Introduction to Affirmative Action
On June 4, 1965, US President Lyndon B. Johnson delivered a commencement address at Howard University in Washington, DC, that applauded efforts by the federal government to address race discrimination. Despite these efforts, however, the president stressed that the job was far from being complete. Though President Johnson did not explicitly use the phrase "affirmative action" in the address, he articulated the general policy behind such programs:
Freedom is not enough. 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 then say, 'you are free to compete with all the others,' and still justly believe that you have been completely fair. Thus it is not enough to just open the gates of opportunity. All our citizens must have the ability to walk through those gates.
According to President Johnson, achieving racial equality required remedying America's history of racial discrimination.
Racial discrimination against African-Americans was prevalent in early American society. In the South, slave owners treated African-American slaves like property. When a white citizen killed or raped an African-American slave, the action was typically prosecuted under property laws, such as trespass. In the North, free or escaped African-Americans encountered violence from whites, and faced segregation in public places and skilled labor. Some whites, like the founders of the American Colonization Society, argued for emigrating free African-Americans to Africa because they considered African-Americans unfit for existence in American society.
The US Supreme Court's 1857 Dred Scott decision reinforced legal racial discrimination. The Court held that African-Americans, whether free or enslaved, were ineligible to become US citizens. In writing for the majority, Chief Justice Roger Taney reinforced notions of racial discrimination by stating that African-Americans were distinctly separate and inferior to whites. According to Justice Taney, the founding fathers did not intend for African-Americans to receive the rights that come with US citizenship. The decision also prohibited Congress from banning slavery in newly acquired territories.
Though the Union victory in the Civil War brought an end to the institution of slavery, racial discrimination persisted. State governments in the South and Midwest passed laws, collectively referred to as "Black Codes," which required African-Americans to sign mandatory labor contracts, denied them the right to vote and prohibited them from serving on juries or in militias. In an effort to combat racial discrimination, the federal government passed the Reconstruction Acts, which divided the South into five military districts and required the southern states to ratify the Fourteenth Amendment. When Reconstruction ended in 1877, the federal government abandoned proactive measures to combat racism, and the South ushered in a new era of legal and social race discrimination.
As whites regained political power in the South, they pushed for new era of social and legal race discrimination. By 1890, many southern states mandated racial segregation in areas such as education, marriage, entertainment and transportation through Jim Crow laws. In May 1896, the Supreme Court upheld the idea of a separate but equal society in Plessy v. Ferguson. The Court stated that the Fourteenth Amendment only ensured equality in the legal and political spheres of society, and states were free to pass legislation that segregated the social sphere.
In the decades following the Plessy decision, African-Americans throughout the US encountered increasing racial discrimination. Groups like the National Association for the Advancement of Colored People (NAACP), however, challenged the legality of segregation. Starting in the 1940s, the Supreme Court began to reverse their earlier endorsement of racial discrimination: the Court upheld the Fifteenth Amendment and ruled against segregated interstate busing in Smith v. Allwright and Morgan v. Virginia, respectively. In May 1954, the Court overturned Plessy in Brown v. Board of Education, which held that racial segregation in public schools deprived minority children of educational opportunities and that "separate but equal" educational institutes were inherently unequal. The decision was later extended to invalidate segregation in other public places.
Native Americans were also subject to racial discrimination. Early white Americans considered Native Americans to be uncivilized, and American leaders like President George Washington wanted Native Americans to abandon their traditional lifestyles and embrace white European practices. Accordingly, many white Americans compelled Native Americans to assimilate into white society. US President Andrew Jackson equated Native Americans to children and considered their relocation under the Indian Removal Act of 1830 as necessary for their future well-being.
