Affirmative action

SIGNIFICANCE: Since the 1960s, affirmative action has been considered a major strategy in the attempt to eliminate institutional discrimination in the areas of employment and education by providing marginalized people with greater access to opportunity; it has also been controversial and widely debated.

Affirmative action policies and programs, which are specifically designed to increase the numbers of marginalized people in employment and education where their representation has been sparse or nonexistent, have created tremendous controversy since their introduction in the 1960s under the John F. Kennedy and Lyndon B. Johnson administrations. Affirmative action programs involve strategies designed to increase the participation of marginalized people, particularly in the areas of employment and education. Typically, affirmative action programs are gender-conscious or race-conscious measures designed to assist marginalized people in overcoming past and present discrimination. In June 2023, the Supreme Court struck down college affirmative action policies, a decision that was expected to significantly impact the future of affirmative action and the enrollment of students of color at elite universities in the United States.

Purpose of Affirmative Action

Affirmative action policies have been applied to a host of situations involving discrimination in employment and education. The underlying purpose is to increase the prospect for equality of opportunity while eliminating systemic discrimination against specific populations. Equality of opportunity has historically been the social agenda pushed by civil rights organizations. They believe that affirmative action is an important strategy in the struggle for equal opportunity.

The enforcement of affirmative action is predicated on Titles VI and VII of the Civil Rights Act of 1964 (and to a lesser degree on Executive Order 11246, a 1965 order requiring equal employment opportunity clauses in all federal contracts). The US Department of Justice, the Equal Employment Opportunity Commission, the Office of Federal Contract Compliance Programs (of the Department of Labor), and the federal courts have used Title VII to dismantle long-standing patterns of discrimination in employment and education. Affirmative action programs are actually considered remedial strategies.

Ideally, affirmative action is a twofold approach. First, it is an analysis of the existing workforce to determine if the percentages of “protected groups” in a given job classification are similar to the percentages of those groups in the surrounding community. Second, if it can be substantiated that certain practices have an exclusionary effect in the selection process, affirmative (race- and gender-conscious) measures may be required to remedy the situation. A number of steps may be taken to alter the existing selection process, including the establishment of goals and timetables for hiring, the development of recruitment programs, a redesigning of jobs and job descriptions, substantiation of the use of testing as a selection instrument, and attempting to improve the opportunity for advancement training for those in positions with limited career paths.

An affirmative action program may involve some or all of these steps. Additionally, affirmative action may be either voluntary or mandated by the courts. A court order or consent decree may force an offending enterprise to make restitution and to submit a detailed plan specifying its intentions to provide back pay and strategies for equitable promotion opportunities to those it has victimized. It may also include a provision on how it proposes to restructure its recruitment and hiring practices to come into compliance with federal guidelines. A primary concern of affirmative action is to encourage that additional measures be taken that go beyond the mere cessation of discriminatory practices.

Without the invoking of goals and timetables, the responsibility for providing equal opportunity would rest solely with the employer. Goals and timetables provide a type of indicator for employers; they are different from quotas, which are rigid and inflexible. Quotas do not allow for flexibility above or below the stated numbers.

Distributive and Compensatory Justice

Since the Supreme Court’s decision in the “reverse discrimination” case of Regents of the University of California v. Bakke in 1978, the debate on affirmative action has been framed within interpretations of Title VI of the Civil Rights Act of 1964, the 1965 Executive Order 11246, and subsequent decisions by the Supreme Court. The Court’s decisions have appeared to oscillate between limiting and expanding affirmative action. Two major questions are considered in such decisions: whether affirmative action is permissible and appropriate under the law and whether it should be limited to victims of discrimination or should include distributive remedies.

According to Kathanne W. Greene, in Affirmative Action and Principles of Justice (1989), affirmative action rests on two basic principles: distributive justice and compensatory justice. Distributive justice is concerned with the distribution of the benefits, rights, and burdens shared by members of society. These benefits and rights can be distributed in several ways; they may be based on equality of opportunity, for example, or based on need, effort, and utility. Therefore, there is no one best way to effectuate distributive justice.

