Affirmative action is the name given to efforts at encouraging the participation of women and minorities in education, the workforce, the military and other arenas. Since the 1960s, affirmative action has been an important part of federal and state governments in the United States and other countries to mitigate previous generations of discrimination and segregation.
Despite its success at giving diverse groups—including veterans, the disabled and members of the LGBTQ community—more representation in schools, businesses, the military and other institutions, affirmative action has been controversial from the start. Many features of affirmative action programs have been challenged or rolled back by lawsuits that have gone before the Supreme Court.
Executive Order 10925
Affirmative action in its current form began in 1961, but the concept has existed in the United States since at least the early 20th century. In 1941, for example, President Franklin D. Roosevelt issued Executive Order 8802, which forced defense contractors "to provide for the full and equitable participation of all workers in defense industries, without discrimination"—an early effort to combat segregation. The idea was later shaped by the social movements of the 1950s and 1960s—the civil rights movement, the women's liberation movement and the gay rights movement—in which Americans of all stripes agitated for equal representation.
On March 6, 1961, shortly after taking office, President John F. Kennedy signed Executive Order 10925, which required all federal contractors to take “affirmative action”—the first use of the phrase in this context—to ensure all job applicants and employees were treated equally, regardless of race, creed, color or national origin.
The order was largely crafted by Vice President Lyndon B. Johnson and Hobart Taylor Jr., a well-connected Black lawyer who was later appointed to the newly formed President's Committee on Equal Employment Opportunities.
Civil Rights Act
Following the assassination of Kennedy, Johnson as president remained committed to civil rights, and in 1964 signed the landmark Civil Rights Act, which, among other things, prohibited segregation in public spaces and employment discrimination by all companies with more than 15 employees. The Act also created the Equal Employment Opportunity Commission (EEOC), charged with enforcing laws against discrimination.
Civl rights leader Martin Luther King Jr. later claimed that the Civil Rights Act was nothing less than a “second emancipation.” The Act was later expanded to include disabled people, the elderly, women in collegiate athletics and other groups.
Executive Order 11246
Johnson took another bold step toward full civil rights in 1965 by issuing Executive Order 11246, which prohibits all federal contractors and subcontractors from discriminatory practices in the hiring, firing, training and recruitment of employees.
Initially protecting employees based on their race, color, religion and national origin, Executive Order 11246 has since been expanded to include prohibitions against discrimination based on sex, sexual orientation and gender identity.
By 1966, the EEOC was also requiring large businesses and government contractors to report the number of racial and ethnic minorities and women employed by the company, which provided an annual snapshot of the progress made in promoting diversity in the private sector.
MBE Certification
Further advances in affirmative action were made during the administration of President Richard Nixon, who in 1971 directed federal agencies to develop plans for a national Minority Business Enterprise (MBE) contracting program to support businesses owned and staffed by members of minority groups.
The MBE program has now been expanded to include women-owned businesses. Two years later, Nixon signed the Rehabilitation Act of 1973, requiring federal agencies to create an affirmative action plan for hiring, placement and advancement of people with disabilities.
Regents of the University of California v. Bakke
Affirmative action was not universally welcomed, especially by more conservative politicians and members of society, including trade unions. The Nixon-era Philadelphia Plan of 1967, an effort to include more nonwhite union workers on federal construction jobs, met with vehement opposition from unions but nonetheless withstood numerous legal challenges.
Affirmative action programs met their first serious court challenge in Regents of the University of California v. Bakke. In the 1970s, Allan Bakke was rejected twice after applying to the University of California, Davis medical school. He sued, based on the fact that minority students with lower grades and test scores were admitted over him, making his a case of “reverse discrimination.”
Bakke prevailed in the Supreme Court, which found that U.C. Davis used an unconstitutional racial “quota system” by reserving 16 seats out of 100 exclusively for minority applicants. But in the six opinions written by the Supreme Court justices in the Bakke decision, the court also stated that race was permissible as a factor in making admissions decisions because of “the educational benefits that flow from an ethnically diverse student body.”
