AFFIRMATIVE ACTION

Employment programs required by federal statutes and regulations designed to remedy discriminatory practices in hiring minority group members; i.e., positive steps designed to eliminate existing and continuing discrimination, to remedy lingering effects of past discrimination, and to create systems and procedures to prevent future discrimination; commonly based on population percentages of minority groups in a particular area. Factors considered are race, color, sex, creed, and age.

The idea of affirmative action was foreshadowed as early as the Reconstruction Era, which followed the u.s. civil war. When that conflict ended, the former slave population throughout the South owned virtually nothing and had only a limited set of skills with which they could make a living. To help these newly emancipated citizens sustain a minimal economic base, the victorious General William T. Sherman proposed to divide up the land and goods from the sizable plantations of southeastern Georgia that were under his command and grant to each family of color "40 acres and a mule." The proposal ran into powerful political opposition, however, and it was never widely adopted.

Nearly a century later, this idea of assisting whole classes of individuals to gain access to the goods of U.S. life reemerged in U.S. law and society through a series of court decisions and political initiatives interpreting the civil rights guarantees within the equal protection clause of the fourteenth amendment. These decisions and initiatives came to be known as affirmative action.

The term itself refers to both mandatory and voluntary programs intended to affirm the civil rights of designated classes of individuals by taking positive action to protect them from, in the words of Justice william j. brennan jr., "the lingering effects of pervasive discrimination" (Local 28 of the Sheet Metal Workers' Int'l Assoc.v. EEOC, 478 U.S. 421, 106 S. Ct. 3019, 92 L. Ed. 2d 344 [1986]). A law school, for example, might voluntarily take affirmative action to find and admit qualified students of color. An employer might recruit qualified women where only men have worked before, such as businesses that operate heavy equipment.

Affirmative action developed during the four decades following the decision in brown v. board of education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). In Brown, the Supreme Court held that public school segregation of children by race denied minority children equal educational opportunities, rejecting the doctrine of "separate but equal" in the public education context. During the 1960s and early 1970s, the civil rights movement as well as the vietnam war inspired members of minorities and women to advocate collectively for increased equality and opportunity within U.S. society. These groups appealed for equal rights under the Fourteenth Amendment, and they sought opportunity in the public arenas of education and employment. In many ways, they were successful. As affirmative action grew, however, it drew increasing criticism, often from men and whites, who opposed what they viewed as "reverse discrimination."

While the Brown decision declared segregated schools unlawful, it did not create affirmative action to remedy discriminatory practices. A decade after Brown, little had changed to integrate the nation's schools. The Court acted ahead of business executives and legislatures when it mandated, in Green v. County School Board, 391 U.S. 430, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968), that positive actions must be taken to integrate schools. There followed the adoption of an array of devices such as redistricting, majority-to-minority transfers, school pairings, magnet schools, busing, new construction, and abandonment of all-black schools.

The first major legal setback for voluntary affirmation action was regents of the university of california v. bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), in which the Supreme Court struck down an admission plan at the University of California, Davis, medical school. The plan, which had set aside 16 places for minority applicants, was challenged by white applicant Allan Bakke, who had been refused admission even though he had higher test scores than some of the minority applicants. The Court held that by setting aside a specific number, or quota, of places by race, the school had violated Bakke's civil rights. By denying the "set-aside" practice of an affirmative action plan, the decision seemed to threaten the principle underlying affirmative action as well.

The following year, however, the Court found in united steelworkers v. weber, 443U.S. 193, 99 S. Ct. 2721, 61 L. Ed. 2d 480 (1979), that the voluntary plan of Kaiser Aluminum Company to promote some of its black workers into a special training program ahead of more senior white workers did not violate the latter's civil rights when it did not involve quotas. The Court also found in Local 28 of Sheet Metal Workers' International Ass'n v. EEOC, 478 U.S. 421, 106 S. Ct. 3019, 92 L. Ed. 2d 344 (1986), that rights were not being violated by a court-ordered membership goal of 29.23 percent minorities. Writing for the plurality, Justice Brennan said Title VII of the Civil Rights Act of 1964 does not prohibit courts from ordering "affirmative race-conscious relief as a remedy for past discrimination" in appropriate circumstances. Such circumstances might include "where an employer or labor union has engaged in persistent or egregious discrimination, or where necessary to dissipate the lingering effect of pervasive discrimination."

The Court later found, in City of Richmondv. J. A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989), that the Minority Business Utilization Plan of Richmond, Virginia, violated the rights of private contractors. The plan, which required 30 percent of all subcontracts to be awarded to minority-owned companies, was struck down because this municipality had failed to show compelling state interest for such a measure. The Court applied the compelling interest test after holding that race-based action by state and local government was subject to strict scrutiny. The Court extended this to the federal government in Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995).

In Johnson v. Transportation Agency, 480 U.S. 616, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987), the Court ruled that a county agency had not violated Title VII of the civil rights act when, as part of an affirmative action plan, it took a female employee's gender into account in promoting her ahead of a male employee with a slightly higher test score. The Court held that a "manifest imbalance" existed in this workforce because of an under representation of women, and that the employer had acted properly in using a "moderate, flexible, case-by-case approach to effecting a gradual improvement in the representation of minorities and women."

At issue in affirmative action cases is whether the Equal Protection Clause of the Fourteenth Amendment can be employed to advance the welfare of one class of individuals for compelling social reasons even when that advancement may infringe in some way upon the life or liberty of another. The continuing existence of affirmative action laws and programs suggests that so far, the Supreme Court's answer has been yes.

Affirmative action plans may be undertaken voluntarily, as in the case of a private school's admissions goals; imposed by the courts to protect civil rights; or required by law to qualify for federal contracts. Plans required to qualify for federal contracts are enforced by the Office of Federal Contract Compliance Programs (OFCCP), an agency of the U.S. labor department. The OFCCP defines its mission with its critics in mind: "Affirmative action is not preferential treatment. Nor does it mean that unqualified persons should be hired or promoted over other people. What affirmative action does mean is that positive steps must be taken to provide equal employment opportunity" (EEOC, U.S. Labor Department, Pub. No. 2850, Making EEO and Affirmative Action Work 8 [1993]). One ranking OFCCP administrator defended the program even more sharply by saying,"Affirmative action is not about goals and has nothing to do with preferences. It is about inclusion versus exclusion: people who have been excluded from participation in the process for years are now to be included."

Affirmation action plans are subject to mandatory compliance procedures, which may include monitoring by review, conciliation of disputes, exclusion from federal contract work, or even suit by the justice department.

Criticism of affirmative action has been constant since the Supreme Court first articulated its views. By the 1990s, opponents began to press the Court to reverse its precedents both in employment and in higher education admission policies. Supporters of affirmative action openly worried that the Court would severely restrict affirmative action. For example, in 1997, the Court was scheduled to hear an appeal involving a New Jersey schoolteacher who claimed she had suffered discrimination because of an improper affirmative action plan (Taxman v. Piscataway Township Bd. of Educ., 91 F.3d 1547 [3d. Cir. 1996]). Weeks before oral argument, supporters of affirmative action made the schoolteacher a financial settlement in return for her dismissing the case. They admitted that this was hardly a victory, but supporters pointed to troubling developments.

One of these developments was the Supreme Court's refusal to review a decision that struck down a university admission plan that used race as one factor for acceptance. In Hopwood v. Texas, 78 F. 3d. 932 (5th Cir. 1996), the Fifth Circuit Court of Appeals ruled that the practice of providing preferential treatment to minorities in a public university's admissions policy was repugnant to the Constitution.

How Much Affirmative Action Is Enough Affirmative Action?

In the combustive debate over affirmative action, fairness is the hottest issue of all. Most people agree that employers should hire and promote people fairly. Does affirmative action make this happen? Americans disagree sharply: a July 1995 Associated Press poll found that 39 percent think it does, but 48 percent said giving preference to women and minorities produces even greater unfairness. These numbers barely scratch the surface of the antagonisms in a debate now more than thirty years old. Proponents argue that the benefits of affirmative action policies are tangible, deserved, and necessary. Opponents reply that these benefits hide the real harm done by affirmative action: rewarding the wrong people, devaluing the idea of merit, and punishing white men. The two sides disagree on what should be done, yet there is no shortage of ideas. In the 1990s, a flurry of arguments have come from politicians, academics, civil rights leaders, and reformers that are aimed at preserving, modifying, or ending affirmative action.

History has drastically rewritten the terms of this debate. In the years of great advances in federal civil rights, Presidents john f. kennedy and lyndon b. johnson could easily frame the issue as a purely moral one. Johnson put it this way in 1965:

Freedom is not enough…. 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. Thus it is not enough to open the gates of opportunity.

Thirty years later, Senate majority leader bob dole (RKan.) made this widely quoted attack: "The race-counting game has gone too far." Polls indicate that both Johnson and Dole spoke for a majority of citizens of their time. Johnson captured the essence of a nation willing to move beyond the legacy of jim crow laws. Dole summoned the resentment of white males who had seen the affirmative action net expand to hold not only minorities but also women and immigrants. But white men are hardly the only complainers: according to a March 1995 Washington Post-ABC News poll, 79 percent of middle-class white women oppose preferences for women.

For affirmative action's strongest supporters, explaining the new harshness in the policy's politics is a matter of going back to the beginning. They point out that affirmative action was never supposed to be painless. Making room for groups that have historically suffered discrimination means that the very group that did not suffer—white males—now has to do so. This can be characterized as the sins-of-the-fathers argument, illustrated in a 1995 briefing paper from the american civil liberties union (ACLU): "[W]hile it's true that white males in any given era may not all have been responsible for excluding people of color and women, all white males have benefited unjustly from that historical exclusion … [thus enjoying] privileged status and an unfair advantage." This position is supported by statistics: in 1995 white males held nearly 95 percent of senior management positions in major corporations, earned 25 to 45 percent more than women and minorities, and held well over 80 percent of the seats in Congress. On the other hand, from 1973 to 1993, black poverty increased from 31.4 to 33.1 percent. Without doubt, discrimination continues; from the perspective of supporters of affirmative action, the sins of the fathers are far from paid for.

Because equality still eludes the beneficiaries of affirmative action, supporters dismiss attacks on the policies as part of a backlash. Three decades of advances for affirmative action's beneficiaries have meant diminished dominance for white men, a group whose income has been falling in real terms since 1973. But, supporters say, the reason white men earn less today than their fathers did is not the fault of affirmative action. They point to long-term changes in the U.S. economy and job market as the real explanations for stagnating incomes, diminishing buying power, and decreasing job security. Yet affirmative action gets the blame."We are the ultimate scapegoat for whatever goes wrong," Mary Frances Berry, chairwoman of the U.S. commission on civil rights, told the Boston Globe in 1995. Dwindling support from middle-class white women also draws the ire of affirmative action's advocates. "In the 1970s and 80s, white women had no problem hitching up to the affirmative action banner of 'women and minorities'," journalist Derrick Z. Jackson wrote. "If they now want to rip down the banner, it will confirm the dirtiest little secret of all about affirmative action"—that white women supported it only to the extent that it benefited themselves.

Dismissing these explanations as excuses, critics of affirmative action denounce it as "reverse discrimination." They either reject outright the idea that historical wrongs can be redressed through contemporary means, or believe that the cost to those who must pay for such redress is too high. Conservative think tanks such as the Institute for Justice and the heritage foundation regularly lead this prong of the attack. Clint Bolick, the Institute for Justice's vice president, told Congressional Quarterly, "If you add up the number of people who have encountered reverse discrimination in college admissions, scholarships, public school magnet programs, government contracts and jobs in the private and public sectors, you have a pretty sizable population." The charge strikes the strongest advocates of affirmative action as insupportable. According to the research of law professor Alfred Blumrosen, of Rutgers University, only a few dozen such cases reached the federal courts in the early 1990s, and in most, the plaintiff failed. Other advocates see the reverse discrimination argument as sour grapes; the ACLU goes so far as to call it a smoke screen "for retention of white male privilege."

Critics frequently argue that affirmative action does an injustice to the idea of merit. Organizations representing police officers and firefighters, such as the national Fraternal Order of Police, complain that qualifications and standards have fallen to accommodate affirmative action candidates. This criticism is popular not only with whites, who have long claimed that better qualified candidates lose out as a result of affirmative action, but also with two leading conservative African American critics. "What we've had to do for 25 years to pull off affirmative action," the author Shelby Steele said, "is demean the idea of merit." The economist Thomas Sowell advances much the same argument in his claim that the policy hurts African Americans. Like other conservatives, Sowell ties the rise of affirmative action in the 1970s to the development of the black economic underclass. Steele and Sowell have argued that affirmative action sets up its beneficiaries for failure, corrupting the value of achievement for blacks and reinforcing racist stereotypes for whites. Viewing affirmative action as antidemocratic, they conclude that individual qualities alone should determine who is hired or accepted into an academic program.

Advocates are highly suspicious of the merit argument. In the first place, they deny that creating opportunities ignores the value of personal merit. Voluntary affirmative action merely gives people who traditionally have been excluded a leg up, they assert; and when it is court ordered to redress a pattern of workplace discrimination, the question of merit misses the point. More crucially, supporters think the merit line is superficial. Political commentator Michael E. Kinsley quipped that critics "seem to imagine that everyone in America can be ranked with scientific precision, from No. 1 to No. 260,000,000, in terms of his or her qualification for any desirable career opportunity." He and other supporters consider the argument specious in a society in which merit is often the last reason for success and other variables that give advantages to certain groups are deemed perfectly natural—the children of the rich attend the best schools regardless of their abilities, for example, and military veterans receive preferences whether or not they have personally sacrificed anything for the nation. The United States was never a meritocracy, asserts Laura Murphy Lee, director of the ACLU's national legislative office: "Affirmative action didn't come along to taint a process that never existed."

Proposals for reforming affirmative action became increasingly popular in the mid-1990s. At one extreme, politicians have called for dumping it altogether. This idea has been urged in Congress chiefly by ultraconservative Republicans such as Senators Phil Gramm (R-Tex.) and jesse helms(R-N.C.). Although no action has been taken on the congressional level, similar proposals in the states of California and Florida have gained ground. California reformers scored two victories in the mid-1990s: First, in 1995, regents of the University of California dropped gender- and race-based admissions, hiring, and contracting. Then, reformers succeeded in passing an anti-affirmative action referendum—the California Civil Rights Initiative, a measure that would outlaw gender- and race-based preferences in government programs—in 1996. A similar referendum passed in Washington State in 1998.