Compensatory justice is essentially concerned with compensation (or reparation) for past injustices against individuals or groups by the government: A victim is entitled to fair compensation or entitled to be returned to a situation comparable to that which existed before the injustice. There is little debate that the US government was a participant in the injustices perpetuated against certain groups (as in Plessy v. Ferguson, 1896).

Levels of Preferential Consideration

There are arguably three levels at which preferential considerations or affirmative measures may be accorded members of marginalized groups in employment and education under affirmative action. First, an affirmative measure can be accorded marginalized people who are less qualified than their White male counterparts. Second, an affirmative measure can be granted to marginalized people when they and their White male counterparts are equally qualified. Third, marginalized people can be accorded an affirmative measure when they are more qualified than their White male counterparts.

The Controversy

Critics of affirmative action argue that it accords special privilege to entire categories of people whose individual members may or may not have experienced discrimination. Moreover, they maintain that affirmative action policies establish rigid quotas and may therefore extend opportunities to individuals who are otherwise unqualified. The resulting argument is that affirmative action programs create “reverse discrimination” against White men. Proponents, on the other hand, argue that race-conscious and gender-conscious measures are needed because race and gender have long been bases for discrimination. Race and gender, they say, still limit opportunities for marginalized people in certain areas of society. Consequently, marginalized people will only be able to achieve equal opportunity through the use of race- and gender-conscious strategies.

Affirmative action and equality of opportunity have been inextricably linked in the minds of some Americans. Yet over the years affirmative action has become associated with concepts that have served to bias many others against it. For example, terms such as “preferential treatment,” “minority set-asides,” “quotas,” “managing diversity,” and “reverse discrimination” have caused many White individuals to become hostile to the concept of affirmative action. Few Americans would dispute the fact that marginalized populations have experienced widespread discrimination in the past. Many, however, disagree that they continued to experience discrimination. One reason has to do with the perception that there has already been widespread application of affirmative action programs in both the public and private sectors.

“Reverse” Discrimination

Some opponents of affirmative action insist that such policies and programs amount to social engineering and violate the Constitution: They virtually sanction discrimination against White men, thereby simply reversing the object of discrimination. The reverse discrimination argument maintains that members of marginalized groups receive preferential treatment in employment (for example, in obtaining promotions) and in admission to institutions of higher education, particularly where a history of discrimination can be documented. In such situations, White men who may demonstrate greater academic skill, may have accrued more seniority on the job, or may have scored higher on an entrance examination may be passed over so that the institution can increase the numbers of an underrepresented population. Consequently, and controversially, such decisions are not based on merit. It might be noted that very little objection has been heard concerning episodes of nepotism and widespread preferential treatment offered to veterans (which are clearly not based on merit).

In the well-known 1978 Regents of the University of California v. Bakke litigation, a White applicant with a higher score on a medical school entrance examination than some marginalized applicants was rejected because of the practice of reserving fifteen spaces for marginalized applicants. Tremendous controversy ensued. (Little was said about the children of upper-level university officials who also happened to receive special consideration over more qualified applicants.) Although affirmative action policies are attempts to rectify past and present discriminatory practices, they do undeniably have a negative impact on the opportunities of some White men (as argued in Weber v. Kaiser Aluminum and Chemical Corporation). Opponents of affirmative action argue that all that can be hoped to be achieved legally is the eradication of discrimination. Nothing else, constitutionally, can be done. Any attempt to compensate victims of discrimination—especially if they are given preferential consideration in hiring, promotion, or admission to an institution of higher education—simply results in another form of discrimination. Compensation, if it were to be considered, should be offered only to the actual victims of discrimination, not to individuals simply because they belong to a particular group. Departing from its previous rulings on affirmative action, the Supreme Court gave support to this view in 1995 in its decision in Adarand Constructors v. Peña.

