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

Bibliography

Anderson, Terry, H. The Pursuit of Fairness: A History of Affirmative Action. New York: Oxford University Press, 2004.

Appelt, Erna, and Monika Jarosch. Combatting Racial Discrimination: Affirmative Action as a Model for Europe. Oxford: Berg, 2000.

Belz, Herman. Affirmative Action from Kennedy to Reagan: Redefining American Equality. Washington, D.C.: Washington Legal Foundation, 1984.

Berry, Mary Francis, and John W. Blassingame. Long Memory: The Black Experience in America. New York: Oxford University Press, 1982.

Bowen, William G., and Derek Bok. The Shape of the River. Princeton, N.J.: Princeton University Press, 1998.

Boxhill, Bernard. Blacks and Social Justice. Totowa, N.J.: Rowman and Littlefield, 1984.

Capaldi, Nicholas. Out of Order: Affirmative Action and the Crisis of Doctrinaire Liberalism. Buffalo, N.Y.: Prometheus Books, 1985.

Cashman, Dean Dennis. African Americans and the Quest for Civil Rights, 1900–1990. New York: New York University Press, 1990.

Curry, George E., and Cornell West, eds. The Affirmative Action Debate. Reading, Mass.: Addison-Wesley, 1996.

Daniel, Jack, and Anita Allen. "Newsmagazines and the Black Agenda." In Discrimination and Discourse, edited by Geneva Smitherman-Donaldson and Teun A. van Dijk, pp. 23–45. Detroit, Mich.: Wayne State University Press, 1988.

Eastland, Terry, and William Bennett. Counting by Race: Equality from the Founding Fathers to Bakke and Weber. New York: Basic Books, 1979.

Ezorsky, Gertrude. Racism and Justice: The Case for Affirmative Action. Ithaca, N.Y.: Cornell University Press, 1991.

Finch, Minnie. The NAACP: Its Fight for Justice. Metuchen, N.J.: Scarecrow Press, 1981.

Fullinwider, Robert K. The Reverse Discrimination Controversy: A Moral and Legal Analysis. Totowa, N.J.: Rowman and Allanheld, 1980.

Goldman, Alan. Justice and Reverse Discrimination. Princeton, N.J.: Princeton University Press, 1979.

Green, Kathanne. Affirmative Action and Principles of Justice. New York: Greenwood Press, 1989.

Greenawalt, Kent. Discrimination and Reverse Discrimination. New York: Knopf, 1983.

Gross, Barry. Discrimination in Reverse: Is Turn-about Fair Play? New York: New York University Press, 1978.

Horne, Gerald. Reversing Discrimination: The Case for Affirmative Action. New York International Publishers, 1992.

Guinier, Lani. Tyranny of the Majority: Fundamental Fairness in Representative Democracy. New York: Martin Kessler Books, 1995.

Johnson, Alex M. "Defending the Use of Quotas in Affirmative Action: Attacking Racism in the Nineties." University of Illinois Law Review (1992): 1043–1073.

Kull, Andrew. The Color-Blind Constitution. Cambridge, Mass.: Harvard University Press, 1992.

Livingston, John C. Fair Game? Inequality and Affirmative Action. San Francisco: W. H. Freeman, 1979.

Loury, Glenn. "Why Should We Care About Group Inequality?" Social Philosophy and Policy 5 (1988): 249–271.

McGary, Howard, Jr., "Justice and Reparations." Philosophical Forum 9 (1977–78): 250–263.

Mosley, Albert G. "Affirmative Action and the Urban Underclass." In The Underclass Question, edited by Bill Lawson, pp. 140–151. Philadelphia, Pa.: Temple University Press, 1992.

Neiman, Donald G. Promises to Keep: African Americans and the Constitutional Order, 1776 to the Present. New York: Oxford University Press, 1991.

Newton, Lisa. "Reverse Discrimination as Unjustified." Ethics 83 (1973): 1–4.

Rosenfeld, Michel. Affirmative Action: A Philosophical and Constitutional Inquiry. New Haven, Conn.: Yale University Press, 1996.

Rossum, Ralph A. Reverse Discrimination: The Constitutional Debate. New York: M. Dekker, 1980.

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

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

Steele, Shelby. "A Negative Vote on Affirmative Action." New York Times Magazine, May 13, 1990.

Steele, Shelby. The Content of Our Character: A New Vision of Race in America. New York: St. Martin's Press, 1990.

Stohr, Greg. A Black and White Case: How Affirmative Action Survived Its Greatest Legal Challenge. New York: Bloomberg Press, 2004.

"A Stricter Standard for Affirmative Action." New York Times (July 21, 1995).

Thomson, Judith J. "Preferential Hiring." In Equality and Preferential Treatment, edited by Marshall Cohen, Thomas Nagel, and Thomas Scanlon, pp. 19–39. Princeton, N.J.: Princeton University Press, 1977.

Wilson, William Julius. The Truly Disadvantaged. Chicago: University of Chicago Press, 1987.

anita l. allen (1996)
Updated by author 2005

Affirmative Action

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

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

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

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

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

HISTORY OF AFFIRMATIVE ACTION

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

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

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

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

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

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

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

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

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

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

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

AFFIRMATIVE ACTION IN THE 1990S AND 2000S

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

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

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

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

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

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

see also Racial Discrimination; Employee Hiring

BIBLIOGRAPHY

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

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

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

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

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

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

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

                                 Hillstrom, Northern Lights

                                  updated by Magee, ECDI

AFFIRMATIVE ACTION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How Much Affirmative Action Is Enough Affirmative Action?

