Affirmative Action

Affirmative action is an act, policy, plan, or program designed to remedy the negative effects of wrongful discrimination. "Affirmative action" can remedy the perceived injustice of discrimination on the basis of a person's race, national origin, ethnicity, language, sex, religion, disability, sexual orientation, or affiliation. As a civil rights policy affecting African Americans, "affirmative action" most often denotes race-conscious and result-oriented efforts undertaken by private entities and government officials to correct the unequal distribution of economic opportunity and education that many attribute to slavery, segregation, poverty, and racism.

What counts as affirmative action varies from one field to the next. Affirmative action in employment has generally meant seeking to hire a racially mixed and balanced workforce that includes a representative number of Americans of African, Latin, Asian-Pacific, or native ancestry, using the distribution of minority groups in the national or local population to gauge adequate representation. Self-described "equal opportunity/affirmative action" employers may voluntarily seek to hire African Americans, sometimes with explicit numerical goals and timetables in mind. For example, an employer whose workforce is two percent African American begins to hire additional blacks aiming at a workforce that will eventually include ten percent African Americans, three percent of whom will occupy management positions within three years.

Employers may base affirmative-action programs on the assumption that they can achieve racially balanced workforces through race-conscious hiring and promotion preferences. Preferential employment strategies involve affirmative action on behalf of a racial minority group when a person's minority race results in employment for which race is not otherwise a significant qualification. A person's race may sometimes be a bona fide job-related qualification (Fullinwider, 1980). For instance, undercover police work in black neighborhoods may require black police officers; realistic filmmaking about African-American history may require black actors. In such instances, preferring black workers is not affirmative action.

Not all racial preferences involve affirmative action, and not all affirmative action involves racial preferences. For example, to attract more African-American job applicants, an employer with a mainly white workforce begins to advertise job openings in the city's neighborhood newspapers, including newspapers circulated in black neighborhoods. This change in practice is potentially effective affirmative action, but it is not preferential treatment in the sense of according blacks employment advantages over whites or other groups (Greenawalt, 1983). However, if the same employer committed itself to hiring blacks over similarly qualified or better qualified whites, or by exempting blacks from the adverse impact of seniority rules, one could describe the employer as according blacks preferential treatment as an affirmative-action measure.

Affirmative action in public and private education has focused on such race-conscious programs as "desegregation," "integration," "diversity," and "multiculturalism." Whether voluntarily or pursuant to court orders, to achieve desegregation in public primary and secondary schools formerly subject to state-imposed racial segregation, school officials have expressly mandated numerical goals, ratios, and quotas for faculty hiring and pupil enrollment. At some schools, voluntary affirmative action has meant allocating financial resources to recruiting and retaining minority students with special scholarships, curricula, and social programs. At others, it has also meant admissions procedures that de-emphasize standardized test scores and other traditional qualifications. Some colleges and universities have adopted legally controversial minority admissions quotas or diversity criteria aimed at enrolling a representative percentage of nonwhite students each year. In many schools the ideal of a diverse, multicultural student body is thought to require affirmative action to employ teachers and to enroll and retain students of varied racial and ethnic backgrounds.

Beyond employment and education, the distribution of public or private benefits on the basis of race for the remedial purpose of redressing group discrimination fits the definition of affirmative action. Hence, minority "setaside" requirements that reserve a percentage of public contracts for minority businesses qualify as affirmative action. The concept also reaches special effort made by public and private scientific, humanistic, and arts organizations to disburse a share of their grants, awards, and prizes to members of once-neglected minority groups. The concept even reaches redistricting to aggregate minority voters into district to remedy a history of inadequate political representation.

Viewing affirmative action goals as quotas is often designed to suggest "that they, like yesterday's quotas, serve an immoral end" (Ezorsky, 1991). Indeed, the affirmative action practiced in employment, education, and other fields has excited intense moral and legal debate. The debate centers on the charges that race-conscious remedies designed to redress invidious discrimination against some groups amount to wrongful "reverse discrimination" against others (Steele, 1990). Opponents of affirmative action raise particular concern about any form of affirmative action that involves numerical mandates, especially goals and quotas. Although the word goals often connotes flexible guidelines for group inclusion and quotas often connote rigid limits with discriminatory intent, both entail optimal percentages or numbers of persons belonging to specific groups targeted to serve in specific capacities (Fullinwider, 1980). The strongest proponents of affirmative action argue that numerical mandates, whether termed "goals" or "quotas," are just and effective remedies for persistent discrimination (Bowen and Bok, 1998; Johnson, 1992).

History

The idea that special effort is needed to remedy discrimination on the basis of race is as old as President Abraham Lincoln's Emancipation Proclamation and the Thirteenth Amendment to the Constitution ending slavery. However, affirmative action as a distinct race-relations policy did not come about until the crest of the civil rights movement of the 1960s (Anderson, 2004). The term "affirmativeaction" quietly made its debut in American law in 1935, the year Congress passed the Wagner Act, expressly requiring "affirmative action" of employers guilty of discrimination against workers on the basis of union membership.

In June 1941 President Franklin D. Roosevelt issued Executive Order 8802, a precursor of affirmative-action policies in the arena of race relations, which called for "special measures" and "certain action" to end "discrimination in the employment of workers in the defense industries or government [occurring] because of race, creed, color, or national origin." Roosevelt's historic move was intended to boost the wartime economy and reduce severe black unemployment, as urged by A. Philip Randolph and other leaders. Executive Order 8802 was not consistently enforced, but in some states sudden black competition for traditionally white jobs prompted hostility and violence against blacks.

