Affirmative Action
Julia Samsa

The History of Affirmative Action: Landmark Cases and Legislation
Affirmative action refers to policies designed to increase the presence of “underrepresented” demographic groups-such as racial or ethnic minorities and women-in specific sectors of the workforce or in the student bodies of American universities (Affirmative Action, 2010). Affirmative action policies are founded on the premise that any observed imbalance in a given workforce or student body is due, either wholly or in part, to past and/or present discrimination-the remedy for which consists of compensatory preferences in favor of the underrepresented group(s). These measures most commonly take the form of lowered standards for the hiring, promotion, or admission of members of the preferred groups and set-asides which reserve or earmark a designated percentage of slots for members of the preferred group.
Historically, the origins of affirmative action were subtle and incremental. The term “affirmative action” was first introduced to the nation by President John F. Kennedy in March 1961. The President signed Executive Order 10925 which established the President’s Commission on Equal Employment Opportunity (Magee, 2011). By this order, any business working under a federal government contract must take affirmative action in hiring and not discriminate on the basis of race, creed, color, or national origin (Wilcher, 2006). JFK’s order did not advocate for the preferential treatment of minority groups, but rather sought to eliminate discrimination.
The next step in affirmative action was the enactment of the Civil Rights Act of 1964. This landmark legislation extended Kennedy’s order to non-governmental contractors, and prohibiting discrimination in voting, public education, and employment in firms with more than 15 employees. Criminal penalties, compensation for pain and suffering, and punitive damages were not provided by the act (Magee, 2011). Instead, a new agency was formed to address conciliation, the Equal Opportunity Commission (EEOC), a branch of the US Department of Labor (USDL).
Title VII of the Civil Rights Act of 1964 continued the affirmative action standards of Executive Order 10925. Senators Joseph Clark and Clifford Case, sponsors of the act, wrote that there should be no requirement for an employer to meet any particular racial mix of employees, because requiring a racial balance would require an employer “to hire or refuse to hire on the basis of race.”
When President Lyndon B. Johnson took office he argued that fairness required more than a promise to impartial treatment. So later in 1965, President Johnson issued Executive Order 11246. This policy stated that it is a policy of the Government of the United States to provide equal opportunity in federal employment for all qualified persons, to prohibit discrimination in employment because of race, creed, color, or national origin, and to promote the full realization of equal employment opportunity through a positive, continuing program in each department and agency (Executive Order 11246-EEO, 1965). Two years later, Executive Order 11246 was amended with Executive Order 11345 to include sex as a classification for discrimination.
In 1966 the USDL started to collect and scrutinize employment records with breakdowns by race to evaluate hiring practices (Magee, 2011). In 1968, the Office of Federal Contract Compliance set requirements which detailed specific actions to guarantee equal employment opportunities for minorities. Debate over affirmative action has its origins in these requirements. Goals and timetables were developed which compared the percentage of women and minorities in a firm and the percentage of the work force (Magee, 2011). The term “disparate impact” was used to describe situations where the percentage of women and minorities in the firm did not match the percentage in the work force. These regulations created a measurable basis for the treatment of affected minorities and women.
The Equal Employment Act of 1972 enabled the EEOC to file class action law suits. In 1978, under the Carter Administration, the EEOC created a benchmark to define disparate impact frequently called the “four-fifths rule”. Essentially, these Uniform Guidelines on Employee Selection stated that federally contracted employers should not be allowed to hire any race, sex, or ethnic group at a rate below four-fifths of any other group (Magee, 2011).
As affirmative action policies began to evolve and shape, many landmark cases came about to further improve and challenge the legislation. In the Griggs v. Duke Power case in 1971, the Supreme Court ruled against Duke Power’s employment requirement of high school diplomas for unskilled jobs, a practice which had a disparate impact on minority workers. Most importantly, the case set a precedent that employers may not engage in hiring practices which discriminate against minorities and women, except in extreme cases.
Another case that shaped affirmative action was Regents of the University of California v. Bakke in 1978. Allan Bakke was denied admission to the University of California at Davis’ Medical School, although his admission test scores were higher than minority students who were enrolled. At the time, UC Davis reserved 16 of 100 class slots for minorities. The Supreme Court decided that Bakke should be admitted to the program due to an inflexible quota system employed by UC Davis. UC Davis was advised to continue affirmative action practices to attain a diversified environment without a quota system (Magee, 2011).
During the Reagan and GHW Bush Administrations in the 1980’s, the momentum for affirmative action was reduced. Through court appointment, hiring and firing decisions, and budget cuts, the Reagan Administration sought to end affirmative action. From 1981 to 1983, the EEOC budget was cut by 10%, and its staff cut by 12%. Similarly, the Federal Contract Compliance Office budget was cut by 24% and staff cut by 34% (Magee, 2011).