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

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

Freedom is not enough…. You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying,"you are free to compete with all the others," and still justly believe you have been completely fair. Thus it is not enough to open the gates of opportunity.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

further readings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

further readings

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

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

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

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

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

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

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

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

cross-references

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

Affirmative Action

Sections within this essay:

Background

Affirmative action has been the most contentious area of civil rights law during the past 30 years. Despite several Supreme Court decisions, numerous executive orders, and laws passed by legislators at the state and federal level, it is still considered an unsettled area of law. Because of this current lack of resolution, any article written about affirmative action may soon become outdated with the latest law or court decision. Nevertheless, the broad outlines of what affirmative action has been and presumably will be in the future can be established.

Affirmative Action Defined

Although the term "affirmative action" can be used in a variety of contexts, the most popular definition currently is within the arena of civil rights. There, affirmative action has been held to provide a special boost to qualified minorities, women, and disabled individuals in order to make up either for past discrimination or for their under representation in a specific area of the work force or academia. Though these categories of individuals have historically benefited most, affirmative action programs can also apply to other areas of discrimination, such as age, nationality, and religion.

Affirmative action can be administered in several ways. One way is through "quotas," defined as a strict requirement for a proportion or share of jobs, funding, or other placement to go to a specific group, e.g., 50 percent of all new hires must be women. Another is "goals," which require agencies and institutions to exert a good-faith effort toward reaching the assigned proportion or share goal but do not require that the proportion be reached. Affirmative action can also take the form of intangible "boosts" for the respective beneficiaries of the pro-gram; for example, all men shorter than 5283 will be given ten extra points on the physical fitness exam.

The reasons for affirmative action are myriad and tend to overlap, but generally two justifications have stood out. One is that the group has been discriminated against in the past, for example black Americans, and needs affirmative action in order to "catch up" to the majority that has not suffered discrimination. The other is that the group is under represented in whatever area is being scrutinized, say women in construction jobs, and needs to be helped to achieve some sort of representation in the area. Even in this situation, however, there is the tacit admission that discrimination might be the underlying cause of the under representation.

History of Affirmative Action

Affirmative action has its origins in the civil rights movement of the late 1950s and early 1960s. The movement brought a dramatic change to U.S. social life through protests, court decisions, and legislative action, culminating in the passage of the 1964 Civil Rights Act, popularly known as Title VII.

But Title VII mentioned affirmative action in a positive sense only in the context of the American Indian. It allowed preferential treatment to be given "to individuals because they are Indians living on or near a reservation." Otherwise, Title VII outlawed discrimination in a "color blind" fashion. The relevant part of Title VII states: "Nothing contained in this [law] shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this [law] to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed … in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area."

This part of Title VII was passed to assuage the concerns of moderate members of Congress that the Civil Rights Act would become a quota bill, requiring reverse discrimination against whites. Civil rights leaders, who for the most part felt distinctly ambivalent about affirmative action, did not object to the inclusion of this passage. Many saw affirmative action as a way of dividing working class whites from blacks and the civil rights movement from its natural allies in the labor movement.

But the riots of the mid and late-1960s convinced more and more civil rights leaders that a color-blind policy of enforcing civil rights was not enough and that there had to be steps taken to ensure blacks could complete equally with whites. President Lyndon Johnson endorsed this view in a speech before Howard University in 1965 in which he stated: "You do not take a person who for years has been hobbled by chains and liberate him, bring him to the starting line and say you are free to compete with all the others."

That same year, Johnson issued Executive Order 11246, requiring firms under contract with the federal government not to discriminate, 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." Although not specifying what would constitute affirmative action and not applying to any firms outside the federal government, this order is considered the first attempt at positive affirmative action by a governmental entity. The order also created the Office of Federal Contract Compliance (OFCC) to enforce this policy.

Because the term, affirmative action, was left intentionally vague by the executive order, however, the OFCC was unsure how to enforce it. The OFCC formulated plans in several cities, such as Cleveland and Philadelphia, to facilitate the hiring of minorities for federal government work, but for various reasons these plans were determined to be illegal or never seriously enforced. Johnson left office without any definite affirmative action plan put forth on his watch.

It was left to the Nixon administration, ironically considered an administration not particularly friendly to civil rights interests, to pick up the issue and promote the first serious affirmative action plan that required government-determined, numerically specific percentages of minorities to be hired.

In 1969, the Nixon administration picked up a plan that the Johnson administration had put forth for the construction industry in the city of Philadelphia, referred to as the Philadelphia Plan. The Johnson administration plan was faulted for not having definite minimum standards for the required affirma-tive action programs. The Nixon plan did issue minimum standards—specific targets for minority employees in several trades. It did not require these minimum standards be met, simply that contractors submitting bids make a "good faith" effort to achieve these targets. This allowed the administration to argue it was not setting quotas, though critics of the plan suggested the administration was in fact doing so.

The Philadelphia Plan survived several challenges, both legal and Congressional, before being accepted as legitimate. The Plan set the tone for affirmative actions plans that followed. Soon, the standards put forth in the Philadelphia Plan were incorporated into Executive Order 11246 which affected all federal government contractors, who were required for the first time to put forth written affirmative action plans with numerical targets.

After the implementation of the Philadelphia Plan, legislation was passed at the federal, state, and municipal level implementing affirmative action plans using the Philadelphia Plan as a model. Today, almost all government affirmative action plans are offshoots of the Philadelphia Plan. Its mixture of numerical targets and requirements of "good faith" effort was a milestone in the history of affirmative action.

