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Affirmative action refers to deliberate efforts, voluntary as well as mandatory, to recruit and hire or admit employees or students from historically marginalized backgrounds (women and racial/ ethnic minority groups, such as African Americans, Native Americans, and Latinos) in private and public employment as well as in higher education. Affirmative action was originally designed as a system of policies to remedy those effects of past discrimination that have lingered into the present. Since its implementation in the late 1960s and early 1970s, affirmative action has come under criticism and emerged as one of the most emotional and divisive social issues in American society. Supporters of affirmative action maintain that such measures are necessary to ensure a diverse workforce and student body that reflect the multicultural demographic realities of American society and to mitigate the effects of racial and gender discrimination, while critics of affirmative action often pejoratively refer to it as “reverse discrimination,” “preferential treatment,” or “political correctness” that harbors allegedly “antiwhite” and “antimale” biases. Opponents also contend that the principles of affirmative action allegedly undermine the notion of a meritocracy (a society where individuals either succeed or fail solely on the basis of their own hard work and initiative, or lack thereof) and, ironically, violate the very spirit of the civil rights and women’s rights movements of the 1960s and 1970s by judging individuals on the basis of their group identification rather than on their unique abilities.
One reason why affirmative action remains so controversial is that no clear-cut, uniform standard exists for how affirmative action goals are to be implemented by corporations and universities. As a result, each state as well as individual businesses, firms, and colleges/universities must establish their own affirmative action policies. Over the years, such policies have ranged from the implementation of strict racial and gender quotas (now declared illegal under federal law) to more general timetables and recruiting goals, to the awarding of additional points and bonuses for female or minority status on applicants’ qualifying examinations, to deliberate and concerted tactics that target women and racial/ethnic minorities for recruitment and employment. The confusion and inconsistency stemming from such a wide-ranging array of affirmative action policies has generated numerous state and federal court challenges to affirmative action since the late 1970s, although affirmative action remains a priority at the federal level, in many state governments, and among many businesses and colleges/universities throughout the nation.
Until the mid-1960s, institutional barriers— codified into law—prevented African Americans, women, and other minority groups from entering many occupations and colleges and universities. President John F. Kennedy first used the term affirmative action in Executive Order 10925, issued in March 1961, which established the Committee on Equal Employment Opportunity. Kennedy instructed contractors hired for projects funded by the federal government to “take affirmative action to ensure that applicants are employed, and are treated during employment, without regard to their race, creed, color, or national origin.”
The landmark Civil Rights Act of 1964 formally outlawed discrimination on the basis of race, color, religion, national origin, and gender in public accommodations (e.g., employment, educational institutions, restaurants, and retail establishments) in the United States. The goal of many advocates of civil rights throughout the 1950s and early 1960s was the pursuit of a “colorblind” society— that is, an American society in which an individual’s skin color or racial background did not serve as a basis for prejudicial attitudes, social exclusion, and discriminatory treatment. However, these activists soon realized that the nation’s long history of racial and gender oppression had produced a legacy of inequality that could not immediately be overcome through a mere legislative act that barred discrimination; many argued that proactive measures aimed at greater inclusion of blacks (as well as other racial/ethnic minority groups and women) in employment and education were necessary to achieve social equality. President Lyndon Johnson underscored these sentiments when he famously remarked in a commencement address at Howard University in 1965, “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.”
The Richard Nixon administration crafted the first federal policy aimed at hiring a specific number of minority employees in 1969 with the Philadelphia Plan, which called on contractors submitting bids for federally funded construction projects to exert all efforts to closely approximate the federal government’s predetermined goals for hiring a desired number of minority employees. The Philadelphia Plan was upheld by federal court rulings in 1970 and 1971, and it soon became a model for affirmative action policies at the local and state levels as well as in colleges and universities across the nation. One common template for affirmative action policies in the 1970s called for every third or fourth employee hired by a corporation or agency to be either nonwhite or female, a practice that critics denounced as discriminatory racial and gender quotas. By the mid to late 1970s, many institutions of higher education had implemented affirmation action policies of their own, not only to comply with federal regulations but also to diversify their campuses.
