Historically, affirmative action has been understood as a system designed to remedy past discrimination and eliminate current and future discrimination. Affirmative action has involved voluntary and mandatory efforts by federal, state, and local governments; private employers; and schools to combat discrimination and foster fair hiring and promotion of qualified individuals. The initial impetus for its emergence was the recognition that selection efforts in the past did not guarantee such fairness and that there was evidence of discriminatory practices.
Until the mid-1960s, legal barriers prevented Latino/as, Blacks, and other racial minorities in the United States from entering many jobs and educational institutions. The Civil Rights Act of 1964, which prohibited discrimination in public accommodations and employment, was the first modern legislation to address these barriers.
The term “affirmative action” was first used officially by President Kennedy in a 1961 executive order that created the Committee on Equal Employment Opportunity and was designed to encourage contractors on projects financed with federal funds to racially integrate their workforces. Kennedy’s executive order declared that federal contractors should “take affirmative action to ensure that applicants are employed, and employees are treated during their employment, without regard to race, creed, color or national origin” (Executive Order No. 10,925, 26 Federal Register 1977 ). (Employment discrimination on the basis of a person’s sex was first prohibited by Title VII of the Civil Rights Act of 1964.) The original goal of the civil rights movement had been “color-blind” laws. However, many activists came to believe that simply ending a long-standing policy of discrimination did not go far enough. They were persuaded that affirmative, or proactive, measures to increase equality were necessary. As President Johnson stated in a 1965 speech at Howard University, “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and say, ‘you are free to compete with all the others,’ and still justly believe that you have been completely fair.” President Nixon was the first to implement federal policies designed to guarantee minority hiring. Responding to continuing racial inequalities in the workforce, the Nixon administration in 1969 developed the Philadelphia Plan requiring that contractors on federally assisted projects set specific goals for hiring minorities. Federal courts upheld this plan in 1970 and 1971.
Affirmative action plans do not mandate “preferences” or “quotas” (the US Supreme Court has ruled that quotas are illegal). However, opponents of affirmative action routinely use such terms interchangeably with the term “affirmative action.” From its beginnings in the United States in the 1960s, affirmative action has been highly controversial, yet the research of many psychologists demonstrates that how the concept is defined often shapes public opinion. When affirmative action is appropriately defined as a remedy for both past and continuing discrimination based on race, ethnicity, and gender, public support for it increases as demonstrated in public opinion surveys.
Affirmative action plans are usually based on an analysis of how well women and minorities are represented in targeted areas, such as employment settings, and the percentage of qualified individuals from these backgrounds who are part of the larger pool of potential employees, students, and so forth. At their core, however, affirmative action plans are designed to create opportunity and eliminate both conscious and inadvertent discrimination. The scope and limitations of affirmative action policy have been defined through a series of legislative initiatives and decisions by the Supreme Court of the United States.
Affirmative Action Challenged and Defended
Starting in the mid-1990s, politicians and grassroots groups began to attack affirmative action at the state level with some success. The regents of the University of California system voted in 1995 to end all affirmative action in hiring and admissions, and minority enrollment in the system’s entering undergraduate class plummeted in 1998, when the changes took effect. In 1996, California voters approved Proposition 209, an initiative that ended affirmative action throughout the state in public hiring, purchasing, and other government business. In 1998, Washington State voters passed Initiative 200, a measure that banned affirmative action in state and local government hiring, contracting, and education. Such measures exist in at least seven other states. The Supreme Court effectively gave states license to continue issuing such bans with its 2014 decision to uphold the state ban on affirmative action in the state of Michigan, in the case of Schuette v. BAMN. The Court held that there was no authority in the US Constitution that would authorize the Court to set aside the decision of the Michigan voters to amend its state constitution to ban the use of affirmative action at public universities.
Similarly, federal courts have also been considering lawsuits from white students denied admission to state universities with affirmative action programs. In some cases, the courts have invalidated such programs on the grounds that they promote reverse racial discrimination. For example, in Hopwood v. Texas (1996) a federal appeals court barred the University of Texas Law School from “any consideration of race or ethnicity” in its admissions decisions. As in California, the termination of the school’s affirmative action program led to a sharp drop in minority enrollment. One of the immediate effects of the Hopwood decision was to decrease the number of Latino/as who applied and were admitted to many of the most selective publicly funded higher education programs in the state. The amount of financial aid available to Latino and Latina students was also drastically decreased because of Hopwood.
Yet in 2003 the Supreme Court, in the case of Grutter v. Bollinger, reaffirmed the premise that affirmative action was constitutionally permissible because the state has a compelling interest in assuring racial diversity. In Grutter v. Bollinger, the affirmative action policy for law school admissions at the University of Michigan had been challenged. In the 5 to 4 majority decision Justice Sandra Day O’Connor wrote, “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” Amicus (friend of the court) briefs from the heads of major corporations and from retired military officers argued that affirmative action was essential to produce qualified corporate managers and military leaders and to encourage industrial innovation. These amicus briefs and Justice O’Connor’s references to them in her opinion suggest that affirmative action has become a key tool not only to achieve greater equality in the nation but also to help manage sustained economic growth and secure the national defense.
Affirmative action programs have increased the racial, ethnic, and gender diversity of many educational and workplace settings in the United States. During the period from 1976 to 1993 the numbers of Latino/as attending college rose 160.1 percent, and the proportional representation of Latino/as in college doubled from 3.6 percent to 7.4 percent. By 2008, 12 percent of all college students were Latino/a. This diversity helps to enrich the lives of US residents in many ways. For instance, empirical studies document that racial, ethnic, and gender diversity in collegiate settings helps to stimulate students’ personal growth and intellectual development. Many Latino and Latina politicians, academicians, and community leaders owe their educational or career opportunities to legislation that used ethnicity as one determining factor.