Supreme Court Decisions on Affirmative Action

The Supreme Court has given its opinion on affirmative action on numerous occasions since the Philadelphia Plan was put into effect in 1970. By—and—large, these Supreme Court decisions were more open to the idea of affirmative action during the 1970s and early 1980s and then gradually tightened the requirements for affirmative action plans. Generally, the question before the Supreme Court regarding affirmative action plans asked what kind of scrutiny to give the plans.

Griggs v. Duke Power Co.

Decided in 1971, this decision is generally held to have laid the foundation for affirmative action programs based on the rationale of under representation. The case involved black workers at a power plant in North Carolina who sued, arguing that the plant's requirements of a high school education or passing a standardized intelligence test in order to fill certain jobs was discriminatory. The plaintiffs argued that the requirements operated to disqualify blacks at a substantially higher rate than white applicants. The plant argued that the requirements served a legitimate business purpose.

A unanimous Supreme Court disagreed with the employer, ruling that the tests did not serve any job-related requirement. The Court pointed out that the plant had practiced discrimination in the past and that the effect of these requirements was to prevent black workers from overcoming the effects of such discrimination. "Practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices," said the court.

The effect of Griggs v. Duke Power was to legitimize the so-called disparate impact theory—the idea that if a qualification had a disparate impact on a specific group, an organization could justify that qualification only if it could prove a business related purpose for such a requirement. This point opened the door to forcing employers (including the government) to taking a hard look at the effect of their employment practices and their relation to race.

Regents of the University of California v. Bakke

This was the first instance of the court taking a case specifically involving affirmative action. The case involved a white man, Allan Bakke, who had applied for a seat at the medical school at the University of California at Davis. Bakke was rejected, and then he sued, arguing that less qualified minorities were being allowed into the school under a quota system reserving a specific number of seats for minorities.

In a 5-4 ruling, a divided Supreme Court in 1978 ruled that the specific quota system used by the University of California at Davis was illegal but that race could be taken into consideration in determining admission slots at the school. The result was the first time the Court had held that reverse discrimination could be justified under certain circumstances.

United Steel Workers of America v. Weber and Fullilove v. Klutznick

These two cases, decided a year apart, further legitimized the use of affirmative action as a tool for increasing minority employment. In the Weber case, the Supreme Court in 1979 ruled that an affirmative action plan for on-the-job training that mandated a one-for-one quota for minority workers admitted to the program was legal, since the plan was a temporary measure designed to correct an imbalance in the workforce.

In Fullilove, the Supreme Court upheld the "minority business enterprise" provision of Public Works Employment Act of 1977, which requires that at least 10 percent of federal funds granted for local public works projects must be used by the state or local grantee to procure services or supplies from businesses owned by minority group members.

Johnson v. Santa Clara County Transportation Agency

This 1987 decision expanded the Court's protection of affirmative action programs to ones benefiting women. The Court ruled that the county agency did not violate civil rights laws by taking the female employee's sex into account and promoting her over male employee with a higher test score. By doing so, the court upheld the county's affirmative action plan directing that sex or race be considered for purpose of remedying under representation of women and minorities in traditionally segregated job categories.

City of Richmond v. J.A. Croson

Beginning with this case in 1989, the Supreme Court began to cut back on the leeway it had given affirmative action programs. The Court struck down a set-aside program mandated by the city of Richmond, Virginia, which required prime contractors awarded city construction contracts to subcontract at least 30 percent of the dollar amount of each contract to one or more "Minority Business Enterprises." The Court ruled that the city failed to demonstrate compelling governmental interest justifying the plan, and the plan was not narrowly tailored to remedy effects of prior discrimination.

In handing down this ruling, the Court determined that any judicial review of municipal affirmative action plans would be reviewed with "strict scrutiny." Under the strict scrutiny test, defendants are required to establish they have a compelling interest in justifying the measure or that the affirmative action program advances some important governmental or societal purpose. For all practical purposes, this ruling makes it very hard to justify an affirmative action plan unless past discrimination can be shown, and the under representation of minorities is a product of that discrimination.

Adarand Constructors v. Pena

In this Supreme Court case, the Court applied the standards propagated in City of Richmond v. Croson to the federal government, ruling that all racial classifications imposed by whatever federal, state, or local governmental actor must be analyzed by the reviewing court under strict scrutiny. The Court overturned a decision dismissing a suit brought by a contractor challenging the constitutionality of a federal program designed to provide highway contracts to minority business enterprises.

The results in Adarand confirmed the conservative direction in which the Supreme Court moved with respect to affirmative action plans. It seemed clear after this decision that affirmative action plans would only survive court challenges by being narrowly tailored to rectify past discrimination.

Gratz v. Bollinger and Grutter v. Bollinger

These two cases further illustrate the complexity of the issue. Jennifer Gratz was denied admission to the University of Michigan's undergraduate program in 1995, while in 1997 Barbara Grutter was denied admission to the university's law school. Both women were white, and they claimed that the university's admissions program discriminated against white students. The university used a point system for undergraduate admissions, assigning extra points to what it considered "under-represented" racial and ethnic minorities. Since it also assigned extra points to athletes, children of alumni, and men enrolling in the nursing school, the university argued, there was nothing out of the ordinary about adding points for race as well. As for the law school, there was no point system, but race was used as a determining factor because, the university maintained, it helped promote cross-racial understanding. Civil rights organizations, academicians, political leaders, and many others took sides. Former U.S. president Gerald R. Ford (a University of Michigan alumnus) spoke out in support of the university's system in an op-ed piece in The New York Times in 1999.

The court voted 6-3 to strike down the undergraduate point system, but it upheld the law school's less rigid program in a 5-4 vote. While the dual votes were not a total victory for affirmative action, they clearly showed what the courts would consider valid and what they would consider too broad a reach. More importantly, they showed that the U.S. Supreme Court, however conservative, was not ready to abolish affirmative action arbitrarily.