“The Constitution can tolerate no ‘two-class’ theory of equal protection,” wrote Justice Lewis Powell in his majority opinion. “There is no principled basis for deciding between classes that deserve special judicial attention and those that don’t.”
Other court cases followed the Bakke decision: In United Steel Workers of America, AFL-CIO v. Weber, the Supreme Court found in 1979 that affirmative action programs using race as a factor in employment are allowable, but only if they are temporary and do not “reverse discriminate” against white employees.
Impact of Affirmative Action
During the administration of President Ronald Reagan—who was no fan of government assistance programs—the U.S. Department of Labor commissioned a study that found just how effective affirmative action programs were.
The study confirmed that minority employment among federal contractors between 1974 and 1980 rose by 20 percent, and by 15 percent among women. In comparable businesses that were not subject to federal affirmative action requirements, minority employment rose by only 12 percent, and just 2 percent for women.
The study was never released to the public during the Reagan administration. A 2013 study from the John F. Kennedy School of Government at Harvard University found that in states where affirmative action programs had been repealed, the representation of women and certain minorities in the workplace fell between 4 and 37 percent.
Grutter v. Bollinger
In 2003, another Supreme Court decision—Grutter v. Bollinger—found that the University of Michigan Law School did not violate the U.S. Constitution by considering the race of its applicants, provided that other factors were considered during the admissions process, and there was no quota system influencing admissions.
The same year, another Supreme Court decision involving the University of Michigan was handed down: In Gratz v. Bollinger, a court majority found that using a point system that automatically rewarded minority applicants violated the 14th Amendment and its guarantee that all citizens have “equal protection of the laws.”
By 2007, voters in Michigan had voted in favor of a statewide proposal banning preferential treatment of minorities in public housing, education and contracting. Similar measures were soon approved in Nebraska and Arizona.
Notably, some of the most prominent supporters of affirmative action programs have been corporations and the U.S. military. In the Grutter v. Bollinger case, the Supreme Court received amicus briefs supporting affirmative action from General Motors, Dow Chemical and Intel Corporation, plus a military brief signed by General H. Norman Schwarzkopf, former Defense Secretary William Cohen and others.
Supreme Court Restricts Use of Affirmative Action
In 2022, the Supreme Court again heard arguments in a pair of cases regarding college admissions—this time, however, the cases were brought on behalf of a minority group seeking to exclude race as a factor in admissions decisions.
Students for Fair Admissions (SFFA), an advocacy group composed largely of Asian Americans and Pacific Islanders, filed lawsuits against Harvard University and the University of North Carolina at Chapel Hill for their use of racial information in admissions. The suits were filed in an attempt to overturn Grutter v. Bollinger, which allowed race as one contributing factor in college admissions.
In a 6-3 decision, the Court struck down both universities' admissions programs, ruling that colleges may not use race as a deciding factor in admissions.
“The student must be treated based on his or her experiences as an individual—not on the basis of race,” Chief Justice John G. Roberts wrote for the majority.
Sources
The Changing Meaning of Affirmative Action. The New Yorker.
History of Executive Order 11246. U.S. Department of Labor.
Affirmative Action Policies Throughout History. American Association for Access, Equity and Diversity.
Affirmative Action. Stanford Encyclopedia of Philosophy.
A Brief History of Affirmative Action. University of California, Irvine: Office of Equal Opportunity and Diversity.
The Impact of Eliminating Affirmative Action on Minority and Female Employment: A Natural Experiment Approach Using State-Level Affirmative Action Laws and EEO-4 Data. Harvard University: John F. Kennedy School of Government.
College use of race in admissions challenged at Supreme Court in arguments. CNBC.
What You Need to Know about Affirmative Action at the Supreme Court. ACLU.
Affirmative action appears in jeopardy after marathon arguments. SCOTUSblog.
