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Affirmative action

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Description: Programs of governmental agencies or private institutions designed to provide members of racial and ethnic minorities and women with access to opportunities in education and employment.


Significance: Because of discrimination against women and minority members, governmental agencies, businesses, and educational institutions gave them special opportunities, which some people criticized as discriminating against nonminority members. A divided Supreme Court struggled with the question of when such programs are acceptable.


Affirmative action is a highly controversial means of pursuing equal access to resources in education and employment. Although the term affirmative action first appeared in an official document in an executive order issued by President Lyndon B. Johnson in 1965, affirmative action did not emerge as a government policy until the 1970's. In Griggs v. Duke Power Co. (1971), the Supreme Court ruled that discrimination could be judged to exist when business practices resulted in limiting opportunities for minorities, even if there had been no evidence of intent to discriminate on the part of the employer. This altered the definition of discrimination, making it a matter of built-in racial bias. Duke Power Company required either a high-school diploma or a passing grade on a general intelligence test for a job in its power plant. Fewer black applicants than white applicants passed this test. The plaintiffs argued that in this case, educational credentials and test results had no direct relevance to job performance, so no justification existed for a job requirement that disproportionately affected members of the minority race. The Court, under Chief Justice Warren E. Burger, found that employment practices that exclude African American job seekers and are not related to job performance are indeed discriminatory. The concept of built-in discrimination established by Griggs helped lay the groundwork for political efforts to dismantle unintended barriers to full participation in American society. Affirmative action, according to the official government definition, involved action to overcome past or present barriers to equal opportunity. Two of the most obvious ways of overcoming such barriers were establishing quotas of minority members or women to be hired or admitted to educational programs and creating set-asides, positions reserved for minority members or women. These remedies, however, met with challenges by those in groups not benefiting from affirmative action, who charged that they were suffering from officially sanctioned discrimination. In 1971 a Jewish man named DeFunis applied for admission to the University of Washington Law School but was rejected. The law school followed a practice of dividing its applicants into two categories, minority group members and majority group members, using lower standards for admitting minority group members. If DeFunis had been black, American Indian, or Latino, his test scores and grades would have gained him entry. He sued, claiming that his rights to equal legal protection, guaranteed by the Fourteenth Amendment, had been violated. DeFunis v. Odegaard came before the Court in 1974. However, DeFunis had been admitted to the law school after a lower court found in his favor, and the school had said that he would be allowed to graduate, regardless of the Court's ruling. The Court ruled the case moot because a ruling would not affect the outcome for the plaintiff, and it dismissed the appeal. Justice William O. Douglas wrote a dissent expressing his view that DeFunis had indeed been denied equal protection under the law.


Increasing Challenges

Although the Court did not have to rule on preferential treatment of protected categories of people in the DeFunis case, challenges to affirmative action increased through the 1970's. One of the objections was the claim that affirmative action violated Title VII of the Civil Rights Act of 1964, which forbids discrimination on the basis of race. Many critics maintained that preferential treatment of minority group members could be viewed as discrimination against those who were not minority group members. In United Steelworkers of America v. Weber (1979), the court ruled that Title VII's prohibition against racial discrimination does not condemn all private, voluntary race-conscious affirmative action plans. Kaiser Aluminum and Chemical Corporation and the United Steelworkers Union maintained a training program. As long as the percentage of African Americans among Kaiser's plant employees was less than the percentage of African Americans in the local workforce, half of the openings on this program were reserved for African Americans. Brian Weber, a white man who had not been allowed to enter the training program, sued, claiming that he had been a victim of racial discrimination. Justice William J. Brennan, Jr., writing for the majority of justices, maintained that Congress had not intended Title VII to prohibit private, voluntary efforts to overcome long-established patterns of racial discrimination in employment. In addition, the Fourteenth Amendment did not apply in this case because it did not involve any governmental actions. Whites, in Brennan's view, were not handicapped by the policy regarding the training program because no whites were fired and whites still had opportunities for advancement. The best-known challenge to affirmative action to come before the Court was Regents of the University of California v. Bakke (1978). Alan Bakke was a white man who had been denied admission to the University of California medical school at Davis. In 1972 the thirty-two-year-old Bakke was a Marine Corps veteran who had served in Vietnam and an engineer at a research center of the National Aeronautics and Space Administration (NASA) near Palo Alto, California. While working at NASA, he decided to become a medical doctor. He took classes to prepare himself for medical school and served as a volunteer in a local hospital emergency room. Despite high scores on the Medical College Admissions Test and strong letters of recommendation, Bakke was rejected by the University of California and ten other schools to which he applied. Bakke wrote to the chairman of admissions at the University of California, Davis, requesting reconsideration, charging that racial minority members who were less qualified than he had been admitted through a special admissions program. Bakke reapplied for early admissions in 1973 and prepared to sue if he was again rejected. In the summer of 1974 Bakke's suit was officially filed in Yolo County Superior Court. Bakke became one of the most celebrated court cases of the decade. It provoked national debate over affirmative action and brought wide attention to the practice of setting aside places in businesses or educational institutions for minority members. The California supreme court found that Bakke had suffered racial discrimination. In November, 1976, the Board of Regents of the University of California voted to appeal the decision to the Supreme Court. Four justices, led by Justice Brennan, voted not to hear the case. Five chose to hear it, however, and it went on the Court docket. Ultimately, the Court reached a split decision. Four justices concluded that the University of California had clearly violated both the equal protection clause of the Fourteenth Amendment and the Civil Rights Act of 1964. Four other justices disagreed and wanted to uphold the constitutionality of taking race into consideration for education or employment. The swing vote, Justice Lewis F. Powell, Jr., essentially divided his decision. He sided with the four who maintained that the minority set-aside program at Davis was unconstitutional; however, he also stated that although racial quotas were unacceptable, race could be taken into consideration. The majority opinion, written by Brennan, incorporated Powell's ambivalence. It stated that it was constitutional to take race into account to remedy disadvantages resulting from past prejudice and discrimination, but that race alone could not be the basis for making decisions about opportunities in employment or education.


