History of Affirmative Action in the United States

Introduction

Note: this subject is developed in the following entry: affirmative action in the U.S.
But what about the effects of past discrimination? Consider an African American who, for no reason of his or her own making, did not get a decent education and so today cannot get a decent job. Of what real help to that person are all of those laws that make illegal today what was done years ago?

So far, the Federal Government’s chief answer to this troubling question has been a policy of affirmative action. That policy requires that most employers take positive steps (affirmative action) to remedy the effects of past discriminations. The policy applies to all the agencies of the Federal Government, to all the States and their local governments, and to all those private employers who sell goods or services to any agency of the Federal Government.

The Federal Government began to demand the adoption of affirmative action programs in 1965. Some programs are simply plans that call for the wide advertisement of job openings. Most, however, establish guidelines and timetables to overcome past discriminations and/or prevent their recurrence.

To illustrate the policy, take the case of a company that does business with the Federal Government. That private business must adopt an affirmative action plan designed to make its work force reflect the general makeup of the population in its locale. The company’s program must also include steps to correct or prevent inequalities in such matters as pay, promotions, and fringe benefits.

For many employers this has meant that they must hire and/or promote more workers with minority backgrounds and more females. Such rules requiring certain numbers of jobs or promotions for members of certain groups are called quotas.

Reverse Discrimination?

Affirmative action programs necessarily involve race-based and/or sex-based classifications. Are such programs constitutional?

Critics of the policy say that affirmative action amounts to reverse discrimination, or discrimination against the majority group. Affirmative action demands that preference be given to females and/or nonwhites solely on the basis of sex or race. Critics insist that the Constitution requires that all public policies be “color blind.”

The Bakke Case

The Supreme Court has been wrestling with affirmative action cases for over two decades now. The Court’s first major case, Regents of the University of California v. Bakke, was decided in 1978.

Allan Bakke, a white male, had been denied admission to that university’s medical school at Davis. The school had set aside 16 of the 100 seats in each year’s entering class for nonwhite students. He sued, charging the university with reverse discrimination and, so, a violation of the 14th Amendment’s Equal Protection Clause. By a 5-4 majority, the Court held that Bakke had been denied equal protection and should be admitted to the medical school.

A differently composed 5-4 majority made the more far-reaching ruling in the case, however. Although the Constitution does not allow race to be used as the only factor in the making of affirmative action decisions, both the Constitution and the 1964 Civil Rights Act do allow its use as one among several factors in such situations.

Later Cases

Note: for an overview of case law related to the affirmative action, see here.

The Supreme Court has decided several affirmative action cases since Bakke. In some of them it has upheld quotas, especially when longstanding, flagrant discrimination was involved.

In United Steelworkers v. Weber, 1979, the Kaiser Aluminum Company had created training programs intended to increase the number of skilled African Americans in its work force. Trainees were chosen on the basis of race and seniority. Brian Weber, a white worker, was rejected for training three times. Each time, however, a number of African Americans with less seniority were picked.

Weber went to court. The Court found that the training programs, although built on quotas, did not violate the 1964 law. That law, it said, Congress had purposely designed to “overcome manifest racial imbalances.”

Fullilove v. Klutznick, 1980, was another case in which the Court upheld quotas. That case centered on a law Congress had passed that provided $4 billion in grants to State and local governments for public works projects. It also contained a “minority set-aside” provision. The provision required that at least 10 percent of each grant had to be set aside for minority-owned businesses.

A white contractor challenged the set-asides. He argued that they were quotas and therefore unconstitutional–because they did not give white contractors an equal chance to compete for all of the available funds. The Court held the law to be a permissible attempt to overcome the effects of blatant and longstanding bias in the construction industry.

Note, however, that quotas can be used in only the most extreme situations. Thus, the Court rejected a city’s minority set-aside policy in Richmond v. Croson, 1989. There the Court held, 6-3, that the city of Richmond, Virginia, had not shown that its ordinance was justified by past discrimination. Therefore, it had denied white contractors their right to equal protection.

Johnson v. Transportation Agency of Santa Clara County, 1987, marked the first time the Court decided a case of preferential treatment on the basis of sex. By a 6-3 vote, the justices held that neither the Equal Protection Clause nor Title VII of the 1964 law forbids the promotion of a woman rather than a man, even though he had scored higher on a qualifying interview than she did. The case arose in California, when a woman was promoted to a job that until then had always been held by a man.