Internal White House discussions of employment policy during the presidency of Dwight D. Eisenhower included consideration of mandatory affirmative action. On March 8, 1961, President John F. Kennedy issued Executive Order 10925 establishing a President's Committee on Equal Employment Opportunity to expand and strengthen efforts to promote full equality of employment opportunity across racial lines. Order 10925 also required that all government contractors agree not to "discriminate against any employee or applicant for employment because of race, creed, color, or national origin" and to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin."

The monumental Civil Rights Act of 1964 outlawed the most blatant forms of racial discrimination in employment, education, housing, public accommodations, and voting. The 1964 act desegregated restaurants, cinemas, retail stores, hotels, transportation, and beaches. Building on Brown v. Board of Education (1954), the historic Supreme Court decision that ended legal racial segregation of public primary and secondary schools and pronounced that school desegregation should occur "with all deliberate speed," the act blocked federal aid to segregated schools. The act banned unequal application of the requirements of voter registration. The Voting Rights Act of 1965 went even further in protecting the franchise, restricting literacy tests and authorizing federal election supervision in the states. Title VII of the 1964 act banned discrimination by employers of twenty-five or more, labor unions, and employment agencies, and created the Equal Employment Opportunity Commission (EEOC). Title VII empowered the federal courts to order "affirmative action as may be appropriate" to remedy past workplace discrimination.

Finally, on September 28, 1965, in the wake of the Civil Rights Act of 1964, President Lyndon B. Johnson's Executive Order 11246 launched affirmative action as the centerpiece of national employment policy and race relations. Aimed at "the full realization of equal employment opportunity," Executive Order 11246, like Kennedy's earlier order, required that firms conducting business with the federal government and these firms' suppliers "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." Order 11246 was amended by Executive Order 11375 and implemented by Labor Department Revised Order No. 4, requiring that government contractors in "good faith" set "goals" and "timetables" for employing previously "underutilized" minority group members available and qualified for hire. The Labor Department's Office of Federal Contract Compliance, awarded responsibility for implementing Order 11246 and its amendments, developed regulations defining a program of "affirmative action" as "a set of specific and result-oriented procedures" undertaken with "every good faith effort" to bring about "equal employment opportunity." Vice President Hubert Humphrey coordinated the Johnson administration's civil rights and affirmative action policies. On August 20, 1965, at a White House conference on equal employment opportunity, Humphrey had revealed a broad understanding of the economic plight of blacks. Humphrey said America had "neglected the Negro too long" and that "government, business and labor must open more jobs to Negroes [and] must go out and affirmatively seek those persons who are qualified and begin to train those who are not."

In 1967 the Department of Health, Education, and Welfare (HEW) began requiring colleges and universities receiving federal funds to establish affirmative-action goals for employing female and minority faculty members. In 1972 HEW issued guidelines for higher education requiring both nondiscrimination and efforts to recruit, employ, and promote members of formerly excluded groups "even if that exclusion cannot be traced to particular discriminatory actions on the part of the employer." The HEW guidelines also indicated that colleges and universities were not expected to lower their standards or employ less qualified job candidates. The HEW guidelines distinguished affirmative-action "goals," which its directives required as an indicator of probable compliance, from "quotas," which its directives expressly prohibited. Critics of HEW have argued that a firm distinction is untenable since "a positive 'goal' for one group must be a negative 'quota' for another" (Goldman, 1977). Numerous efforts to distinguish goals from quotas have left some analysts unpersuaded: although the purpose of goals may be inclusion and quotas exclusion, "getting people in, where the shape of the 'in' is fixed, will be possible only by keeping others out" (Fullinwider, 1980).

By the early 1970s affirmative action in employment became a full-fledged national policy. The EEOC had taken the stand that an obligation of result-oriented affirmative action extended to all employers within its jurisdiction, not just federal contractors or educational institutions receiving federal funds. Political support for the federal government's affirmative action initiatives was initially strong and broad based. Some maintained that affirmative action utilizing numerical goals and timetables was a necessary complement to the 1964 civil rights statutes. A century after the formal abolition of slavery, African Americans as a group remained substantially poorer, less well educated, and politically less powerful than whites as a group. Legally enforced segregation had intensified black inequality.

The leadership of the NAACP, the Congress on Racial Equality, the NAACP Legal and Educational Defense Fund, and the National Urban League quickly endorsed affirmative action. Diverse sectors of the economy promptly responded to Washington's affirmative action programs. For example, in 1966 the city of New York, the Roman Catholic Church in Michigan, and the Texas-based retailer Neiman Marcus were among the organizations announcing voluntary plans requiring that their suppliers and other contractors to take affirmative steps toward hiring African Americans.

The political popularity of affirmative action during the Johnson administration subsequently yielded to controversy. An erosion of political support in Congress and the White House for higher education affirmative-action programs was evident as early as 1972, seemingly prompted by opposition from faculty members and administrators fearing the demise of traditional standards of scholarly merit. In 1975 U.S. Attorney General Edward H. Levi publicly stated that affirmative action constitutes "quotas" and is "not good government." After 1976, both during and after the one-term presidency of the pro-affirmative action Democrat Jimmy Carter, disagreements over the legality, morality, and efficacy of affirmative action strained African-Americans' relationships with labor unions, the Republican Party, and white liberal Democrats, including Jewish liberals who supported the civil rights movement but who were suspicious of government-backed racial quotas that historically had been used to exclude Jews.

