AFFIRMATIVE ACTION

Learn about the major milestones in the history of affirmative action (from the Columbia Encyclopedia: Programs to overcome the effects of past societal discrimination by allocating jobs and resources to members of specific groups, such as minorities and women). Read more about the history of affirmative

Executive Order 10925 makes the first reference to “affirmative action”
President John F. Kennedy issues Executive Order 10925, which creates the Committee on Equal Employment Opportunity and mandates that projects financed with federal funds “take affirmative action” to ensure that hiring and employment practices are free of racial bias.

July 2, 1964
Civil Rights Act signed by President Lyndon Johnson
The most sweeping civil rights legislation since Reconstruction, the Civil Rights Act prohibits discrimination of all kinds based on race, color, religion, or national origin.

June 4, 1965
Speech defining concept of affirmative action
In an eloquent speech to the graduating class at Howard University, President Johnson frames the concept underlying affirmative action, asserting that civil rights laws alone are not enough to remedy discrimination:

“You do not wipe away the scars of centuries by saying: ‘now, you are free to go where you want, do as you desire, and choose the leaders you please.’ You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, ‘you are free to compete with all the others,’ and still justly believe you have been completely fair . . . This is the next and more profound stage of the battle for civil rights. We seek not just freedom but opportunity—not just legal equity but human ability—not just equality as a right and a theory, but equality as a fact and as a result.”

Sept. 24, 1965
Executive Order 11246 enforces affirmative action for the first time

Issued by President Johnson, the executive order requires government contractors to “take affirmative action” toward prospective minority employees in all aspects of hiring and employment. Contractors must take specific measures to ensure equality in hiring and must document these efforts.  On Oct. 13, 1967, the order was amended to cover discrimination on the basis of gender.

1969
The Philadelphia Order

Initiated by President Richard Nixon, the “Philadelphia Order” was the most forceful plan thus far to guarantee fair hiring practices in construction jobs. Philadelphia was selected as the test case because, as assistant secretary of labor Arthur Fletcher explained, “The craft unions and the construction industry are among the most egregious offenders against equal opportunity laws . . . openly hostile toward letting blacks into their closed circle.” The order included definite “goals and timetables.”  As President Nixon asserted, “We would not impose quotas, but would require federal contractors to show ‘affirmative action’ to meet the goals of  increasing minority employment.”

June 28, 1978
Regents of the University of California v. Bakke

This landmark Supreme Court case imposed limitations on affirmative action to ensure that providing greater opportunities for minorities did not come at the expense of the rights of the majority—affirmative action was unfair if it led to reverse discrimination. The case involved the Univ. of California, Davis, Medical School, which had two separate admissions pools, one for standard applicants, and another for minority and economically disadvantaged students.  The school reserved 16 of its 100 places for this latter group.

Allan Bakke, a white applicant, was rejected twice even though there were minority applicants admitted with significantly lower scores than his. Bakke maintained that judging him on the basis of his race was a violation of the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court ruled that while race was a legitimate factor in school admissions, the use of such inflexible quotas as the medical school had set aside was not. The Supreme Court, however, was split 5–4 in its decision on the Bakke case and addressed only a minimal number of the many complex issues that had sprung up about affirmative action.

July 2, 1980
Fullilove v. Klutznick

While Bakke struck down strict quotas, in Fullilove the Supreme Court ruled that some modest quotas were perfectly constitutional. The Court upheld a federal law requiring that 15% of funds for public works be set aside for qualified minority contractors. The “narrowed focus and limited
extent” of the affirmative action program did not violate the equal rights of non-minority contractors, according to the Court—there was no “allocation of federal funds according to inflexible percentages solely based on race or ethnicity.”

May 19, 1986
Wygant v. Jackson Board of Education

This case challenged a school board’s policy of protecting minority employees by laying off non-minority teachers first, even though the non-minorityemployees had seniority. The Supreme Court ruled against the school board, maintaining that the injury suffered by non-minorities affected could not justify the benefits to minorities: “We have previously expressed concern over the burden that a preferential-layoffs scheme imposes on innocent parties.  In cases involving valid hiring goals, the burden to be borne by innocent individuals is diffused to a considerable extent among society generally.  Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose. Denial of a future employment opportunity is not as intrusive as loss of an existing job.”