However, on the same day the Supreme Court’s Grutter decision validated the use of affirmative action in the University of Michigan’s law school admissions policy, the Court also issued a separate decision rejecting the affirmative action program used in the University of Michigan’s undergraduate program, which was challenged in Gratz v. Bollinger. The undergraduate program used a point system in deciding how to weigh applicants, with minority applicants receiving a number of points for the diversity of their racial backgrounds. The Court ruled that this method was too “mechanistic” and amounted to a quota system. The law school program, the Court said, was permissible because it evaluated each applicant individually and used race as one of many factors in deciding whom to admit.
Simultaneously, civil rights organizations hailed the Grutter decision because it clearly reaffirmed the value of affirmative action programs even though it could not overturn state laws that prohibit affirmative action, such as those in California and Washington. Opponents of affirmative action vowed to continue fighting and noted the Court’s opinion that “enshrining a permanent justification of racial preferences would offend [the] equal protection principle” of the Constitution. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” O’Connor wrote.
Indeed, the Supreme Court further narrowed the ability of universities to use affirmative action programs in the 2013 case of Fisher v. University of Texas at Austin. In Fisher, the Court affirmed the process of considering race as a factor among others in a public university’s admission efforts to achieve a more diverse student body. But the Court went on the specify that the specific admission process of a university is still subject to strict judicial scrutiny in its implementation to prove that the program is narrowly tailored to pursuing the goal of diversity. The Fisher decision narrowed the ability to effectively pursue integration with race-conscious policies by stating that in the judicial assessment of a program the university is not entitled to deference or a presumption of good faith in its operation of the program.
The restrictions on affirmative action were further narrowed in their application to the K-12 setting in the 2007 case of Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education. The case struck down as unconstitutional affirmative action programs in Seattle, Washington, and Louisville, Kentucky, that used race in assigning K-12 students to public schools. The 5 to 4 majority decision held that assigning students only on the basis of race violated the Equal Protection Clause of the Fourteenth Amendment. While the Court previously held in Grutter that racial diversity can be a compelling interest for admission to a university, here the Court held that “[t]he present cases are not governed by Grutter.” Justice Stephen Breyer, in his dissent, criticized the majority for jeopardizing the progress made regarding racial equality, indicating that “[t]his is a decision that the Court and the nation will come to regret.”
The Supreme Court also placed restrictions on affirmative action in the employment context in the June 2009 Ricci v. DeStefano case. There, the Court held that the City of New Haven, Connecticut, unlawfully discriminated against white firefighters (and one Hispanic firefighter who joined the lawsuit) on the basis of race when the City discarded promotional examination results because “too many whites and not enough minorities would be promoted.” The City claimed that they discarded the results to avoid liability for issuing a test having a disparate impact on minorities—that is, administering a test without intent to discriminate that nevertheless had an adverse effect on minorities. The plaintiff firefighters argued that they were unlawfully discriminated against in violation of Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment.
In the Supreme Court’s view, discarding the test results solely on the basis of race was itself discriminatory treatment. The Court, relying on its Equal Protection jurisprudence, held that an employer needs a “strong basis in evidence” to believe that it will face disparate-impact liability unless it takes race-based remedial action in order to lawfully justify a racial classification. This strong basis in evidence can only be established by showing that “the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt.” The Court found that the City had only a fear of liability, and this was insufficient to meet the strong-basis-in-evidence standard. Therefore, the City was found liable for unlawful discrimination in violation of Title VII of the Civil Rights Act of 1964. Because the action violated the statutory provision, the Court did not address whether the action violated the Equal Protection Clause of the Fourteenth Amendment.
Today, after thirty years of affirmative action policies bringing about undeniable progress, inequalities persist as the legal system circumscribes their operation. Latino/as still lag behind in overall college enrollment numbers, college graduation rates, and completion of master’s and doctoral degree programs. There is much evidence of continuing discrimination against Latino/as and other racial minorities and women of all colors. In fact, the evidence is overwhelming that the problems affirmative action seeks to address—widespread discrimination and exclusion and their ripple effects—continue to exist.
Anderson, Terry H. The Pursuit of Fairness: A History of Affirmative Action. New York: Oxford University Press, 2004.Find this resource:
Curry, George E., ed. The Affirmative Action Debate. Reading, Mass.: Addison-Wesley, 1996.Find this resource:
Edley, Christopher, Jr. Not All Black and White: Affirmative Action, Race, and American Values. New York: Hill & Wang, 1996.Find this resource:
Executive Order No. 10,925, 26 Federal Register 1977 (1961). Establishing the President’s Committee on Equal Employment Opportunity. http://www.thecre.com/fedlaw/legal6/eo10925.htm.
Fisher v. University of Texas at Austin, 133 S. Ct. 2411, 2013.Find this resource:
Johnson, Lyndon B. “To Fulfill These Rights” (Commencement Address at Howard University, Washington, D.C., June 4, 1965). In Public Papers of the Presidents of the United States: Lyndon B. Johnson. Vol. 2, 1965, entry 301, pp. 635–640. Washington, D.C.: Government Printing Office, 1966.Find this resource:
Parents Involved in Cmty. Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 2007.Find this resource:
Ricci v. DeStefano, 129 S. Ct. 2658, 2009.Find this resource:
Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 162, 2014.Find this resource:
United States Census Bureau, School Enrollment – CPS October 2012 Detailed Tables, Table 1. Enrollment Status of the Population 3 Years Old and Over, by Sex, Age, Race, Hispanic Origin, Foreign Born, and Foreign-Born Parentage: October 2012. http://www.census.gov/hhes/school/data/cps/2012/tables.html.