Ronald Reagan and George H. W. Bush campaigned for the presidency on opposition to affirmative-action "quotas." President Reagan spoke out against affirmativeaction's numerical goals and quotas, and this opposition became one of the cornerstones of his public policy agenda on issues affecting African Americans. High-profile conservatives defended the ideal of a colorblind society and characterized blacks as overly dependent upon welfare, affirmative action, and other government programs promulgated chiefly by liberal democrats. Time and Newsweek magazines, as well as other mainstream media, lavished more publicity on affirmative-action controversies than any other topic related to blacks, including unemployment, health, hunger, and homelessness (Daniel and Allen, 1988). The NAACP and the National Urban League maintained their support for affirmative action and the civil rights laws. Consistent with the Reagan agenda, however, the federal government lessened its enforcement of federal contracts compliance programs in the 1980s, and a number of Supreme Court cases curbed affirmative action in employment and other key fields.

In the 1990s some were prepared to attribute significant gains for blacks to affirmative action, including an increase in black employment and promotion at major corporations, in heavy industry, in police and fire departments, and in higher education (Ezorsky, 1991). Yet persistent critics converted "affirmative action" into a virtual pejorative, along with "preferential treatment," "reverse discrimination," and "quotas." Symbolic of the era, Democrat Bill Clinton, a supporter of affirmative-action policies, after election to the presidency in 1992 abruptly withdrew the nomination of Lani Guinier to the Justice Department after her critics labeled her affirmative-action policies as outside the mainstream.

In June 1995 the Supreme Court ruled that all race-based programs would be subject to "strict scrutiny" and must be narrowly tailored to suit specific goals. The following month, President Clinton, responding to congressional pressure to roll back minority preferences, proposed a new initiative on affirmative action that would "mend it, not end it." Despite continued support from Clinton, support for affirmative action nationwide continued to erode. In July 1995, following a lengthy campaign by California governor Pete Wilson, the trustees of the University of California voted to end minority preferences in state college admissions. The following year, a coalition led by Wilson and African-American businessman Ward Connerly introduced Proposition 209, which barred affirmative action programs under the guise of promoting equal rights for all racial groups.

The state of California successfully passed Proposition 209 in November 1996, thereby prohibiting the state from discriminating, or granting "preferential treatment," on the basis of race, sex, color, ethnicity, or national origin in the fields of employment, education, or contracting. Similarly, in 1998 the voters of Washington State adopted the ballot initiative known as I-200. Essentially ending the state's use of affirmative action, Initiative 200 expressly prevented any government entity from making hiring, promotion, and contracting decisions based on racial criteria and gender.

The enactment of Proposition 209 by California voters (and the U.S. Supreme Court's subsequent dismissal of legal challenges to it) paved the way for similar measures in other states. Although in 1997 Houston's voters defeated a challenge to the city's affirmative-action program, the vote was suspended after a court fight. Despite the efforts of influential educators such as Nathan Glazer and Derek Bok to defend the social impact of minority preferences, by the late 1990s the future of affirmative action was more than ever in doubt.

Although such initiatives may point to public support of anti–affirmative action policies, there is evidence that public sentiment may be changing. In 2003 the Racial Privacy Initiative, also known as Proposition 54, was placed on the California ballot. Overwhelmingly rejected by California voters, Proposition 54 would have prohibited state and local governments from classifying and collecting data on the basis of one's race or ethnicity.

Affirmative action debates are not unique to the United States (Sowell, 2004). Tending to focus on ensuring equal opportunity, many countries outside the United States have adopted a version of affirmative action described as "positive action" (Appelt and Jarosch, 2000)—for example, targeted advertising campaigns in Europe encourage ethnic minority candidates to join the police force. Other countries like South Africa and Canada have passed Employment Equity Acts requiring certain employers to draw up an Equity Plan outlining the company's commitment to equity (i.e., promotion of diversity, development and training of designated group, preferential treatment and numerical goals to ensure equitable representation). India has implemented a system that targets discrimination based on caste status by reserving certain positions in university and government to historically disadvantaged people known as the "untouchables," while New Zealand offers preferential access to university courses and scholarships to individuals of Maori or other Polynesian descent. While use of affirmative action had previously been questioned by the European legal community, a 1997 European Court of Justice determined that appointing women to public-sector jobs where they are underrepresented was a legal form of "positive action" provided that rigid quotas were not involved.

Moral and Policy Debates

Reflecting ties to the civil rights movement, the stated goals of affirmative action range from the forward-looking goal of improving society by remedying distributive inequities to the backward-looking goal of righting historic wrongs (Curry and West, 1996; Ezorsky, 1991; McGary, 1977–78). Affirmative action on behalf of African Americans often was, and often is, defended by scholars as compensation or reparation owed to blacks by whites or a white-dominated society (Boxhill, 1984; Thomson, 1977). In particular, it is argued that after two centuries of legally enforced slavery, racial segregation, and racism, African Americans now deserve the jobs, education, and other benefits made possible through affirmative action. Beyond compensatory or reparative justice, goals ascribed to affirmative action include promoting economic opportunity for minority groups and individuals; eradicating racial subordination; neutralizing the competitive advantages many whites enjoy in education, business, and employment; educating a cadre of minority professionals for service in underserved minority communities; creating minority role models, intellectuals, artists, and civic leaders; and, finally, acknowledging society's cultural diversity (Goldberg, 1994; Ezorsky, 1991; Boxhill, 1984; Greenawalt, 1983).