Less radical and perhaps more politically feasible, another proposal calls for preserving affirmative action while shifting its emphasis. The idea would abandon race and gender as yardsticks and match preferences solely with economic need. Conservatives again lead this campaign, but it draws some support even from moderates: President bill clinton, declaring that his administration was against quotas and guaranteed results, ordered a review of federal employment policies in 1995 to ensure that they were being applied fairly. Critics of affirmative action believe that this kind of reform would ensure opportunity for disadvantaged people while ending what they see as egregious abuses, such as the awarding of contracts to rich minority-owned businesses. Traditional supporters agree that affirmative action benefits do not always help the people who most need them. But they believe that substantial gains should not be reversed, and that any need-based measurement should only augment—not replace—existing policies.

The journey of affirmative action from its heyday to the present reflects great changes in the United States. Between the administration of President Johnson and the Republican-controlled Congress elected in 1994 lies a thirty-year experience with great society initiatives that has left many citizens soured on the idea of government assistance. Radical changes in the nation's economy and workforce have surely not made the journey any easier. Bridging this gap seems unlikely, given the vastly different history of white males on the one hand, and women and people of color on the other. From these two poles of experience, two opposing ideas of necessity emerge. Critics say the time is ripe to overhaul affirmative action, a well-intentioned policy gone bad. Supporters, perceiving a playing field that is still far from level, maintain that the real work of affirmative action has scarcely begun.

In recent years, the battlefield for affirmative action has shifted from the workplace to education. Higher education—the arena that gave birth to regents of univ. of cal. v. bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), the first significant Supreme Court decision endorsing affirmative action—has more recently produced a mishmash of court decisions and laws that have called into question the future of affirmative action. There were arguments not just how Bakke should be applied, but whether it should be applied at all.

Higher education has been a particularly contentious area on affirmative action for many reasons. Because many higher education institutions are public, there is an issue of whether taxpayer money should be going to institutions supporting affirmative action. The public status of colleges and universities also ensures that affirmative action debates will be conducted out in the open. Also, the quality and prestige of a college or university is often seen as determining where someone will end up on the socioeconomic scale after graduation, making the affirmative action stakes at such institutions high.

In a reversal of the way they tolerated discrimination through most of the 20th century, many colleges and universities now seem anxious to employ affirmative action to increase the diversity of their campuses. Court cases litigating affirmative action in higher education are brought by disgruntled white students and parents claiming "reverse discrimination." It has been the courts and the legislatures, not the colleges and the universities, that have shown willingness to put the brakes on affirmative action.

The battle over Bakke and its effects on higher education swung into focus in 1996, when the 5th Circuit Court of Appeals struck down affirmative action in college admissions in their decision Hopwood v. Texas, 78 F.3d 932, 5th Cir. (Tex. 1996). The decision covered institutions in the states of Texas, Louisiana, and Mississippi. Within a year of that ruling, enrollments by minorities in higher education institutions dropped in all three states.

In response, the state of Texas guaranteed a place in a state university or college to anyone who had graduated in the top 10 percent of their class. This gave more minorities a chance, and as a result minority enrollment at higher education institutions in the state was higher in 2001 than it was in the year before Hopwood. Several other states, including California and Florida, have adopted versions of Texas's "10 percent" solution. Critics have charged that these programs are inadequate, failing to ensure that minorities are represented at the most prestigious institutions even when they do boost enrollment in state university systems overall.

In 2002, the affirmative action focus in higher education shifted to the University of Michigan. White applicants to its undergraduate school and its law school sued on reverse discrimination grounds. A U.S. district judge in Michigan upheld the undergraduate procedure, but another struck down the law school process. On appeal, a divided Sixth Circuit Court of Appeals ruled in favor of both admissions polices. The U.S Supreme Court agreed to hear appeals of each decision. The administration of george w. bush filed a brief opposing these programs."The method used by the University of Michigan to achieve this important goal is fundamentally flawed," said the statement from President Bush. Defending the policy, Michigan President Mary Sue Coleman said "[President Bush] misunderstands how our admission process works" and denied it was unconstitutional. On June 23, 2003, the Court ruled 6-3 against the under graduate policy because it made each candidate's race the "deciding" factor but uphead 5-4 the law school's process because a compelling state interest exists for universities to create racially diverse campuses.

further readings

Buchanan, Sidney. 2002. "Affirmative Action: The Many Shades of Justice." Houston Law Review 39 (summer).

"Coloring the Campus." 2001. Time Magazine (September 17).

Goldstein, Amy, and Dana Milbank. 2003. "Bush Joins Admissions Case Fight; U-Mich. Use of Race Is Called 'Divisive'." Washington Post (January 16).

The University of Texas Law School implemented an admissions policy in which the standards for admission were lowered for minorities. The school employed an index (called the Texas Index, or TI) that combined standardized test scores with grade point averages. A minimum score for acceptance was ten points higher for whites than for non-whites. The appeals court found problems with the structure of the TI. While minorities, specifically African Americans and Mexican Americans, earned scores sufficient to be categorized as "presumptive admits" (certain to be accepted), whites that received the same scores were categorized as "presumptive denials" (certain to be rejected). The court invalidated the admissions policy, concluding that using race as a criteria for admissions is as arbitrary as using one's blood type.

In Grutter v. Bollinger, ___U.S.___, 123 S.Ct. 2325, 156 L.Ed.2d 304, 2003 WL 21433492 (U.S., Jun 23, 2003) (NO. 02-241), the U.S. Supreme Court narrowly endorsed the use of race in choosing students for America's top universities and the concept of racial diversity as a compelling governmental interest. In a landmark decision with wide-ranging implications for affirmative action programs across the United States, the Court ruled that it does not violate the Equal Protection Clause to give some preferential treatment to disadvantaged minorities, calling the diversity that minorities bring to education, business, and the military necessary for the cultivation of "a set of leaders with legitimacy in the eyes of the citizenry." But the victory for affirmative action was conditional, as the Court emphasized that racial preferences should be a temporary rather than permanent fixture in American society, and called for "periodic reviews" and "sunset provisions" for race-conscious admissions.

In the 5-4 decision, written by Justice sandra day o'connor and joined by joined by Justices john paul stevens, david souter, ruth bader ginsburg, and stephen breyer, the Court ruled that attaining a diverse student body is at the heart of a law school's proper institutional mission, and that good faith on the part of a university in pursuing diversity should be presumed, absent a showing to the contrary.

The Supreme Court emphasized that the law school sought to enroll a "critical mass" of minority students, not simply to assure that its student body had some specified percentage of a particular group. In concluding that the law school's admissions policy was narrowly tailored, the Supreme Court stated that the policy did not operate as a quota, but used race as a "plus" factor, such that the policy was flexible enough to ensure that each applicant was evaluated as an individual.

The plaintiff was a white Michigan resident whose application was rejected by the law school. She alleged that her application was denied because the law school used race as a "predominant factor." A district court agreed with the plaintiff, but the Sixth Circuit Court of Appeals reversed.

In a separate 6-3 decision handed down the same day as Grutter v. Bollinger, the Court struck down a separate University of Michigan under-graduate-admissions process based on a point system because the admissions process made race a "decisive" factor, rather than just one of many in determining who was admitted. Gratz v. Bollinger, ___U.S.___, 123 S.Ct. 2411, 156L.Ed.2d 257, 2003 WL 21434002 (U.S. Jun 23,2003) (NO. 02-516). The opinion was delivered by Chief Justice william rehnquist, who was joined by Justices O'Connor, antonin scalia, anthony kennedy, and clarence thomas.

This point-system ruling is expected to force state schools that use similar numerical methods to revise them, and it could cause companies to rethink their reliance on quantitative evaluations of job applicants and employees. Although Michigan is a public university, the decision is considered likely to apply to selective private universities as well because they receive government funding. It also will affect admission practices at selective public high schools where affirmative action has also been eliminated or besieged.

Distaste for affirmative action also led opponents to attack the policy at the state level through ballot initiatives and referendums. In November 1998, the California electorate passed Proposition 209 (54 to 46 percent), which banned many of the affirmative action programs in California. The referendum was promoted by the nonprofit Center for Individual Rights, which was also instrumental in building opposition to

the University of Texas admissions policy that was struck down in Hopwood. The proposition has remained a controversial topic, with supporters arguing that state and local officials have avoided dismantling affirmative action. These same supporters continue to call on state officials to enforce the law. Officials, however, have pointed out that under the proposition, when federal laws mandate affirmative action to qualify for federal monies, the state law must give way.

In 2000, Florida became the first state to voluntarily end affirmative action in higher education and state contracts. Public universities put into place new college admission policies that prohibit affirmative action. One new component was the Talented 20 Plan, which mandates that students who graduate in the top 20 percent of their class and who complete a college preparatory curriculum must be admitted into one of the ten state universities. These changes were designed to increase opportunity and diversity while ending racial preferences and set-asides.

In the face of continuing legal challenges, the fate of U.S. affirmative action programs remained unclear in early 2004. Recent federal court decisions as well as state government actions suggested that affirmative action policies might need to change in order to pass constitutional muster in the future. Commentators speculated that a Supreme Court—after expected retirement of the older justices—might be more likely to signal its rejection of existing affirmative action principles.

further readings

ACLU. 1995a. Affirmative Action. Briefing paper no. 17, March 22.

——. 1995b. The Case for Affirmative Action. July 1.

"Affirmative Action." 1995. CQ Researcher. April 28.

Clinton, President Bill. 1995. Speech at the National Archives, July 31.

Coyle, Marcia. 2003. "The Fallout Begins: In Its Final Week of the Term, the Supreme Court Hands Down Landmark Rulings That Give Legal Backing to Two Kinds of Diversity; Affirmative Action and Gay Rights." The National Law Journal 25 (July 7).

Curry, George E., and Cornel West, eds. 1996. The Affirmative Action Debate. New York: Perseus.

Landsberg, Brian K. 2003. "Affirmative-Action Decision Indicated Shifts in Position." The Los Angeles Daily Journal 116 (June 30).

Rubio, Philip F. 2001. A History of Affirmative Action, 1619–2000. Oxford: Univ. Press of Mississippi.

cross-references

Civil Rights Acts; Equal Employment Opportunity Commission; Seniority; Sex Discrimination.

Affirmative Action is a term of general application referring to government policies that directly or indirectly award jobs, admission to universities and professional schools, and other social goods and resources to individuals on the basis of membership in designated protected groups in order to compensate those groups for past discrimination caused by society as a whole. For political as well as prudential reasons reflecting racial sensitivities, public justification of affirmative action has tended to describe it as a logical extension of equality of opportunity for individuals. In fact, affirmative action embodies ideas that are philosophically antithetical to the principle of equal protection of the laws that is the basis of equality of opportunity. The essential difference is that affirmative action policies are designed to benefit persons on the basis of membership in a group, rather than according to individual qualifications and experience. Affirmative action focuses on the results of the procedures used by public and private organizations measured with respect to racial balance rather than on the existence of procedures that assure equal treatment of individuals irrespective of race, ethnicity, or sex. It can therefore be described as a civil rights policy premised on the concept of group rather than individual rights, which seeks equality of result rather than equality of opportunity.

As a general description of civil rights policy, affirmative action comprehends such matters as school desegregation, voting rights, housing sales and rentals, university admissions, the activities of federally funded agencies, and public and private employment. In each of these areas, there have been judicial decisions asserting the principles of group rights and equality of result that define affirmative action. The historical development and rationale of the policy are best illustrated, however, in employment discrimination law. Before the adoption of the Civil Rights Act of 1964, employers were permitted to select employees according to race or any other consideration, unlike the situation in voting or public education where racial discrimination was arguably unconstitutional. Accordingly, affirmative action in employment involved declaring practices that were lawful when they occurred unlawful, in order to justify awarding economic benefits to members of groups that were seen as victims of societal discrimination.

Affirmative action in employment originated in the 1960s in the policies of administrative agencies enforcing Title VII of the Civil Rights Act and Executive Orders Nos. 10 925 and 11 246 regulating federal contractors. In the 1970s the Supreme Court played a major role in rationalizing and legitimating the new race‐conscious approach to civil rights. In general, the Court proceeded on the theory that racial discrimination was by definition class discrimination and was essentially the same phenomenon regardless of where or in what form it appeared. The Court assumed that measures used in school desegregation and voting rights cases to remedy the effects of past discrimination, which took account of race and insisted on specific degrees of racial balance, could be applied in employment despite the substantially different nature of the activities involved. In the 1980s, the Supreme Court decisively protected and legalized affirmative action preferences in employment against the attempt of the executive branch to reorient civil rights policy in the direction of impartial individual rights and equality of opportunity.

Affirmative action challenges the traditional liberal principle that individuals have rights in respect of which they are entitled to be protected equally without regard to race or other irrelevant personal characteristics. The guarantee of these rights where government acts upon individuals establishes equality before the law (the principal meaning of equality of opportunity). To deny an individual his or her rights or treat the individual differently because of race is to discriminate. In contrast to this view, which may be referred to as the disparate treatment theory of discrimination, affirmative action postulates the disparate impact theory of discrimination. This theory asserts that discrimination is a statistical racial disparity resulting from employment practices or other social institutional activity that can not be justified as essential or necessary to business enterprise or the activity in question. According to this view, unlawful discrimination is not an intentional denial of rights motivated by racial prejudice. It is the social effects of legitimate social and economic practices measured by a standard of racial inclusiveness or proportional representation.

The disparate impact concept of discrimination was initially employed in school desegregation and voting rights cases, where courts held that racially neutral policies were unlawful because they had the effect of excluding African‐Americans. In Gaston County v. United States (1969), for example, the Supreme Court decided that a racially neutral literacy test was discriminatory on the ground that past school segregation denied African‐Americans equal educational opportunity, thereby preventing them from developing their intellectual ability in a way that would enable them to pass the test. In employment affirmative action based on the disparate impact theory was anticipated in seniority desegregation cases, in which courts held that racially integrated departmental classifications continued the effects of past (lawful) discrimination and were hence unlawful under Title VII.

In the landmark decision in Griggs v. Duke Power Co. (1971), the Supreme Court adopted the disparate impact concept of discrimination as the theoretical framework for enforcing Title VII. The Court held unanimously that an aptitude test and high school graduation requirement used by a company to select employees were unlawful because they had a disparate racial impact. The company had practiced racial discrimination before the enactment of Title VII, and its introduction of testing as a selection device at the time the act went into effect might have been judged intentionally discriminatory against African‐Americans. The Court did not find intentional discrimination, however. Declaring that Title VII was directed at the consequences of employment practices and that Congress intended that the posture and condition of the job seeker be taken into account, Chief Justice Warren Burger said practices that operated to exclude African‐Americans were illegal unless shown to be related to job performance, or justified by “business necessity.”