Native Americans faced racial discrimination in American society due in part to clashes with settlers. In March 1804, Congress passed a law that divided the recently acquired Louisiana territory and offered Native Americans lands west of the Mississippi River in exchange for their holdings to the east. It was not until President Jackson approved the Indian Removal Act that the forced relocation of Native Americans became federal policy. One particular relocation effort, the Trail of Tears from 1838 to 1839, resulted in the deaths of approximately 8,000 people, including Cherokee Indians and free and enslaved African-Americans. The mid-nineteenth century westward expansion of American settlers forced Native Americans further west in the name of "Manifest Destiny," a policy fueled in part by the belief of white superiority over Native Americans.
In 1851, Congress passed the first Indian Appropriations Act, which created a reservation for Native Americans in the Oklahoma Territory. The Indian Appropriations Act of 1871 eliminated the treatment of Native American tribes as sovereign nations, weakened tribal authority and rendered Native Americans dependent upon the federal government. The Indian Wars of the late nineteenth century further disrupted Native American tribal sovereignty and diminished the total Native American population in the West. The reservation system created numerous societal problems for Native Americans, and the poor conditions on Native American reservations have attracted international attention.
Mexicans faced racial discrimination in the aftermath of the 1848 Mexican-American War. In the Treaty of Guadalupe Hidalgo, Mexico ceded 500,000 square miles of territory to the US. In return, the US offered $15 million to the Mexican government and US citizenship to Mexicans within the territory. Absent the treaty, Mexicans in the newly acquired territory would have been barred from naturalization because they were not white. The US Senate, however, amended the treaty, granting Congress the option to determine when citizenship should be offered to the Mexicans and erasing protections for Mexican land grants. Mexicans encountered discrimination from society at large.
Persons of Asian descent also encountered racial discrimination in the American West. Chinese immigrants in the nineteenth century were paid less for labor than their white counterparts, lived in segregated communities and were treated as generally inferior to whites. Starting in May 1882, the US Congress banned entirely the immigration of Chinese persons into the country and placed limits on the mobility of those already in the US through the Chinese Exclusion Act. Persons of Japanese descent encountered similar discrimination during the late nineteenth and early twentieth centuries. During World War II, West Coast Japanese and Japanese Americans were placed into internment camps under a wartime policy that the Supreme Court upheld in Korematsu v. United States.
Affirmative Action Legislation
ffirmative action has an extensive legislative history
with origins dating back to early debates concerning the application
of the Fourteenth Amendment. The first governmental reference to affirmative action in the US was Executive Order 10925
, issued by US President John F. Kennedy in March 1961. The order established the President's Commission on Equal Employment Opportunity and outlined new protocol for government contractors in hiring, stating, "[t]he contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin."
The order was followed by Executive Order 11246, signed by US President Lyndon B. Johnson in September 1965. This order used similar language as the previous order, but extended the scope to religion and sex as well.
Following President Kennedy's order, Congress passed the Civil Rights Act of 1964. Although the act did not explicitly use the terminology "affirmative action," it created the Equal Employment Opportunity Commission (EEOC), which replaced President Kennedy's Commission and granted government agencies the ability to enact regulations to assist in ending discrimination. The EEOC continues to operate today as an enforcement agency for claims concerning workplace and employment discrimination.
Since the 1960s, other departments of the federal government have passed affirmative action regulations and work on issues pertaining to it. Most notably, the Department of Labor (DOL) oversees the Office of Federal Contract and Compliance Programs (OFCCP). The OFCCP resulted from an effort by President Jimmy Carter to consolidate all federal affirmative action enforcement responsibilities into one department. Today, the OFCCP also advises other federal agencies and general employers in the private sector on affirmative action protocol.
At the state level, approaches to affirmative action have varied. Seven states have passed bans on affirmative action programs to varying degrees, mostly focusing on public education and employment. Four of these, Oklahoma, Arizona, Nebraska and Michigan, were voter referendums that formally amended their state constitutions to ban certain forms of affirmative action. California and Washington also passed referendums banning affirmative action, but through legislation rather than constitutional amendments. In January 2012, a New Hampshire bill that prohibited affirmative action in admissions and employment at state colleges and universities took effect.