Although the political discourse surrounding affirmative action in the 1960s and early 1970s focused primarily on the need to remedy historic and contemporary institutional discrimination against African Americans, as affirmation action policies became more widespread throughout American society, such policies began to expand their focus to include minority groups other than African Americans—namely, white females, Latinos, Native Americans, and others. This generated controversy in and of itself: If the purpose of affirmative action was to serve as a corrective measure for past discrimination in American society, on what grounds should recent immigrants from Latin America constitute a protected class under affirmative action policies? By the late 1970s, Americans had become bitterly divided over affirmative action, setting the stage for major legal and political challenges that persist into the 21st century.
Legal And Political Challenges
One of the first major judicial battles over the constitutionality of affirmative action occurred in 1978, when the U.S. Supreme Court struck down the use of racial quotas to achieve affirmative action goals in Regents of the University of California v. Bakke. Allan Bakke was denied admission to the medical school at the University of California, Davis, in 1973 and 1974. The university’s medical school had two admission categories: one for general applicants and one for racial/ethnic minorities. The medical school admitted 100 new students each year; of this total, 84 slots were designated for general applicants, and 16 were reserved for minority applicants. As a white male, Bakke was restricted to applying in the general application pool, and the school rejected his application both years. However, Bakke discovered that his grade point average and test scores were higher than those of several individuals who had been admitted under the pool for racial/ethnic minority applicants. Bakke sued the university for denying him admission to its medical school, asserting that its affirmative action policy denied him equal protection under the Fourteenth Amendment to the U.S. Constitution. A divided U.S. Supreme Court declared that numerical quotas—such as those implemented at the University of California, Davis—were unconstitutional, although the court did uphold affirmative action in theory, maintaining that race or gender could be one of several factors in a hiring or admissions process (it just could not be the sole determining factor).
Affirmative action survived the 1980s, despite the relatively strong conservative mood of the country during the Reagan to Bush period and President Ronald Reagan’s staunch opposition to such measures. In 1991, President George H. W. Bush appointed Clarence Thomas, an outspoken critic of affirmative action, to the U.S. Supreme Court after an acrimonious confirmation process. Thomas, an African American conservative who grew up in rural Georgia during the 1950s and 1960s, had benefited from some of the earliest affirmative action policies implemented during his education and early career, although he turned against such programs during his adult years. Specifically, Thomas argued that affirmative action stigmatizes minorities by implying that they are unable to compete against whites on merit alone. He also contended that affirmative action in higher education is counterproductive because it often grants admission to colleges and universities to minority students who are unable to succeed in these environments due to inadequate educational preparation, thus setting many minority students up for failure.
By the mid-1990s, affirmative action reemerged as a contentious issue, particularly within higher education. In July 1995, the Board of Regents of the University of California voted 14-10 to eliminate affirmative action in hiring and admissions across its 10-campus system. The central figure promoting this ban was Ward Connerly, a prominent businessman who emerged as a national figure in the fight against racial and gender preferences and governmental efforts to classify people by race in the 1990s and 2000s. In 1996, Connerly lobbied successfully to place Proposition 209, the so-called California Civil Rights Initiative referendum, on the state ballot. Proposition 209 called for ending all affirmative action within California by amending the state constitution to declare, “The state shall 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.” Fifty-five percent of Californians voted in favor of Proposition 209 on Election Day 1996, thus eliminating affirmative action in the nation’s largest, and one of its most racially and ethnically diverse, states.