Griggs was broadly applied by the lower courts to strike down employment practices shown to have a disparate racial impact. Affirmed in Albemarle Paper Co. v. Moody (1975), the disparate impact theory of Title VII enforcement provided a strong incentive for private and public employers, who were brought under Title VII coverage in 1972, to engage in race‐conscious hiring to avoid discrimination charges based on statistics of racial imbalance. Concurrently, federal executive agencies, acting under regulations of the Office of Federal Contract Compliance, required employers to submit written affirmative action plans specifying goals and timetables to correct “underutilization” of minority groups and women.

Most large employers, who were covered by both Title VII and the contract compliance program, responded as expected by engaging in preferential practices. As affirmative action plans were put into effect, white male employees began to file discrimination suits charging unlawful practices under the Civil Rights Act. In the late 1970s three reverse discrimination cases in the Supreme Court challenged the emerging structure of affirmative action under the disparate impact theory.

In Regents of the University of California v. Bakke (1978), the Supreme Court considered a medical school affirmative action plan that assigned sixteen of one hundred places in its entering class to members of minority groups. Bakke, whose qualifications were superior to those of most of the minority admittees, claimed that the plan violated his statutory and constitutional right to equal protection of the laws. In an artfully contrived compromise, for which Justice Lewis Powell was the sole spokesman, the Court in effect handed down two decisions. It decided, 5 to 4, that the affirmative action plan was an illegal quota that denied Bakke's right not to be discriminated against because of race. Justice Powell declared, however, that race‐conscious policies adopted as a remedy for proven discrimination, which by 1978 had assumed considerable proportions in employment, were permissible under the Civil Rights Act and the Constitution. Joining with a different group of justices to form a pro‐affirmative action majority, Powell, in what amounted to a second decision, held that race was a legitimate factor that could be considered in a state university's admission policy, on the theory that it advanced the First Amendment value of “diversity.”

Although Bakke struck down an absolute quota, it protected the evolving structure of affirmative action in higher education and in agencies subject to the nondiscrimination requirements imposed on federally funded activities under Title VI of the Civil Rights Act. In United Steelworkers of America v. Weber (1979), the Court broadened the scope of affirmative action under Title VII. It rejected a reverse discrimination claim by a white male employee against a joint labor union and employer affirmative action plan that imposed a 50 percent racial quota under contract compliance pressure and the threat of Title VII discrimination charges. For the 5‐to‐4 majority, Justice William cBrennan said the quota was a form of private and voluntary affirmative action that, although it could not be required by government officials enforcing Title VII, was permitted under the law in order to “eliminate manifest racial imbalance in traditionally segregated job categories.” Whereas in previous quota cases preferential measures were ordered by lower courts as a remedy for unlawful discrimination, the Supreme Court in Weber approved a quota without requiring a finding of illegal practices. It protected race‐conscious policies that employers and unions were forced to adopt under the disparate impact theory of discrimination and the concept of underutilization in contract compliance.

The Supreme Court further expanded affirmative action in Fullilove v. Klutznick (1980). At issue was the constitutionality of a provision in the Public Works Employment Act of 1977 requiring that 10 percent of all federal grants awarded by the Department of Commerce be given to minority business enterprises. Rejecting a white contractor's charge of discrimination, the Court decided, 6 to 3, to uphold the law as an exercise of congressional power under the Fourteenth Amendment to prohibit public contracting practices that perpetuated the effect of past discrimination. Although several justices used remedial rhetoric, the Court did not require a finding of unlawful discrimination as a predicate for racial preference. Directed against societal discrimination, the decision sanctioned broad congressional authority to legislate racial preferences that in reality rested on the principle of proportional racial representation under the disparate impact theory of discrimination.

In the 1980s the Reagan administration tried to stop the spread of affirmative action. Although enforcing Title VII under the disparate impact theory and seeking remedies for victims of unlawful practices, the Department of Justice challenged the legality of quotas whether imposed by judicial decree or adopted “voluntarily” by employers. It argued that preferential treatment for members of a minority group who were not themselves victims of discrimination, in order to redress societal discrimination against the group as a whole at the expense of innocent non‐minority individuals rather than the employer who might have discriminated, violated the non‐discrimination requirements of Title VII and exceeded the scope of judicial authority under the act. The Justice Department's litigation policy forced the Supreme Court, after years of avoiding the issue, to decide on the legality of Title VII quota remedies.

In a series of decisions in the mid‐1980s, the Supreme Court reaffirmed the legality of quotas and defined the scope of race‐conscious affirmative action. In Local 28 Sheet Metal Workers International Association v. Equal Employment Opportunity Commission (1986), the Court approved, 5 to 4, a lower court quota order that imposed a 29 percent membership goal on a union found in violation of Title VII. For the Court, Justice Brennan declared that quota or “race‐conscious class relief” was appropriate where an employer or union “has engaged in persistent or egregious discrimination, or where necessary to dissipate the lingering effects of pervasive discrimination” (p. 445). In Local 93 International Association of Firefighters v. City of Cleveland (1986), the Court upheld a consent decree between the city and a class of minority employees that provided for promotion quotas. Justice Brennan's majority opinion viewed the consent decree as a form of voluntary affirmative action that did not infringe the rights of nonminority employees. And in United States v. Paradise (1987), the Court affirmed, 5 to 4, the constitutionality of a 50 percent promotion quota ordered as a remedy for egregious discrimination by a state police department. Describing the standards for adopting an affirmative action plan, Justice Brennan said the quota order was flexible, temporary, and fair to white employees because it merely postponed their advancement rather than dismiss them.

From its inception in the 1960s, the underlying logic of the disparate impact theory of discrimination was to induce employers to engage in preferential practices as though they were doing it voluntarily, rather than under the threat of discrimination suits based on statistical disparities. The effectiveness of the policy further required protecting employers against reverse discrimination charges when they took affirmative action, without admitting to past discrimination that would have opened them to Title VII suits by minority group individuals. In Johnson v. Santa Clara County (1987), the Supreme Court confirmed this fundamental rationale. It rejected a white male employee's claim of discrimination against a public employer's gender‐based preference under a voluntary affirmative action plan. Clarifying and going beyond Weber, the Court dispensed with the idea that affirmative action is a remedy for unlawful discrimination. For the majority, Justice Brennan said the use of race or sex as a consideration in job selection was justified by “the existence of a ‘manifest imbalance’ that reflected an underrepresentation of women ‘in traditionally segregated job categories’” (p. 617). In Johnson, the Court acknowledged that affirmative action is a prospective policy based on the idea of group rights that aims at achieving racial and gender balance, under the idea of proportional representation that is inherent in the disparate impact theory of discrimination.

While broadly approving race‐conscious measures, the Court placed some limits on affirmative action. In Firefighters Local Union No. 1794 v. Stotts (1984), the Court decided, 6 to 3, that a judicial order modifying a consent decree to protect black affirmative action hires from being laid off under a seniority agreement exceeded judicial authority under Title VII. In Wygant v. Jackson Board of Education (1986), the Court held, 5 to 4, that an affirmative action plan that protected minority employees against layoff and caused the layoff of more senior white teachers violated the equal protection clause of the Constitution. These decisions reflected the solicitude for seniority rights evident in Teamsters v. United States (1977), where the Supreme Court overruled a line of precedents conferring benefits to blacks under the present‐effects doctrine, and held that intent to discriminate must be proved in order to find a seniority system unlawful.

Having protected affirmative action against the Reagan administration's antiquota policy, the Supreme Court in 1989 appeared to shift course by modifying the evidentiary rules for proving discrimination under the disparate impact theory. Easing the burden on employers defending against discrimination charges, the Court limited the tendency toward quotas inherent in the disparate impact concept and merged the disparate impact and disparate treatment ideas in a unified theory of employment discrimination. In Ward's Cove Packing Co. v. Atonio (1989), the Court stated that in a disparate impact case the burden of proof remained on the plaintiff throughout the trial, as in a disparate treatment case. It held further that a simple statistical comparison of racial percentages between skilled and unskilled jobs was insufficient to make a prima facie case. And it said that in defending against a disparate impact charge, the employer was required to show only that its practices served legitimate business purposes, not that they were essential or indispensable.

The Court further tightened the rules of affirmative action in Richmond v. J. A. Croson Co. (1989). In a 6 to 3 decision, it struck down a city‐ordered 30 percent quota for minority contractors as an unconstitutional violation of the rights of white contractors. Applying for the first time the standard of strict scrutiny review to a benign racial classification, the Court held that the set‐aside was defective because it was not justified by a showing of past discrimination in public contracting.

In 1990, the Court continued its zig‐zag course on affirmative action by approving preferential treatment in the broadcasting industry. In Metro Broadcasting v. Federal Communications Commission, the Court declared, 5 to 4, that an FCC policy favoring minority broadcasters, which Congress through the appropriations process had required the agency to maintain, was substantially related to achieving the important governmental objective of broadcast diversity. Affirming congressional power to legislate racial preferences under the standardless appropriations power (in contrast to the more limited legislative power under the Fourteenth Amendment), the Court focused on the future benefits rather than the remedial justification of affirmative action.

Metro Broadcasting, like Johnson, reflected the tendency of supporters of affirmative action to view group rights and equality of result as principles of public policy needed to overcome societal discrimination. Despite the reservations about the disparate impact theory of discrimination expressed by the Supreme Court in Ward's Cove, as the struggle to define the meaning of equality continued in the 1990s, affirmative action remained solidly entrenched in the policies of the civil rights bureaucracy. With the passage of the Civil Rights Act of 1991, Congress overturned Ward's Cove and other recent decisions that had limited the scope of federal civil rights protections, thereby reaffirming the national commitment to the principles of affirmative action.

See also Employment Discrimination; Race and Racism.

Herman Belz

AFFIRMATIVE ACTION COMPLIANCE IN HIGHER EDUCATION

Affirmative action is a government policy that seeks to remedy long-standing discrimination directed at specific groups, including women and racial and ethnic minorities. The basic purpose of affirmative action policies and programs is to increase access to, and ensure the equitable distribution of, opportunities in higher education, employment, government contracts, housing, and other social-welfare areas. To this end, affirmative action provides regulations, procedures, and guidelines to assure that eligible and interested citizens receive equal consideration regardless of their race, ethnicity, gender, religion, or age. Affirmative action does not fully restrict all forms of discrimination or make them illegal. Rather, it attempts to redress historical inequities by providing traditionally underrepresented groups with more equal access to most public and private arenas. This access is regarded as "more equal" since it attempts to address years of inequities and inequalities within a short amount of time.

The civil rights innovations outlined in the U.S. Constitution were not available to all of the inhabitants of the new nation. Prior to 1865, most African Americans were slaves, and they were considered property and counted for census purposes as three-fifths of a person. For the most part, Native Americans received no consideration at all. Women, although counted as full persons in census data, had very few rights. In spite of a variety of legal and social changes, these groups continued to suffer blatant discrimination well into the second half of the twentieth century.

The Fourteenth Amendment to the Constitution provides the legal basis for affirmative action policies. Added to the Constitution in 1868, this amendment extends legal protection to all U.S. citizens. Specifically, the equal protection clause of the Fourteenth Amendment asserts that, "No state shall … deny to any person within its jurisdiction, the equal protection of laws." Although the language is clear, this legislation was infrequently enforced.

It was not until the Supreme Court ruled in the case of Brown v. Board of Education (1954) that the notion of equal protection received serious national consideration. Specifically citing the Fourteenth Amendment, the Court held that racial segregation in elementary and secondary education is unconstitutional because it promotes an unequal educational system. Following this ruling, President John F. Kennedy issued Executive Order 10925 in 1961, which asked federal contractors to adopt diversity programs in an effort to help end segregation. (This order provides the legal foundation for affirmative action programs.)

In the spirit of the equal protection clause, the Civil Rights Act of 1964 bans discrimination on the basis of race, color, religion, sex, or national origin. To ensure compliance, federal funds are denied to those institutions that violate this mandate. More specifically, Title VII of the Civil Rights Act of 1964 states that:

It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

Compliance

To ensure compliance, the federal government established the Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC). Established in 1965 under Executive Order 11246, the OFCCP reviews, monitors, and enforces an institution's affirmative action plan. The OFCCP posits that each employment agency is responsible for designing an "acceptable" affirmative action program, which "must include an analysis of areas within which the contractor is deficient in the utilization of minority groups … and further, goals and timetables to which the contractor's good faith efforts must be directed to correct the deficiencies, and thus to achieve prompt and full utilization of minorities … at all levels and in all segments of its work force where deficiencies exist" (41 C.F.R. Sec. 60-2.10).

Similar to the OFCCP, the EEOC also helps to enforce antidiscrimination laws and regulations. Created by Title VII of the Civil Rights Act of 1964, the EEOC also enforces other related legislation, including the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, and Title I of the Americans with Disabilities Act of 1990. The EEOC investigates discrimination charges filed by individuals. If an employer is in violation, the EEOC first attempts to bring about voluntary resolution. If this fails, the EEOC may choose to file suit against the employer in federal court. At the conclusion of such a case, the EEOC issues a "notice of the right to sue," which allows an individual to file an additional suit in federal court.

To comply with affirmative action regulations, most colleges and universities reformed their admissions and hiring practices. Throughout the 1970s, higher education institutions established affirmative action programs and antidiscrimination policies designed to increase the number of women and minority students and faculty members in all fields and disciplines. These activities included actively encour-aging women and minorities to apply for faculty and administrative positions, aggressively recruiting students from traditionally underrepresented groups, and offering support programs to help at-risk students succeed. Even so, affirmative action programs did not resolve all of the discrimination problems affecting higher education. Instead, it became one of them. In fact, white women received the greatest benefit from these programs, and many people questioned the constitutionality of affirmative action.

Court Cases Affecting Affirmative Action

Since the late 1970s, several cases have challenged the constitutionality and legality of affirmative action mandates. The earliest and most influential of these cases was Bakke v. Regents of the University of California (1978). Alan Bakke, a white male who was twice denied admission to the University of California–Davis Medical School, charged the institution with practicing reverse discrimination because it reserved certain positions for disadvantaged students. In this case, the Supreme Court held that it is lawful to consider race or ethnicity as one factor in making admission decisions. The opinion also supported the goal of striving to create a diverse student body. At the same time, the Court also stated that the use of racial distinctions is highly suspect and requires meticulous judicial review. Regarding University of California–Davis Medical School's specific program, the Court rejected it as unlawful because it used a fixed quota, or set-asides, in order to attain diverse enrollment.

