Affirmative Action
Affirmative Action
THE ORIGINS OF AFFIRMATIVE ACTION
LEGAL TREATMENT OF AFFIRMATIVE ACTION
THE SUPREME COURT’s TREATMENT OF AFFIRMATIVE ACTION
Affirmative action means taking positive steps to improve the material status of the less advantaged in society, usually through the provision of educational or economic benefits. In the United States, affirmative action usually takes place through the provision of government or private benefits in education, employment, or contracting. Affirmative action is controversial, particularly when the beneficiaries are women or people of color.
Affirmative action can take many forms—ranging from rigid quotas to targeted outreach meant to encourage minorities to apply—but all have in common the effort to increase the number of minorities in educational institutions, in the workplace, or in receiving contracts. Affirmative action programs differ in terms of how much weight they give to race as a factor in decision making and the extent to which they require results. For example, rigid quotas or set-asides that mandate that a certain percentage of beneficiaries be members of designated racial groups are very different from programs that use race as one factor among many in decision making. Likewise, there is a significant difference between the government’s setting targets or goals and the government’s mandating that there be specific results.
PROS AND CONS
Several justifications can be offered for affirmative action. Because, by definition, affirmative action involves working to assist society’s less-advantaged members, one reason to promote affirmative action policies is to remedy the effects of past discrimination. This remedial justification of affirmative action recognizes that wrongs have been committed in the past and acknowledges a moral obligation to set things right. Opponents of affirmative action do not contest the moral obligation to remediate past harm. Their objection to remedial policies is frequently centered on the claim that specific affirmative action policies will not help those who have in fact been harmed, but will sweep too broadly and provide benefits to those who do not deserve them. Sometimes opponents of affirmative action argue that the harm to be remediated did not occur, or if it did occur—as in the case of racial discrimination in the United States—the harm has dissipated so that remedial measures are no longer necessary.
Another important justification for affirmative action is the so-called diversity rationale. Advocates for the diversity rationale argue that society as a whole benefits when affirmative action is used to maintain diverse schools, workplaces, and businesses. According to this argument, people from different backgrounds, cultures, and genders bring complementary skills that collectively enrich the places where they work and learn. Some affirmative action opponents reject the diversity argument outright. They claim there is no inherent social benefit to diverse work-places or schools. Others accept the assertion that diversity is a social benefit, but express doubt over whether racial or gender characteristics provide a meaningful basis on which to assess diversity’s social benefit.
This latter claim is related to what is arguably the most important objection to affirmative action. Opponents of affirmative action argue that it is wrong to allocate social benefits on the basis of immutable characteristics, such as race or gender. They claim that affirmative action is itself a form of racial/gender discrimination that discriminates against white males, contrary to historic forms of discrimination that were targeted against women and people of color. Thus the charge is often made that affirmative action is in fact “reverse discrimination.” Supporters of affirmative action argue that the claim that affirmative action is discriminatory is overly formalistic. Although admitting that affirmative action does discriminate in a technical sense, supporters claim affirmative action is morally justified because its goal is not to harm the white majority, but to provide social justice for those who have been deprived of opportunity in the past.
THE ORIGINS OF AFFIRMATIVE ACTION
The concept of affirmative action can be traced to efforts after the Civil War to remedy the devastating effects of slavery. Government efforts, such as the creation of the Freeman’s Bureau, unquestionably were forms of affirmative action in that they provided benefits to racial minorities. The term affirmative action apparently was first used in the National Labor Relations Act (29 U.S.C. §§151–169), adopted in 1935. The context was not race, but rather the affirmative duty of employers to remedy discrimination against union members and union organizers. Employers found to have engaged in such discrimination were required to remedy this by taking steps to ensure that the employers were in the same position in which they would have been had there been no discrimination.
The term apparently was first used in the race context by President John F. Kennedy. In 1961, three years prior to the enactment of the first major post-Reconstruction civil rights law, President Kennedy issued an executive order preventing race discrimination by federal agencies. Executive Order 10,925, promulgated in 1961, mandated “affirmative action to ensure that the applicants are employed, and that employees are treated during employment without regard to race, color, creed, or national origin.” President Lyndon Johnson extended this policy, though without using the phase affirmative action, when he issued Executive Order 11,246, demanding that all executive departments and agencies “shall establish and maintain a positive program of equal employment opportunity.”
