The term affirmative action refers to policies used to increase opportunities for minorities by favoring them in the awarding of government contracts, college admissions, and hiring and promotion. The intended purpose of such policies has been to help eliminate the effects of past discrimination, whether perpetrated by a specific entity or by society as a whole. Title VII of the 1964 Civil Rights Act, specifically banning employment discrimination, laid the groundwork for affirmative action, and the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance served as the primary enforcement agencies.
President Lyndon B. Johnson first used the term affirmative action in an executive order when he declared that government contractors should “take affirmative action” to ensure that applicants and employees are not discriminated against with regard to race, religion, sex, or national origin. President Richard M. Nixon went beyond the concept of simply removing discriminatory barriers and became the first president to initiate federal policies to guarantee the hiring of minorities. In 1969 the Nixon administration implemented the Philadelphia Plan which required contractors on projects assisted by federal funding to set specific goals for hiring minorities. This plan was upheld in the federal courts in 1970 and 1971.
Beyond the Philadelphia Plan, affirmative action policies have been defined by a series of legislative initiatives and U. S. Supreme Court decisions. In Griggs et al. v. Duke Power Company the Supreme Court held that Title VII bans discriminatory practices as well as overt discrimination. This prompted employers to actively recruit minorities in order to avoid discrimination lawsuits. Colleges and universities adopted affirmative action measures when the Equal Employment Opportunity Act of 1972 extended the Title VII protections to educational institutions. Subsequent cases further defined and refined the meaning and scope of affirmative action. In Bakke (1978) the Court upheld the use of factors such as race, gender, and ethnicity in evaluating applicants but declared unconstitutional the implementation of rigid quota systems. The Court ruled in United Steelworkers v. Weber (1979) that a temporary training program that gave preference to minorities was constitutional because it served to remedy past discriminatory practices.
The 1980s and 1990s saw the appointment of several conservative judges to the Court, resulting in the elimination of some affirmative action programs deemed unfair or too broad in their application. In Wygant v. Jackson (1986), the Court struck down a plan to protect minority teachers from layoffs at the expense of white teachers with greater seniority. The Court’s ruling in Ward's Cove Packing Company v. Antonio (1989) revised the Griggs decision from 1971. Ward's Cove shifted some of the burden of proof to the employee filing the discrimination lawsuit by requiring the plaintiff to demonstrate that specific hiring practices created racial disparities in the workplace. Moreover, even if this could be shown, the Court ruled that such practices would be legal if they served “legitimate employment goals of the employer.”
While these measures limited the scope of affirmative action policies, other developments buttressed them. In Metro Broadcasting v. Federal Communications Commission (1990), the Court upheld federal laws designed to increase the number of minority-owned television and radio stations. Also, in response to the Court’s conservative rulings, Congress passed the Civil Rights Act of 1991 that strengthened antidiscrimination laws and essentially reversed the Ward's Cove decision.
During the 1990s, affirmative action programs were the center of controversy in local politics as well. In 1995 the regents of the University of California voted to stop all affirmative action in hiring and admissions for the entire state university system. The Fifth U. S. Circuit Court prohibited the University of Texas Law School from considering race or ethnicity in its admission process in 1996. Also in 1996 California voters approved Proposition 209, which ended all state-sponsored affirmative action programs. Many believed that this would result in similar rulings in other states, but efforts in Colorado, Florida, and Ohio failed to collect the requisite number of signatures for a similar ballot initiative.
In 2003 the Supreme Court revisited the question of affirmative action in Gratz v. Bollinger and Grut-TER v. Bollinger. The cases involved the University of Michigan’s admissions policies, with Grutter challenging the law school’s policy and Gratz challenging the policy for undergraduates. The Court ruled that admissions programs that aim for student diversity must be narrowly tailored to promote government interest. On this basis, the Court ruled the law school admissions program constitutional because it relied on individual assessments based on a range of information, including race. The Court struck down the undergraduate policy because it was based on a point system that the Court did not consider sufficiently narrowly tailored. The state of Michigan responded with the Michigan Civil Rights Initiative, which amended the state constitution. The amendment prevents state-funded institutions from taking race into consideration in any form and extends this prohibition to government contractors and government employers.
Affirmative action has been highly controversial since its inception in the mid-1960s. Critics claim that such policies violate the principle that all individuals are equal under the law, and they argue that to discriminate against one group today to compensate for discrimination suffered by another group in the past is unjust and unconstitutional. They view affirmative action as legalized reverse discrimination that privileges women and racial minorities over men and whites. Advocates insist that because discrimination is unfair treatment of people who belong to a specific group, there ought to be effective programs that aid those groups who have been discriminated against. Moreover, they argue that affirmative action policies are the only feasible option to ensure an integrated society in which all people have an equal opportunity in employment, education, and other areas. They claim further that quotas for hiring, promotions, and college admissions will fully integrate institutions traditionally closed to minorities and women because of discrimination.
See also African Americans; Americans with Disabilities Act; Equal Rights Amendment; National Association for the Advancement of Colored People; National Organization for Women; women’s rights and status.
Further reading: Herman Belz, Equality Transformed: A Quarter-Century of Affirmative Action (New Brunswick, N. J.: Transaction Publishers, 1991); Edward J. Kellough, understanding Affirmative Action: Politics, Discrimination, and the Search for Justice (Washington, D. C.: Georgetown University Press, 2006); Robert J. Weiss, “We Want Jobs”: A History of Affirmative Action (New York: Garland Publishing, 1997).
—William L. Glankler and Amy Wallhermfechtel
World History