Rather than settle the constitutional debate surrounding affirmative action, the Bakke decision made it more muddled and confused. In this ruling, the Supreme Court seemed to support the goal of affirmative action programs, while simultaneously making most of them illegal. In Wygant v. Jackson Board of Education (1986), the Court further limited an institution's ability to act on affirmative action legislation by developing the strict scrutiny test. Seeming to clarify the Bakke decision, Wygant required that the use of racial classification both support a compelling interest of state and be narrowly tailored to satisfy that particular interest. The Court's ruling in this case also stated that historic social discrimination was not by itself a compelling reason for an affirmative action policy, and that a public employer should only enact such a policy if it is indeed needed.

In the cases of Kirwan v. Podberesky (1994) and Hopwood v. State of Texas (1994 and 1996), U.S. circuit courts applied the Supreme Court decisions in Bakke and Wygant. In Kirwan, the U. S. Court of Appeals for the Fourth District ruled that a scholarship program for African-American students at the University of Maryland did not serve a compelling state interest, and therefore failed the strict scrutiny test. In 1994, the U.S. District Court of Appeals for the Fifth Circuit held that the University of Texas School of Law's admission policy of accepting less qualified minority applicants was unlawful because it was a quota system. In 1996, this same court also held that the equal protection clause of the Fourteenth Amendment did not permit the University of Texas to establish admissions policies that gave preferential treatment to one race over another.

As a result of the 1996 Hopwood decision, many people have concluded that affirmative action programs are unconstitutional, and many states have begun to rethink their use of affirmative action programs. Most notably, in 1996, California voters approved a law banning the use of such programs in state and local agencies, including the state's public colleges and universities. Yet, because many states are not bound to follow the Fifth Circuit's 1996 decision, the national debate over affirmative action continues.

The confusion the Supreme Court created in the Bakke decision continues to make it difficult for lower courts to rule on issues related to affirmative action programs. In 2000, the state of Michigan became a battle site for this debate. Highlighting the two-faced approach used by the Supreme Court in its Bakke ruling, the cases of Gratz v. Bollinger (2000) and Grutter v. Bollinger (2001) first upheld, and then rejected the use of affirmative action programs in college admissions. In the Gratz case, the U.S. District Court for the Eastern District of Michigan, South Division ruled that the University of Michigan College of Literature, Science and Arts' consideration of race as a factor in its admission of under-graduate students was both a lawful and "narrowly tailored" way of achieving diversity in its student population. However, in the Grutter case, the same court ruled that the University of Michigan Law School's use of race in its admission decisions violated both the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964, and was therefore unconstitutional.

The Supreme Court has yet to hear either case involving the University of Michigan. And as of March 2002, the Court has thus far refused to hear a case challenging the validity of California Proposition 209. Until these cases are heard the future of affirmative action programs and policies remains unknown.

Timeline of Affirmative Action Legislative and Judicial Developments

1787

U.S. Constitution is drafted, including Article I, Section 2, which counts each African-American slave as three-fifths of a person.

1862

The Morrill Act establishes sixteen higher education institutions specifically dedicated to the education of African Americans.

1863

The Emancipation Proclamation is issued, ending slavery in the Confederate States.

1865

The Thirteenth Amendment is added to the U.S. Constitution, abolishing slavery throughout the nation.

1868

The Fourteenth Amendment is added to the U.S. Constitution, guaranteeing equal protection under the law.

1870

The Fifteenth Amendment is added to the U.S. Constitution, extending the right to vote to all male citizens.

1896

In Plessy v. Ferguson, the U.S. Supreme Court establishes the doctrine of "separate but equal," helping to promote segregationist laws and policies.

1948

President Harry S. Truman issues Executive Order 9981, which ends segregation in the U.S. Armed Forces.

1948

In Sipuel v. Board of Regents, the Supreme Court orders the University of Oklahoma to admit an African-American law student because the state does not provide a separate law school for African Americans.

1950

In McLaurin v. Oklahoma State Regents, the Supreme Court rules that it is unconstitutional for an African-American student to be physically segregated from other students because of his race.

1950

In Sweatt v. Painter, the Supreme Court rules that the state of Texas's newly established law school for African Americans does not provide separate but equal facilities. As such, it cannot deny the petitioner the right to attend the University of Texas Law School.

1954

The Supreme Court reverses its doctrine of separate but equal established in Plessy v. Ferguson. In Brown v. Board of Education, the Court holds that state laws mandating or permitting segregation are unconstitutional under the equal protection clause of the Fourteenth Amendment.

1964

The Civil Rights Act of 1964 is passed. This legislation includes Title VI, which prohibits public and private institutions receiving public funds from discriminating on the basis of "race, color, religion, sex, or national origin," and Title VII, which provides for the establishment of the Equal Employment Opportunity Commission (EEOC).

1965

President Lyndon B. Johnson issues Executive Order 11246, requiring organizations that receive federal contracts of $50,000 or more and have fifty or more employees to develop affirmative action plans. The Office of Federal Contract Compliance Programs (OFCCP) is developed to monitor compliance with these regulations.

1967

President Lyndon B. Johnson issues Executive Order 11375, which amends and extends Executive Order 11246 to include women.

1972

Title IX of the Education Amendments of 1972 is passed, prohibiting gender-based discrimination in the programs and employment practices of federally funded organizations.

1978

In Bakke v. Regents of the University of California, the U.S. Supreme Court rules that University of California–Davis Medical School's special admissions program is unlawful.

1981

In DeRonde v. Regents of the University, the Supreme Court of California rules that the affirmative action plan in place at the University of California–Davis Law School violates of the equal protection clause of the Fourteenth Amendment.

1986

In Wygant v. Jackson Board of Education, the U.S. Supreme Court holds that the school board's plan to consider race in laying off teachers violates the equal protection clause of the Fourteenth Amendment. In this case the Court also established the strict scrutiny test.

1992

The U.S. Department of Education and the University of California, Berkeley establish an agreement ending the admissions practice of placing applicants into separate pools on the basis of race.

1994

In Kirwan v. Podberesky, the U.S. Circuit Court of Appeals for the Fourth Circuit holds that the University of Maryland's Banneker Scholarship Program unlawfully violates the equal protection clause of the Fourteenth Amendment.

1994

In Hopwood v. State of Texas, the U.S. District Court for the Western District of Texas holds that the admissions policy of the University of Texas School of Law established an unlawful quota system.

1996

The U.S. Circuit Court of Appeals for the Fifth Circuit holds that the equal protection clause of the Fourteenth Amendment does not permit an institution to establish preferential, race-based admissions policies. The Fifth Circuit also rules that the University of Texas Law School may no longer consider race in its admissions decisions.

1996

California Proposition 209, also known as the California Civil Rights Initiative, is voted into law, eliminating the use of affirmative action programs throughout state and local agencies, including public colleges and universities.

2000

In Gratz v. Bollinger, the U.S. District Court for the Eastern District of Michigan, Southern Division rules that the University of Michigan College of Literature, Science and Arts' use of race in its admissions decisions is a lawful and "narrowly tailored" way of achieving diversity.

2001

In Grutter v. Bollinger, the U.S. District Court for the Eastern District of Michigan, Southern Division holds that the University of Michigan Law School's use of race in its admissions decisions is unconstitutional, stating that the university's policies violate both the equal protection clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. The court also rules that diversity is neither a "compelling interest" of the state nor a remedy for past discrimination.

Since the Bakke decision, some public and private entities have either chosen or been forced to abandon affirmative action programs. Rather than resolve issues surrounding the validity of these programs, this decision has actually caused more controversy. The legal challenges that resulted from the Supreme Court's ambiguous decision in this case suggest that the Court will soon be expected to make a final determination regarding the constitutionality of these programs.

See also: Faculty Diversity; Multiculturalism in Higher Education; Race, Ethnicity, and Culture, subentries on Cultural Expectations and Student Learning, Racial and Ethnic Minority Students in Higher Education.

bibliography

Bowen, William, and Bok, Derek. 1998. The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions. Princeton, NJ: Princeton University Press.

Center for Individual Rights. 1998. Racial Preferences in Higher Education: A Handbook for College and University Trustees. Washington, DC: Center for Individual Rights.

Feinberg, Walter. 1998. On Higher Ground: Education and the Case for Affirmative Action. New York: Teachers College Press.

Fleming, John E.; Gill, Gerald R.; and Swinton, David H. 1978. The Case for Affirmative Action for Blacks in Higher Education. Washington, DC: Howard University Press.

Garcia, Mildred. 1997. Affirmative Action's Testament of Hope: Strategies for a New Era in Higher Education. Albany: State University of New York.

Post, Robert, and Rogin, Michael, eds. 1998. Race and Representation: Affirmative Action. New York: Zone.

M. Christopher Brown II

Saran Donahoo

Affirmative Action

Affirmative action refers to concrete steps that are taken not only to eliminate discrimination—whether in employment, education, or contracting—but also to attempt to redress the effects of past discrimination. The underlying motive for affirmative action is the Constitutional principle of equal opportunity, which holds that all persons have the right to equal access to self-development. In other words, persons with equal abilities should have equal opportunities.

The extent to which affirmative action programs attempt to overturn discrimination differs widely. Some programs simply institute reviews of the hiring process for women, minorities, and other affected groups. Other affirmative action programs explicitly prefer members of affected groups. In such programs, minimum job requirements are used to create a pool of qualified applicants from which members of affected groups are given preference.

Affirmative action affects small businesses in two main ways. First, it prevents businesses with 15 or more employees from discriminating on the basis of race, color, sex, religion, national origin, and physical capability in practices relating to hiring, compensating, promoting, training, and firing employees. Second, it allows the state and federal governments to favor women-owned and minority-owned businesses when awarding contracts, and to reject bids from businesses that do not make good faith efforts to include minority-owned businesses among their subcontractors.

The interpretation and implementation of affirmative action have been contested since their origins in the 1960s. A central issue of contention was the definition of discriminatory employment practices. As the interpretation of affirmative action evolved, employment practices that were not intentionally discriminatory but that nevertheless had a "disparate impact" on affected groups were considered a violation of affirmative action regulations.

Another central issue of contention is whether members of affected groups may receive preferential treatment and, if so, the means by which they are to be preferred. This issue is sometimes referred to as the debate over quotas. Though affirmative action programs came under heavy attack during the Reagan and Bush administrations, the principles of affirmative action were reaffirmed by the Civil Rights Act of 1991. In 1997, however, California's Proposition 209 banned affirmative action in that state. In 2003 a group of affirmative action opponents began a campaign to challenge its use in Michigan. Ward Connerly, a California businessman and national leader in the campaign to end affirmative action, has pushed for the Michigan Civil Rights Initiative, which would bar the use of race and gender in government hiring, contracting, and university admissions. As of early 2006, and barring legal appeals to the contrary, the Michigan Civil Rights Initiative will be on the November 2006 Michigan ballot. The legal battles over affirmative action and how it may and may not be used continue. On a state-by-state basis, challenges to affirmative action programs are being made.

HISTORY OF AFFIRMATIVE ACTION

Affirmative action has its roots in the civil rights movement. In March of 1961, President John F. Kennedy signed Executive Order 10925, which established the President's Commission on Equal Employment Opportunity. The order stated that contractors doing business with the government "will take affirmative action to ensure that applicants are employed, and employees are treated during their employment, without regard to their race, creed, color, or national origin." The order did not advocate preferential treatment of affected groups but rather sought to eliminate discrimination in the traditional sense.

The legal status of affirmative action was solidified by the Civil Rights Act of 1964. This landmark legislation prohibited discrimination in voting, public education and accommodations, and employment in firms with more than fifteen employees. Title VII of the Civil Rights Act offered a similar understanding of affirmative action as Executive Order 10925, stating that the act was not designed "to grant preferential treatment to any group because of race, color, religion, sex, or national origin." The act's sponsors, Senators Joseph Clark and Clifford Case, emphasized this non-preferential interpretation of affirmative action when they wrote: "There is no requirement in Title VII that an employer maintain a racial balance in his workforce. On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a violation of Title VII, because maintaining such a balance would require an employer to hire or refuse to hire on the basis of race."

The Civil Rights Act did not provide criminal penalties for employers that discriminated, nor did the civil remedies established by the act include compensation for pain and suffering or punitive damages. Rather, the act sought to establish a conciliation process by which victims would be restored to the situation they would have had in the absence of discrimination. To carry out the conciliation process, the act created a new federal agency as a branch of the U.S. Department of Labor, the Equal Employment Opportunity Commission (EEOC). The EEOC acts as a facilitator between plaintiffs and private employers and also pressures violating employers to provide compensation, whether in the form of back pay or restitution. The EEOC also provides legal support for plaintiffs should the plaintiffs pursue their grievances in court.

Two important issues were contested in the wake of the Civil Rights Act of 1964: whether unintentional or structural discrimination constituted violation of the principle of equal opportunity; and the extent to which preferential treatment should be given to affected groups. These issues came to the forefront during the Johnson administration. In a 1965 commencement speech, President Johnson argued that equality of opportunity required more than simply ending discrimination. Rather, he argued for a more active interpretation of affirmative action that would assure "equality as a result."

In 1966, the U.S. Department of Labor began collecting employment records with breakdowns by race in order to evaluate hiring practices, overturning earlier policies of the Eisenhower and Kennedy administrations. In 1968, the Office of Federal Contract Compliance issued regulations which required, for the first time, that specific targets be set by which the effects of affirmative action programs could be evaluated. The regulations stated that "the contractor's program shall provide in detail for specific steps to guarantee equal employment opportunity keyed to the problems and needs of minority groups, including, when there are deficiencies, the development of specific goals and timetables for the prompt achievement of full and equal employment opportunity." It was in these regulations and analogous measures by the EEOC that the debate over affirmative action quotas had its origins.

Goals and timetables were established by the U.S. Department of Labor using "utilization analysis," which statistically compared the proportion of employed women and minorities in a firm with the proportion of women and minorities in the regional workforce, deriving a measure of what the department called "disparate impact." In the absence of discrimination, it was assumed that these proportions would and should be roughly equal. Since these regulations focused on results and not intent, the structural nature of discrimination was officially recognized. In addition, these regulations provided an official and measurable basis for the preferential treatment of affected groups.

