Affirmative Action

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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.

Percentage Distribution of Students Enrolled in Degree-Granting Institutionsa
aAccounts for both two- and four-year institutions. by Race/Ethnicity
SOURCE: U.S. Department of Education, National Center for Education Statistics, Digest of Education Statistics, 2007.

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' International Association 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 the decision in 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 admissions 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, 443 U.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 Association v. EEOC, 478 U.S. 421, 106 S. Ct. 3019, 92 L. Ed. 2d 344 (1986), that rights were not being violated by a courtordered 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 Richmond v. 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 underrepresentation 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 DEPARTMENT OF JUSTICE. 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 Board of Education, 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 U.S. Court of Appeals for the Fifth Circuit ruled that the practice of providing preferential treatment to minorities in a public university's admissions policy was repugnant to the Constitution.    
The University of Texas Law School implemented an admissions policy in which the standards for admission were lowered forminorities. The school employed an index (called the Texas Index, or TI) that combined standardized test scores with grade-point averages. Aminimum 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” (i.e.,- certain to be accepted), whites who received the same scores were categorized as “presumptive denials” (i.e., 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, 539 U.S. 306, 123 S. Ct. 2325, 156 L.Ed.2d 304, 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.” In that case, the Court held that promoting racial diversity on campuses not only serves a compelling government interest, but also that the law school's admissions program was narrowly tailored and focused on each applicant as an individual as opposed to being a member of a particular racial group. However, 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 ensure 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 U.S. Court of Appeals for the Sixth Circuit reversed.    
In Gratz v. Bollinger, a separate 6–3 decision handed down the same day as Grutter v. Bollinger, the Court struck down a separate University of Michigan undergraduate-admissions process based on a point system that rated students and awarded additional points to minorities. Because the admissions process made race a “decisive” factor, rather than just one of many in determining who was admitted, the Court ruled that the formulaic approach was unconstitutional. Gratz v. Bollinger, 539 U.S. 244, 123 S. Ct. 2411, 156 L. Ed.2d 257. 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 admissions practices at selective public high schools where affirmative action has also been eliminated or curtailed.    
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 1998 Washington State passed Initiative 200 and became the second state to abolish state affirmative action measures. The initiative is similar to that of California's Proposition 209. 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 admissions 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.    
On June 28, 2007, the Supreme Court issued a landmark decision in two joined cases involving race and public school systems. In Meredith v. Jefferson County Board of Education, and Parents Involved in Community Schools v. Seattle School District No. 1, the Court ruled that race cannot be a factor in assigning children to a particular public school. In both cases, the school districts used race as the primary factor in determining which school the students would attend in order to maintain some level of racial integration in the school districts. Chief Justice JOHN ROBERTS, writing for the majority, argued that racial integration does not justify assigning students to a school based on the racial category under which they fall. He further stated that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The fate of affirmative action in this country is unclear. In November 2008 two states, Nebraska and Colorado, had ballot measures proposing to ban affirmative action preferences by public entities. The ban passed in Nebraska with more than 50 percent of the vote, whereas Colorado voters rejected the ban.

See also: How Much Affirmative Action Is Enough Affirmative Action?

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

“Affirmative Action.” 1995. CQ Researcher. April 28. American Civil Liberties Union. 1995. Affirmative Action. Briefing paper no. 17, March 22.
American Civil Liberties Union. 1995. The Case for Affirmative Action. July 1. 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).
Marin, Patricia, and Catherine L. Horn, eds. 2008. Realizing Bakke's Legacy: Affirmative Action, Equal Opportunity, and Access to Higher Education. Sterling,VA: Stylus Publishing.
Rubio, Philip F. 2001. A History of Affirmative Action, 1619–2000. Oxford: University Press of Mississippi. Schmidt, Peter. “Supreme Court Leaves Affirmative-Action Precedents Intact in Striking Down School-Integration Plans.” The Chronicle of Higher Education. Available online at website home page: (accessed July 7, 2009).
Mears, Bill. “Divided Court rejects school diversity plans.” Available online at (accessed July 7, 2009).
Brunner, Borga. “Timeline of Affirmative Action Milestones.” Available online at; website home page: (accessed July 7, 2009).

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