Affirmative Action. I INTRODUCTION 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. Although 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, which prohibited discrimination in public accommodations and employment, was the first modern legislation to address these barriers. 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 John F. Kennedy in a 1961 executive order designed to encourage contractors on projects financed with federal funds to racially integrate their workforces (see Segregation). Kennedy's executive order declared that federal contractors should 'take affirmative action to ensure that applicants are employed, and employees are treated during their employment, without regard to race, creed, color or national origin.' (Employment discrimination on the basis of a person's sex was first prohibited by Title VII of the Civil Rights Act of 1964.) The original goal of the civil rights movement had been 'color-blind' laws. However, many people believed that simply ending a long-standing policy of discrimination did not go far enough. They believed that affirmative, or proactive, measures to increase equality were necessary. As President Lyndon B. Johnson stated in a 1965 speech at Howard University, "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." President Richard Nixon was the first to implement federal policies designed to guarantee minority hiring. Responding to continuing racial inequalities in the workforce, 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. II 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. III 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 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 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 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 have 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 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 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." These rulings did not signal the end of affirmative action. 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. Meanwhile, Congress passed the Civil Rights Act of 1991, which strengthened antidiscrimination laws and largely reversed the Ward's Cove decision. In another Court case, Adarand Constructors v. Peña (1995), the majority ruled that affirmative action programs were constitutional provided they were "narrowly tailored" to serve a "compelling government interest." IV RECENT DEVELOPMENTS Starting in the mid-1990s politicians and grassroots groups began to attack affirmative action at the state level, with some success. The regents of the University of California system voted in 1995 to end all affirmative action in hiring and admissions, and minority enrollment in the system's entering undergraduate class plummeted in 1998, when the changes took effect. In 1996 California voters approved Proposition 209, an initiative that ended affirmative action throughout the state in public hiring, purchasing, and other government business. In 1998 Washington State voters passed Initiative 200, a measure that banned affirmative action in state and local government hiring, contracting, and education. Around the same time, federal courts began considering lawsuits from white students denied admission to state universities with affirmative action programs. In some cases, the courts have invalidated such programs on the grounds that they promote reverse racial discrimination. For example, in Hopwood v. Texas (1996), a federal appeals court barred the University of Texas Law School from "any consideration of race or ethnicity" in its admissions decisions. As in California, the termination of the school's affirmative action program led to a sharp drop in minority enrollment. In Johnson v. University of Georgia (2001) a federal appeals court upheld a ruling striking down the freshman admissions policy of the University of Georgia. In calculating a ranking that helped decide whom to admit, the school had awarded a fixed numerical bonus to nonwhite applicants. Not all attacks on affirmative action have been successful. In Smith v. University of Washington (2000) a federal appeals court upheld an affirmative action program at the University of Washington Law School, concluding that diversity in education was a compelling state interest (however, by the time of the ruling the program had been halted). Federal courts reached the same conclusion in Gratz v. Bollinger (2000) and Grutter v. Bollinger (2002), upholding affirmative action policies for, respectively, undergraduate and law school admissions at the University of Michigan. In 2003 the Supreme Court ruled on these two cases. In Grutter v. Bollinger the Court found that the law school's affirmative action program was constitutional, reaffirming its finding in the Bakke decision that the state has a compelling interest in assuring racial diversity. In the 5 to 4 majority decision Justice Sandra Day O'Connor wrote: "In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity." However, in a separate decision, the Court rejected the affirmative action program used in the university's undergraduate program, which was challenged in Gratz v. Bollinger. The undergraduate program used a point system in deciding how to weigh applicants, with minority applicants receiving a large number of points. The Court ruled that this method was too "mechanistic" and amounted to a quota system. The law school program, the Court said, was permissible because it evaluated each applicant individually and used race as one of many factors in deciding whom to admit. Civil rights organizations hailed the decision because it clearly reaffirmed the value of affirmative action programs, even though it did not overturn state laws that prohibit affirmative action, such as those in California and Washington. Opponents of affirmative action vowed to continue fighting and noted the Court's opinion that "enshrining a permanent justification of racial preferences would offend [the] equal protection principle" of the Constitution. "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today," O'Connor wrote. (See the Sidebar "Grutter v. Bollinger.") By the time the Court heard the Grutter case, affirmative action had become an accepted practice throughout American society. Amicus (friend of the court) briefs from the heads of major corporations and from retired military officers argued that affirmative action was essential to produce qualified corporate managers and military leaders, and to encourage industrial innovation. These amicus briefs, and Justice O'Connor's references to them in her opinion, suggest that affirmative action has become a key tool not only to achieve greater equality in the nation, but also to help manage sustained economic growth and secure the national defense. Contributed By: Paul Finkelman Microsoft ® Encarta ® 2009. © 1993-2008 Microsoft Corporation. All rights reserved.