Forms of Affirmative Action

Affirmative actions can take different forms. Often affirmative actions are written into federal or state law. They can also take the form of voluntary plans or consent decrees. Occasionally, although rarely these days, a court will impose an affirmative action plan to remedy the effects of past discrimination.

Although affirmative action has been employed in the private sector, its use has been most pronounced in the public sector, in regard to both hiring and contract requirements. Affirmative action has been broadly used across a wide spectrum of federal, state, and municipal governments.

Samples of Affirmative Action at the Federal Level are as follows:

Department of Defense: Strives to award five percent of Department of Defense procurement, research and development, construction, operation and maintenance contracts to minority businesses and institutions.

Federal Home Loan Banks: Provides for preservation and expansion of minority owned banks.

Department of State: Mandates at least 10 percent of amount of funds appropriated for Department of State and foreign affairs diplomatic construction projects be allocated to American minority contractors.

NASA: Requires NASA administrator to establish annual goal of at least eight percent of total value of prime contracts and subcontracts awarded to be made to small disadvantaged businesses and minority educational institutions.

FCC: Must ensure that minority- and women-owned businesses have opportunity to participate in providing spectrum-based services.

Department of Energy: Works to achieve five percent of combined total funds of Department of Energy used to carry out national security programs be allocated to minority businesses and institutions.

Department of Energy: Strives for five percent of combined total funds of Department of Energy used to carry out national security programs be allocated to minority businesses and institutions.

Department of Transportation: Requires that not less than 10 percent of funds appropriated under the Intermodal Surface Transportation Efficiency Act of 1991 be expended on small and minority businesses.

Environmental Protection Agency: Must allocate no less than 10 percent of federal funding to minority businesses for research relating to requirements of Clean Air Act Amendments of 1990.

Samples of Affirmative Action at the State Level are as follows:

ARKANSAS: Requires Division of Minority Business Enterprise to develop plans and participation goals for minority businesses.

CONNECTICUT: Mandates that contractors on state public works contracts make good faith efforts to employ minority businesses as subcontractors and suppliers, allows municipalities to set aside up to 25 percent of dollar amount of construction and supply contracts to award to minority businesses.

DISTRICT OF COLUMBIA: Requires District of Columbia agencies to allocate 35 percent of dollar amount of public construction contracts to minority businesses.

FLORIDA: Allows municipalities to set aside up to 10 percent of dollar amount of contracts for procurement of personal property and services to award to minority businesses.

ILLINOIS: Requires Metropolitan Pier and Exposition Authority to establish goals of awarding not less than 25 percent of dollar amount of contracts to minority contractors and not less than five percent to women contractors.

INDIANA: Requires that state agencies establish goal that five percent of all contracts awarded be given to minority businesses.

KANSAS: Allows Secretary of Transportation to designate certain state highway construction contracts, or portions of contracts, to be set aside for bidding by disadvantaged businesses only.

LOUISIANA: Requires establishment of annual participation goals for awarding contracts for goods and services and public works projects to minority- and women-owned businesses.

MARYLAND: Requires that Maryland award 14 percent of dollar amount of procurement contracts to minority businesses.

MICHIGAN: Establishes participation goals for awarding of government contracts to minority- and women-owned businesses.

NEW JERSEY: Allows municipalities to set aside certain percentage of dollar value of contracts to award to minority businesses.

NEW YORK: Allows municipalities to set aside certain percentage of dollar value of contracts to award to minority businesses.

OHIO: Provides that a prime contractor on a state contract must award subcontracts totaling no less than five percent of the total value of the contract to Minority Business Enterprises (MBE) and that the total value of both the materials purchased from MBE's and of the subcontracts awarded will equal at least seven percent of the total value of the contract.

TENNESSEE: Requires all state agencies to actively solicit bids from small businesses and minority-owned businesses whenever possible. Local education agencies and state colleges and universities may set aside up to 10 percent of their funds allocated for procurement of personal property and services for the purpose of entering into contracts with small businesses and minority-owned businesses.

Required Affirmative Action For Federal Contractors

Contractors with the federal government are required to have affirmative action plans under various federal laws. These laws include:

Executive Order 11246: This 30-year-old order, signed by President Johnson and amended by President Nixon, applies to all nonexempt government contractors and subcontractors and federally assisted construction contracts and subcontracts in excess of $10,000. Under the Executive Order, contractors and subcontractors with a federal contract of $50,000 or more and 50 or more employees are required to develop a written affirmative action program that sets forth specific and result-oriented procedures to which contractors commit themselves to apply every good faith effort.

Section 503 of the Rehabilitation Act of 1973: Requires affirmative action plans in all personnel practices for qualified individuals with disabilities. It applies to all firms that have a nonexempt government contact or subcontract in excess of $10,000.

The Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA): Requires affirmative action programs in all personnel practices for special disabled veterans, Vietnam Era veterans, and veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized. It applies to all firms that have a nonexempt government contract or subcontract of $25,000 or more.