After Bakke

Many legal scholars believe that Bakke established an unclear precedent. Although it did uphold the basic principle of affirmative action, it also left the door open for challenges to specific affirmative action policies. As a part of the 1977 Public Works Employment Act, Congress set aside 10 percent of all federal appropriations for public works contracts for minority contractors and subcontractors. This legislation came before the Court in Fullilove v. Klutznick (1980). Once again, a controversial issue split the members of the Court. One of the differences between Fullilove and earlier affirmative action cases was that it involved the actions of Congress, which may act with greater power and authority than a private employer or a local school board and is also charged with seeking the present and future welfare of the nation. Chief Justice Burger's opinion, joined by Justices Powell and Byron R. White, recognized this, stating that Congress has the power to act to remedy social evils and that there was a compelling governmental interest in seeking to counteract the deep-rooted disadvantages of minority contractors. Thurgood Marshall, joined by Justices Brennan and Harry A. Blackmun, wrote a concurring opinion arguing that the actions of Congress were constitutional because the set-aside provision was related to the congressionally approved goal of overcoming racial inequality. Justices Potter Stewart, William H. Rehnquist, and John Paul Stevens disagreed. Stewart and Rehnquist maintained that an unconstitutional practice could not be constitutional simply because it came from Congress rather than from a lesser source and that the set-aside involved distributing governmental privileges based on birth. Stevens objected to the governmental favoring of some groups over others and pointed out that those who were likely to benefit most were the least disadvantaged members of minority groups, such as successful black or Hispanic businesspeople. Thus, although Fullilove established once more the principle of affirmative action, it also made it clear that there were fundamental disagreements on the principle, even among the justices. Two major issues emerged from the Fullilove decision. One was the concept that affirmative action policies undertaken by the government merit a special deference because of the constitutional authority of Congress to make laws. The second was that because affirmative action is a means of pursuing governmental policies, agencies and organizations must be able to demonstrate that their affirmative action programs serve a compelling governmental interest. This second point placed the burden of justifying affirmative action programs on those seeking to establish the policies. Those seeking to pursue affirmative action policies must be able to demonstrate that these policies are narrowly designed to compensate for past discrimination or to bring about a clearly defined goal. For this reason, the Court decided in Mississippi University for Women v. Hogan (1982) that a college could not deny men entry into a nursing program on the grounds that this was intended to compensate women for past discrimination. On the other hand, when past discrimination could be clearly demonstrated, affirmative action policies were deemed acceptable. A requirement in Alabama that one black state trooper be promoted for every promotion of a white state trooper was upheld by the Court in United States v. Paradise (1987) because it could be demonstrated that underrepresentation of African Americans at high ranks was caused by past discrimination by the Alabama Department of Public Safety. In Richmond v. J. A. Croson Co. (1989), however, the Court ruled that the Richmond city government's minority business utilization plan failed to provide appropriate statistical data showing systematic underrepresentation of minority-owned businesses. Therefore, the Court found that the plan was not narrowly tailored to remedy the effects of prior discrimination and failed to demonstrate a compelling government interest for awarding a certain percentage of contracts to minority-owned businesses. Both the concept of the special status of Congress and of the legitimacy of affirmative action for compelling governmental interests were upheld in Metro Broadcasting v. Federal Communications Commission (1990), in which a majority of justices ruled that minority preference policies of the Federal Communications Commission were acceptable because they met both criteria.