African Americans widely support affirmative action policies. To be sure, some African-American neoconservatives, such as Glen Loury, Thomas Sowell, and Clarence Thomas, have rejected affirmative action on the grounds that it is incompatible with a "colorblind" civil rights policy. Other African Americans sometimes have also criticized affirmative action, often on pragmatic grounds (Carter, 1991; Steele, 1990; Wilson, 1987). They have joined those who argue that preferential treatment in education and employment mainly benefits middle-class blacks, leaving the problem of profound rural and urban black poverty untouched (Goldman, 1979; Cohen, 1980). Critics say affirmative action reinforces pervasive negative stereo-types of blacks as inferior to whites (Jencks, 1983). African Americans have noted this and have argued that racial preferences are demeaning or dispiriting to minorities, that they compromise African-Americans' self-esteem or self-respect (Sowell, 1976). Some reject affirmative action because it has proven to be socially divisive, having bred resentment among white Americans (Nagel, 1977).

As an antidote to simmering white resentments, William J. Wilson (1987) has proposed promoting raceneutral "universal policies" aimed at the health and employment problems of the poor rather than merely promoting affirmative action for racial minorities. The search for factors beyond race and racism to explain persistent

black inequality in the post-civil-rights era has led some politically conservative opponents of affirmative action to advance the argument that minority economic inequality stems from a pervasive breakdown in work, family, and community values in minority communities.

Supporters of affirmative action offer pertinent replies to all of these arguments (Ezorsky, 1991). To the contention that affirmative action does not help the poorest blacks, a reply has been that affirmative action nonetheless enhances the lives of some deserving blacks. To the argument that affirmative action lowers esteem for blacks and blacks' self-esteem, a reply is that blacks are held in very low esteem already and are vulnerable to low self-esteem because of their inferior education and employment. To the argument that affirmative action is racially divisive and breeds resentment, a reply is that blacks should not be deprived of the benefits of affirmative action simply because of white resentment unless that resentment can be shown to stem from genuine racial injustice. Finally, to the "fingerpointing" argument that blacks' problems result from lapses of individual responsibility, one reply is that communities of poverty, drugs, and violence result from decades of private and public decision making concerning legal, economic, and social policy.

Gertrude Ezorsky (1991), who supports affirmative action, has noted a libertarian argument against affirmative action: employers should be free to choose their own workers as a basic moral freedom, comparable to the freedom to choose one's own spouse. The more common libertarian argument asserts that social and economics benefits should be distributed solely in accordance with colorblind principles of entitlement, merit, and personal characteristics. In liberal academic and intellectual circles, opponents of affirmative action have questioned the coherence of the idea that blacks as a group are entitled to, merit, or deserve affirmative action as compensation or reparations for past wrongdoing (Sher, 1977). Corrective justice, some philosophers say, is both causal and relational. That is, when an injury occurs, the person who caused that injury must personally pay his or her victim. Yet affirmative action makes white males pay for societal injuries to women and minorities that they did not cause (Paul, 1991). The ex-slaves wronged by slavery are dead, as are the people who wronged them. It is therefore illogical, the argument continues, to hold all current whites responsible for the evils of slavery that were perpetrated by the remote ancestors of some whites on the remote ancestors of some blacks (Sher, 1977). In sum, set-asides and other preferential programs that fall under the rubric of affirmative action "reward an ill-defined class of victims, indiscriminately favor some in that class and leave others totally uncompensated, benefit groups whose members were never the victims of state imposed discrimination, and most importantly, do not concentrate recompense on those whose rights were most flagrantly violated, namely, the black slaves, now long dead" (Simon, 1977).

Against the commonly asserted argument that African Americans who stand to benefit by affirmative action were never in bondage to whites and may have led lives free of egregious discrimination, some philosophers defend affirmative action as a moral right of persons belonging to groups that have been uniquely harmed in the past by public law and that are disproportionately poor or otherwise disadvantaged today. Admitting that white citizens are not personally at fault for slavery and may not harbor racist sentiments, these advocates of affirmative action observe that white citizens benefit from the system of racial privilege and institutional racism that continued to pervade American institutions after blacks' emancipation from slavery and segregation (Thomson, 1977). Whites have a competitive advantage over blacks that society may fairly seek to erase through affirmative action.

Legal Dimensions

Frequently challenged in the courts of scholarly and public opinion, affirmative action also has been litigated frequently in the nation's federal courts. The question of the legality of racial quotas and other affirmative-action measures has no simple answer. From 1969 to 1993 alone, the Supreme Court decided more than twenty major cases relating to the legality of diverse race-conscious remedies. In the same period at least five cases considered the legality of affirmative action on behalf of women. While a number of these twenty-five cases validated one or another form of affirmative action, several important cases related to education, employment, minority business opportunity, and voting rejected it as a legal strategy.