What An Affirmative Action Plan Should Include

The Office of Federal Contract Compliance Programs (OFCCP) suggests that non-construction contractors' written affirmative action plans include the following affirmative action as part of an action-oriented program:

• Contact with specified schools, colleges, religious organizations, and other institutions that are prepared to refer women and minorities for employment;
• Identification of community leaders as recruiting sources;
• Holding of formal briefing sessions, preferably on company premises, with representatives from recruiting sources;
• Conduct of plant tours, including presentation by minority and female employees of clear and concise explanations of current and future job openings, position descriptions, worker specifications, explanations of the company's selection process, and recruitment literature;
• Encouragement of minority and female employees to refer applicants;
• With special efforts the inclusion of minorities and women in personnel department staffs;
• The availability of minority and female employees for participation in career days, youth motivation programs, and related community activities;
• Recruitment at secondary schools, junior colleges, and colleges with predominantly minority or female enrollments;
• With special efforts the contact with minorities and women when recruiting at all schools;
• Special employment programs undertaken whenever possible, such as technical and non-technical co-op programs with predominantly black and women's colleges, summer jobs for underprivileged youth, and motivation programs for the hardcore unemployed;
• Inclusion of minority and female employees in recruiting brochures pictorially presenting work situations;
• Expansion of help-wanted advertising to regularly include the minority news media and women's interest media.

Voluntary Implementation of Affirmative Action

Both private and public employers use voluntary affirmative action. However, both private and public employers must satisfy certain criteria in order to comply with Title VII. The employer must have a legitimate reason for adopting a plan. Also, the plan cannot unduly interfere with the employment opportunities of non-minority or male workers or job applicants to the extent that their interests are "unnecessarily trammeled." The EEOC has promulgated Guidelines on Affirmative Action that explain how to develop a lawful affirmative action plan under Title VII.

Often, affirmative action remedies are agreed upon to settle a discrimination case. These remedies are implemented by a consent decree. A court must approve provisions in consent decrees that provide for the employer's adoption of an affirmative action program. Affirmative action contained in the decree is viewed as voluntary. The action may benefit individuals who were not the victims of the discriminatory practice at issue.

Abolishing Affirmative Action

In the 1990s, several states moved to abolish affirmative action programs. California voted in 1996 to abolish affirmative action, and Washington State voted similarly in 1998. The California ban asserts: "the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." The wording of the Washington law is identical. Both laws were passed in voter referenda.

There is no question that affirmative action remains a controversial issue in the eyes of many—and that many people would like to abolish it. But it seems reasonable to say that society in general is mindful that affirmative action in some form is acceptable and in fact worthwhile. Those who either favor or oppose it strongly will likely have to accept some sort of middle ground in the future.

Additional Resources

Affirmative Action. A.E. Sadler, Ed., Greenhaven Press, 1996.

Affirmative Action Fact Sheet. Office of Federal Contract Compliance Programs, 2000. Available at http://www.dol.gov/dol/esa/public/ofcp_org.htm.

Alice in Preference Land: A Review of Affirmative Action in Public Contracts. Denise Farris, Construction Lawyer, Fall, 1991.

American Jurisprudence. Second Edition, Job Discrimination §§ 600-678 (2000).

Equality Transformed: A Quarter-Century of Affirmative Action. Herman Belz, Transaction Publishers, 1991.

Federal Law of Employment Discrimination. Mack Player, West Group, 1989.

Has Affirmative Action Been Negated? A Closer Look at Public Employment. Honorable H. Lee Sarokin, et al; San Diego Law Review, Summer, 2000.

The Ironies of Affirmative Action. John David Skrentny, University of Chicago Press, 1996.

Setting Aside Set Asides: The New Standards for Affirmative Action Programs in the Construction Industry. Steven K. DiLiberto, Villanova Law Review, 1997.

U.S. Code, Title 42: United States Code Annotated Title 42: The Public Health And Welfare Chapter 21: Civil Rights. U.S. House of Representatives, 1999. Available at http://uscode.house.gov/title_42.htm.

Organizations

Office of Federal Contract Compliance Programs (OFCCP)

200 Constitution Ave., NW
Washington, DC 20210 USA
Phone: (202) 693-0101
URL: http://www.dol.gov/esa/ofccp/name
Primary Contact: Charles E. James, Sr., Deputy
Assistant Secretary

U.S. Equal Employment Opportunity Commission

1801 L Street, N.W.
Washington, DC 20507 USA
Phone: (202) 663-4900
URL: http://www.eeoc.gov/
Primary Contact: Cari M. Dominguez, Chair

AFFIRMATIVE ACTION

The term affirmative action has been used in the United States since the late 1960s to refer to policies that go beyond the simple prohibition of discrimination on grounds of race, national origin, and sex in employment practices and educational programs. These policies require some further action, "affirmative action," to make jobs and promotions and admissions to educational programs available to individuals from groups that have historically suffered from discrimination in gaining these opportunities or are, whether discriminated against or not by formal policies and informal practices, infrequently found in certain occupations or educational institutions and programs.

Affirmative action policies may be policies of governments or governmental units, affecting their own procedures in employment or in granting contracts; or they may be policies of governments, affecting the employment procedures of companies or nonprofit agencies and organizations over whom the governments have power or with whom they deal; or they may be the policies of profit and nonprofit employers, adopted voluntarily or under varying degrees of public or private pressure. Affirmative action policies may include the policies of philanthropic foundations, when they affect the employment policies of their grantees, or educational accrediting agencies, when they affect the employment or admissions policies of the institutions they accredit.

The range of policies that can be called affirmative action is wide, but the term also has a specific legal meaning. It was first used in a legal context in the United States in an executive order of President John F. Kennedy. Subsequent presidential executive orders and other administrative requirements have expanded its scope and meaning, and since 1971 affirmative action so defined has set employment practice standards for contractors of the United States, that is, companies, colleges, universities, hospitals, or other institutions that have business with the U.S. government. These standards are enforced by an office of the Department of Labor, the Office of Federal Contract Compliance Programs. Because of the wide sweep of the executive order and its reach into the employment practices of almost every large employer, affirmative action policies have become extremely controversial.