The 1964 Civil Rights Act (42 U.S.C. §2000[e]) implemented this prohibition of race discrimination by statute. Title II of the 1964 act prohibited places of public accommodation, such as restaurants or hotels, from discriminating based on race. Title VII prohibited employers from discriminating on the basis of race, gender, or religion. The act did not speak directly to affirmative action, but it did prohibit discrimination and open the door to claims that affirmative action was essential to meet the statutory prohibition against discrimination. It was quickly realized that prohibiting discrimination is not enough to achieve equality. Positive steps toward remedying the legacy of discrimination and enhancing diversity are essential. Thus affirmative action programs of all sorts began to proliferate and flourish in the 1970s.
LEGAL TREATMENT OF AFFIRMATIVE ACTION
U.S. courts have addressed the question of whether the use of affirmative action to help a disadvantaged group is as objectionable as the use of race or gender to harm or subjugate socially disfavored groups. Dominated since the 1980s by conservative judges appointed by Presidents Ronald Reagan and, later, George H. W. Bush, the courts have concluded that “any” use of affirmative action is a form of racial discrimination. In the courts, invidious racial discrimination must meet strict scrutiny; that is, it must be necessary to achieve a compelling government purpose. Strict scrutiny is a very rigorous level of judicial review that is rarely met. Indeed, Stanford law professor Gerald Gunther once famously claimed that strict scrutiny was “strict in theory, but fatal in fact.” In Adarand Constructors, Inc. v. Pena, in 1995, the Supreme Court said: “All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.”
Those who are opposed to affirmative action argue that the Constitution requires that the government treat each person as an individual without regard to his or her race; strict scrutiny is used to ensure that this occurs. Justice Clarence Thomas, in Adarand, espoused this view: “In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. In each instance, it is racial discrimination, plain and simple.” Moreover, supporters of strict scrutiny for affirmative action argue that all racial classifications stigmatize and breed racial hostility, and therefore all should be subjected to strict scrutiny. Justice Sandra Day O’Connor stated: “Classifications based in race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to politics of racial hostility.”
On the other side of the debate, supporters of affirmative action argue that there is a significant difference between the government’s use of racial classifications to benefit minorities and the government’s use of racial classifications to disadvantage minorities. There is a long history of racism and discrimination against minorities, but no similar history of persecution of whites. Those in favor of affirmative action point to the tremendous continuing disparities between blacks and whites in areas such as education, employment, and public contracting as necessitating remedial action.
Supporters also argue that there is a major difference between a majority discriminating against a minority and the majority discriminating against itself. John Hart Ely explains in a 1974 article:
When the group that controls the decision making process classifies so as to advantage a minority and disadvantage itself, the reasons for being unusually suspicious, and consequently, employing a stringent brand of review are lacking. A White majority is unlikely to disadvantage itself for reasons of racial prejudice; nor is it likely to be tempted either to underestimate the needs and deserts of Whites relative to those of others, or to overestimate the cost of devising an alternative classification that would extend to certain Whites the disadvantages generally extended to Blacks.
In the Rehnquist court of the 1990s the Supreme Court was split, five to four, between these two views. The majority—Chief Justice William Rehnquist, and Justices O’Connor, Antonin Scalia, Anthony Kennedy, and Thomas—adopted strict scrutiny in evaluating racial classifications benefiting minorities. The dissenters—Justices John Paul Stevens, David Souter, Stephen Breyer, and Ruth Bader Ginsburg—would use intermediate scrutiny, a less stringent standard of review.
THE SUPREME COURT’s TREATMENT OF AFFIRMATIVE ACTION
The Court first considered the issue of affirmative action in Regents of the University of California v. Bakke. Bakke involved a challenge to the University of California at Davis Medical School’s set-aside of sixteen slots in the entering class of one hundred for minority students. There was no majority opinion for the Supreme Court. Four justices— William Brennan, Byron White, Thurgood Marshall, and Harry Blackmun—said that intermediate scrutiny was the appropriate test for racial classifications benefiting minorities, and voted to uphold the University of California at Davis Medical School’s affirmative action program.