Paramount in affirmative-action cases are the implications of Title VII of the Civil Rights Act of 1964 and other civil rights statutes enacted by Congress. Equally important when plaintiffs contest affirmative action by governmental entities are the principles of equal protection embodied in the Fifth and Fourteenth Amendments of the Constitution. The U.S. Supreme Court has established that the Constitution prohibits discrimination on the basis of race by state and federal government as a denial of equal protection of law. The Court's equal-protection jurisprudence presumes that racial classifications are potentially invidious, giving rise to the need for "strict scrutiny" when challenged. Defined as a stringent, virtually impassable standard of judicial review, strict scrutiny requires government to justify its law or conduct by appealing to a compelling governmental interest. The constitutional conundrum posed by affirmative action is whether the provisions of the Constitution that presumptively ban state and federal government discrimination on the basis of race and entail the need for strict scrutiny review nonetheless permit the use of the race-conscious remedies to redress racial discrimination. Whether framed by constitutional or statutory questions, affirmative-action cases commonly involve procedural complexities relating to assigning the burdens of proving or disproving that the absence of minorities or women in an institution is the result of intentional or other unlawful discrimination.

Endorsing Race-Conscious Remedies

The Supreme Court unanimously endorsed quotas and other race-conscious numerical requirements to achieve school desegregation in United States v. Montgomery County Board of Education (1969) and Swann v. Charlotte-Mecklenburg Board of Education (1971). In a different context the Court again endorsed race-conscious remedies in United Jewish Organizations v. Carey (1977). Over Fourteenth Amendment and other constitutional objections, the Court upheld a New York redistricting plan that explicitly attempted to increase the voting strength of "non-white" voters—blacks and Puerto Ricans—seemingly at the expense of a community of Hasidic Jews, viewed as whites under the plan. Four justices agreed that the use of race as a factor in districting and apportionment is constitutionally permissible; that express findings of past discrimination were not required to justify race-conscious policies; and that racial quotas in electoral districting were not by definition unconstitutional. Chief Justice Warren Burger dissented from the judgment of the Court, stressing his discomfort with putting the "imprimatur of the State on the concept that race is a proper consideration in the electoral process."

Seniority Limits on Workplace Preferences

In 1977 the Court established a limitation on affirmative action that it would reiterate in subsequent cases. International Brotherhood of Teamsters v. United States (1977) held that a disparate impact on minorities alone does not make a seniority system illegal under Title VII. Justice Thurgood Marshall, partly dissented from the majority, joined by Justice William Brennan. The Court's lone African-American justice, Marshall cited Federal Court of Appeals opinions, EEOC decisions, scholarly materials, and legislative history to attest to the broadness of the remedial goal of Title VII. Marshall admitted that Congress had expressed reservations about orders of retroactive seniority in a nonremedial context or based solely upon a showing of a policy's disparate impact on minorities without any evidence of discriminatory intent. But Marshall argued that Congress did not clearly intend to preserve seniority systems that perpetuate the effects of discrimination. Seven years after the teamsters case, Firefighters Local Union No. 1784 v. Stotts (1984) overturned a district court's injunction prohibiting the city of Memphis from following its seniority system's "last hired, first fired" policy during layoffs. In Wygant v. Jackson Board of Education (1986), Justice Marshall again dissented from a ruling elevating seniority rules over affirmative-action principles. Here the Court invalidated the provision of a collectivebargaining agreement between a school board and the local teachers' union that would have preserved minority representations in teaching staff in the event of layoffs. Justice Powell applied strict scrutiny to the contested provision, arguing for the Court that strict scrutiny applies to any racial classification, even when the classification "operates against a group that historically has not been subject to discrimination." Justices Sandra Day O'Connor and Justice Byron White concurred in the use of strict scrutiny review to assess the impact of affirmative action on whites.

School Admissions: No Strict Quotas Allowed

Two cases involving affirmative action in law and medical school admissions evidence the Court's judgment of limited constitutional tolerance for affirmative-action plans involving numerical quotas: Defunis v. Oregaard (1977) and Regents of the University of California v. Bakke (1978). In Defunis, a law school applicant challenged the raceconscious admissions policies of the state-supported University of Washington Law School as a violation of his right to equal protection under the Fourteenth Amendment. The school had established a separate admissions process for minorities and a fifteen to twenty percent admissions goal for applicants who described their dominant ethnic origin as black, Chicano, American Indian, or Filipino. The Defunis case was not decided on its merits; the Court declared the case moot after Defunis matriculated in law school while the suit was pending. However, in a dissenting opinion, Justice William O. Douglas criticized conventional law school admissions criteria and stressed that schools can and should broaden their inquiries beyond test scores and grades. Douglas opined that race could be a factor in admissions, consistent with the constitutional requirement of race neutral evaluation, so long as all persons are judged "on an individual basis, rather than according to racial classifications."

Decided fully on the merits, the highly publicized Bakke case struck down the special admissions program of the public Medical School of the University of California at Davis. The program featured a sixteen percent quota for "blacks, Chicanos, Asians, and American Indians." The purpose of the program was to increase minority representation in the medical field, to compensate minorities for past societal discrimination, to increase medical care in underserved communities, and to diversify the student body. Allen Bakke, a twice-rejected white applicant to the medical school, challenged its admissions program both under Title VI of the Civil Rights Act of 1964 and under the Equal Protection Clause of the Fourteenth Amendment.