Courts have ruled on a series of lawsuits challenging these bans, although they all still stand as passed. The most notable of these is a successful challenge in the lower courts to the Michigan referendum that was granted certiorari by the US Supreme Court in March 2013.
Outside of the above-mentioned states, most publicly funded colleges and universities have some sort of affirmative action program for admission and hiring practices. Programs vary across a wide range of practices, including race or gender acting as a criteria included in an overall mix to determine qualified candidates. The US Supreme Court has offered some criteria for what is and is not acceptable for affirmative action policies in rulings outlined more fully below.
US Supreme Court Litigation
he Supreme Court took up the issue of affirmative action in June 2003, when the high court decided the twin cases of Grutter v. Bollinger
and Gratz v. Bollinger
. Both cases involved the University of Michigan at Ann Arbor. The separate cases produced separate results for the undergraduate school and law school, owing to the fact that the schools utilized different criteria in their admissions. Although this was not the first time that the high court had ruled on affirmative action and race-conscious admissions policies, many considered the legality of affirmative action a settled question. However, ten years following those decisions, the Court was confronted with another challenge to affirmative action with Fisher v. University of Texas at Austin
Bakke v. Regents of the University of California
The earliest case of affirmative action that the Supreme Court decided concerned admission at the University of California Davis Medical School in 1978. The Supreme Court held in Bakke v. Regents of the University of California
that the school's quota system violated the Equal Protection Clause
of the Fourteenth Amendment. The medical school employed a program specifically designed to increase minority enrollment, allocating 16 of the 100 available seats for members of minority groups that a special committee decided had suffered educational or economic harm. The decision was split 5-4, with four justices rejecting the program for violating Title VII
of the 1964 Civil Rights Act, which prohibits racial discrimination in programs that receive federal funding. Justice Lewis Powell ultimately controlled the judgment and wrote that all racial classifications beneficial and detrimental were suspect and subject to strict scrutiny. Justice Powell's opinion stated that the state's legitimate and substantial interest in remedying prior discrimination did not justify the medical school's quota system because there were no prior findings of such discrimination.
Justice Powell and the majority held that the system was unconstitutional in denying admission, but he also joined the minority in refusing to enjoin the use of race in affirmative action cases in the future. Justice William Brennan and the minority would have upheld the system through an intermediate level of scrutiny. Justice Brennan wrote that the classification could be sustained through "an important and articulate purpose."
Justice Powell's opinion was critical because it cast an important influence on future opinions on affirmative action from the high court. Subsequent cases reverberated with his "middle of the road" strategy in not abjuring affirmative action and beneficial race-based classifications outright, but also not allowing affirmative action programs for the sake of correcting broad past discrimination. In Bakke, Justice Powell would have found an affirmative action program salutary if it considered race a "plus" in an applicant's overall file but did not "insulate the individual from comparison with all other candidates for the available seats." He considered it important for an affirmative action scheme to be flexible in examining all elements of diversity. Much of his language and thinking on the subject would emerge 25 later in the University of Michigan cases and Justice Sandra Day O'Connor's opinion in Grutter v. Bollinger.
Grutter v. Bollinger
Grutter v. Bollinger brought the University of Michigan Law School's affirmative action policy up for the Court's review. Justice O'Connor's opinion emphasized the holistic aspect of the law school's admission scheme. Admissions officials reviewed individual applicants based upon their entire file, including their personal statement, letters of recommendation, undergraduate grade point average (GPA) and Law School Admission Test (LSAT) scores. Admission was not predicated upon those scores, and the policy emphasized the school's commitment to racial and ethnic diversity in admissions with a special eye to admitting students from groups that had been historically discriminated against. Barbara Grutter brought suit against the lawsuit as a white resident of Michigan, alleging that the school elevated minority candidates above her for admission by relying on race in violation of the Equal Protection Clause. Grutter pointed to her 3.8 GPA and 161 LSAT score as measures of qualification that many admitted minority candidates did not meet.