Texas, the nation’s second-largest state, also generated headlines regarding affirmative action around this time. In 1996, the Fifth Circuit Court of Appeals declared the admissions policy at the University of Texas School of Law unconstitutional in Hopwood v. Texas. Cheryl Hopwood had been rejected from the university’s law school in 1992 despite having a higher LSAT (Law School Admission Test) score and grade point average than 36 of the 43 Latinos and 16 of the 18 African Americans admitted to the program. Three other white students who had also been denied admission to the law school joined Hopwood’s lawsuit against the University of Texas; because of its geographic range of jurisdiction, the Fifth Circuit’s ruling effectively ended affirmative action in higher education admission policies in Texas, Louisiana, and Mississippi. However, in 1997, voters in Houston, Texas, voted to preserve affirmative action in city contracting and hiring by a 55-45 percent margin. Aware of the emotional sensitivities surrounding affirmative action and anticipating some degree of political vulnerability on the issue from social and political conservatives, President Bill Clinton famously declared of affirmative action in a July 1995 speech, “Mend it, but don’t end it.”
Nevertheless, attacks against affirmative action gained national traction by the late 1990s. Following the passage of Proposition 209 in California, Connerly turned his attention to other states, where he helped sponsor similar anti– affirmative action ballot initiatives. In 1998, Connerly helped place Initiative 200 on the ballot in Washington State; it was passed with 58 percent of the vote. In 2006, 58 percent of the voters approved the Michigan Civil Rights Initiative, which eliminated affirmative action in that state. Connerly also helped sponsor successful bans on affirmative action in Arizona and Nebraska. In 2003, Connerly sponsored Proposition 54 in California, known as the Racial Privacy Initiative, which attempted to forbid the state from using racial classifications in statistical information and other data altogether. The measure failed at the ballot box, however, garnering only 36-percent approval among the voters.
The 2006 Michigan Civil Rights Initiative was a response to the U.S. Supreme Court’s rulings in a pair of cases in 2003 regarding the constitutionality of affirmative action policies in admissions to the University of Michigan. The high court’s decisions in these two cases appeared contradictory to many opponents of affirmative action. In Gratz v. Bollinger, the Supreme Court declared the University of Michigan’s undergraduate admission policy unconstitutional and tantamount to a racial quota system; the university used a points system to score applicants in a variety of areas, and those with a specified minimum score were admitted. Applicants from underrepresented racial and ethnic minority backgrounds (e.g., African Americans, Latinos, and Native Americans) were awarded an additional 20 points, which the Supreme Court found disproportional and struck down. However, in Gutter v. Bollinger, the Supreme Court upheld the affirmative action policy used by the University of Michigan’s law school, which did not rely on a points system but rather took an applicant’s racial and gender background into consideration as two of many factors to ensure a well-rounded and diverse admissions pool. In upholding the law school’s policy, the Supreme Court signaled that diversity is a compelling interest to be taken into consideration within higher education. The key difference was that the undergraduate admission policy was absolute while the law school’s admission policy was relative and considered the full context of an applicant’s background. Opponents of affirmative action in Michigan were dismayed that the Supreme Court did not strike down the affirmative action policies in both cases, and assisted by Ward Connerly, they fought to place a Proposition 209–like referendum on the Michigan ballot 3 years later. Jennifer Gratz, a white female who had been denied admission to the University of Michigan in 1997 despite a 3.8 grade point average (and who was the lead plaintiff in Gratz v. Bollinger), served as executive director of the Michigan Civil Rights Initiative.
Efforts to overturn Michigan’s ban on affirmative action proved unsuccessful. In April 2014, the Supreme Court upheld the Wolverine State’s 2006 ban in Schuette v. Coalition to Defend Affirmative Action. This decision did not declare affirmative action unconstitutional or strike down affirmative action policies; it simply gave states the authority to rescind affirmative action if they wished to do so. With the trajectory of recent court decisions and legislative action across the nation, the future of affirmative action in the United States looks murky at best.