The court issued a long and complex series of opinions to resolve Bakke's case. In the final analysis, the case declared minority admissions quotas unlawful at schools receiving federal dollars, but upheld the use of race as a factor in selecting a diverse student body. Five members of the Court affirmed the illegality of the Davis program and directed Bakke to be admitted to the school. Justice Powell affirmed the illegality of the school's admissions program but voted with Justices Brennan, White, Marshall, and Blackmun to approve the use of race as a factor in higher education admissions. Justice Stevens and three others thought it unnecessary to decide the constitutional issues raised by the case, finding that the admissions policy was invalid under Title VI. They ascertained that the plain language of the statute prohibiting discrimination was sufficient justification for nullifying the program.

Justice Thurgood Marshall

"It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America. For far too long, the doors to those positions have been shut to Negroes. If we are ever to become a fully integrated society, one in which the color of a person's skin will not determine the opportunities available to him or her, we must be willing to take steps to open those doors. I do not believe that anyone can truly look into America's past and still find that a remedy for the effects of that past is impermissible."

dissenting opinion in university of california board of regents v. bakke, 438 u.s. 265 (1978).

The dissenting opinion of Justices Brennan, White, Marshall, and Blackmun cautioned that the nation's "colorblind" values were purely aspirational. They argued that a reading of the history and purpose of Title VI did not rule out race-conscious remedies. Taking up the constitutional issues, these justices rejected strict scrutiny review in favor of a lower, "intermediate" level of scrutiny. They reasoned that intermediate scrutiny permits racial classification "substantially related to an important government objective" and concluded that the university's purpose of counteracting an actual or potential disparate racial impact stemming from discrimination was sufficiently important to justify race-conscious admissions. Justice Marshall also separately wrote a dissenting opinion expressing his sense of irony at the Court's reluctance to uphold raceconscious remedies: "[It] is unnecessary in 20th century America to have individual Negroes demonstrate that they have been victims of racial discrimination; the racism of our society has been so pervasive that none, regardless of wealth or position, has managed to escape its impact."

In 1982 the Supreme Court again took up the subject of affirmative action in professional school admissions in Mississippi University for Women v. Hogan. The nursing school of the university denied full admission to male students (admitted only as auditors) on the grounds that the education of women was "educational affirmative action" intended to mitigate the adverse effects of discrimination on women. A man denied admission brought suit under the Equal Protection Clause. A five-justice majority that included Justices Marshall and O'Connor invalidated the single-sex policy on his behalf. Justice O'Connor wrote for the Court, applying the intermediate scrutiny standard of review. This same standard is the one the Court normally applies to gender classification cases brought under the Fourteenth Amendment's Equal Protection Clause. It is also the standard that Justice Marshall defended as appropriate for affirmative-action cases involving remedial racial classifications. The Court required that Mississippi advance an "exceedingly persuasive justification" for its gender distinction in nursing education that included a claim that the distinction was substantially related to an important government goal. Finding no such relationship or justification, the Court disparaged the ideal of a single-sex learning environment in nursing as a "self-fulfilling prophecy" based on the stereotype that nursing is "women's work." Dissenting Justices Powell, Blackmun, and Rehnquist, and Chief Justice Burger denied that the case raised a serious question of gender discrimination. Powell stressed that no woman had complained about the school and that coed nursing education was available elsewhere in the state. Although the majority limited its holding to the nursing school, the dissenters raised concerns about the implication of the case for traditional same-sex higher education in the United States. It appears that affirmative action for women may not be used as a rationale for excluding men from women's traditional provinces.

In its first ruling on affirmative action in higher education admissions since Regents of the University of California v. Bakke, the Supreme Court in two landmark decisions involving the University of Michigan's affirmativeaction policies ruled that race could be used in university admission decisions for a specific purpose (Stohr, 2004). In Grutter v. Bollinger (2003), a rejected white applicant challenged the University of Michigan Law School's admission policies. Upon an investigation revealing that African Americans and ethnic minorities who had lower overall admissions scores were admitted, the petitioner

brought suit, arguing that she had been a victim of illegal discrimination. In a five-to-four decision, the Court upheld the law school's policy, declaring that race could be one of many factors considered by colleges when selecting their students because it furthers "a compelling interest in obtaining the educational benefits that flow from a diverse student body." The Supreme Court, however, in Gratz v. Bollinger (2003) ruled six to three that the more formulaic approach of the University of Michigan's undergraduate admissions program, which uses a point system that rates students and awards additional points to minorities, had to be modified because it violated equal protection provisions of the Constitution. The undergraduate program, unlike the law school's, did not provide the "individualized consideration" of applicants deemed necessary in previous Supreme Court decisions, nor was its use of race "narrowly tailored" to achieve the university's diversity goals.

While the political and legal debate continues, the impact of affirmative action programs is significant. In an empirical analysis of academic, employment, and personal data collected from more than 45,000 students of all races who attended academically selective universities from the 1970s to the early 1990s, the aggregate statistics support the argument for the use of affirmative action in college and university admissions (Bowen and Bok, 1998). Upon examination, the study determined that candidates assisted in admission stayed in school, graduated, and did very well academically. Further assessments of salary information, workforce participation, family structure, and leisure activities revealed that graduates of selective colleges, especially black matriculants even more than their white counterparts, tended to do extremely well after graduation.

President George W. Bush's Remarks on the University of Michigan Affirmative Action Case, January 15, 2003

The Supreme Court will soon hear arguments in a case about admission policies and student diversity in public universities. I strongly support diversity of all kinds, including racial diversity in higher education. But the method used by the University of Michigan to achieve this important goal is fundamentally flawed.