Feb. 25, 1987
United States v. Paradise

In July 1970, a federal court found that the State of Alabama Department of Public Safety systematically discriminated against blacks in hiring: “in the thirty-seven-year history of the patrol there has never been a black trooper.” The court ordered that the state reform its hiring practices to end “pervasive, systematic, and obstinate discriminatory exclusion of blacks.” A full 12 years and several lawsuits later, the department still had not promoted any blacks above entry level nor had they implemented a racially fair hiring system. In response, the court ordered specific racial quotas to correct the situation. For every white hired or promoted, one black would also be hired or promoted until at least 25% of the upper ranks of the department were composed of blacks. This use of numerical quotas was challenged.  The Supreme Court, however, upheld the use of strict quotas in this case as one of the only means of combating the department’s overt and defiant racism.

Jan. 23, 1989
City of Richmond v. Croson

This case involved affirmative action programs at the state and local levels—a Richmond program setting aside 30% of city construction funds for black-owned firms was challenged. For the first time, affirmative action was judged as a “highly suspect tool.” The Supreme Court ruled that an “amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota.” It maintained that affirmative action must be subject to “strict scrutiny” and is unconstitutional unless racial discrimination can be proven to be “widespread throughout a particular industry.” The Court maintained that “the purpose of strict scrutiny is to `smoke out’ illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. The test also ensures that the means chosen `fit’ this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.”

June 12, 1995
Adarand Constructors, Inc. v. Peña

What Croson was to state- and local-run affirmative action programs, Adarand was to federal programs. The Court again called for “strict scrutiny” in determining whether discrimination existed before implementing a federal affirmative action program. “Strict scrutiny” meant that affirmative action programs fulfilled a “compelling governmental interest,” and were “narrowly tailored” to fit the particular situation. Although two of the judges (Scalia and Thomas) felt that there should be a complete ban on affirmative action, the majority of judges asserted that “the unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country” justified the use of race-based remedial measures in certain circumstances.

July 19, 1995
White House guidelines on affirmative action

President Clinton asserted in a speech that while Adarand set “stricter standards to mandate reform of affirmative action, it actually reaffirmed the need for affirmative action and reaffirmed the continuing existence of systematic discrimination in the United States.” In a White House memorandum on the same day, he called for the elimination of any program that “(a) creates a quota; (b) creates preferences for unqualified individuals; (c) creates reverse discrimination; or (d) continues even after its equal opportunity purposes have been achieved.”

March 18, 1996
Hopwood v. University of Texas Law School

Cheryl Hopwood and three other white law-school applicants at the University of Texas challenged the school’s affirmative action program, asserting that they were rejected because of unfair preferences toward less qualified minority applicants. As a result, the 5th U.S. Court of Appeals suspended the university’s affirmative action admissions program and ruled that the 1978 Bakke decision was invalid—while Bakke rejected racial quotas it maintained that race could serve as a factor in admissions. In addition to remedying past discrimination, Bakke maintained that the inclusion of minority students would create a diverse student body, and that was beneficial to the educational environment as a whole. Hopwood, however, rejected the legitimacy of diversity as a goal, asserting that “educational diversity is not recognized as a compelling state interest.” The Supreme Court allowed the ruling to stand.  In 1997, the Texas Attorney General announced that all “Texas public universities [should] employ race-neutral criteria.”

Note: The June 23, 2003, Supreme Court ruling in Grutter v. Bollinger invalidates Hopwood.

Nov. 3, 1997            

Proposition 209 enacted in California

A state ban on all forms of affirmative action was passed in California: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Proposed in 1996, the controversial ban had been delayed in the courts for almost a year before it went into effect.

Dec. 3, 1998
Initiative 200 enacted in Washington State

Washington becomes the second state to abolish state affirmative action measures when it passed “I 200,” which is similar to California’s Proposition 209.

Feb. 22, 2000
Florida bans race as factor in college admissions.

Florida legislature approves education component of Gov. Jeb Bush’s “One Florida” initiative, aimed at ending affirmative action in the state.