In the landmark Griggs v. Duke Power Co. case of 1971, the Supreme Court unanimously ruled against Duke's requirement of high school diplomas or IQ tests for those applying for unskilled jobs. The decision held that "Title VII forbids not only practices adopted with a discriminatory motive, but also practices which, though adopted without discriminatory intent, have a discriminatory effect on minorities and women." The ruling provided a legal foundation for cases of "disparate impact," asserting that employers may not use job requirements that adversely affect women and minorities unless required by what it termed "business necessity." (For example, in the case of serious health or safety threats to co-workers or customers.)

The EEOC was strengthened by the Equal Employment Opportunity Act of 1972, which enabled the Commission to file class action suits. Under the Carter administration, the Uniform Guidelines on Employee Selection established the "four-fifths rule." This rule was significant in that it provided an explicit benchmark to determine disparate impact, which had been left vague in earlier U.S. Department of Labor regulations. The four-fifths rule held that firms contracting with the federal government should not be allowed to hire any race, sex, or ethnic group at a rate below four-fifths that of any other group.

Another significant Supreme Court ruling on affirmative action came in a 1978 case, Regents of the University of California v. Bakke. Under the University of California at Davis's admission policies, 16 of 100 places were set aside for minority applicants. Allan Bakke was a white applicant who was denied enrollment to Davis's medical school, even though his test scores were higher than the minority students who were admitted. Casting the deciding vote, Justice Lewis Powell held that Bakke should be admitted to the program since Davis's policies constituted a rigid quota, but that, nonetheless, Davis could continue to favor minorities in its admission practices and that it had a "compelling state interest" to attain a diversified educational environment.

The tide favoring affirmative action began to turn in the 1980s during the Reagan and Bush administrations. In his 1980 campaign, Reagan stated, "We must not allow the noble concept of equal opportunity to be distorted into federal guidelines or quotas which require race, ethnicity, or sex—rather than ability and qualifica-tions—to be the principal factor in hiring or education." Through court appointments, hiring and firing decisions, and budget cuts, the Reagan administration sought to end affirmative action as it had evolved since the Johnson administration. Between 1981 and 1983, the budget of the EEOC was cut by 10 percent and the staff by 12 percent. The Office of Federal Contract Compliance was hit harder yet, with budget cuts of 24 percent and staff cuts of 34 percent during these same years.

Two important Supreme Court rulings in the late-1980s also acted to substantially weaken affirmative action. The 1988 case, Watson v. Fort Worth Bank and Trust overturned the landmark 1971 case, Griggs v. Duke Power Co., shifting the burden of proof in employment discrimination cases from employers to plaintiffs. In the 1989 case Wards Cove Packing Company v. Antonio, the Court ruled that a plaintiff could not simply show disparate impact to prove discrimination, but must demonstrate that a specific employment practice created the existing disparity.

AFFIRMATIVE ACTION IN THE 1990S AND 2000S

In an effort to fight the dramatic rollback of affirmative action, Congress passed the Civil Rights Act of 1991. The Act returned the burden of proof to employers in disparate impact cases, requiring employers to prove that employment practices that resulted in disparate impact were "job related" and "consistent with business necessity." The act thus overturned the Supreme Court's rulings in Watson v. Fort Worth Bank and Trust and Wards Cove Packing Company v. Antonio. In addition, the Civil Rights Act of 1991 addressed issues of unlawful harassment and intentional discrimination, allowing minority and female victims of intentional discrimination to be awarded up to $300,000 in compensatory damages in addition to back pay and restitution.

In 1994, the Federal Communications Commission (FCC) initiated one of the largest affirmative action programs ever. The FCC voted unanimously to earmark 1,000 of 2,000 new radio licenses for small businesses owned by women and minorities. These licenses are for businesses serving the rapidly growing number of users of pocket-sized telephones, fax machines, pagers, and handheld computers. Small companies owned by women or minorities could receive up to a 60 percent discount on the cost of these licenses, which federal officials estimated have a total market value of $10 billion. One of the concerns expressed about the FCC ruling is that it would enable the rise of companies that were only nominally headed by women or minorities. This could occur as a result of the acquisition provisions of the ruling, which allow up to 75 percent of the equity and 49.9 percent of the voting stock of a small firm to be acquired by a larger firm, and yet the small firm still qualifies for licensing discounts.

Despite such efforts, the mid-1990s saw affirmative action programs continue to be rolled back by the Republican-controlled U.S. Congress, as well as by state legislatures and court decisions. Critics charged that affirmative action was a form of "reverse discrimination," meaning that by favoring minorities and women it discriminated against white males. In addition, they argued that affirmative action sometimes prevented companies from hiring the best available worker, and in so doing caused resentment toward minority workers on the job.

In 1996, California voters passed Proposition 209, which banned preferential treatment on the basis of gender or race in public employment, education, and contracting in the state. In effect, the measure eliminated affirmative action programs in California, except as necessary to comply with federal law. Although civil rights groups quickly blocked the measure with a court injunction, it took effect in August 1997 when the injunction was overturned on appeal. It was widely believed that if the U.S. Supreme Court upheld Proposition 209, many states would follow California's lead and make dramatic changes to their affirmative action programs.

Two important cases were decided by the U.S. Supreme Court in 2003—Gratz v. Bollinger and Grutter v. Bollinger. In the latter case, the Court upheld the right of the University of Michigan Law School to consider race and ethnicity in admissions. The Court ruled that although affirmative action was no longer justified as a way to redress past oppression and injustice, it promoted a "compelling state interest" in diversity at all levels of society. In the former case, the Court invalidated a particular admissions policy used by the University of Michigan's College of Literature, Science, and the Arts. In this case the race-conscious admissions policy was deemed to be rigid and to fail to provide for individual consideration of applicants. This decision is seen as a rejection of the use of quotas in admission policies at public institutions of higher education.

Although recent court cases have addressed state use of affirmative action policies, and not their use in the private sector, they demonstrate the direction in which this wide and ongoing social debate is tending. Lisa Chang, in an article she wrote for Employee Relations Law Journal discusses how corporate America can learn from recent U.S. Supreme Court rulings on the subject of affirmative action. "American companies recognize the need for and benefits from tapping into [the strengths of] that diversity, and the Supreme Court has cast an approving eye on those efforts, at least for the moment."

see also Racial Discrimination; Employee Hiring

BIBLIOGRAPHY

Bell, Dawson. "Court Orders Affirmative Action Put on 2006 Ballot." Detroit Free Press. 21 December 2005.

Chang, Lisa E. "Grutter v. Bollinger, et al.: Affirmative Action Lessons for the Private Employer." Employee Relations Law Journal. Summer 2004.

Chung, Kim-Sau. "Role Models and Arguments for Affirmative Action." American Economic Review. June 2000.

Katznelson, Ira. When Affirmative Action was White. W. W. Norton & Company, August 2005.

Nye, David. "Affirmative Action and the Stigma of Incompetence." Academy of Management Executives. February 1998.

Rundles, Jeff. "Affirm Affirmative Action." Colorado Business Magazine. April 1998.

Sowell, Thomas. Affirmative Action Around the World. Yale University Press, 2005.

                                 Hillstrom, Northern Lights

                                  updated by Magee, ECDI

AFFIRMATIVE ACTION

AFFIRMATIVE ACTION is the network of law and public policy developed in the post–World War II era to allocate resources such as jobs, educational opportunities, procurement and construction contracts, and voting strength to African Americans and, beginning in the late 1960s, to women and other minorities. The purpose of affirmative action, to remedy the underrepresentation of women and minorities in workplaces, business ownership, and educational institutions, has been articulated through a variety of formal and informal approaches, including presidential executive orders, administrative guidelines, judicial decisions, and personnel practices, that apply to the nation's public and private institutions.

Affirmative action had precedents in racial and labor policies that sought to compensate for past injustices, such as the Reconstruction-era plans to redistribute former slaveholders' lands to the freedmen. The National Labor Relations Act (1935) required employers to "take affirmative action" to reinstate employees fired for union activity. In 1941, President Franklin Roosevelt issued Executive Order 8802, prohibiting racial discrimination in war-related industries. He drew upon the notion of affirmative action by bringing the power of the federal government to bear on war-related industries that had excluded African Americans in the past. President Harry Truman broadened Roosevelt's executive order to require that any company that was a government contractor in peacetime formally agree not to discriminate on the basis of race, creed, color, or national origin. While these gestures were not compensatory, their major thrust mandated the equitable treatment of minorities by bringing them into formerly segregated fields of employment.

For the next two decades, civil rights activists and their congressional allies attempted to pass stronger and more comprehensive laws to diminish employment discrimination. Local, state, and federal antidiscrimination statutes enacted during the late 1940s and the 1950s did little to rectify discriminatory employment patterns because they relied upon individual complainants and exhaustive investigations rather than proactive employment policies. In 1961, President John F. Kennedy issued Executive Order 10925, which reiterated features of earlier executive orders requiring contractors not to discriminate. This order explicitly directed contractors to take "affirmative action to ensure that applicants are employed without regard to race." The affirmative action clause provoked scant comment upon its release. While employers expressed certainty about what it meant to discriminate, they were pensive and skeptical about what affirmative action would require. To the President's Committee on Equal Employment Opportunity, which enforced the executive order, affirmative action meant that nondiscrimination was not enough to satisfy the contract's obligations. Government contractors now were required to recruit and promote minority employees, although hiring goals for minorities remained vague. Activists from the National Association for the Advancement of Colored People and other civil rights groups believed these statutes were inadequate, and as early as the late 1940s, they pressed for a stronger federal antidiscrimination law.

The passage of the equal employment section (Title VII) of the Civil Rights Act of 1964 heralded a new phase in the fight against discrimination by expanding the concept of employment discrimination and its remedy, affirmative action. Title VII deemed it unlawful for an employer to refuse to hire an individual because of his or her race, color, religion, sex, or national origin. No section of the legislation explicitly mentioned affirmative action, but political and judicial actions eventually used this law to rationalize vigorous remedies for discrimination and exclusion, such as preferential treatment and racial proportionalism in hiring, promoting, voting, and admitting to college. Congressional opponents of Title VII were concerned that the legislation would force an employer to hire on the basis of race rather than merit, but they compromised with the inclusion of provisos intended to prevent quotas and racial proportionalism. The act established the Equal Employment Opportunity Commission (EEOC) to investigate and conciliate complaints of discrimination and to recommend cases for the Justice Department to bring before federal courts. The Equal Employment Opportunity Act of 1972 extended Title VII coverage to state and local government employees and to private workplaces with as few as fifteen employees. In this act Congress also authorized the EEOC to sue in federal district court.

In the 1960s, federal contracting guidelines articulated affirmative action to its fullest in large part because President Lyndon Johnson in 1965 issued Executive Order 11246, which created the Office of Federal Contract Compliance (OFCC). Congressional proscriptions did not bind the OFCC, unlike the EEOC, and as a result, the OFCC could require any variety of methods to increase the representation of minorities in the workplace. The construction industry, which had low rates of nonwhite workers, was one of the first to use the new tools of affirmative action under this executive order. The OFCC concentrated on results by setting goals and timetables to achieve a more equitable racial balance in workplaces.

After 1970, the national discussion of affirmative action turned to the judiciary, and the U.S. Supreme Court attempted to clarify the possibilities and limitations for af-firmative action delineated in the Constitution. In Griggs v. Duke Power Company (1971), the Court examined concepts of merit as well as selection and promotion procedures in light of the results they produced, thereby destroying the employer's defense that discriminatory procedures stemmed from "business necessity." In its decision, the Court ruled that the company's intelligence test had no bearing on workers' performance and adversely affected the promotion possibilities of nonwhites. Griggs is notable because the Court upheld the notion that the underrepresentation of minorities in a given workforce might serve as statistical proof that a company discriminated. In the wake of this decision, the lower courts began to require affirmative action, or preferences for minority employees for promotion and transfer, as necessary to remedy past discrimination and to achieve equity in the workplace.

The Supreme Court's most comprehensive review of affirmative action affected employment, and, as a result, lower courts, government agencies, private businesses, and labor unions turned to voluntary and involuntary race-and gender-conscious remedies to comply with Title VII. These affirmative remedies, which modify hiring qualifications, alter seniority systems, institute programs to train and upgrade minority employees, and set aside percentages of business contracts, came to define "affirmative action." The Court gave qualified support to early affirmative action programs with Fullilove v. Klutznick (1980) and United Steel workers of America v. Weber (1979), in which the Court upheld minority set-asides in contracting and the constitutionality of voluntary affirmative action plans. After the late 1980s, however, the Supreme Court became less approving of racially conscious measures that promoted racial balance or diversity in awarding government contracts or in decisions regarding tenure and layoffs.

Title VII also prohibited discrimination against women, but this provision was not fully articulated until the 1970s, when federal agencies began to include hiring goals for women. In 1973, a landmark consent decree signed by AT&T, the EEOC, and the Departments of Justice and Labor banned discriminatory practices against women and minorities and provided for employee upgrades and millions of dollars in salary increases. In Johnson v. Transportation Agency of Santa Clara County (1987), the Supreme Court made it clear that affirmative action plans for hiring and promoting underrepresented workers should take into account gender as well as race. Female employees subject to intentional discrimination and sexual harassment received some of the largest settlements as a result of the 1991 Civil Rights Act, which allowed plaintiffs who were victims of racial or sexual discrimination to recover compensatory and punitive damages.

The Supreme Court also gave considerable attention to affirmative action in higher education. Bakke v. Regents of the University of California (1978), one of the Court's best-known affirmative action decisions, both limited and preserved the use of racial set-asides in admissions. A judicial majority agreed that racial preferences were constitutionally permissible to promote a diverse student body but that racial classifications should be subjected to greater scrutiny. The Court equivocated on the diversity justification by allowing a lower court's decision to stand in Hopwood v. Texas (1996), in which a federal district court ruled that affirmative action is permissible solely to remedy past discrimination.