At their core, the Michigan policies amount to a quota system that unfairly rewards or penalizes perspective students, based solely on their race. So, tomorrow my administration will file a brief with the court arguing that the University of Michigan's admissions policies, which award students a significant number of extra points based solely on their race, and establishes numerical targets for incoming minority students, are unconstitutional.

Our Constitution makes it clear that people of all races must be treated equally under the law. Yet we know that our society has not fully achieved that ideal. Racial prejudice is a reality in America. It hurts many of our citizens. As a nation, as a government, as individuals, we must be vigilant in responding to prejudice wherever we find it. Yet, as we work to address the wrong of racial prejudice, we must not use means that create another wrong, and thus perpetuate our divisions.

America is a diverse country, racially, economically, and ethnically. And our institutions of higher education should reflect our diversity. A college education should teach respect and understanding and goodwill. And these values are strengthened when students live and learn with people from many backgrounds. Yet quota systems that use race to include or exclude people from higher education and the opportunities it offers are divisive, unfair and impossible to square with the Constitution.

In the programs under review by the Supreme Court, the University of Michigan has established an admissions process based on race. At the undergraduate level, African American students and some Hispanic students and Native American students receive 20 points out of a maximum of 150, not because of any academic achievement or life experience, but solely because they are African American, Hispanic or Native American.

To put this in perspective, a perfect SAT score is worth only 12 points in the Michigan system. Students who accumulate 100 points are generally admitted, so those 20 points awarded solely based on race are often the decisive factor.

At the law school, some minority students are admitted to meet percentage targets while other applicants with higher grades and better scores are passed over. This means that students are being selected or rejected based primarily on the color of their skin. The motivation for such an admissions policy may be very good, but its result is discrimination and that discrimination is wrong.…

Schools should seek diversity by considering a broad range of factors in admissions, including a student's potential and life experiences.…

America's long experience with the segregation we have put behind us and the racial discrimination we still struggle to overcome requires a special effort to make real the promise of equal opportunity for all. My administration will continue to actively promote diversity and opportunity in every way that the law permits.

Title VII Permits Voluntary Quotas

In a significant decision, the Supreme Court reconciled Title VII of the Civil Rights Act of 1964 with voluntary affirmative-action programs in United Steel Workers v. Weber (1979). By a vote of five to two (two justices did not participate in the decision), the Court in Weber upheld an employer's affirmative-action plan that temporarily required a minimum of fifty percent African-American composition in a skill-training program established to increase African-American representation in skilled positions. The lower courts had ruled that any racial preferences violated Title VII, even if they were established in the context of an affirmative-action plan. Importantly, the Court held that Title VII's ban on all racial discrimination did not apply to affirmative-action plans. Dissenting Justices Burger and Rehnquist disagreed, arguing in separate opinions that the plain language of Title VII and its legislative history banned voluntary racial preferences, even those employed as affirmative-action remedies. Newsweek magazine reported the Weber decision as a "Victory for Quotas." Eleanor Holmes Norton, the African-American head of the EEOC, declared that "employers and unions no longer need fear that conscientious efforts to open job opportunities will be subjected to legal challenge." Senator Orrin Hatch responded differently, asserting that the purpose of the Civil Rights Act had not been to "guarantee any racial group a fixed proportion of the positions and perquisites available in American society" and that the "American dream" of true liberty was "in real danger."

In Johnson v. Transportation Department (1987) the Court held (six to three) that Title VII permits affirmative consideration of employees' gender when awarding promotions. In Johnson the Court upheld the promotion of Diane Joyce, made according to the Transportation Agency of Santa Clara County's voluntarily adopted affirmative-action plan. Permitting the use of sex, minority status, and disability as factors for promotional consideration, the plan survived a challenge under Title VII by a man passed over for a road dispatcher position. In another case, Local No. 93, International Association of Firefighters v. Cleveland (1986), the Court held that parties to a consent decree may agree to relief that might not be within a court's ordering authority under Title VII. An African-American and Latino firefighters' organization, the Vanguards, had filed a complaint against the city of Cleveland for intentional discrimination in "hiring, assignment, and promotion." Since the city had previously been unsuccessful in defending other discrimination suits, it sought to settle with the Vanguards. Local 93 (the union) intervened, not bringing any claims for or against either party but voicing strenuous opposition to a settlement including any race-conscious action. When a consent decree that provided for the action was agreed upon and entered, the union filed its unsuccessful formal complaint that the decree exceeded a court's authority under Title VII.

Title VII permits affirmative action that includes numerical goals, and may permit courts to order it. In Local 28 of the Sheet Metal Workers' International Association v. EEOC (1986), the Supreme Court upheld a court-ordered membership plan for a trade union found guilty of racial discrimination by violating Title VII. The plan included a membership goal of twenty-nine percent African American and Latino. The Court was again willing to permit a numerically based affirmative-action remedy in United States v. Paradise (1987). In this case the Court validated a temporary affirmative-action plan ordered by a lower court that required a one-for-one promotion ratio of whites to qualified blacks in the Alabama Department of Public Safety. The department had been found guilty of discrimination in 1972, but had failed to adopt promotion procedures that did not have a disparate impact on blacks. Justice William Brennan argued that the affirmativeaction order was a narrowly tailored means to achieve a compelling government purpose, so it therefore met the requirements of strict scrutiny imposed by the Equal Protection Clause of the Fourteenth Amendment.

