Affirmative Action, policies used in the United States to increase opportunities for minorities by favoring them in hiring and promotion, college admissions, and the awarding of government contracts. Depending upon the situation, "minorities" might include any underrepresented group, especially one defined by race, ethnicity, or gender. Generally, affirmative action has been undertaken by governments, businesses, or educational institutions to remedy the effects of past discrimination against a group, whether by a specific entity, such as a corporation, or by society as a whole.

Until the mid-1960s legal barriers prevented blacks and other racial minorities in the United States from entering many jobs and educational institutions. While women were rarely legally barred from jobs or education, many universities would not admit them and many employers would not hire them. The Civil Rights Act of 1964 prohibited discrimination in public accommodations and employment. A section of the act known as Title VII, which specifically banned discrimination in employment, laid the groundwork for the subsequent development of affirmative action. The Equal Employment Opportunity Commission (EEOC), created by the Civil Rights Act of 1964, and the Office of Federal Contract Compliance became important enforcement agencies for affirmative action.

The term affirmative action was first used by President Lyndon B. Johnson in a 1965 executive order. This order declared that federal contractors should "take affirmative action" to ensure that job applicants and employees "are treated without regard to their race, color, religion, sex, or national origin." While the original goal of the Civil Rights Movement had been "color-blind" laws, simply ending a long-standing policy of discrimination did not go far enough for many people. As President Johnson explained in a 1965 speech, "You do not take a person who for years has been hobbled by chains and ... bring him up to the starting line of a race and then say, 'you are free to compete with all the others' and still justly believe that you have been completely fair."

President Richard Nixon was the first to implement federal policies designed to guarantee minority hiring. Responding to continuing racial inequalities in the work force, in 1969 the Nixon administration developed the Philadelphia Plan, requiring that contractors on federally assisted projects set specific goals for hiring minorities. Federal courts upheld this plan in 1970 and 1971.

Controversy

From its beginnings in the United States in the 1960s, affirmative action has been highly controversial. Critics charge that affirmative action policies, which give preferential treatment to people based on their membership in a group, violate the principle that all individuals are equal under the law. These critics argue that it is unfair to discriminate against members of one group today to compensate for discrimination against other groups in the past. They regard affirmative action as a form of reverse discrimination that unfairly prevents whites and men from being hired and promoted.

Advocates of affirmative action respond that discrimination is, by definition, unfair treatment of people because they belong to a certain group. Therefore, effective remedies must systematically aid groups that have suffered from discrimination. Supporters contend that affirmative action policies are the only way to ensure an integrated society in which all segments of the population have an equal opportunity to share in jobs, education, and other benefits. They argue that numerical goals for hiring, promotions, and college admissions are necessary to integrate fields traditionally closed to women and minorities because of discrimination.

Legislation and Supreme Court Rulings

 

 

The scope and limitations of affirmative action policy have been defined through a series of legislative initiatives and decisions by the Supreme Court of the United States. In Griggs v. Duke Power (1971) the Supreme Court held that Title VII bans "not only overt discrimination but also practices that are fair in form but discriminatory in operation." In order to avoid discrimination lawsuits under Title VII, public and private employers began to adopt hiring policies designed to recruit more minorities. The Equal Opportunity Act of 1972 expanded Title VII protections to educational institutions, leading to the extension of affirmative action to colleges and universities.

In later cases the Supreme Court upheld the constitutionality of affirmative action but placed some restrictions on its implementation. The Supreme Court's ruling in Regents of the University of California v. Bakke (1978) declared that it was unconstitutional for the medical school of the University of California at Davis to establish a rigid quota system by reserving a certain number of places in each class for minorities. However, the ruling upheld the right of schools to consider a variety of factors when evaluating applicants, including race, ethnicity, gender, and economic status. In United Steelworkers v. Weber (1979) the Court ruled that a short-term voluntary training program that gave preference to minorities was constitutional. The Court reasoned that a temporary program designed to remedy specific past discriminatory practices did not unduly restrict the advancement of whites. In Fullilove v. Klutznick (1980) the Supreme Court upheld a provision of the Public Works Employment Act of 1977, which provided a 10 percent "set-aside" for hiring minority contractors on federally funded public works projects. The majority of the justices believed that the Congress of the United States has special powers to remedy past and ongoing discrimination in the awarding of federal contracts.

Conservative justices appointed to the Supreme Court by Republican presidents in the 1980s and 1990s attempted to limit the scope of affirmative action. Although sharply divided on the issue, the Court has struck down a number of affirmative action programs as unfair or too broad in their application. In Wygant v. Jackson Board of Education (1986) the Supreme Court struck down a plan to protect minority teachers from layoffs at the expense of white teachers with greater seniority. In Richmond v. J. A. Croson Co. (1989) the Court rejected a local set-aside program for minority contractors, ruling that local governments do not have the same power as Congress to enact such programs. The Supreme Court's ruling in Ward's Cove Packing Company v. Antonio (1989) revised the standards established by the 1971 Griggs decision. The Ward's Cove decision required that employees filing discrimination lawsuits demonstrate that specific hiring practices had led to racial disparities in the workplace. Even if this could be shown, these hiring practices would still be legal if they served "legitimate employment goals of the employer."

In Metro Broadcasting v. Federal Communications Commission (1990) the Court upheld federal laws designed to increase the number of minority-owned radio and television stations. These rulings did not signal the end of affirmative action. Meanwhile, Congress responded to a number of conservative rulings by the Supreme Court by passing the Civil Rights Act of 1991, which strengthened antidiscrimination laws and largely reversed the Ward's Cove decision.

Recent Developments

In the 1990s affirmative action became a highly charged legal and political issue. In Adarand Constructors v. Peņa (1995) the Supreme Court examined a federal statute that reserved "not less than 10 percent" of funds provided for highway construction for small businesses owned by "socially and economically disadvantaged individuals." The Court's majority opinion, written by Sandra Day O'Connor, overturned the statute and declared that even federal affirmative action programs are constitutional only when they are "narrowly tailored" to serve a "compelling government interest." In April 1998 a federal appeals court eliminated a Federal Communications Commission program designed to increase opportunities for minorities in broadcasting.

Affirmative action has been controversial in local politics as well. Under pressure from Governor Pete Wilson, the regents of the University of California voted in 1995 to end all affirmative action in hiring and admissions for the entire state university system. In 1996 the Fifth U.S. Circuit Court barred the University of Texas Law School from "any consideration of race or ethnicity" in its admissions decisions. Since these rulings have been enacted, both institutions have seen a dramatic drop not only in the admissions of black and Hispanic students but also in the number of minority applicants.

In 1996 California voters endorsed Proposition 209, called the "Civil Rights Initiative" by its supporters, ending all state-sponsored affirmative action programs. At that time, commentators predicted a wave of similar state rulings barring race and gender preferences. However, efforts failed in Ohio, Colorado, and Florida to collect signatures for a similar ballot initiative. Bills modeled on Proposition 209 have been introduced in 13 state legislatures and none has been successful. In November 1997 Houston, Texas, voters defeated a ballot measure that would have repealed the city's race and gender-based hiring programs.

With legislatures, the public, and the courts divided over the issue, the status of affirmative action remains uncertain.