Limited Success of Affirmative Action

It has been argued that affirmative action programs have experienced only limited success, even though they have been an accepted strategy for many years. Augustus J. Jones Jr., in Affirmative Talk, Affirmative Action: A Comparative Study of the Politics of Affirmative Action, suggests a number of reasons for this. First is poor communication between policymakers and those responsible for implementing the policies. If policies are not clearly delineated, they cannot be effectively administered. Second, a lack of adequate resources may prohibit successful implementation. Money, information, authority, and the necessary staff must all be in place. Third, those responsible for implementation may be antagonistic to affirmative action and may operate opposite to their directives. Fourth, dysfunctional organization structure may preclude the effective implementation of policies. Fifth, political leadership (especially at the national level) may sour the social climate for the acceptance of affirmative action. In particular, inflammatory rhetoric using such terms as “preferential treatment,” “racial quotas,” and “reverse discrimination” has helped to create reservation and even anger among some White Americans regarding the legitimacy of affirmative action. Presidents Ronald Reagan and George H. W. Bush, for example, consistently referred to affirmative action policies as reverse discrimination and quota legislation.

Reagan, in particular, was an outspoken critic of affirmative action policies and programs. He believed that they were unfair and that they led to rigid quotas, and during his administration he appointed people who shared his views. It has been noted that Reagan put together a conservative team of legal experts in the Department of Justice that shared his opposition to affirmative action. His administration also challenged the use of statistical data as a means of substantiating discriminatory patterns by employers.

Both Reagan and Bush appointed marginalized individuals who opposed affirmative action to posts in their administrations and in federal agencies. Reagan completely restructured the US Commission on Civil Rights and selected Clarence Pendleton, a Black American, to be chair of the commission. Pendleton proved to be so extreme in his opposition to affirmative action that he was rejected by much of the Black American community and rebuffed by Black Republicans. Linda Chávez, a Latina woman, was selected staff director of the US Civil Rights Commission. Criticizing affirmative action programs in a number of speeches, she argued that affirmative action actually endangered the progress made by Black Americans since Brown v. Board of Education (1954) and that it was a new type of paternalism.

Clarence Thomas, as chairman of the Equal Employment Opportunity Commission (EEOC), applied a more restrictive interpretation of Title VII than his predecessors had. He decided that the EEOC would pursue only individual claims of discrimination that could be explicitly proved. Therefore, neither statistical data nor the underrepresentation of certain populations in the workforce would be sufficient to demonstrate systemic discrimination. The individual complainant had to provide undeniable proof of discrimination. This policy virtually eliminated the conception of “pattern and practice” discrimination for filing suit.

Congress and the federal courts also manifested some degree of retrenchment regarding affirmative action during the 1980s. Amendments were introduced in Congress to eliminate affirmative action, while the federal courts, in particular the Supreme Court, vacillated on the applicability of affirmative action policies. A number of decisions by the Court in the 1980s and 1990s, particularly Adarand Constructors v. Peña, called into question the use of broad affirmative action programs.

In the 1990s, affirmative action suffered some serious setbacks. In 1995, the Regents of the University of California decided to end affirmative action in admissions and hiring. Other states, including Texas, began dismantling affirmative action programs. The following year, California voters approved Proposition 206, the California Civil Rights Initiative, a proposal to amend the California state constitution. The proposition declared that the state should “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 proposition drew support from Ward Connerly, a Black businessperson from Sacramento, because it provided for equal treatment under the law, in accordance with a “colorblind” society, and opposition from organizations such as the American Civil Liberties Union and the National Association for the Advancement of Colored People (NAACP), which believed the measure was designed to end state-supported affirmative action. Legal challenges against the proposition were for the most part unsuccessful, and California governor Pete Wilson implemented the proposition in March 1998. This encouraged opponents of affirmative action in other states, and in following years, Washington, Michigan, Nebraska, Florida, Texas, and Arizona passed similar measures. New Hampshire and Oklahoma banned affirmative action in college admissions and employment in 2012. Some of these states, particularly California and Texas, subsequently reported a significant drop in college admissions of Black and Latino students at state schools; the University of Texas reinstated affirmative action in 2005, after which percentages of Black and Latino students in incoming classes began to rise to previous levels.