Criticism And Defense
An ironic dimension of the debate over affirmative action is that both its supporters and critics regularly accuse one another of racism. Proponents of affirmative action maintain that it is a necessary remedy for overcoming institutional racism within American society and that those who oppose it (particularly if they are white) are allegedly motivated by racist sentiments. On the other hand, opponents of affirmative action allege that preference for racial and ethnic minorities is a form of antiwhite, “reverse discrimination.” As with many controversial social and political topics, one’s personal perspective on this issue is contingent on how it is framed. Public opinion polls have indicated that white Americans are more favorable to affirmative action policies based on gender than to those based on race. Most of the opposition to affirmative action focuses on racial preferences rather than gender preferences, despite a 1995 study that revealed that white females have benefited most from affirmative action policies since their inception.
Many critics accuse affirmative action of preventing the United States from becoming a “colorblind” society that ignores issues of race altogether. Those who hold such viewpoints often feel that racial discrimination and inequality either no longer exist in American society or, if they do, are minor and relatively inconsequential in preventing racial and ethnic minorities from achieving parity with whites in education, employment, and social inclusion. Highlighting race, these critics assert, only serves to perpetuate racism. Defenders of affirmative action respond by claiming that the notion of a colorblind American society is more of an idealistic illusion than a reality; institutional racial and gender barriers still remain in the 21st century, even if they are no longer codified into laws as in the past. For example, many proponents of affirmative action point out that much hiring within corporate America is based on an informal network of personal connections (commonly referred to as “the old boys’ network”) rather than on true merit and qualifications. Since women, African Americans, Native Americans, Latinos, and other minority groups have largely been excluded from these networks for generations, they most likely will lack these informal ties, which often prove crucial in hiring and promotion; affirmative action in education and employment thus serves to “level the playing field” somewhat.
Nevertheless, even the most ardent defenders of affirmative action concede that such policies have not eradicated racism and sexism in American society, even nearly half a century after their first implementation. A particularly vexing question pertains to what should be the ultimate purpose of affirmative action—to serve as a remedy for past discrimination or to promote diversity in the workforce and on college campuses? These two issues are not necessarily one and the same, although there may be considerable overlap and connections between them. For example, affirmative action policies benefit African Americans whose ancestors were brought to the North American colonies as slaves and whose grandparents endured racial segregation under Jim Crow, as well as recent black immigrants from Africa and the Caribbean—many of whom come from highly educated and relatively affluent backgrounds. While African and Caribbean immigrants certainly add to the diversity of corporate and campus settings, these immigrants have not had a multigenerational experience of racial oppression in the United States, as have U.S.-born African Americans.
A similar dilemma posed by affirmative action relates to what, exactly, should be considered as “social disadvantages” and thereby constitute a protected status under affirmative action policies. In the aggregate, whites have higher education levels and incomes than African Americans and Latinos, and males have higher income levels than females. However, privilege is always relative and never absolute, raising questions as to whether, for example, an African American male or a white female from a suburban middle-class household deserves to be granted preferential treatment in hiring or college admissions over a working-class or impoverished white male from a lower-income rural or inner-city environment? Because of such nuances, some advocates have recommended that affirmative action policies be revised to take social class, rather than race or gender, into primary consideration.
- Anderson, Terry H. The Pursuit of Fairness: A History of Affirmative Action. New York: Oxford University Press, 2005.
- Grodsky, Eric and Michael Kurlaender. Equal Opportunity in Higher Education: The Past and Future of California’s Proposition 209. Cambridge, MA: Harvard Education Press, 2010.
- Kennedy, Randall. For Discrimination: Race, Affirmative Action, and the Law. New York: Random House,
- Leiter, William M. and Samuel Leiter. Affirmative Action in Antidiscrimination Law and Policy. Albany: State University of New York Press, 2011.
- Sander, Richard and Stuart Taylor Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It. New York: Basic Books, 2012.
- Stainback, Kevin and Donald Tomaskovic-Devey. Documenting Desegregation: Racial and Gender Segregation in Private Sector Employment Since the Civil Rights Act. New York: Russell Sage Press, 2012.
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