The opinion explicitly pointed to Justice Powell's judgment in Bakke as the foundation for universities' affirmative action programs, and it continued his view that "student body diversity is a compelling state interest that can justify the use of race in university admissions." As a result, the Court upheld the law school's admissions policy through a strict scrutiny test. Support for diversity as a compelling state interest was support by amici curiae from the military [PDF] and US businesses [PDF] making the case for diverse leaders in their ranks. The majority considered the policy to be narrowly tailored because the policy followed Justice Powell's conception of a permissible approach that considered race or ethnicity a "plus" factor among many other factors used to assemble a broad and diverse student body. The opinion ended with the Fourteenth Amendment's goal of eliminating governmentally imposed racial discrimination, so it concluded that race-conscious admissions policies had to be temporally limited. Without any justification other than the fact that 25 years had elapsed since Bakke, the majority decided that racial preferences in admissions would not be necessary 25 years in the future.
Gratz v. Bollinger
The University of Michigan twin of Grutter v. Bollinger was Gratz v. Bollinger, which implicated the admissions policy of the undergraduate college of liberal arts and sciences, distinct from that of the law school. Admissions scored applicants on a 150-point system; applicants who scored at least 100 points were typically admitted and those who scored below 75 were either waitlisted or rejected. Overall, 110 points were available on academic factors and 40 points could be attributed for nonacademic reasons. This policy was controversial for assigning a "bonus" of 20 points to applicants who belonged to an underrepresented minority group or attended a predominantly minority or disadvantaged high school.
Chief Justice William Rehnquist, a dissenter in Grutter, delivered the opinion in Gratz striking down the school's policy. Like Justice O'Connor in Grutter, his opinion carried forward Justice Powell's philosophy from Bakke. He emphasized that Justice Powell focused on the importance of considering applicants as individuals with a wide array of qualities and ability to contribute to the institution's setting. According to Chief Justice Rehnquist, that kind of consideration was absent from the undergraduate school's admissions process because it automatically assigned 20 points to all applicants of an underrepresented minority group, shorn of any other consideration. Even though there was a component of individual consideration involved, it was not featured enough to counter the 20-point assignment and withstand strict scrutiny.
Justice O'Connor concurred with Justice Rehnquist's opinion, noting that diversity was not individually assessed and the point system was perverse for assigning excessive weight to membership in an underrepresented minority group but assigning only five points for outstanding academic achievements. Justice David Souter's dissent distinguished the case from Bakke, with the difference being that seats in Bakke were reserved from members of certain groups.
Parents Involved in Community Schools v. Seattle School Dist. No. 1
This June 2007 decision involved student assignment plans for school districts in Seattle, Washington, and Louisville, Kentucky. Both plans used racial bases to apportion students to give schools a more diverse racial composition than they would otherwise have. While not an affirmative action case, the decision served to undercut the rationale of permitting affirmative action policies in higher education. The plurality opinion ruled that a state does not have authority under the Equal Protection Clause to use race as a factor for educational opportunities. Using the rationale from Brown v. Board of Education, it found differential treatment unconstitutional on the basis of color. Justice Anthony Kennedy concurred, but he did not join the majority because he refused to eliminate race from consideration in an educational setting. He found that the government still had a compelling interest in avoiding racial isolation in education.
Fisher v. University of Texas at Austin
Only ten years after Justice O'Connor predicted that affirmative action programs would be necessary for another 25 years, the Supreme Court is deciding the future of higher education affirmative action in the case of Fisher. Notably, Justice O'Connor has resigned from the bench in the interim. Much like the plaintiffs from the 2003 Michigan cases, Abigail Noel Fisher alleged that she was wrongfully denied admission because minority students with lower GPAs and standardized test scores were admitted instead of her. The state university employs a colorblind "Top Ten Percent Plan," in which students who rank in the top ten percent of their graduating high school class are automatically accepted into the university. Although most matriculated students are admitted through that policy, the issue in the case is the "holistic file review" system that admits a minority of students. That holistic view can include such factors as socioeconomic status and race. It is known as the Harvard Plan, and it is based on Justice Powell's Bakke opinion.