Dec. 13, 2000
University of Michigan’s undergrad affirmative action policy

In Gratz v. Bollinger, a federal judge ruled that the use of race as a factor in admissions at the University of Michigan was constitutional. The gist of the university’s argument was as follows: just as preference is granted to children of alumni, scholarship athletes, and others groups for reasons deemed beneficial to the university, so too does the affirmative action program serve “a compelling interest” by providing educational benefits derived from a diverse student body.

March 27, 2001
Univ. of Michigan Law School’s affirmative action policy

In Grutter v. Bollinger, a case similar to the University of Michigan undergraduate lawsuit, a different judge drew an opposite conclusion, invalidating the law school’s policy and ruling that “intellectual diversity bears no obvious or necessary relationship to racial diversity.”  But on May 14, 2002, the decision was reversed on appeal, ruling that the admissions policy was, in fact, constitutional.

June 23, 2003
Supreme Court Upholds Affirmative Action in University Admissions

In the most important affirmative action decision since the 1978 Bakke case, the Supreme Court (5–4) upholds the University of Michigan Law School’s policy, ruling that race can be one of many factors considered by colleges when selecting their students because it furthers “a compelling interest in obtaining the educational benefits that flow from a diverse student body.” The Supreme Court, however, ruled (6-3) that the more formulaic approach of the University of Michigan’s undergraduate admissions program, which uses a point system that rates students and awards additional points to minorities, had to be modified. The undergraduate program, unlike the law school’s, does not provide the “individualized consideration” of applicants deemed necessary in previous Supreme Court decisions on affirmative action.

See Grutter v. Bollinger.

June 28, 2006
Supreme Court Rules Against Considering Race to Integrate Schools

In Parents v. Seattle and Meredith v. Jefferson, affirmative action suffers a setback when a bitterly divided court rules, 5–4, that programs in Seattle and Louisville, Ky., which tried to maintain diversity in schools by considering race when assigning students to schools, are unconstitutional.

November 4, 2008
Ballot Measure to Ban Affirmative Action Goes Before Voters

Ballot measures proposing to ban affirmative action — race and gender based preferences by public entities — goes before voters in two states, Nebraska and Colorado. The ban passes with more than 50% of the vote in Nebraska. Voters in Colorado, though, reject the proposed ban.

June 29, 2009

Ricci v. DeStefano, Firefighters Go to Court

In a lawsuit brought against the city of New Haven, 18 plaintiffs—17 white and 1 Hispanic—argued that results of the 2003 lieutenant and captain exams were thrown out when it was determined that few minority firefighters qualified for advancement. The city claimed they threw out the results because they feared liability under a disparate-impact statute for issuing tests that discriminated against minority firefighters. The plaintiffs claimed that they were victims of reverse discrimination under the Title VII of the Civil Rights Act of 1964. The Supreme Court ruled (5–4) in favor of the firefighters, saying New Haven’s “action in discarding the tests was a violation of Title VII.”

In its tumultuous 48-year history, affirmative action has been both praised and pilloried as an answer to racial inequality. The term “affirmative action” was first introduced by President Kennedy in 1961 as a method of redressing discrimination that had persisted in spite of civil rights laws and constitutional guarantees. It was developed and enforced for the first time by President Johnson. “This is the next and more profound stage of the battle for civil rights,” Johnson asserted. “We seek… not just equality as a right and a theory, but equality as a fact and as a result.”

A Temporary Measure to Level the Playing Field

Focusing in particular on education and jobs, affirmative action policies required that active measures be taken to ensure that blacks and other minorities enjoyed the same opportunities for promotions, salary increases, career advancement, school admissions, scholarships, and financial aid that had been the nearly exclusive province of whites. From the outset, affirmative action was envisioned as a temporary remedy that would end once there was a “level playing field” for all Americans.

Bakke and Reverse Discrimination

By the late ’70s, however, flaws in the policy began to show up amid its good intentions. Reverse discrimination became an issue, epitomized by the famous Bakke case in 1978.  Allan Bakke, a white male, had been rejected two years in a row by a medical school that had accepted less qualified minority applicants-the school had a separate admissions policy for minorities and reserved 16 out of 100 places for minority students. The Supreme Court outlawed inflexible quota systems in affirmative action programs, which in this case had unfairly discriminated against a white applicant. In the same ruling, however, the Court upheld the legality of affirmative action per se.