Two case rulings that weakened the affirmative action movement were Watson v. Fort Worth Bank and Trust in 1988 and Wards Cove Packing Company v. Antonio in 1989. In Watson v. Fort Worth Bank, Clara Watson, a minority employee of the bank, was passed over four times for promotion. She exhausted mediation through the EEOC, and then sued the bank under the Civil Rights Act of 1964 (Open Jurist, 2011). The bank had no formal selection criteria for the job, but relied on subjective judgment of white supervisors. The Supreme Court found that the burden of proof lay with the plaintiff in this case. The ruling reversed Griggs v. Duke Power as the burden of proof shifted from employers to plaintiffs (Magee, 2011).
In Wards Cove Packing Company v. Antonio, several minority cannery workers alleged that Wards Cove hiring and promotion practices were improper because cannery jobs were primarily filled by minority workers and management positions were filled primarily by whites. The Supreme Court decided that the unskilled jobs should be compared to the related labor market, and not to management jobs (CULS, 2010). Thus, disparity in the employer’s labor force was insufficient to prove disparate impact of specific jobs.
The Civil Rights Act of 1991 was an attempt to slow the retrenchment of the affirmative action movement. The Act returned the burden of proof to employers in disparate impact cases (reestablishing the Griggs v. Duke Power decision), and required employers using disparate impact in hiring to prove “job related” and “consistent with necessity” (overturning the Wards Cove v. Antonio decision) (Magee, 2011). The 1991 Act allows for restitution, back pay, and compensatory damages.
In the mid-1990’s, affirmative action programs continued to be reduced by the Republican-controlled Congress, state legislatures, and court decisions (Magee, 2011). Critics charged that affirmative action was a form of “reverse discrimination,” meaning that by favoring minorities and women it discriminated against white males. In addition, they argued that affirmative action sometimes prevented companies from hiring the best available worker, and in doing so caused resentment toward minority workers on the job (Magee, 2011).
In 1996 Californians passed California Proposition 209, which banned preferential treatment based on gender or race in employment, education, and state contracting. This effectively ended affirmative action except as necessary to meet federal law (Magee, 2011). Twice challenged unsuccessfully in the Supreme Court of California, this amendment to California’s constitution remains intact today (Ballotpedia, 2010). In the late 1990’s courts across the country followed California’s lead in striking down affirmative action policies in employment and education.
In 2003, the Supreme Court laid down definitive rulings regarding the use of affirmative action in universities in two landmark cases. In Gratz v. Bollinger, Jennifer Gratz and Patrick Hamacher, both Caucasian, applied for admission to the University of Michigan’s College of Literature, Science, and the Arts in 1995 and 1997, respectively. The university used a point system to guarantee admission where 20 of 100 points were automatically awarded to racial or ethnic minority candidates. The Supreme Court decided that the admission system was too mechanical, and thus unconstitutional (CULS, 2011). In Grutter v. Bollinger in the same year, Barbara Grutter, a Caucasian applicant, was denied admission to the University of Michigan’s Law School. When she learned that minority students with lower admission scores had been admitted, she sued the University for discrimination under Title VII of the Civil Rights Act of 1964. The Supreme Court decided that the admission practices of admission were acceptable. Race can be considered in admission decisions to achieve the goal of a diverse student body (NPR, 2003).
In 2006 the affirmative action movement took another blow when the Michigan Civil Rights Initiative, a state constitutional amendment, effectively ended affirmative action in Michigan schools and universities. The amendment essentially overturned the Gratz v. Bollinger decision. The amendment has been unsuccessfully challenged several times.
Finally, from 2006 to 2008 anti-affirmative action movements, placed proposals on the ballots which would effectively change state constitutions. These proposals were defeated or abandoned in Arizona, Oklahoma, and Missouri. A similar issue was defeated by voters in Colorado.
Reverse Discrimination
Reverse discrimination, occasionally referred to as positive discrimination, is a form of discrimination against members of a dominant or majority group, or in favor of members of a minority or historically disadvantaged group. These groups are defined in terms of race, gender, ethnicity, etc. Reverse discrimination seeks to redress social inequalities where minority groups have been denied access to the same privileges of the majority group.
Frequently, the term “reverse discrimination” has been used in discussions of racial or gender quotas for collegiate admission to government-run educational institutions. These policies were held to be unconstitutional in the United States, while non-quota based methods, which may include race as a factor (including some affirmative action programs) are considered legal (Reverse Discrimination, 2011).
The first United States Supreme Court case to challenge reverse discrimination was Regents of the University of California v. Bakke. Allan Bakke, a thirty-five-year-old white man, had twice applied for admission to the University of California Medical School at Davis. He was rejected both times. The school reserved 16 places out of 100 for “qualified” minorities, as part of the university’s affirmative action program, in an effort to redress longstanding, unfair minority exclusions from the medical profession. Bakke’s qualifications (college GPA and test scores) exceeded those of any of the minority students admitted in the two years Bakke’s applications were rejected. Bakke contended, first with California courts, then in the Supreme Court, that he was excluded from admission solely on the basis of race (Regents of the University of California v. Bakke, 2011).
The question before the Supreme Court was, “Did the University of California violate the Fourteenth Amendment’s equal protection clause, and the Civil Rights Act of 1964, by practicing an affirmative action policy that resulted in the repeated rejection of Bakke’s application for admission to its medical school?”