The Supreme Court's increasing conservatism regarding affirmative action mirrored a growing popular rejection of race-conscious remedies, such as preferential treatment, set-asides, and quotas. The Court further scrutinized the race-based assumptions of federal contracting programs just as the administration of President Bill Clinton announced its "mend it, don't end it" stance on affirmative action policy. Throughout the 1990s, affirmative action persisted as a controversial flashpoint. Basic definitions of the policy and the necessity for racial classifications remained unresolved, and statewide and municipal referenda tested the popularity of preferential treatment. California voters approved a referendum in November 1996 to end the state's affirmative action programs, and voters in several states of the South and the West organized ballot initiatives. While government programs and educational institutions were most vulnerable to court interpretation and voter referenda, affirmative action was embraced most fully by some private corporations in the wake of discrimination settlements that called for the payment of back wages, punitive damages, and the development of programs to hire and upgrade women and minority employees.

BIBLIOGRAPHY

Graham, Hugh Davis. The Civil Rights Era: Origins and Development of National Policy 1960–1972. New York: Oxford University Press, 1990.

Moreno, Paul D. From Direct Action to Affirmative Action: Fair Employment Law and Policy in America, 1933–1972. Baton Rouge: Louisiana State University Press, 1997.

Skrentny, John David. The Ironies of Affirmative Action: Politics, Culture, and Justice in America. Chicago: University of Chicago Press, 1996.

Spann, Girardeau A. The Law of Affirmative Action: Twenty-five Years of Supreme Court Decisions on Race and Remedies. New York: New York University Press, 2000.

Stacy KinlockSewell

See alsoBakke v. Regents of the University of California ; Civil Rights Act of 1964 ; Civil Rights Act of 1991 ; Discrimination: Race, Religion, Sex ; Equal Employment Opportunity Commission ; Griggs v. Duke Power Company ; Minority Business ; Set-Asides .

AFFIRMATIVE ACTION (ISSUE)

In 1996 a majority of Californians voted for Proposition 209, a state law which attacked affirmative action programs by stating that race, sex, color, ethnicity, or national origin could not be used to "grant preferential treatment" in the areas of "public employment, public education, or public contracting." The Civil Rights Initiative (CCRI) organized the campaign. A member of the University of California Board of Regents argued that affirmative action programs, in place since the 1960s, have hurt more than helped African Americans.

Clearly, the political atmosphere had changed dramatically in the United States since the Civil Rights Act of 1964 and the Voting Rights Act of 1965. These measures inaugurated a massive campaign to dismantle legal segregation and to protect the rights of African Americans under federal law. A decade earlier the Supreme Court handed down the landmark case of Brown v. Board of Education (1954). In the Brown case a unanimous Court ruled that state and local governments could no longer maintain racially segregated educational institutions. The Court argued that schools separated by race would always create inferior institutions for black children because isolation "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."

In a commencement address at Howard University in June 1965, President Lyndon B. Johnson (1963–1969) stated that guaranteeing basic equal freedoms was not enough; the nation also had to work toward an "equality of result." However, in a legislative compromise, the actual Civil Rights Act of 1964 disavowed using quotas as an anti-discrimination measure. In September 1965, President Johnson issued Executive Order (EO) 11246, which required employers to search aggressively for qualified minority applicants through such methods as advertising and recruitment in minority communities. It did not establish a means of enforcement to ensure candidates were now considered in a "color-blind" pool of applicants. In addition, EO 11246 did not include gender discrimination, which would be added a few years later.

The willingness of the public to provide a level playing field to the disadvantaged was again under-mined in the 1970s and 1980s when economic recessions created a tight labor market. More of the nation began to view job opportunities as a zero-sum game. This perspective suggested that when an individual belonging to a minority was hired under affirmative action, someone else, probably a white male, was disqualified. As this kind of attitude towards affirmative action became more pervasive, the Supreme Court in 1977 took up a case that addressed "reverse discrimination:" Regents of the University of California v. Bakke (1977). Allen Bakke and other higher-ranked white applicants were rejected from the University of California Davis Medical School and argued they had been discriminated against in order to fill a given number of slots with minority applicants. In a majority decision the Supreme Court struck down U.C.-Davis's racial-quota system and ordered Bakke admitted. However, the Court also found that it was acceptable to take race into account as a positive factor in admissions as a way to create a diverse student body. Affirmative action as a system remained intact although institutions were no longer allowed to blatantly use quotas to enforce desegregation.

Some critics of affirmative action want it abolished altogether. They argue that the programs hurt those they intend to help by implying the inferiority of African Americans through the hiring or admitting of less qualified black candidates to jobs and colleges. Opponents of affirmative action claim that these programs lead African Americans to think of themselves as victims of past racial injustices rather than to encourage self-reliance. In addition, critics claim that the country needs "color-blind" policies. In their eyes, affirmative action has already done away with the discriminatory policies and practices that existed prior to the concrete gains of the Civil Rights Movement of the 1960s. Other scholars, such as William Julius Wilson, argue that we need "race-neutral" affirmative action. Rather than help the majority of poor African Americans, Wilson claims affirmative action aids mostly upper stratum African Americans and other minorities. He argues that programs based on socio-economic status would provide opportunities to those who most need it in U.S. society including poor whites.

Critics often misrepresent affirmative action in the heated debate. First, the public debate about the issue has been misrepresented solely as a "black and white" issue, even though women and Latinos are important beneficiaries of the opportunities afforded under affirmative action programs as well. In addition, anecdotal evidence is usually used when instances of reverse discrimination are noted. However, in general, companies and colleges often have to decide between white men and African Americans or women who are equally qualified, and race and gender serves as a tiebreaker.

On the other side of the debate, affirmative action supporters provide four major reasons why affirmative action is not only necessary but needs to be strengthened. They say African Americans in the United States were historically harmed by racism and slavery. Historical oppression makes it necessary to give African Americans a head start, leveling the playing field and providing everyone with a fair opportunity. In a 1965 speech President Lyndon Johnson (1963–1969) supported this position, making an analogy to a running event, saying that if one runner got ahead of another whose legs were shackled together, it would be unfair merely to remove the shackles. Instead, in order to ensure a fair race, the shackled runner must be allowed to make up the "40 yards" he lost while in chains.

Another argument in support of affirmative action is that it is needed to overcome the racism still evident in the workplace and education system. Although the number of wealthy and middle class African Americans has increased greatly since the 1960s, a "glass ceiling" still remains as an obstacle to the advancement beyond entry-level jobs for most black men and women.

The third reason given for the need for affirmative action is that it increases diversity at jobs and colleges. By working and studying next to people from diverse backgrounds, some corporate leaders and college admissions officers argue, workers become more productive and students learn more from experiencing different perspectives and cultures. Supporters of affirmative action also suggest that companies can serve their customers better by including more personnel with diverse backgrounds in their decisions.

The fourth argument for these programs is that a social need is addressed by hiring minorities through affirmative action. For example, an African American doctor who grew up in a poor neighborhood might decide to go back and serve the community with his or her medical degree. A good example is the doctor who was admitted to medical school in the place of Allen Bakke. Dr. Patrick Chavis is an obstetrician gynecologist with a practice that serves mostly Medicaid patients in a poor neighborhood in Los Angeles. Another example of the way social needs may be met is that an African American female scientist is more likely to pursue research interests that may improve the health of black women, historically neglected as research subjects, than would a white researcher.

Several conclusions can be drawn about affirmative action despite its controversial nature. First, discrimination and racism still operate in the workplace and the education system in the United States. Second, countless African Americans, women, and Latinos have benefited from a higher education and higher income by taking advantage of affirmative action programs. Third, the benefits to society in raising the income and educational level of minorities outweigh the rarer instances of "reverse discrimination" which take place.

On the other hand, since the original purpose of the civil rights movement was to remove barriers based on race, creed, etc., affirmative action seems to many like a step backward that breeds its own injustice. They maintain that it is as unfair to discriminate against European Americans as it was to discriminate against African Americans, and the children are not responsible for the sins of their parents. It is not the state's job to redress the wrongs of history but to provide equal justice for all. According to this view, society is best served by treating everyone impartially, and in the long run talent will receive its reward. This argument has had the better of it in the public debate, because the national trend since the 1980s has been to reverse policies which overtly favor minorities, women, and the disadvantaged.

See also: Civil Rights Movement, Jim Crow Laws

FURTHER READING

Beckwith, Francis J., and Todd E. Jones, eds. Affirmative Action: Social Justice or Reverse Discrimination. Amherst, NH: Prometheus Books, 1997.

Bowen, William G., and Derek Bok. The Shape of the River: Long Term Consequences of Considering Race in College and University Admissions. Princeton, NJ: Princeton University Press, 1998.

Hacker, Andrew. Two Nations: Black and White, Separate, Hostile, Unequal. New York: Ballantine Books, 1995.

Omi, Michael, and Howard Winant. Racial Formation in the United States From the 1960s to the 1990s, 2nd ed. New York: Routledge, 1994.

Wilson, William Julius. The Truly Disadvantaged: The Inner City, the Underclass, and Public Policy. Chicago: University of Chicago Press, 1987.

in a commencement address at howard university in june 1965, president lyndon b. johnson stated that guaranteeing basic equal freedoms was not enough; the nation also had to work toward an "equality of result."

Affirmative Action

Rethinking Quotas

Affirmative action, which relies upon race-or gender-based preferences in school admissions, public hiring, and public contracting decisions for an institution, suffered a major defeat in the 1990s. California voters passed Proposition 209 in November 1996, making the state the first in the nation to bar state-sponsored affirmative action programs. After extensive legal battles, the Supreme Court refused to hear an appeal of the case that ruled that the law did not violate the Constitution's Fourteenth Amendment. Also in 1996, the U.S. Fifth Circuit Court of Appeals in New Orleans, Louisiana, struck down an affirmative action admissions policy at the University of Texas School of Law in Austin. That decision effectively banned race-based admissions at state-run schools in Texas, Louisiana, and Mississippi, the three states that came under the jurisdiction of the appeals court.

Resegregation

President Bill Clinton at the commencement address of the University of San Diego in 1997 said, "I know that the people of California voted to repeal affirmative action without any ill motive. The vast majority of them simply did it with a conviction that discrimination and isolation are no longer barriers to achievement. But consider the results. Minority enrollments in law school and other graduate programs are plummeting for the first time in decades. Assuming the same will likely happen in undergraduate education, we must not resegregate higher education or leave it to the private universities to do the public's work. To those who oppose affirmative action, I ask you to come up with an alternative. I would embrace it if I could find a better way."

Initiative 200

At the time of the California ruling, twenty-six states had similar initiatives pending. In 1998, 58 percent of the voters in Washington State approved the ban of state and local agencies from granting preferential treatment on the basis of race, ethnicity or gender when admitting students to state schools, hiring for state jobs, or awarding state contracts in a measure known as Initiative 200. The debate raged on across the country.

EBONICS

Late in December 1996, the local school board in Oakland, California, unanimously decided that the district would recognize "black English" as a separate language as opposed to a dialect of English or a form of slang. As a distinct language, Ebonics (from the words ebony and phonics) could be used to teach students in their primary language with the aim of improving achievement for the city's black children. Proponents of the plan asserted that Ebonics contained linguistic elements from African languages and that many black Americans had retained speaking patterns from their African roots. By allowing teachers to recognize the separate language, supporters argued that more effective teaching could take place.

Critics immediately condemned the move as an abrogation of the need to teach standard English to African American children. Accusations that the move was a ploy to enable the district to access funds aimed at non-English speaking students were denied by the district. African American civilrights leader, Reverend Jesse Jackson, called for the district to reverse its decision, arguing that black students who could not use standard English would have difficulty finding jobs. A week after the school board announced its decision, Secretary of Education Richard Riley confirmed that the Clinton administration could not accept the concept of Ebonics as a separate language. The following month, the Oakland school board altered its plan in the wake of rising criticisms that they had insulted the learning abilities of black children.

Some linguists supported the notion of recognizing Ebonics in schools and teaching that it was different, not wrong. One teacher in a Los Angeles elementary school shared with children that there was "home language" and "school language." Others asserted that the differences in language were not issues of heritage but of class. In all cases, teachers were encouraged to teach standard English to their students. Al Shanker, former president of the American Federation of Teachers, asked, "How can teachers juggle 'maintaining the legitimacy of Ebonics' with teaching children not to use it?" Several analysts feared that the entire issue had caused a backlash against programs (like Affirmative Action) designed to address the statistically poor academic performance of minorities. Although the issue of Ebonics disappeared from the national scene, the underlying problems the Oakland School Board sought to address continued.

Sources:

Karen Hopkins Movers, "Oakland, California Ebonics Doliate,' American Education Annual: Trends and Issues in the Educational Community, edited by Mary Alampi and Poter M. Comean (Detroit: Gale, 1999).

Lucille Remviek, "Ebonics: The Sound und the Fury,"Family.corn, Internet website.

THE BELL CURVE

The publication in 1994 of The Bell Curve: Intelligence and Class Structure, authored by Richard J. Herrnstein and Charles Murray, sparked major controversy across the nation. Although it echoed many of the ideas of current thinking about intelligence and its link to heredity, many scholars continued to debate the degree to which intelligence is inherited. Chief among the complaints of the book, and why it attracted such widespread attention, were the assertions that "blacks as a group are intellectually inferior to whites and that there is not much that education—or intervention of any sort—can do to close that gap."

The 860-page book, full of statistics and the culmination of an eight-year collaboration, put forth as its central theme the idea that America is increasingly divided by intellectual ability. The authors raised the concern that the leaders of the country, the intellectual elite, were further removed and isolated from the growing underclass. In presenting their arguments, Herrnstein and Murray condemned efforts to solve the nation's problems through attempts at raising intellectual levels as a move that had no chance of success. Although they offered little in the way of remedies, the two did suggest that parents be allowed greater freedom in choosing the schools that their children attend and that more funds be targeted toward the most gifted students.

Source:

Debra Viadero, "Education Experts Assail Book on l.Q. and Class," Education Weck, 2b October 1994.

King

Many representatives of the American Civil Liberties Union (ACLU) and black civil rights organizations decried the move as a step backward. Martin Luther King III, the oldest son of slain civilrights leader Reverend Martin Luther King Jr., announced that he was forming a new national coalition to fight for affirmative action. The Atlanta-based Americans United for Affirmative Action was developed in response to the vote in California and to the launch of the American Civil Rights Institute, a national anti-affirmative-action group headed by Ward Connerly, a black California businessman who had pushed for Proposition 209, legislation designed to eliminate quotas in higher education.

Test Case

Opponents of affirmative action were frustrated, however, by the settlement in 1997 of a Supreme Court case just weeks before the decision could be rendered relating to the choice of firing a white teacher in New Jersey based on the need to maintain racial balance within her business education department. The case, Piscataway v. Taxman, was viewed as a good test case for the Supreme Court because the facts of the case-two teachers equally qualified and the school board's preference criterion narrowly defined-were so clearly drawn.