A Zero-Sum Game for Conservatives

Fueled by “angry white men,” a backlash against affirmative action began to mount. To conservatives, the system was a zero-sum game that opened the door for jobs, promotions, or education to minorities while it shut the door on whites. In a country that prized the values of self-reliance and pulling oneself up by one’s bootstraps, conservatives resented the idea that some unqualified minorities were getting a free ride on the American system. “Preferential treatment” and “quotas” became expressions of contempt. Even more contentious was the accusation that some minorities enjoyed playing the role of professional victim. Why could some minorities who had also experienced terrible adversity and racism-Jews and Asians, in particular-manage to make the American way work for them without government handouts?

“Justice and Freedom for All” Still in Its Infancy

Liberals countered that “the land of opportunity” was a very different place for the European immigrants who landed on its shores than it was for those who arrived in the chains of slavery. As historian Roger Wilkins pointed out, “blacks have a 375-year history on this continent: 245 involving slavery, 100 involving legalized discrimination, and only 30 involving anything else.”

Considering that Jim Crow laws and lynching existed well into the ’60s, and that myriad subtler forms of racism in housing, employment, and education persisted well beyond the civil rights movement, conservatives impatient for blacks to “get over” the legacy of slavery needed to realize that slavery was just the beginning of racism in America. Liberals also pointed out that another popular conservative argument-that because of affirmative action, minorities were threatening the jobs of whites-belied the reality that white men were still the undisputed rulers of the roost when it came to salaries, positions, and prestige.

Black-and-White Polemics Turn Gray

The debate about affirmative action has also grown more murky and difficult as the public has come to appreciate its complexity. Many liberals, for example, can understand the injustice of affirmative action in a case like Wygant (1986): black employees kept their jobs while white employees with seniority were laid off.  And many conservatives would be hard pressed to come up with a better alternative to the imposition of a strict quota system in Paradise (1987), in which the defiantly racist Alabama Department of Public Safety refused to promote any black above entry level even after a full 12 years of court orders demanded they did.

The Supreme Court: Wary of “Abstractions Going Wrong”

The Supreme Court justices have been divided in their opinions in affirmative action cases, partially because of opposing political ideologies but also because the issue is simply so complex. The Court has approached most of the cases in a piecemeal fashion, focusing on narrow aspects of policy rather than grappling with the whole.

Even in Bakke-the closest thing to a landmark affirmative action case-the Court was split 5-4, and the judges’ various opinions were far more nuanced than most glosses of the case indicate. Sandra Day O’Connor, often characterized as the pivotal judge in such cases because she straddles conservative and liberal views about affirmative action, has been described by University of Chicago law professor Cass Sunstein as “nervous about rules and abstractions going wrong. She’s very alert to the need for the Court to depend on the details of each case.”

Landmark Ruling Buttresses Affirmative Action

But in a landmark 2003 case involving the University of Michigan’s affirmative action policies-one of the most important rulings on the issue in twenty-five years-the Supreme Court decisively upheld the right of affirmative action in higher education. Two cases, first tried in federal courts in 2000 and 2001, were involved: the University of Michigan’s undergraduate program (Gratz v. Bollinger) and its law school (Grutter v. Bollinger). The Supreme Court (5-4) upheld the University of Michigan Law School’s policy, ruling that race can be one of many factors considered by colleges when selecting their students because it furthers “a compelling interest in obtaining the educational benefits that flow from a diverse student body.” The Supreme Court, however, ruled (6-3) that the more formulaic approach of the University of Michigan’s undergraduate admissions program, which uses a point system that rate students and awards additional points to minorities, had to be modified. The undergraduate program, unlike the law school’s, did not provide the “individualized consideration” of applicants deemed necessary in previous Supreme Court decisions on affirmative action.

In the Michigan cases, the Supreme Court ruled that although affirmative action was no longer justified as a way of redressing past oppression and injustice, it promoted a “compelling state interest” in diversity at all levels of society.  A record number of “friend-of-court” briefs were filed in support of Michigan’s affirmative action case by hundreds of organizations representing academia, business, labor unions, and the military, arguing the benefits of broad racial representation. As Sandra Day O’Connor wrote for the majority, “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”

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