Affirmative Action Controversy

Affirmative Action Controversy in the United States

Affirmative Action Controversy

From its beginnings in the United States in the 1960s, affirmative action has been highly controversial. Critics charge that affirmative action policies, which give preferential treatment to people based on their membership in a group, violate the principle that all individuals are equal under the law. These critics argue that it is unfair to discriminate against members of one group today to compensate for discrimination against other groups in the past. They regard affirmative action as a form of reverse discrimination that unfairly prevents whites and men from being hired and promoted.

Advocates of affirmative action respond that discrimination is, by definition, unfair treatment of people because they belong to a certain group. Therefore, effective remedies must systematically aid groups that have suffered from discrimination. Supporters contend that affirmative action policies are the only way to ensure an integrated society in which all segments of the population have an equal opportunity to share in jobs, education, and other benefits. They argue that numerical goals for hiring, promotions, and college admissions are necessary to integrate fields traditionally closed to women and minorities because of discrimination. (1)

In this Section:

  • Affirmative Action,
  • Affirmative Action Debate,
  • Affirmative Action Legislation and Supreme Court Rulings, and
  • Affirmative Action Developments.

Fisher v. University of Texas: Affirmative Action Debate and the Reverse Discrimination

By Margaret M. Russell. She is a professor at Santa Clara University School of Law.

The surprisingly lopsided majority opinion, authored by Justice Kennedy, ruled in favor of Abigail Fisher, a white student who had been rejected by the University of Texas (UT) in 2008. All but Justice Ruth Bader Ginsburg (with a recusal by Justice Elena Kagan) agreed to reverse the Fifth Circuit’s affirmance of the District Court’s grant of summary judgment, and remand the case back to the district court. The practical effect of the decision on the affirmative action program of UT (as well as those of other public colleges and universities) is to require specific evidence that the university’s use of race as a factor in admissions is “necessary” because there is no race-neutral alternative by which to achieve the diversity it seeks. The majority opinion ruled that the Fifth Circuit had incorrectly applied the “narrow tailoring / necessary means” requirement of the strict scrutiny test; Justice Ginsburg dissented and would have upheld the University’s program.

In this sense, the majority opinion can correctly be described as a narrow ruling and a partial victory for both opponents and proponents of affirmative action. The “headline news” of Fisher, of course, is what the majority opinion did not do: by not overruling the “compelling interest in diversity” rationale of Grutter (2003) and Bakke (1978), it bespeaks a situational respect for precedent and for deference to a university’s choice to pursue diversity in admissions as its “compelling” goal. For now, public colleges and universities may continue to consider race as a factor in achieving that goal.

The prospects for long-term continuation of affirmative action programs, however, remain tenuous. The majority opinion’s rejection of the UT’s defense brings to mind scholar Gerald Gunther’s famous description of strict scrutiny as “strict in theory, fatal in fact.” Justice Thomas’s concurrence states that he would overrule Grutter, and Justice Scalia’s concurrence suggests a similar result if an appropriate case presents itself. The grant of certiorari in Schuette v. Coalition to Defend Affirmative Action may very well present that case. If so, the ghosts of “SCOTUS-mas” past do not portend well for the future of affirmative action.


Notes and References

  1. Encarta Online Encyclopedia

See Also

  • Affirmative Action Developments
  • Affirmative Action Cases
  • Affirmative Action
  • Affirmative Action In State Contracts
  • Economics of Affirmative Action
  • Affirmative action opinions in 1980s
  • Reverse Discrimination
  • University of California at Davis v. Allan Bakke
  • Affirmative Defense
  • Fair Labor Standards Act Controversy

Affirmative Action Controversy: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Affirmative Action Controversy. This part provides references, in relation to Affirmative Action Controversy, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Affirmative Action Controversy by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Affirmative Action Controversy and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Affirmative Action Controversy or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Affirmative Action Controversy and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Affirmative Action Controversy. Finding these decisions can be challenging. In many cases, researchers about Affirmative Action Controversy should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Affirmative Action Controversy when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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