Affirmative action, under other names, is also to be found in other countries to help groups, whether majority or minority, that have not fared as well as others in gaining employment in higher status occupations or admissions to advanced educational programs.

Affirmative action has been controversial because it appears to contradict a central objective of traditional liberalism and the U.S. civil rights movement, that is, the treatment of individuals on the basis of their individual talents and not on the basis of their color, race, national origin, or sex. Affirmative action, as it has developed, requires surveys by employers of the race, national origin, and sex of their employees to uncover patterns of "underutilization" and to develop programs to overcome this underutilization and thus to take account of the race, national origin, and sex of applicants for employment and of candidates for promotion. To many advocates of expanded civil rights, this is seen as only the next and a most necessary step in achieving equality for groups that have in the past faced discrimination. To others, who may also deem themselves advocates of civil rights and of the interests of minority groups, affirmative action, in the form in which it has developed, is seen as a violation of the first requirement for a society that promises equal opportunity, that is, to treat individuals as individuals independent of race, national origin, or sex.

This apparent contradiction between civil rights and affirmative action may be glimpsed in the very language of the Civil Rights Act of 1964, the central piece of legislation that banned discrimination in government programs, public facilities, and employment. In the debate over that act, fears were expressed that the prohibition of discrimination in employment, as codified in Title VII, would be implemented by requiring certain numbers of employees to be of a given race. This fear was dealt with by placing language in the act that was understood at the time specifically to forbid the practices that are required under affirmative action since the late 1960s and early 1970s. Title 703 (j) reads:

Nothing contained in this title shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer.

However, federal executive orders governing how the federal government does its business may set their own standards, independent of statutory law. The first executive order using the term affirmative action was issued by President John F. Kennedy in 1961. It created a President's Committee on Equal Employment Opportunity to monitor the obligations contractors undertook to extend affirmative action. At this time, the general understanding of affirmative action was that it required such things as giving public notice that the employer did not discriminate, making the availability of positions and promotions widely known, advertising in minority media, and the like. With the Civil Rights Act of 1964—which not only prohibited discrimination on grounds of race, color, and national origin but also on grounds of sex—a new executive order, no. 11,246, was formulated by President Lyndon B. Johnson and came into effect. It replaced the President's Committee on Equal Employment Opportunity with an Office of Federal Contract Compliance Programs (which still operates). Subsequent federal regulations of the late 1960s and early 1970s specified what was meant by affirmative action in the executive order, and the meaning of affirmative action was considerably expanded into the full-fledged program that has existed since 1971. Revised order no. 4 of that year, which is part of the Code of Federal Regulations and is still in effect, reads in part:

An affirmative action program is a set of specific and result-oriented procedures to which a contractor commits itself to apply every good effort. The objective of those procedures plus such efforts is equal employment opportunity. Procedures without efforts to make them work are meaningless; and effort, undirected by specific and meaningful procedures, is inadequate. An effective affirmative action program must include an analysis of areas within which the contractor is deficient in the utilization of minority groups and women, and further, goals and timetables to which the contractor's good faith efforts must be directed to correct the deficiencies and, [sic] thus to achieve prompt and full utilization of minorities and women, at all levels and in all segments of its work force where deficiencies exist. (Code of Federal Regulations 1990, pp. 121–122)

Much of the controversy over affirmative action is over the term goals and timetables: Are these "quotas"? Supporters of affirmative action say not—only good faith efforts are required, and if they fail the contractor is not penalized. Further controversy exists over the term utilization: What is the basis on which a group is found "underutilized," and to what extent is this evidence of discrimination? Similarly, there is considerable dispute over how to label these programs. "Affirmative action" has a positive air, and in public opinion polls will receive considerable support. Label the same programs "racial preference"—which indeed is specifically what they are—and public support drops radically. In the 1990s, as campaigns were launched to ban affirmative action programs by popular referendum, just what language could or should be used in these referenda became hotly disputed.

Controversy also arises over the categories of employees that contractors must report on and over whose utilization they must be concerned. The executive order lists four categories: blacks, Spanish-surnamed Americans, American Indians, and Orientals. (These are the terms in the order as of 1971 and are still used in the Code of Federal Regulations.) The preferred names of these groups have changed since then to Afro- or African Americans, Hispanics or Latinos, Native Americans, and Asians. While the original executive order and the Civil Rights Act was a response to the political action of black civil rights groups, and it was the plight of blacks that motivated both the executive order and the Civil Rights Act, it was apparently deemed unwise in the mid-1960s to limit affirmative action requirements to blacks alone. The Civil Rights Act bans discrimination against any person on grounds of race, national origin, and sex and specifies no group in particular for protection; but the Equal Employment Opportunity Commission, set up by the Civil Rights Act to monitor discrimination in employment, from the beginning required reports on the four groups listed above, despite the fact that even in the 1960s it could be argued that discrimination against Asians was far less acute and much less of a problem than discrimination against blacks, that discrimination against American Indians also differed in severity and character from discrimination against blacks, and that discrimination against Spanish-surnamed Americans ranged from the nonexistent or hardly existent (Spaniards from Spain? Cubans? Sephardic Jews?) to the possibly significant. Nevertheless, these four categories set up in the mid-1960s are still the groups that governmental programs of affirmative action target for special attention (Glazer 1987).

Since affirmative action is a governmental program operated by government agencies that grant contracts and is overseen by the Office of Federal Contract Compliance Programs, one major issue of controversy has been over the degree to which these programs are really enforced. It is generally believed that enforcement is more severe under Democratic administrations than under Republican administrations, even though the program was first fully developed under the Republican administration of President Richard Nixon. President Ronald Reagan was an avowed opponent of affirmative action, but despite his eight-year administration no modification of the program took place. Changes were proposed by some parts of the Republican administration but opposed by others. Business, in particular big business, had learned to live with affirmative action and was not eager to upset the apple cart (Belz 1990).