The Supreme Court ruling was both yes and no. There was no single majority opinion. Four of the justices contended that any racial quota system supported by government violated the Civil Rights Act of 1964. Justice Lewis F. Powell, Jr. agreed, casting the deciding vote ordering the medical school to admit Bakke. However, in his opinion, Powell argued that the rigid use of racial quotas as employed at the school violated the equal protection clause of the Fourteenth Amendment. The remaining four justices held that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible. Powell joined that opinion as well, contending that the use of race was permissible as one of several admission criteria. So, the Court managed to minimize white opposition to the goal of equality (by finding for Bakke) while extending gains for racial minorities through affirmative action.
A more recent case of reverse discrimination before the Supreme Court was Parents Involved in Community Schools v. Seattle School District No. 1 in 2007. The Seattle School District allowed students to apply to any high school in the District. Since certain schools often became oversubscribed when too many students chose then as their first choice, the District used a system of tiebreakers to decide which students would be admitted to the popular schools. The second most important tiebreaker was the racial factor, intended to maintain racial diversity. If the racial demographics of any school’s student body deviated by more than a predetermined number of percentage points from those of Seattle’s total student population (approximately 40% white and 60% non-white), the racial tiebreaker went into effect. At a particular school either whites or non-whites could be favored for admission depending on which race would bring the racial balance closer to the goal (PICS v. SSD No. 1, 2011).
A non-profit group, Parents Involved in Community Schools, sued the District, arguing that the racial tiebreaker violated the Equal Protection Clause of the Fourteenth Amendment, and the Civil Rights Act of 1964 as well as Washington State law. A Federal District Court dismissed the suit, upholding the tiebreaker. On appeal, a three-judge panel in the US Court of Appeals for the Ninth Circuit reversed the decision.
Under the Supreme Court’s precedents on racial classification in higher education, Grutter v. Bollinger and Gratz v. Bollinger, race-based classifications must be directed toward a “compelling government interest” and must be “narrowly tailored” to that interest. Applying these precedents to K-12 education, the Circuit Court found that the tiebreaker scheme was not narrowly tailored. The District then petitioned for an “en banc” ruling by a panel of 11 Ninth Circuit Court judges. The en banc panel came to the opposite conclusion and upheld the tiebreaker. The majority ruled that the District had a compelling interest in maintaining racial diversity. Applying a test from Grutter v. Bollinger, the Circuit Court also ruled that the tiebreaker plan was narrowly tailored because the District did not employ quotas, the District had considered race-neutral alternatives, the plan caused no undue harm to races, and the plan had an ending point.
The question before the Supreme Court was threefold:
1. Do the decisions in Grutter v. Bollinger and Gratz v. Bollinger apply to public high school students?
2. Is the racial diversity a compelling interest that can justify the use of race in selecting students for admission to public high schools?
3. Dose a school district that normally permits a student to attend the high school of his or her choice violate the Equal Protection Clause by denying the student admission to his or her chosen school because of race in an effort to achieve desired racial balance?
The Court’s answer to those three questions were no, no, and yes. By a 5-4 vote, the Court applied a “strict scrutiny” framework and found the District’s racial tiebreaker plan unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Chief Justice Roberts wrote in the plurality opinion that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The Court acknowledged that it had previously held that racial diversity can be a compelling government interest in university admissions, but it ruled that “the present cases are not governed by Grutter.” Unlike the cases pertaining to higher education, the District’s plan involved no individualized consideration of the students, and it employed a very limited notion of diversity (“white” and “non-white”). The District’s goal of preventing racial imbalances did not meet the Court’s standards for a constitutionally legitimate use of race: “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity’.” The plans also lacked the narrow tailoring that is necessary for race-conscious programs. The Court held that the District’s tiebreaker plan was actually targeted toward demographic goals and not toward any demonstrable educational benefit from racial diversity. The District also failed to show that its objectives could not have been met with non-race-conscious means. In a separate opinion concurring in the judgment, Justice Kennedy agreed that the District’s use of race was unconstitutional but stressed that public schools may sometimes consider race to ensure equal educational opportunity.

Works Cited
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Open Jurist. (2011). Watson v. Fort Worth Bank and Trust. Retrieved March 2011, from Open Jurist: http://openjurist.org/487/us/977/watson-v-fort-worth-bank-and-trust
PICS v. SSD No. 1. (2011). Retrieved 2011, from Oyez: http://www.oyez.org/cases/2000-2009/2006/2006_05_908
Regents of the University of California v. Bakke. (2011). Retrieved 2011, from Oyez: http://www.oyez.org/cases/1970-1979/1977/1977_76_811
Reverse Discrimination. (2011, January 30). Retrieved 2011, from Wikipedia: http://en.wikipedia.org/wiki/Reverse_discrimination#cite_note-0
Uniform Guidelines on Employee Selection Procedures. (1998, November 10). Retrieved March 2011, from DOI University.
Wilcher, S. J. (2006, April 5). History of Affirmative Action. Retrieved March 2011, from Americans for Fair Chance: http://www.inmotionmagazine.com/aahist.html