Four justices—Stevens, Warren Burger, Potter Stewart, and Rehnquist—concluded that the affirmative action program violated Title VI of the 1964 Civil Rights Act, which prohibited discrimination by institutions receiving federal funds. They did not reach the constitutional issue or discuss the level of scrutiny.
Finally, Justice Powell, writing only for himself, said that strict scrutiny should be used for affirmative action. He said that “racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.” Powell concluded that the set-aside was unconstitutional, but that it was permissible for race to be used as one factor in admissions decisions to enhance diversity. Thus, the vote was 5 to 4 invalidating the setaside—Powell, Stevens, Burger, Rehnquist, and Stewart voting for this conclusion—but 5 to 4 that it is permissible for universities to use race as a factor in admissions to increase diversity—Powell, Brennan, Marshall, White, and Blackmun coming to this conclusion.
Two years later, in Fullilove v. Klutznick, the Supreme Court again considered an affirmative action program but did not produce a majority opinion. The Court upheld a federal law that required that 10 percent of federal public works monies given to local governments be set aside for minority-owned businesses. Chief Justice Burger, in an opinion joined by Justices White and Powell, concluded that the affirmative action program was justified to remedy past discrimination, but said that the “opinion does not adopt, either expressly or implicitly, the formulas of analysis articulated in cases such as University of California Regents v. Bakke.”
Three Justices Marshall, Brennan, and Blackmun concurred in the judgment to uphold the affirmative action program, but argued again that intermediate scrutiny should be used for racial classifications serving a remedial purpose. Finally, on the other hand, three Justices Stewart, Rehnquist, and Stevens dissented and said that strict scrutiny was the appropriate test. It was not until 1989, in Richmond v. J. A. Croson Company, that the Supreme Court expressly held that strict scrutiny should be used in evaluating state and local affirmative action programs. The Court invalidated a Richmond, Virginia, plan to set aside 30 percent of public works monies for minority-owned businesses. Five Justices O’Connor, Rehnquist, White, Kennedy, and Scalia wrote or joined in opinions declaring that strict scrutiny was the appropriate test in evaluating such affirmative action plans. As Justice Marshall lamented in his dissenting opinion: “Today, for the first time, a majority of the Court has adopted strict scrutiny as its standard of Equal Protection Clause review of race-conscious remedial measures.”
But a year later, in Metro Broadcasting, Inc. v. Federal Communications Commission, the Supreme Court held that congressionally approved affirmative action programs only need to meet intermediate scrutiny. The Supreme Court, in a 5 to 4 decision, upheld FCC policies that gave a preference to minority-owned businesses in broadcast licensing. The majority expressly said: “We hold that benign race-conscious measures mandated by Congress, even if those measures are not ‘remedial’ in the sense of being designed to compensate victims of past governmental or society discrimination, are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to the achievement of those objectives.”
Justice Brennan wrote the majority opinion in Metro Broadcasting, joined by Justices White, Marshall, Blackmun, and Stevens. Justices O’Connor, Kennedy, Scalia, and Rehnquist dissented. Between Metro Broadcasting, in 1990, and Adarand Constructors, Inc. v. Pena, in 1995, four of the Justices in the majority, but none of the Justices in the dissent, resigned from the Court. In Adarand, the four dissenters from Metro Broadcasting were joined by Justice Thomas to create a majority to overrule it. The Court thus concluded that “federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest.”
In its affirmative action decisions in the first decade of the 2000s, the Supreme Court reaffirmed that strict scrutiny is the test for affirmative action but held that colleges and universities may use race as a factor in admissions decisions to benefit minorities and enhance diversity. In Grutter v. Bollinger, in a 5-4 decision, with Justice O’Connor writing for the majority, the Court upheld the University of Michigan Law School’s affirmative action program. The Court ruled that colleges and universities have a compelling interest in creating a diverse student body and that they may use race as one factor, among many, to benefit minorities and enhance diversity. In a companion case, Gratz v. Bollinger, the Court, 6-3, invalidated an affirmative action program for undergraduate admissions that added twenty points to the applications for minority students. In an opinion by Chief Justice Rehnquist, the Court ruled that the undergraduate program was not sufficiently “narrowly tailored” to meet the strict scrutiny used for government racial classifications. In essence, the Court adhered to the position articulated by Justice Lewis Powell in Regents of the University of California v. Bakke a quarter century earlier: Diversity is a compelling interest in education
and universities may use race as a factor to ensure diversity, but quotas or numerical quantification of benefits is impermissible.
