetMojo).

Disadvantages of Affirmative Action in the US

Following the outcome of the SFFA v. Harvard case, many prominent universities in the US have begun to reconsider their previous policies that favoured racial minorities in admissions. This section will address the ensuing damage that affirmative action has brought to university admissions in the United States and discuss the potential practical issues concerning implementing affirmative action in the US education sector. 

Affirmative action policies defeat its main purpose of promoting integration and bringing peace. This is evidenced by the average Scholastic Aptitude Test (SAT) score disparity between Stanford’s African-American and white admittees, reaching 171 points in 1992 (Consortium on Financing Higher Education). This reveals the injustice for students who met admissions standards but were rejected due to affirmative action policies favouring ethnic minorities. As Christopher Rim, CEO and founder of Command Education, an admissions consulting company commented, “You want a diverse opinion. You want people who have different experiences than you. I think that’s going to be lost.” He also adds “You want to be able to get into a school because of your merit, not because of your race.” (What the Supreme Court’s Affirmative Action Ban Means for College Admissions).

The implementation of affirmative action also diminishes the quality of US education. Affirmative action-induced low grades remain to be a problem in US education. More than half of African-American law students, many of whom had been admitted according to affirmative action policies, ranked in the bottom 10 percent of their class. The dropout rate among African-American students was more than twice that of their white peers, at 19.3% versus 8.2% respectively (The Heritage Foundation, 2015). 

Moreover, even with the implementation of affirmative action policies, severe inequality still exists within society. Although affirmative action policies in education claim to benefit the “disadvantaged”, an observation by Thomas Sowell of the Hoover Institution noted that preferences tend to favour minority applicants who come from middle-class and upper-class backgrounds at the expense of low-income White applicants, as well as many Asian applicants who fulfil admissions requirements in a disproportionate quantity. This connotes to the public that inequality remains a fundamental problem in society, even after the implementation of affirmative action policies: the only difference is the group of people who experience it. Hence, preferences should be granted based on disadvantage, not race, if they were genuinely intended to address disadvantage (Stanford Magazine, 1996).

The additional implementation of affirmative action policies is very costly since education grants and subsidies for ethnic minorities to pursue higher education are required. This money could be used for more vital sectors, such as improving infrastructure or creating a better healthcare system in the US, which would positively impact a larger number of citizens, instead of solely focusing on improving the lives of individuals from ethnic minorities. The cost incurred was one of the core factors that prompted people to be against the implementation of affirmative action policies, as evidenced by 63% of American adults being in favour of colleges disregarding race and ethnicity in admissions (The Washington Post, 24 October 2022). Peter Kirsanow, a member of the US Commission on Civil Rights, states (The Week, 15 November 2022), “The staggering cost of the diversity bureaucracy contributes to the rising cost of tuition. Consequently, all students (or their guarantors/creditors) are paying more money/incurring greater debt so that preferred minority students will have a higher probability of flunking out”. 

“If, after 25 years, affirmative action has not succeeded in ending discrimination, perhaps it is time to try something else” (Stanford Magazine, 1966).

Conclusion

To summarise, this paper discusses the advantages and disadvantages of affirmative action policies in the UK and the US.

Not implementing affirmative action in the UK has had both positive and negative impacts. For advantages, this paper has examined the reasons why affirmative action is not required in the UK, as well as the beneficial consequences. On the other hand, this article also conveys the issues of the current UK university admissions process and the effects that this will have in the long term.

On the other side of the spectrum, this article analyses the impacts of affirmative action in the US. Both of these affirmative action policies still have the same objective and look to make society less discriminatory by implementing laws that can maintain stability and diversity in the workplace or at educational institutions. Although they differ in historical background and initial perspective because of each country’s relegation with segregation and discrimination, the implementation of these policies sends the message that these nations wish to progress as a community because they look for people to have the same opportunities no matter where they come from or what they believe in. Since the US has had these policies for more than 60 years, more doubt and debate arise to question affirmative action’s efficiency and how transparent it truly is, contrasting what it seems to be.

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