One of the most controversial areas in which affirmative action is applied is in the employment and promotion of police, firefighting and sanitation personnel, and teachers and other local government employees. Here strict racial quotas often do apply. They are strongly resented by many employees when new employees are hired by race and even more when promotions are given out by race and layoffs are determined by race. The basis of these quotas is not the presidential executive order but rather consent decrees entered into by local government on the basis of charges of discrimination brought by the federal government. These charges are brought on the basis of the Civil Rights Act; under this act, if discrimination is found, quotas can be required by courts as a remedy. Since local government employment is generally on the basis of tests, one very controversial aspect of such cases is the role of civil service examinations. Blacks and Hispanics characteristically do worse than white applicants. Are these poorer results to be taken as evidence of discrimination? A complex body of law has been built up on the basis of various cases determining when a test should be considered discriminatory. In the Civil Rights Act of 1964, one provision read "it shall not be an unlawful employment practice . . . for an employer to give and act upon the results of any professionally developed ability test provided that such test . . . is not designed, intended, or used to discriminate." But the courts decide whether the test is "designed, intended, or used to discriminate." Because of the frequency with which courts have found tests for the police, fire, or sanitation force discriminatory, and because state and local governments believe they will lose such cases, many have entered into "consent decrees" in which they agree to hire and promote on the basis of racial and sex criteria.

Affirmative action is also used in the granting of government contracts on the basis of either statutes (federal, state, or local) or administrative procedures. It is in this area that the edifice of affirmative action was first effectively attacked in the 1980s and 1990s, in the wake of the failure of Republican administrations to take any action limiting affirmative action. The first major crack came in the U.S. Supreme Court's decision in City of Richmond v. Croson, in which the Court ruled against a Richmond, Virginia, city program to set aside 30 percent of city contracts for minority-owned businesses. The Court ruled that such programs could only stand, under the judicial "strict scrutiny" standard triggered by apparent government discrimination, if it could be demonstrated there had been discrimination against these groups by the city in the past. The response of cities to this judicial limitation on their minority "set-aside" programs was often to commission studies to demonstrate they had indeed discriminated, in order to save the set-aside programs (LaNoue 1993). In a later decision, Adarand v. Pena (1995), the Court ruled against a federal statute requiring that 10 percent of public works contracts be set aside for minorities. While these programs still continue in many jurisdictions, including the federal government, they are all legally threatened.

One issue in minority contract set-asides has been that of possible fraud, as various contractors find it to their advantage to take on black partners so as to present themselves as minority contractors and thus to get whatever advantages in bidding that status provides. In this area, as in other areas where advantage might follow from minority status, there have been debates over what groups may be included as minorities. It was unclear, for example, whether Asian Indians—immigrants and American citizens of Indian origin—were to be considered Asian. Asian Indian Americans were divided among themselves on this question, but during the Reagan administration they were reclassified as Asian, presumably in part for the modest political advantage this gave the Republican administration.

Affirmative action also governs the employment practices of colleges and universities, whether public or private, because they all make use of federal grants and loans for their students, and many have government research contracts. Colleges and universities therefore must also survey their faculties and other staffs for underutilization, and they develop elaborate affirmative action programs. Affirmative action applies to women as well as to racial and ethnic minority groups. There has been, perhaps in part because of affirmative action programs, a substantial increase in female faculty. But there has been little increase in black faculty during the 1980s. The numbers of blacks taking doctorates in arts and sciences has been small and has not increased. The higher rewards of law, business, and medicine have attracted into those fields black students who could prepare themselves for an academic career. Many campuses have been shaken by controversies over the small number of black faculty, with administrators arguing that few were available and protestors, often black students, arguing that greater effort would change the situation.

In the 1990s, the most controversial area of affirmative action became admissions to selective colleges and universities and professional schools. Affirmative action in admissions is not required by government regulations, as in the case of employment, except in the special case of southern public higher education institutions. There parallel and separate black and white institutions existed, and while all of these institutions have been open to both white and black students since at least the early 1970s, an extended lawsuit has charged that they still preserve their identity as traditionally black and traditionally white institutions. As a result of this litigation, many of these institutions must recruit a certain number of black students. But the major pressure on many other institutions to increase the number of black students has come from goals voluntarily accepted by administrators or as a result of black student demands. (In one case, that of the University of California, the state legislature has called on the institution to mirror in its racial-ethnic composition the graduating classes of California high schools.) Voluntary affirmative action programs for admission of students, targeted on black, Hispanic, and Native American students, became widespread in the late 1960s and early 1970s, particularly after the assassination of Martin Luther King.

The first affirmative action cases to reach the Supreme Court challenged such programs of preference for black and other minority students. A rejected Jewish applicant for admission to the University of Washington Law School, which had set a quota to increase the number of its minority students, sued for admission, and his case reached the Supreme Court. It did not rule on it. The Court did rule on a subsequent case, in 1978, that of Allan Bakke, a rejected applicant to the University of California, Davis, Medical School, which also had set a quota. The Court, splitting into a number of factions, rejected fixed numerical quotas but asserted race was a factor that could be taken into account in admissions decisions for purposes of promoting academic diversity. Under the protection offered by this complex decision, most colleges and universities and professional schools do grant preferences to black and Hispanic students. Asian Americans, also considered a minority, did not receive preference, but this was hardly necessary since their academic achievement is high. Indeed, by the 1980s, Asian American students were protesting that it was more difficult for them than whites to gain admission to selective institutions (Bunzel and Au 1987).