Noncongressional Business Set-Asides

A year after the Weber case, in Fullilove v. Klutznick (1980), the Court upheld a provision of the congressional Public Works Employment Act, which mandated that ten percent of $4 billion in federal funds allocated for local public construction projects go to "minority business enterprises," statutorily defined as at least fifty percent owned by citizens who are "Negroes, Spanish-speaking, Oriental, Indians, Eskimos, and Aleuts." The provision had been challenged under equal protection principles. Chief Justice Burger delivered the judgment of the Court, joined by Justices White and Powell. Justice Marshall, concurring in the judgment in Fullilove and joined in his opinion by Justices Brennan and Blackmun, argued that "Congress reasonably determined that race-conscious means were necessary to break down the barriers confronting participation by minority enterprises in federally funded public works projects." Fullilove survived challenge in the Court at a time when critics of federal support for minority business enterprises argued that, in addition to raising questions of fairness raised by all affirmative action, the disbursal of funds under the 1977 Public Works Employment Act by the Commerce Department's Economic Development Administration was subject to abuse (Ross, 1979). The Government Accounting Office uncovered hundreds of instances of federal dollars being awarded both to minority brokers serving as go-betweens for nonminority firms and government administrators and to nonminority firms feigning minority ownership with the help of minority "fronts" installed as phony partners or owners.

Richmond v. J. A. Croson Co. (1989) successfully attacked an affirmative-action plan reserving specific numerical percentages of a public benefit for minorities. The invalidated "minority set-aside" plan required prime contractors with the city of Richmond to "subcontract at least 30 percent of the dollar amount of the contract to one or more Minority Business Enterprises." The plan was challenged under 42 U.S.C. §1983, a civil rights statute, by a nonminority firm that lost a contracting opportunity because of noncompliance with the program. The justices widely disagreed about the outcome and the reasoning of the case. Justice O'Connor delivered the opinion of the Court with respect to three of its parts, joined by Chief Justice Rehnquist and Justices Stevens, White, and Kennedy; Justices Stevens and Kennedy filed separate partial concurrences; Justice Scalia filed a concurring opinion; Justice Marshall dissented, joined in his opinion by Justices Brennan and Blackmun; finally, Justice Blackmun filed a dissenting opinion, joined by Justice Brennan. A major task for the majority was to explain how they could invalidate the set-aside in Croson when the Court had previously validated a similar set-aside in Fullilove. Justice O'Connor distinguished the Fullilove case on the ground that its set-aside had been created by Congress and involved an exercise of federal congressional power, whereas the set-aside in Croson was a creature of municipal government. Justice Thurgood Marshall dissented from the judgment in Croson, warning that the Court's ruling threatened all affirmative action plans not specifically enacted by Congress—virtually all plans.

Metro Broadcasting, Inc. v. FCC (1990) upheld two race-conscious Federal Communications Commission programs designed to enhance program diversity. The race-conscious set-asides were challenged under equal protection principles by a nonminority broadcasting company that had lost its bid to acquire a broadcasting license to a minority-owned company. The Court argued that programming diversity, a goal both the FCC and Congress linked to ownership diversity, was derived from the public's First Amendment interest in hearing a wide spectrum of ideas and viewpoints. The interest was a sufficiently important one to justify race-conscious allocation policies. Justice O'Connor and three other justices dissented from what they considered excessive deference to Congress and a refusal to apply strict scrutiny to an instance of raceconscious thinking grounded in racial stereotypes.

Future Directions

Decided by the slimmest majority and largely on unusual First Amendment grounds, Metro Broadcasting leaves standing the basis for Justice Marshall's concerns about the future of all affirmative action. So, too, does Shaw v. Reno (1993). This case held that white voters stated a legitimate Fourteenth Amendment equal protection claim against North Carolina for creating a voter redistricting plan described as "so irrational on its face that it c[ould] be understood only as an effort to segregate voters" on the basis of race. Justices White, Souter, and Stevens dissented. In an attempt to comply with the Voting Rights Act, North Carolina had created a redistricting plan with two irregularly shaped "majority-minority" (majority black and Native American) districts. In reversing the lower court, the Court invoked the ideal of a "colorblind" society and warned of the dangers of "political apartheid." Nonetheless, the constitutionality of the districts was subsequently upheld by a federal judicial panel.

The ideal of a colorblind society continues to vex proponents of race-conscious remedies to discrimination. The greatest consistency in the evolving law of affirmative action is that, at any given time, its precise contour mirrors the mix of perspectives represented on the Court concerning the deepest purposes and meaning of the 1964 Civil Rights Act and the Fourteenth Amendment of the Constitution. The Supreme Court has upheld key affirmative-action measures in the past, and may again in the future. A series of rulings in the spring and summer of 1995 narrowed the allowable scope of affirmative action beyond the university. Notably, in the case of Adarand Constructors v. Peña (1995) the Court ruled, five to four, that the federal government's affirmative-action programs must be able to meet the same strict standards for constitutional review as had previously been applied by the Court to state and local programs. Grutter v. Bollinger (2003), the University of Michigan law school admissions case, proves that affirmative action can be constitutional, but the debate over affirmative action continues.

See also Civil Rights Movement, U.S.; Marshall, Thurgood

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anita l. allen (1996)
Updated by author 2005