Enrollment Figures

Proponents of affirmative action pointed to enrollment figures at schools affected by the recent measures as justification for the need of affirmative action programs. The law school at the University of California at Los Angeles reported that only twenty-one black students had been admitted for the 1997-1998 school year, the lowest total in nearly thirty years and down 80 percent from the previous year. About one hundred black applicants had gained admission for the 1996-1997 academic year. The law school at the system's Berkeley campus had admitted fourteen black students for the coming school year, down from seventy-five from the previous year. Both law schools said that similar drops in admissions had occurred among Hispanic applicants.

Sources:

Facts on File, volumes 56, 57, 58 (New York: Facts on File, 1996, 1997, 1998).

Affirmative Action

BIBLIOGRAPHY

The term affirmative action refers to policy measures designed to reduce the marginalization of groups that have historically suffered from discrimination, exclusion, or worse, and that are underrepresented in a society’s desirable positions. The measures may take the form of public laws, administrative regulations, and court orders, or of practices by private businesses and nonprofit institutions. The underrepresented groups are typically “identity groups” defined in terms of characteristics that are physical or cultural, such as race, caste, tribe, ethnicity, and gender.

Affirmative action policies are designed to benefit members of underrepresented identity groups by providing them with more favorable access to certain benefits—usually positions such as jobs, promotions, or admissions to educational institutions, but sometimes resources such as business loans and contracts, financial aid, or land rights. Membership in an identity group recognized as underrepresented is treated as a positive factor, increasing one’s chances of access to such benefits. This may be accomplished by means of a quota system, in which certain benefits are reserved for members of the relevant groups, or by means of a preferential boost system, in which extra weight is accorded to group members in an explicit or implicit measure of qualifications for access to benefits.

Affirmative action in the United States owes its origin to the civil rights movement of the 1950s and 1960s, which demanded an end to the long history of injustices perpetrated against African Americans and called for their full participation as citizens in U.S. society. This movement prodded the U.S. federal government into action to curb the segregation of African Americans into inferior facilities and to provide them with access to rights and opportunities long denied. The term affirmative action was first mentioned by President John F. Kennedy in his Executive Order #10925 of March 1961, which established the President’s Committee on Equal Employment Opportunity and described positive steps to be taken by federal agencies to root out discrimination against any identity group.

Affirmative action in this sense gained a firm legal foundation in the Civil Rights Act of 1964, championed by President Lyndon B. Johnson and enacted in the wake of the assassination of President Kennedy. Reinforcing the antidiscrimination provisions of the act, President Johnson went on to issue a series of executive orders designed to promote equal opportunity in employment, education, and government contracting. It was initially expected that the assertion of formal legal equality of all citizens, the removal of overtly discriminatory barriers, and a much wider diffusion of relevant information to members of underrepresented groups would lead to significant increases in opportunities for members of such groups—in particular, African Americans. It soon became apparent, however, that affirmative action of this kind would not have a significant impact on the numbers of African Americans in desirable jobs or schools. By the late 1960s, therefore, many government agencies and private organizations began to give some preference to African Americans in selection processes. In this context the term affirmative action came to denote positive action in favor of members of underrepresented groups, not simply an effort to abolish all forms of discrimination.

Following the example set by African Americans, other identity groups underrepresented in desirable positions in the United States—such as women, Hispanic Americans, and Native Americans—began to mobilize in the late 1960s and early 1970s for policies to end discrimination and to facilitate improvement of their standing in U.S. society. Soon thereafter, affirmative action programs oriented to African Americans came to include also Hispanic Americans and Native Americans as beneficiaries; and a variety of public and private affirmative action programs were established to increase the representation of women in fields that had long been dominated by men.

Affirmative action has been practiced in many countries of the world. Beyond the United States, significant affirmative action policies are in place in India, South Africa, Malaysia, and Sri Lanka; and some form of affirmative action has been implemented in another dozen countries. India was the first site of such policies—labeled “reservations” since they involved quotas of reserved seats. In the early twentieth century popular movements against Brahmins—the highest Hindu caste, whose members dominated the most elite positions open to Indians under British colonial rule—led in parts of India to the establishment of reserved seats for non-Brahmins in some public services and educational institutions. In the 1930s reservation policies were implemented throughout British India in the form of legislative assembly seats reserved for four of India’s minority communities—Muslims, Christians, Sikhs, and Anglo-Indians—and later also the two most depressed communities—untouchables and tribals, officially labeled “Scheduled Castes” and “Scheduled Tribes.” The constitution of independent India, completed in 1950, is unusual in making explicit provision for affirmative action in the form of reservations for Schedules Castes and Scheduled Tribes in national and provincial assemblies, as well as in public sector jobs and public institutions of higher education. The Indian constitution also permits reservations for members of “Other Backward Classes”; such reservations have been extended to a variety of groups in most Indian states and, since the 1990s, at the national level.

Wherever they have been implemented, affirmative action policies have proven to be highly controversial, generating heated debate and, at times, mass demonstrations. Where proponents see such policies as a way of rectifying historical injustices and integrating marginalized communities into the life of the society, opponents see these policies as a kind of “reverse discrimination” that contravenes the principle of equal rights for all individuals.

In recent decades academic scholarship has begun to shed light on the actual consequences of affirmative action policies, bringing empirical evidence to bear on debates most often dominated by ethical and political considerations. The evidence makes clear that the direct beneficiaries of affirmative action policies are most often relatively privileged members of underrepresented identity groups, who are in the best position to take advantage of improved access to desirable positions and resources. It has become increasingly clear that affirmative action does not compensate those individuals most disadvantaged by past injustices, nor does it redistribute effectively from rich to poor. But it does foster greater integration of the societal elite, which can serve to legitimate and energize democratic political institutions, to inspire members of marginalized groups, and to improve the performance of tasks where greater diversity among performers contributes to better quality of service for a diverse clientele. Simultaneously, however, affirmative action heightens attention to identity group status, which may exacerbate divisive identity politics.

SEE ALSO African Americans; California Civil Rights Initiative; Caste; Civil Rights Movement, U.S.; Discrimination; Hierarchy; Inequality, Political; Inequality, Racial; Politics, Gender; Politics, Identity; Quota Systems; Racism; Underrepresentation

BIBLIOGRAPHY

Anderson, Elizabeth S. Race, Gender, and Affirmative Action: Resource Page for Teaching. http://www-personal.umich.edu/~eandersn/biblio.htm.

Nesiah, Devanesan. 1997. Discrimination with Reason: The Policy of Reservations in the United States, India, and Malaysia. Delhi; New York: Oxford University Press.

Sowell, Thomas. 2004. Affirmative Action around the World: An Empirical Study. New Haven, CT: Yale University Press.

Weisskopf, Thomas. 2004. Affirmative Action in the United States and India: A Comparative Perspective. London: Routledge.

Thomas E. Weisskopf

Affirmative Action

Affirmative action is a descriptive phrase for policies and programs designed to correct the effects of past discrimination and increase the representation of historically disadvantaged groups, including women and African Americans. Affirmative action plans exist in the private and public sectors and involve the hiring of job applicants, the selection of contractors for government projects, and the admission of students to undergraduate and graduate educational institutions. Some employers, educational institutions, and government agencies are legally required by executive order to have affirmative action plans. Others may be ordered to develop affirmative action plans as part of a court finding that they have discriminated against individuals or groups. Still others voluntarily develop such plans because they believe it is good public policy, or that it provides them with a competitive advantage.

ORIGINS AND DEVELOPMENT OF AFFIRMATIVE ACTION

Although the roots of affirmative action in the United States go back to the nineteenth century, modern affirmative action plans originated with executive orders issued by Presidents John F. Kennedy, Lyndon B. Johnson, and Richard M. Nixon in the 1960s. Executive Order 11246, signed by President Johnson in 1965, required government agencies, contractors, and subcontractors to undertake affirmative action to remedy past discrimination in education, training, and employment. In 1969 President Nixon further strengthened affirmative action through Executive Order 11478, which required government contractors to develop goals for increasing the representation of historically disadvantaged groups and timetables for achieving them.

As amended in subsequent years, these executive orders eventually required all government agencies and contractors with annual contracts of $10,000 or more to undertake affirmative action. They also required agencies and contractors with 50 employees and government business of $50,000 or more to have written affirmative action plans. These written plans must include a utilization analysis, which compares the composition of the entity's workforce to the proportion of women and minorities in the available labor market. If underutilization is found, the agency or contractor must set specific goals and timetables for remedying the “imbalance” and develop specific plans for how this will be done. The use of affirmative action plans expanded greatly in the twenty years after the executive orders. Because most educational institutions and large organizations receive money and/or do business with the government, affirmative action plans are very common.

TYPES OF AFFIRMATIVE ACTION

In the employment context, affirmative action plans should be distinguished from equal employment opportunity (EEO) programs. EEO efforts focus on the process involved in hiring and promoting employees and attempt to ensure that there is a level playing field for all involved. Conversely, affirmative action programs focus on the outcomes of recruiting, hiring, and promotion processes, and involve additional efforts to increase the proportion of women and minorities that are hired and promoted.

There are various types of affirmative action plans. Some plans simply try to increase the number of applicants from underrepresented groups. Such plans, which are sometimes called “pure” plans or “opportunity enhancement” plans, involve proactive efforts to locate and recruit a larger number of individuals from the affected groups. Other affirmative action plans can be termed “limited preference” or “tiebreak” plans. They go a step further than pure affirmative action plans by considering race or

gender as a “plus” factor when evaluating the qualifications of applicants who essentially are equally qualified. Finally, the most aggressive affirmative action plans are “strong preferential treatment” or “quota” plans. In these plans, qualified members of a disadvantaged group may be preferred to more highly qualified individuals who are not in the affected group. Generally speaking, the more aggressive the affirmative action strategy employed, the more likely it is to generate challenges and the more difficult it is to defend legally.

Affirmative action plans are quite controversial and have been the subject of hundreds of lawsuits, several of which have gone to the U.S. Supreme Court. Lawsuits filed by those who believe they have been unfairly treated by affirmative action plans usually are called “reverse discrimination” lawsuits. Although the courts generally have agreed that affirmative action is legal if it meets certain criteria, court decisions in the 1990s and early 2000s seemed to reflect a trend toward restricting the more aggressive types of affirmative action programs, which may include preferences based on race or gender.

MOVEMENT AWAY FROM AFFIRMATIVE ACTION

In 1996, Proposition 209 was passed into California state law. The ballot proposition amended the state Constitution to prohibit public institutions from taking into consideration race, sex, or ethnicity. The ballot was spearheaded by the California Civil Rights Campaign and led by University of California Regent Ward Connerly. Two years later a Washington State Initiative was passed to bar any public institution from giving preferential treatment on the premise of race, sex, color, ethnicity, or national origin in the operation of employment, education, or contracting. The Michigan Civil Rights Initiative or Proposal 2 was a similar ballot initiative passed into Michigan Constitutional law in 2006.

In a landmark decision of the U.S. Supreme Court in 2007, Parents Involved in Community Schools v. Seattle School District No. 1 —together with Meredith v. Jefferson County Board of Education —prohibited placing students in public schools for the purpose of racial integration. Furthermore, the court refused to recognize racial balancing as a compelling state interest.

SEE ALSO Discrimination; Diversity

BIBLIOGRAPHY

Gomez-Mejia, Luis R., David B. Balkin, and Robert L. Cardy. Managing Human Resources. 4th ed. Upper Saddle River, NJ: Pearson/Prentice Hall, 2004.

Heilman, M.E., W.F.McCullough, and D. Gilbert. “The Other Side of Affirmative Action: Reactions of Nonbeneficiaries to Sex-Based Preferential Selection.” Journal of Applied Psychology 81, no. 4 (1996): 346–357.

Initiative 200 (WA, 1998)

Kovach, Kenneth A., David A. Kravitz, and Allen A. Hughes. “Affirmative Action: How Can We Be So Lost When We Don't Even Know Where We Are Going?” Labor Law Journal 55, no. 1 (2004): 53–62.

Meredith v. Jefferson County Board of Education 2006.

Naff, Katherine C. “From Bakke to Grutter and Gratz: The Supreme Court as a Policymaking Institution.” The Review of Policy Research 21, no. 3 (2004): 405–427.

Office of Federal Contract Compliance Programs. U.S. Department of Labor, Employment Standards Administration, Office of Federal Contract Compliance Programs. Available from: http://www.dol.gov/esa/ofccp.

Parents Involved in Community Schools v. Seattle School District No. 1 2007.

Proposal 2 (MI, 2006)

Proposition 209 (CA, 1996)

Regents of the University of California v. Bakke, 438 U.S. 265 (1978), argued 12 Oct. 1977, decided 28 June 1978 by vote of 5 to 4; Powell for the Court, Brennan, White, Marshall, and Blackmun concurring in part and dissenting in part. Allan Bakke wanted to be a physician. The University of California Medical School at Davis sought greater racial and ethnic diversity in its student body. The conflict between these two goals produced the first major constitutional test of affirmative action. It also posed an intractable conundrum: how to overcome the tension between an individual's claim to equal treatment by a state, and that state's responsibility to foster some degree of equality among its citizens.

Bakke was one of 2,664 applicants for one hundred entering positions at the Davis medical school in 1972. Eighty‐four slots were filled through the regular admissions program; sixteen were filled through a special admissions program—a distinct and separate process established in 1970 to address the faculty's concern over the paucity of African‐American, Asian, Latino, and Native American students. Grade point average and standard test score requirements were much less stringent than for students admitted under the regular program.

Rejected twice by the university, Bakke filed a lawsuit alleging that the Davis program violated Title VI of the Civil Rights Act of 1964, forbidding racial or ethnic preferences in programs supported by federal funds, and that the university's practice of setting aside positions for minorities denied him equal protection of the law under the Fourteenth Amendment.

The university agreed that racial classifications are disfavored because racial characteristics are generally irrelevant to permissible state objectives. However, the meritocratic promise of nondiscrimination was offset by the state's equally compelling concern for the victims of past and continuing racial injustice. The university also stressed the program's practical benefits: enriched medical education through a diverse student body, successful role models for minority youth, and improved medical services to minority communities.

Both the state trial court and state supreme court ruled that racially exclusionary preferences constituted a quota and that such quotas, absent a finding of prior discrimination by the university itself, were a denial of equal protection.