The current Supreme Court’s conservative bent can be seen in its most recent affirmative action decisions. Thus, the Court’s decision in Adarand Constructors v. Pena, 1995, marked a major departure from its previous rulings in such cases. Until Adarand, the Court had regularly upheld affirmative action laws, regulations, and programs as “benign” instances of “race-conscious policymaking.” By this, the Court meant that it considered them to be mild but necessary restraints on behavior.

In Adarand, however, the Court held that henceforth all affirmative action cases will be reviewed under strict scrutiny-that is, affirmative action programs will be upheld only if it can be shown that they serve some “compelling government interest”; see page 602. “The Constitution protects persons, not groups,” wrote Justice Sandra Day O’Connor. “Whenever the government treats any person unequally because of his or her race, that person has suffered an injury” covered by “the Constitution’s guarantee of equal treatment.” Government can conduct affirmative action programs, said the Court, but only when those programs are “narrowly tailored” to overcome specific cases of discrimination.

Adarand arose when a white-owned Colorado company, Adarand Constructors, Inc., challenged an affirmative action policy of the Federal Highway Administration (FHA). Under that policy, the FHA gave bonuses to highway contractors if 10 percent or more of their construction work was subcontracted to “socially and economically disadvantaged” businesses, including those owned by racial minorities.

The Michigan Cases

Two cases, Gratz v. Bollinger and Grutter v. Bollinger, both involving the admissions policies of the University of Michigan, were combined for decision by the Supreme Court in 2003. The resolution of those two cases marked the High Court’s most important statement on affirmative action since its decision in Bakke in 1978.

In deciding the two cases, a majority of the Court found-definitely and unambiguously– that the State of Michigan (and so all of the States) has a compelling interest in the diversity of the student bodies of its public educational institutions. That compelling interest justifies the narrowly tailored use of race as one factor in the student admissions policies of those institutions.

Jennifer Gratz applied for admission to the University as a freshman in 1997, and Barbara Grutter sought to enter the University’s law school that same year. Both women are white, and both were rejected in favor of minority applicants with lower grade point averages and lower entry test scores. Both women sued the University and its chief admissions officer, Lee Bollinger, seeking court orders to prevent the University from using race as a factor in the making of admissions decisions. They lost in the lower courts and both appealed to the Supreme Court.

The Supreme Court held, 6-3, that Gratz’ rejection was the result of a race-based quota policy prohibited by the 14th Amendment’s Equal Protection Clause. The majority found that policy fatally flawed because it included the automatic award of twenty points (out of 100 needed for admission) to any applicant from a minority group underrepresented in the University’s undergraduate student body.

Grutter’s rejection was upheld, however, 5-4, because the law school employed a much more flexible process in making its admissions decisions. That process was carefully designed to achieve a “critical mass” of otherwise underrepresented minority students in the law school. The means to this end was the individualized review of each applicant’s file and did not include the automatic award of any credit for any characteristic an applicant might possess.

Affirmative Action on the Ballot

The controversy surrounding affirmative action continues. In 1996, California’s voters gave overwhelming approval to an initiative measure that eliminated nearly all of the affirmative action programs conducted by public agencies in that State.

The measure, Proposition 209, amended the State’s constitution. It forbids all State and local agencies (including public schools, colleges, and universities) to discriminate against or give preferential treatment to any person or group on the basis of race, sex, color, ethnicity, or national origin. The measure covers matters of employment, education, or contracting. It only allows exceptions where necessary to satisfy some federal requirement.

A federal district court found Proposition 209 unconstitutional in late 1996. It held that the measure violated both the 14th Amendment’s Equal Protection Clause and the Supremacy Clause in Article VI. That decision was overturned by the Court of Appeals for the 9th Circuit in 1997. The Supreme Court refused to hear an appeal of the Circuit Court’s ruling.

In 1998, Washington’s voters adopted an initiative measure almost identical to California’s Proposition 209. Encouraged by their successes in California and Washington, opponents of affirmative action have launched campaigns to put similar measures on the ballot in other States.