The Supreme Court heard oral arguments on October 10, 2012, and issued a decision remanding the case for reconsideration based on the strictest possible judicial standard on June 24, 2013. Fisher's attorney did not advocate overturning Grutter, but instead argued that admissions officers should be given less discretion in admitting students with regard to race. The university's policy is notable for trying to achieve a "critical mass" of students, but as JURIST Guest Columnist Ilya Shaprio points out in Hotline, the critical mass concept does not satisfy a state interest in achieving diverse composition of the student body:
Finally, even if UT-Austin could show that racial preferences were necessary for some legitimate reason, its chosen paradigm for applying such preferences is arbitrary. For example, the school justifies preferences for Hispanics by pointing to the need for a "critical mass" of such students even as it denies preferences to Asians, who comprise a smaller portion of the student body.
Although many expected the Court to articulate a new legal standard for evaluating affirmative action plans, its decision in Fisher
only reinforces previously articulated standards.
Litigation Outside the US Supreme Court
ublic understanding of the shape and direction of affirmative action has been influenced primarily by US Supreme Court decisions. However, affirmative action litigation decided in state courts and federal courts other than the Supreme Court has also had a lasting influence on its legality and practice.
Penn v. Stumph
Penn v. Stumph
addressed racial discrimination in the hiring practices of the Oakland Police Department in California. Plaintiff Clarence Penn applied for a position as a police officer in the late 1960s. The Oakland Civil Service Board of Commissioners, the body that oversaw police hiring, required that each applicant pass a written "Mental Ability" test, a written "General Knowledge" test, a psychiatric evaluation, an "Oral Examination" and a background investigation. Penn failed one of the written tests and was precluded from taking any of the other exams.
Penn filed suit in the US District Court for the Northern District of California, alleging that the recruiting and hiring process violated the Due Process Clause
and the Equal Protection Clause of the Fourteenth Amendment. He also alleged that such discrimination extended to all African-American applicants, Mexican-American applicants and applicants with Spanish surnames. The defendants filed a motion for dismissal.
On February 3, 1970, after review of the tests, the interview and the hiring practices, as well as a conclusion that plaintiff's rights were protected by the Civil Rights Act of 1964, the court denied the motion to dismiss:
In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
The Police Department later settled with Penn, signing the Penn-Stumpf Consent Decree
. The decree created special hiring practices for minority and women applications to the police department.
Hopwood v. Texas
In the case of Hopwood v. Texas
, plaintiffs Cheryl Hopwood, Douglas Carvell, Kenneth Elliot and David Rogers applied to the University of Texas School of Law in 1992. All four were white residents of Texas who had educational backgrounds and test scores that necessitated an additional review of their application rather than an automatic acceptance. However, the additional review was separated by race African-American and Mexican-American applicants were distinguished from white applicants and given their own additional review. White students rejected from the additional review pool often had higher GPAs and LSAT scores than African-American and Mexican-American students offered acceptance.
In the US District Court for the Western District of Texas, Austin Division, plaintiffs sued under the Equal Protection Clause of the Fourteenth Amendment as well as violations of 42 U.S.C. §§ 1981
and Title VII of the Civil Rights Act of 1964. On August 19, 1994, the district court ruled that while the plaintiffs' equal protection rights had been violated, the University of Texas School of Law could not be prevented from using race as an admission factor.
On appeal, the US Court of Appeals for the Fifth Circuit determined that the law school could not use race as a special admission factor, even if race was just one factor among many:
[T]he University of Texas School of Law may not use race as a factor in deciding which applicants to admit in order to achieve a diverse student body, to combat the perceived effects of a hostile environment at the law school, to alleviate the law school's poor reputation in the minority community, or to eliminate any present effects of past discrimination by actors other than the law school.