Is this a distinction that makes a difference? Practically speaking, can colleges and universities effectively add points so long as it is not done explicitly and officially? Is there really a difference between a college having a set-aside and a college using race as a factor in admissions decisions and keeping track of the number of minority students to ensure “critical mass”? Colleges and universities long have valued diversity in education; it always has been easier for a person from Wyoming or Montana to get into Harvard or Yale than an applicant with the same qualifications from Boston or New York. Individuals with special skills, like making downfield tackles or shooting jump shots, long have been admitted to college with lower grades and test scores. These variables generally are not quantified. The Court’s affirmative action cases stand for the proposition that racial diversity matters, too, and that it should be treated like other factors considered in ensuring a diverse class. Any quantification, in terms of adding points or using a set-aside, seems arbitrary and inflexible.
The bottom line from the Supreme Court’s affirmative action decisions over a quarter of a century is that any use of racial classifications, whether to benefit or disadvantage minorities, must meet strict scrutiny and be shown to be necessary to achieve a compelling government interest. The Court regards remedying past discrimination and enhancing diversity in education as compelling goals. The Court has been clear that it rarely will allow quotas or set-asides, but it will allow educational institutions to use race as one factor in admissions decisions to benefit minorities.
POLITICAL AND SOCIAL DEBATES
Affirmative action has been tremendously divisive. Opponents of affirmative action embrace the noble-sounding rhetoric of color-blindness and maintain that it is wrong for a person to lose out on something valuable solely because of his or her race. Supporters of affirmative action point out that it is designed to remedy a long history of discrimination and ensure racial equality in the long term.
One manifestation of the political and social debate is the initiatives that have been adopted across the country limiting affirmative action. In 1996 California voters passed Proposition 209, the so-called California Civil Rights Initiative. The initiative amended the state constitution to bar discrimination or preferences on the basis of race in government contracting, education, or employment. A similar initiative was adopted almost simultaneously in Washington state. In November 2006, Michigan voters passed Proposition 2, which was almost identical to California Proposition 209 in banning discrimination or preference based on race.
These initiatives reflect the public’s disapproval of affirmative action. The rhetoric that the government should be color-blind is appealing and allows for people to limit (or eliminate) affirmative action while feeling noble. On the other hand, those who believe that affirmative action is essential to remedy past discrimination and achieve diversity have had a hard time overcoming the impression that such programs are reverse discrimination.
THE FUTURE
Affirmative action remains enormously controversial, and political and legal battles over the issue are sure to continue. In the courts, challenges to affirmative action programs may gain additional momentum with a change in the composition of the Supreme Court. With the departure of Justice O’Connor from the High Court, opponents of affirmative action are sure to look for test cases to bring the issue back for reconsideration. The Supreme Court has limited, but not ended, affirmative action as reflected in the Grutter decision. The survival of government affirmative action programs is a topic likely to be considered again in the years ahead.
SEE ALSO Color-Blind Racism; Labor Market; Symbolic and Modern Racism.
BIBLIOGRAPHY
CASES
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
Fullilove v. Klutznick, 448 U.S. 448 (1980).
Gratz v. Bollinger, 539 U.S. 244 (2003).
Grutter v. Bollinger, 539 U.S. 306 (2003).
J. A. Croson v. City of Richmond, 488 U.S. 469 (1989).
Metro Broadcasting, Inc. v. Federal Communications Commission, 497 U.S. 547 (1990).
Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
ARTICLES
Bergmann, Barbara R. 1996. In Defense of Affirmative Action. New York: Basic Books.
Ely, John Hart. 1974. “The Constitutionality of Reverse Racial Discrimination.” University of Chicago Law Review 41 (4): 723–741.
Lempert, Richard. 1984. “The Force of Irony: On the Morality of Affirmative Action and United Steelworkers v. Weber.” Ethics 95 (1): 86–89.
Rosenfeld, Michel. 1989. “Decoding Richmond: Affirmative Action and the Elusive Meaning of Constitutional Equality.” Michigan Law Review 87 (7): 1729–1794.
Erwin Chemerinsky