Limits on Affirmative Action

During the 1990's there were a number of public challenges to affirmative action, notably in the Texas and California systems of higher education, where controversial laws passed in 1997 made it illegal to give preferential treatment to members of protected groups. Affirmative action proponent Marshall left the Court in 1991, and new justices appointed by Presidents Ronald Reagan and George Bush including Sandra Day O’Connor, Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas appeared to be largely unsympathetic to affirmative-action-style policies. In his book on affirmative action and the Court, Lincoln Caplan observed that in the middle to late 1990's Chief Justice Rehnquist and Justices O’Connor, Kennedy, Scalia, and Thomas never voted to uphold an affirmative action program based on race. Thomas, the only African American among these justices, was the strongest and most open opponent of the preferential treatment of minorities, which he derided as “racial paternalism.” The limiting of affirmative action appeared in Adarand Constructors v. Peña (1995), in which the Court expanded the idea that programs had to serve a compelling interest. Affirmative action programs, the court ruled, must be observed with the strictest scrutiny and must be necessary to meet a compelling state interest. By the end of the twentieth century, many observers were predicting that the Court would make a ruling that would end affirmative action. This perception made some defenders of affirmative action policies reluctant to bring cases before the Court. This happened, for example, in the case of Sharon Taxman. Taxman, a white teacher, had been laid off from her job by the school district of Piscataway, New Jersey, in 1991. The school district needed to reduce its teaching force and had to choose between Taxman and an equally qualified black teacher. Because black teachers were underrepresented in the district, the school system used its voluntary affirmative action program to decide between the two teachers. Taxman sued, claiming racial discrimination. The case was poised to go to the Court in late 1997. Fear that a Court ruling in favor of Taxman would further weaken affirmative action led civil rights groups to support the Piscataway School Board's decision to pay Taxman a $433,000 settlement in November, 1997, rather than risk an unfavorable Court decision. The Court also showed a reluctance to hear affirmative action cases at the end of the twentieth century. In March, 1999, the Court refused to hear a case regarding a program in Dallas, Texas, that had been intended to benefit minority firefighters. A lower court, the Fifth Circuit Court of Appeals, earlier found that there was insufficient evidence of a historical pattern of discrimination against minorities in Dallas to justify preferential promotions for minority candidates. The two justices who had been appointed by President Bill Clinton, Stephen G. Breyer and Ruth Bader Ginsburg, issued a written dissent urging the majority of justices to take the case. Nevertheless, the Court let the decision of the lower court stand. Many observers maintained that this case and others like it sent the message that the majority on the Court saw racial preferences as a dying and disfavored strategy.



Further Reading

  • A useful general overview of the Supreme Court's handling of affirmative action issues can be found in Michael J. Klarman's From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York: Oxford University Press, 2004). Girardeau A. Spann's The Law of Affirmative Action: Twenty-Five Years of Supreme Court Decisions on Race and Remedies (New York: New York University Press, 2000) and Lincoln Caplan's Up Against the Law: Affirmative Action and the Supreme Court (New York: Twentieth Century Fund Press, 1997) are useful introductions to the role of the Supreme Court in the American debate over affirmative action that also offer explanations of the practices and consequences of affirmative action programs. Terry Anderson's The Pursuit of Fairness: A History of Affirmative Action (New York: Oxford University Press, 2004) provides the most comprehensive and interesting historical study of the topic. Greg Stohr's A Black and White Case: How Affirmative Action Survived Its Greatest Legal Challenge (Princeton, N.J.: York: Bloomberg Press, 2004) gives well-written, detailed accounts of Grutter v. Bollinger and Gratz v. Bollinger within their historical contexts.
  • A great deal has been written on the Bakke case. Timothy J. O’Neill's “Bakke” and the Politics of Equality: Friends and Foes in the Classroom of Litigation (Middletown, Conn.: Wesleyan University Press, 1981) is a detailed study of the case and of the political forces on both sides. Readers who want to know about the Bakke case should consult Behind “Bakke”: Affirmative Action and the Supreme Court (New York: New York University Press, 1988) by Bernard Schwartz. The Color-Blind Constitution (Cambridge, Mass.: Harvard University Press, 1992) attempts to discover the history of the argument that the Constitution prohibits racial classifications by agencies of the government. The last chapter, “Benign Racial Sorting,” is particularly useful to those interested in the arguments surrounding affirmative action issues. Dinesh D’Souza's Illiberal Education: The Politics of Race and Sex on Campus (New York: Free Press, 1991), a work strongly opposed to affirmative action, presents a view of affirmative action policies in universities before these began to be scaled back. The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions (Princeton, N.J.: Princeton University Press, 1998) by William G. Bowen and Derek C. Bok provides a positive view of affirmative action in higher education. For overviews of the Rehnquist Court's handling of affirmative action cases, see Rehnquist Justice: Understanding the Court Dynamic, edited by Earl M. Maltz (Lawrence: University Press of Kansas, 2003), and A Court Divided: The Rehnquist Court and the Future of Constitutional Law, by Mark Tushnet (New York: W. W. Norton, 2005).