On remand, the trial court judge issued a permanent injunction, affirming the circuit court's ruling. This injunction prohibited the consideration of race in college and university admissions processes. Both sides again appealed, and the Fifth Circuit affirmed its 1996 holding on December 21, 2000.
The original 1996 opinion by the Fifth Circuit and the resulting injunction guided admission practices for colleges and universities in Louisiana, Mississippi and Texas (the states comprising the Fifth Circuit) until the Supreme Court decision in Grutter
Smith v. University of Washington, Law School
In Smith v. University of Washington, Law School
, plaintiffs Katuria Smith, Angela Rock and Michael Pyle applied for admission to the University of Washington Law School in 1996. All three were denied admission. However, distinct from Hopwood
, these applicants had GPA and LSAT scores that placed them squarely in the "admit" category. Plaintiffs alleged that the use of race as an admission criterion led to their rejections.
Filing suit in the US District Court for the Western District of Washington on July 1, 1997, plaintiffs alleged that the University of Washington Law School violated 42 U.S.C. §§ 1981, 1983 and 2000d
by using "racially discriminatory admission policies." Plaintiffs filed a motion for partial summary judgment. However, while the case was in court, Ballot Initiative Measure 200 passed at the polls on November 3, 1998. The measure decreed that the state of Washington "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."
The University of Washington Law School, in light of new state law, moved to dismiss the individual and class actions. On February 12, 1999, the district court denied plaintiffs' motion for summary judgment, and plaintiffs appealed.
On December 4, 2000, the US Court of Appeals for the Ninth Circuit ruled that the issue was moot
given the new state law, and affirmed the lower court's denial of the plaintiffs' motion for summary judgment. The opinion for the Ninth Circuit indicated that, even had the issue not been moot, it would have decided in the state's favor:
We, therefore, leave it to the Supreme Court to declare that the Bakke rationale regarding university admissions policies has become moribund, if it has. We will not. For now, therefore, it ineluctably follows that the Fourteenth Amendment permits University admissions programs which consider race for other than remedial purposes, and educational diversity is a compelling governmental interest that meets the demands of strict scrutiny of race-conscious measures.Coalition to Defend Affirmative Action v. Regents of the University of Michigan
Following the June 2003 Supreme Court decisions of Gratz v. Bollinger
and Grutter v. Bollinger
, Michigan voters passed Proposal 2 on November 7, 2006. The proposal amended the state constitution and discontinued any affirmative action activities used by the state, including state colleges and universities. Per Proposal 2, criteria including race, sex, color, ethnicity and national origin could not be given preferential treatment. Multiple plaintiffs filed various lawsuits against public officials and public universities in the US District Court for the Eastern District of Michigan, and the cases were effectively consolidated as Coalition to Defend Affirmative Action v. Regents of the University of Michigan
[PDF]. On December 19, 2006, the district court issued a preliminary injunction against state universities from implementing Proposal 2. Parties in favor of Proposal 2 fought for an injunction against the stay
. On November 30, 2007, the Michigan Attorney General filed a "motion to dismiss for lack of standing
or, in the alternative, a motion for summary judgment on the merits as to all Plaintiffs." The district court approved the motion for summary judgment on March 18, 2008, and plaintiffs appealed to the US Court of Appeals for the Sixth Circuit.
On November 15, 2012, the Sixth Circuit held that Proposal 2 was unconstitutional and thus reversed the district court's granting of summary judgment for the defendants. In addition, the court stated: "Most importantly, our holding does not place race-conscious admissions policies beyond the political process. Opponents of affirmative action remain free to advocate for their preferred policies in the same manner and at the same level of government as its proponents." On November 28, 2012, the Michigan Attorney General filed a petition for a writ of certiorari
to the US Supreme Court, and on March 25, 2013, the US Supreme Court granted the petition, as outlined above.