The U.S. Supreme Court held that a university may consider racial criteria as part of a competitive admissions process so long as “fixed quotas” were not used. But the holding masked a sharply divided Court with six separate opinions. Four justices (John Paul Stevens, Warren Burger, Potter Stewart, and William Rehnquist) preferred to address the statutory rather than the constitutional issue. The “plain meaning” of Title VI and its “broad prohibition against the exclusion of any individual” (pp. 412–413) on racial grounds from a publicly funded program were sufficient grounds, in their judgment, to order Bakke admitted.

A second group (William J. Brennan, Thurgood Marshall, Byron White, and Harry Blackmun) saw no difference between the commands of the Equal Protection Clause and Title VI. Absent a stigmatizing intent or effect, one “drawn on the presumption that one race is inferior to another” or one that places “the weight of government behind racial hatred and separation” (pp. 357–358), there was no reason to trigger the strictest equal protection test. However, the “mere rationality” test deployed in cases not affecting fundamental rights or suspect classifications was too lenient. Instead, Brennan opted for the middle test of heightened scrutiny. So long as the state can demonstrate an important purpose and the means do not unduly burden “those least well represented in the political process” (p. 361), race‐conscious remedies to help members of groups that had suffered racially motivated injuries were constitutional (see Strict Scrutiny).

Justice Lewis Powell cast the deciding vote, joining with Steven's plurality on the illegality of the racial quota and in ordering Bakke admitted, while agreeing with Brennan's plurality on the permissibility of racial considerations in admissions. The decisive factor for Powell was the exclusionary nature of the Davis program. Since Bakke had been “totally foreclosed” (p. 305) from competing for the sixteen special positions, he had been denied equal protection. Racial quotas are allowed only when there was a past constitutional or legal violation identified by a properly authorized governmental body. Powell did find justification for less exclusionary affirmative action programs in the First Amendment's guarantee of academic freedom. In a truly competitive process, racial considerations could be taken into account as part of the university's interest in promoting a “diverse student body” (p. 312).

Affirmative action continues to be a central controversy in America's political and legal life. Bakke nibbled at the question, settling only the narrower issue of racial quotas in admissions to state supported schools and leaving later cases to test the propriety of affirmative action in other realms. Voters in California and Washington banned state and local affirmative action programs during the late 1990s. Texas and Florida adopted race‐neutral admission programs to their public universities. And the Fifth Circuit Court of Appeals in Hopwood v. Texas (1996) held that diversity was not a compelling state interest.

In 2003 the Supreme Court reaffirmed the central tenets of Justice Powell's opinion. The Supreme Court upheld a flexible, race‐based admission program emphasizing diversity used by the University of Michigan's law school (Grutter v. Bollinger) while striking down a quota‐based admission program used by Michigan's undergraduate school (Gratz v. Bollinger). Race‐conscious admissions programs are on firmer legal ground than they have been in a generation.

See also Education; Race and Racism.

Bibliography

Timothy J. O'Neill , Bakke and the Politics of Equality (1985).
Peter Schuck , Diversity in America (2003).

Timothy J. O'Neill

REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE

A 1978 decision by the Supreme Court, Regents of the University of California v. Bakke, 438 U.S.

265, 98 S. Ct. 2733, 57 L. Ed. 2d 750, commonly referred to as Bakke, held that. although the university unlawfully discriminated against a white applicant by denying him admission to its medical school solely on the basis of his race, the university may consider the race of an applicant in its admission procedure in order to attain ethnic diversity in its student body.

In 1972, Allan Bakke, a 33-year-old white male engineer, applied for admission to the medical school of the University of California at Davis and was not accepted. Bakke was one of 2,664 applicants that year for 100 places. He applied again the next year and was again rejected. This second year, minority applicants with grade point averages, Medical College Admission Test scores, and other qualifications that were lower than Bakke's were accepted under a special minority admission program. This program set aside 16 of the 100 places in the entering class for minority groups titled blacks, Chicanos, Asians, and American Indians.

Following his second rejection, in 1974, Bakke instituted a lawsuit in the Superior Court of California against the university on the grounds that his rights had been violated under the equal protection clause of the fourteenth amendment of the U.S. Constitution; the California Constitution; and Title VI of the Civil Rights Act of 1964 (42 U.S.C.A. § 2000d et seq.), which proscribed the exclusion of any person from a federally funded program on the basis of race.

The California lower court ruled that the school's admission program was in violation of the state and federal constitutions and Title VI, but it would not order the university to admit Bakke to the medical school because Bakke had not shown that he would have won admission had there been no special minority program. Bakke then appealed to the California Supreme Court, which ruled that it was incumbent upon the university, not Bakke, to prove that he would not have been admitted if the special program had not been in effect. The school acknowledged that it could not satisfy the requirement, and the court ordered the university to admit Bakke. The university appealed to the U.S. Supreme Court, which granted certiorari (agreed to review the case), and the court order requiring Bakke's admission was suspended pending a decision by the High Court.

The Bakke case aroused intense controversy. civil rights supporters feared that the Court might hold that specific policies could not be employed to remedy past discrimination. On the other side of the issue stood Bakke and his supporters, charging that Bakke's civil rights were being violated simply because of his race, which happened to be white. A great deal of weight hung over the Bakke case as it moved through the courts, and, with enormous publicity surrounding their decision, the Supreme Court justices were keenly aware of the case's importance.

On June 27, 1978, the Court divided sharply in its decision, presenting six separate opinions. Four justices chose to address only the statutory issue of Title VI and found for Bakke, including his admission to the medical school, because the quota in the university's admission plan had clearly excluded Bakke on the basis of his race. Four justices addressed the larger constitutional issue of the Equal Protection Clause and found for the medical school because its intent was not to exclude Bakke but only to include individuals of other races for compelling government reasons. The deciding swing vote was cast by Justice lewis f. powell jr., who found for both. Powell's contention was that the Title VI plurality was correct in that the university had violated the "plain meaning" of the civil rights act, which proscribed discrimination based on race, and ordered Bakke be admitted to the medical school. But Powell also found that the university could use "race-conscious" factors in selecting its applicants in order to achieve the benefits of a "diverse student body."

This divided decision settled the Bakke case, but it left the legal issue muddled: what actions, if any, could the state take to protect minorities in the marketplace? Subsequent court decisions struggled repeatedly over this primary civil rights question.

In 2003, the affirmative action issue returned to the Supreme Court. A group of unsuccessful white applicants to the University of Michigan's undergraduate program and law school filed a lawsuit challenging the university's admission policies. The school uses a point scale to rate applicants, with grades and academics counting for more than two-thirds of the points. However, members of "underrepresented" racial and ethnic groups receive extra points, as do children of alumni and people from underrepresented geographic areas. The applicants and the Bush administration argued that giving points for race amounted to a quota, while the university contended that race was just one factor in promoting a diverse student body. The Supreme Court, in Gratz v. Bollinger, 539 U.S. ___, 123 S.Ct. 2411, 156 L.Ed. 2d 257 (2003), reaffirmed Bakke. The Court held that higher education institutions may use race as one factor in evaluating applicants but, as in Bakke, warned against the use of racial quotas or policies that give race too prominent a role in the selection process.

further readings

Ball, Howard. 2000. The Bakke Case: Race, Education, and Affirmative Action. Lawrence: Univ. Press of Kansas.

Daniel, T.K. Philip. 2003. "Diversity in University Admissions Decisions: The Continued Support of Bakke." Journal of Law and Education 32 (January).

Kirkelie, Stephen M. 2002. "Higher Education Admissions and Diversity: The Continuing Vitality of Bakke v. Regents of the University of California and an Attempt to Reconcile Powell's and Brennan's Opinions." Willamette Law Review 38 (fall).

Schwartz, Bernard. 1988. Behind Bakke: Affirmative Action and the Supreme Court. New York: New York Univ. Press.

cross-references

Affirmative Action; Colleges and Universities; Equal Protection; Strict Scrutiny; United Steelworkers v. Weber.

Affirmative Action. The term “affirmative action” first appeared in a legislative context in the 1935 National Labor Relations Act and was later written into state laws prohibiting racial discrimination in employment. But the phrase, implying simply that government agencies should try to prevent discrimination against African Americans, initially attracted little notice. Prior to the 1960s, virtually no one saw affirmative action as a way of giving minorities preferential treatment in hiring, promotions, and admissions.

More than anything else, the civil rights movement helped change the meaning of affirmative action. In 1964, after years of black protest, Congress passed the landmark Civil Rights Act, which among other things created new agencies run by officials eager to bring minorities into the mainstream of American life. By 1965, with the passage of the Voting Rights Act, the legal barriers to integration began to crumble and government and civil rights leaders began to confront a new, more difficult issue: how to give underprivileged minorities a fair shot at economic and social equality.

One answer was affirmative action. In 1965 President Lyndon B. Johnson issued an executive order establishing the Office of Federal Contract Compliance, which, along with the Equal Employment Opportunity Commission, began requiring companies for the first time to set numerical racial hiring goals. The trend toward quotas, goals, and timetables continued into the late sixties, as the Richard M. Nixon administration supported this new, more radical interpretation of affirmative action.

The nation's major institutions, under pressure from consumers, employees, students, and federal bureaucrats, and aware of recent U.S. Supreme Court decisions supporting race and gender preferences, quickly began devising their own affirmative action programs. By 1978, when the Supreme Court ruled in Bakke v. University of California that universities could use race as a plus factor in admissions, affirmative action had become deeply entrenched in American society.

By the late twentieth century, affirmative action had become a source of great controversy. Opponents tended to see racial preferences as unjust—an unfair government program that exacerbated an already large racial divide, harming whites while stigmatizing blacks as needing preferential treatment. Opponents also contended that affirmative action mainly aided more privileged African Americans and did little to help poor blacks.

In the 1990s, Republican party politicians and activists lobbied hard against affirmative action, helping pass Proposition 209, a 1996 California initiative to abolish racial and gender preferences, and backing the Regents of the University of California who in 1995 voted to end affirmative action in hiring and admissions. That same year, President Bill Clinton tried to stake out a middle ground on the issue, arguing that affirmative action was a flawed though necessary response to centuries of discrimination against women, blacks, and other groups.

Many in the civil rights community went further in their defense of affirmative action, arguing that white males still held a disproportionate number of powerful positions in society, and that laws and programs mandating preferences were one way to combat that imbalance. These supporters also argued that racism and sexism were still rampant, and that affirmative action was a small but just part of national social policy.

The Supreme Court addressed the issue in two important 2003 cases involving the University of Michigan, Grutter v. Bollinger and Gratz v. Bollinger. On one hand, the high court by a 5–4 vote upheld the Michigan law school's admissions policy, which took race and ethnicity into consideration without using hard‐and‐fast quotas. On the other hand, the justices, 6–3, found that Michigan's undergraduate‐admissions system, favoring African‐Americans, Hispanics, and American Indians through an automatic point system, violated the equal‐protection clause of the Fourteenth Amendment. The National Association for the Advancement of Colored People hailed the rulings as “a strong endorsement of the constitutionality of affirmative action with the proviso that institutions have to … structure these programs the right way.”
See also Civil Rights Legislation; Post–Cold War Era; Sixties, The.

Bibliography

Hugh Davis Graham , The Civil Rights Era: Origins and Development of National Policy, 1960–1972, 1990.
Steven M. Cahn, ed., The Affirmative Action Debate, 1995.

Matthew Dallek

Paul S. Boyer

affirmative action in the United States, programs to overcome the effects of past societal discrimination by allocating jobs and resources to members of specific groups, such as minorities and women. The policy was implemented by federal agencies enforcing the Civil Rights Act of 1964 and two executive orders, which provided that government contractors and educational institutions receiving federal funds develop such programs. The Equal Employment Opportunities Act (1972) set up a commission to enforce such plans. The establishment of racial quotas in the name of affirmative action brought charges of so-called reverse discrimination in the late 1970s. Although the U.S. Supreme Court accepted such an argument in Regents of the University of California v. Bakke (1978), it let existing programs stand and approved the use of quotas in 1979 in a case involving voluntary affirmative-action programs in unions and private businesses. In the 1980s, the federal government's role in affirmative action was considerably diluted. In three cases in 1989, the Supreme Court undercut court-approved affirmative action plans by giving greater standing to claims of reverse discrimination, voiding the use of minority set-asides where past discrimination against minority contractors was unproven, and restricting the use of statistics to prove discrimination, since statistics did not prove intent. The Civil Rights Act of 1991 reaffirmed a federal government's commitment to affirmative action, but a 1995 Supreme Court decision placed limits on the use of race in awarding government contracts; the affected government programs were revamped in the late 1990s to encompass any person who was "socially disadvantaged." In the late 1990s, in a public backlash against perceived reverse discrimination, California and other states banned the use of race- and sex-based preferences in state and local programs. A 2003 Supreme Court decision concerning affirmative action in universities allowed educational institutions to consider race as a factor in admitting students as long as it was not used in a mechanical, formulaic manner. In Europe, the European Court of Justice has upheld (1997) the use in the public sector of affirmative-action programs for women, establishing a legal precedent for the nations of the European Union .

affirmative action (USA) Initiated as US government policy by President Johnson in 1965, when he created the Office of Federal Contract Compliance and the Equal Employment Opportunity Commission. Through these bureaus, affirmative action was designed to reduce social inequalities in US society by requiring all federal government contractors as well as public institutions to give consideration to racial minorities and, from 1971, to women. In 1978 the policy was given an ambiguous verdict by the Supreme Court in Bakke v. University of California, when the court confirmed the policy as constitutional while deciding at the same time that the use of quotas to favour minorities violated the Fourteenth Amendment to the Constitution, which secured the citizens' equal protection before the law. However, in the case of United Steel Workers of America v. Weber (1979), the Supreme Court went further by deciding that in training programmes, preference to Blacks could be given as long as this did not bar Whites from advancement. During the 1980s and particularly the 1990s, popular opposition to affirmative action increased, and was reflected in a series of Supreme Court rulings in the mid-1990s which limited or narrowed its scope. In 1996, California voters adopted Proposition 209, which abolished any preference in its hiring policies on the basis of race, sex, colour, ethnicity, or national origin. In response, employers such as the University of California, which had always been at the forefront of affirmative action, introduced a new system of admission based on ‘comprehensive review’. This took into account a candidate's educational opportunities at high school, and in this way employed more sensitive measures of discrimination ensuring continuous above-average access to minorities candidates.

Civil Rights Acts (US); civil rights movement

affirmative action See POSITIVE DISCRIMINATION.