In 2003, two White applicants who had been rejected from the University of Michigan, Jennifer Gratz and Patrick Hamacher, brought a suit against the school alleging that the university's point-based admission system was unconstitutional because it gave an automatic twenty-point bonus to marginalized applicants (though Gratz had in fact applied three years before the point system was implemented). The case, Gratz v. Bollinger, went to the Supreme Court, which found in favor of the plaintiffs. However, the Supreme Court decision in a second 2003 case against the university, Grutter v. Bollinger, upheld a looser form of affirmative action, stating that an admissions process which favored underrepresented populations while also taking into account many other factors would not qualify as an unconstitutional quota system. Another noteworthy aspect of Grutter v. Bollinger was Justice Sandra Day O'Connor's argument in the majority decision that the university's compelling interest in promoting diversity was in the educational benefits that diversity conveyed to the entire student body, not simply the benefits to marginalized students. In 2013, a similar case, Fisher v. University of Texas at Austin, was heard by the Supreme Court after lower courts ruled in the university's favor, holding that its admission policy met the standard delineated in Grutter. Supporters of affirmative action were concerned that the hearing would lead to the Supreme Court overruling Grutter, which would effectively end affirmative action in the United States. However, though the Supreme Court reversed the lower courts' ruling, it simply argued that the Fifth Circuit court that had made the previous ruling had not applied sufficiently strict scrutiny to the university's policies, thus leaving Grutter standing.

Michigan's ban on state-supported affirmative action was challenged in 2012 and found to be unconstitutional by the Sixth Circuit court, but the decision was appealed and the case, Schuette v. Coalition to Defend Affirmative Action, went to the Supreme Court. The court overturned the Sixth Circuit's decision, upholding the ban, although Justice Sonia Sotomayor—the court's only Latino justice—filed the longest dissent of her career. Sotomayor argued that the ban constituted discrimination against marginalized people when other groups, such as athletes and children of alumni, could still be given special treatment in college admissions.

Meanwhile, the Fisher v. University of Texas at Austin case continued into 2016, as the plaintiff, White applicant Abigail Fisher, had once again appealed following a 2014 lower court decision that had again come down on the side of the university. Because the 2013 ruling had not considered the legality of the policy at the institution, the Supreme Court consented to hearing Fisher's second appeal. In 2016, the Supreme Court decided 4–3 to affirm that the university's affirmative action program was suitably narrowly tailored so as to not violate the Equal Protection Clause. At the same time, it was noted that the majority opinion indicated that the institution should consistently review the program, leading to commentators' suggestions that there was still opportunity for additional legal challenges of affirmative action.

Meanwhile, another high-profile lawsuit had been brought against Harvard University in 2014 by the Students for Fair Admissions (SFFA) as well as others. In this case, the plaintiffs argued that Harvard's affirmative action program was discriminatory against Asian Americans because of restrictively high standards for the racial group. While a district court judge ruled in 2019 that Harvard's program did not violate constitutionality and an appeals court upheld that decision in 2020, by early 2021 the plaintiffs had petitioned to have the Supreme Court hear the case. Many speculated that Supreme Court involvement in this case would prove even more significant than in the past, as the makeup of the presiding justices had drastically changed; three appointments since 2017 had led to a definitively majority conservative court. Because the SFFA had also filed a 2014 lawsuit against the University of North Carolina-Chapel Hill (UNC), similarly accusing the institution of constitutional violations in employing race-conscious decisions for admissions, the organization petitioned the Supreme Court in November to hear both the Harvard and UNC cases together.

After the Supreme Court decided that it would hear the Harvard/UNC cases in January 2022, arguments and questioning began in late October. In June 2023, the Court announced their decision, ruling broadly against affirmative action in both cases. The ruling stated that affirmative action programs at Harvard and UNC violated the Equal Protection Clause of the US Constitution. Critics, including President Joe Biden, condemned the decision, citing the negative repercussions it would have on people of color and the likely declining rates of admission for such populations at elite universities. Conservatives, meanwhile, hailed the ruling as upholding the US Constitution as a "colorblind" document.

The Supreme Court's decision to strike down affirmative action in college admissions had a range of effects in the short term. In June 2024, the Common App, the most widely used college application app in the US, reported increases in the number of college applications from Black and Hispanic students compared to the year before. For the class of 2028, some colleges and universities reported decreases in their enrollment rates of first-year students of color, while others reported no change or increases. Changes in the enrollment rates varied among different racial and ethnic groups.

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