Matters turned around in the mid-1990s. In 1995, the regents of the University of California banned any consideration of race or ethnicity in admission to the university. In 1996 the voters of California approved the California Civil Rights Initiative, which banned the use of race or ethnic criteria in state government action, in employment and contracts as well as college admissions. This initiative, launched by one academic and one former academic, became the basis of a movement to extend the ban on affirmative action. In 1998 the State of Washington became the second state to pass such an initiative. In Texas, the assault on affirmative action in admissions led to a wide-ranging decision by the Fifth Circuit Court of Appeals in 1996 banning the use of race and ethnicity in admissions to the University of Texas Law School. This decision affects all institutions of higher education in the states covered by the fifth Circuit. Massive changes have followed in the admissions procedures of the University of California, the peak institution in the system of public higher education in California, and the University of Texas, which holds a similar position in Texas.

Initially, there were substantial drops in enrollment of black and Hispanic students, but energetic action by the university administrations has stemmed this fall-off, and the decline statistically is not as drastic as originally projected or feared. The commitment by university administrators to maintain a substantial representation of black and Hispanic students is so strong that they have devised new admissions practices and procedures designed to keep the number up, and have had some success in doing so. Further, the Texas legislature has voted that the top 10 percent of every high school graduating class be eligible for admission to the University of Texas, and the Board of Regents of the University of California has similarly voted that the top 4 percent of California high school graduating classes should be eligible for enrollment in the University of California. The effect of such actions, in view of the high concentration of black and Hispanic students in low-achieving high schools, which ordinarily send few students to the selective state institutions, is to keep up the number of black and Hispanic students.

Affirmative action in admissions has become perhaps the best-researched area of affirmative action as a result of these controversies. An important study by William Bowen and Derek Bok of admissions procedures in selective institutions has argued effectively that "race-sensitive" admissions have been good for the students, good for the institutions, and good for the country. Their conclusions, however, have been sharply disputed by critics of affirmative action. (Bowen and Bok 1998; Trow 1999). At this writing (Fall, 1999) the Supreme Court has not yet ruled on the issue of the degree to which public colleges and universities may take race into account. In view of the fact that neither Congress nor state legislatures will take decisive action on race preference owing to the political sensitivity of the issue, it is clear the key decisions in this area will have to be taken by the Supreme Court. It is possible that the age of affirmative action in American race relations and race policy is coming to an end.

Affirmative action has been a divisive issue in American political life and has sometimes been raised effectively in political campaigns. It has divided former allies on civil rights issues, in particular American Jews, normally liberal, from blacks. Jews oppose quotas in admissions to medical and law schools because they were in the past victims of very low quotas imposed by American universities.

Affirmative action under various names and legal arrangements is found in many countries: in India, to provide opportunities to scheduled castes, scheduled tribes, and other backward classes, where different requirements operate at the national level and within the states and where some degree of preference has existed in some areas and for some purposes as far back as the 1920s (Galanter 1984); in Malaysia, to protect the native Malay population; in Sri Lanka, to benefit the majority Sri Lankan population (Sowell 1990); and in Australia and Canada, where milder forms of affirmative action than those found in the United States operate. It is now being raised in the countries of Western Europe, which have received since World War II large numbers of immigrants who now form distinctive communities who lag behind the native populations in education and occupational status. The policies called affirmative action in the United States are called "reservations" in India, and "positive discrimination" in some other countries.

There is considerable debate as to the effects of affirmative action policies and how weighty these can be as against other factors affecting employment, promotion, and educational achievement (Leonard 1984a; 1984b). A summary judgment is difficult to make. Black leaders generally consider affirmative action an essential foundation for black progress, but some black intellectuals and publicists have been skeptical. Black leaders often denounce opponents of affirmative action as racists, hidden or otherwise, yet it is clear that many opponents simply find the use, required or otherwise, of racial and sexual characteristics to determine job and promotion opportunities and admission to selective college programs in contradiction with the basic liberal principles of treating individuals without regard to race, national origin, color, and sex. Affirmative action has undoubtedly increased the number of blacks who hold good jobs and gain admission to selective programs. But it has also had other costs in the form of increased racial tensions. It has coincided with a period in which a pattern of black advancement occupationally and educationally since World War II has been surprisingly slowed. The defenders of affirmative action argue that this is because it has not yet been applied vigorously enough. The opponents argue that the concentration on affirmative action encourages the neglect of the key factors that promote educational and occupational progress, which are basically the acquisition of qualifications for better jobs and superior educational programs.

(see also: Discrimination; Equality of Opportunity)

references

Belz, Herman 1990 Equality Transformed: A Quarter-Century of Affirmative Action. New Brunswick, N.J.: Transaction Books.

Bowen, William G., and Derek Bok 1990 The Shape of theRiver: Long-term Consequences of Considering Race inCollege and University Admissions. Princeton, N.J.: Princeton University Press.

Bunzel, John H., and Jeffrey K. D. Au 1987 "Diversity or Discrimination? Asian Americans in College." ThePublic Interest 87:49–62.

Code of Federal Regulations 1990 Title 41, section 60-2.10, pp. 121–122.

Galanter, Marc 1984 Competing Equalities: Law and theBackward Classes in India. Berkeley: University of California Press.

Glazer, Nathan 1987 Affirmative Discrimination: EthnicInequality and Public Policy. Cambridge, Mass.: Harvard University Press. (Originally published 1975 and 1978, New York: Basic Books.)

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Nathan Glazer