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ORIGINS, HISTORY, AND EVOLUTION OF POLICY

The concept of affirmative action originally grew out of the premise that if the racist barriers preventing talented blacks from getting good jobs and attending good schools could be eliminated, and if a condition of genuine equal opportunity could be instituted, blacks in America could reasonably be expected to succeed at the same rate as whites -- without the aid of preferential treatment or lowered standards.

The precursors of the term “affirmative action” were such phrases as “positive effort” and “affirmative program,” which by 1960 were already in wide use among civil-rights activists, particularly liberal Democrats. The seemingly innocuous entry of the term “affirmative action” into the American lexicon occurred on March 9, 1961 when President John F. Kennedy issued Executive Order 10925, which created the Committee on Equal Employment Opportunity and mandated that federally funded projects “take affirmative action” to ensure that their hiring and employment practices were untainted by racial bias. Stating that discrimination was “contrary to the Constitutional principles and policies of the United States,” the Executive Order held that “it is the plain and positive obligation of the United States Government to promote and ensure equal opportunity for all qualified persons, without regard to race, creed, color, or national origin, employed or seeking employment with the Federal Government and on government contracts.”

“As initially presented,” writes sociologist Thomas Sowell in his book Civil Rights: Rhetoric or Reality?, “affirmative action referred to various activities, such as monitoring subordinate decision-makers to ensure the fairness of their hiring and promotion decisions, and spreading information about employment or other opportunities so as to encourage previously excluded groups to apply -- after which the actual selection could be made without regard to [group] membership.”

But before long, prominent leftwing organizations were offering alternative definitions of what was meant by “affirmative action.” In 1961, for instance, a National Urban League official announced that “being colorblind … is no longer a virtue. What we need to be is positively color-conscious.” A year later, the Congress of Racial Equality began pressuring employers to give hiring preferences to blacks as compensation for past discrimination, while Urban League President Whitney Young candidly recommended, for similar reasons, “a decade of discrimination in favor of Negro youth.” The NAACP also joined the chorus of those pushing for preferences, just a few years after having passionately advocated colorblindness in the Brown v. Board of Education case.

On June 2, 1964, President Lyndon Johnson signed into law the Civil Rights Act of 1964, which forbade any employer to “limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individual’s race, color, religion, sex, or national origin.” It also explicitly rejected calls for racial preferences. As legislators were preparing to vote on the Act, Senator Hubert Humphrey, a key advocate of the bill, assured his colleagues that the new law “would not require an employer to achieve any kind of racial balance in his work force by giving preferential treatment to any individual or group.” To drive the point home, Humphrey went so far as to promise, from the floor of the Senate, that if the Civil Rights Act were ever to be cited as a justification for preferential hiring practices, he would physically eat, page by page, the paper on which the bill was written. Humphrey’s assurances were codified in the Civil Rights Act by Congress’ insertion of a clause stating that “nothing contained in this title shall be interpreted to require any employer ... to grant preferential treatment to any individual or to any group because of race, color, religion, sex or national origin of such individual or group on account of an imbalance ...”

But on June 4, 1965, in a commencement address to the graduating class at Howard University, President Johnson outlined the axioms that eventually would evolve into the idea that affirmative action should entail preferential treatment for nonwhites -- contrary to the dictates of the 1964 Civil Rights Act. Characterizing blacks as a race of people who had been psychologically, intellectually, and spiritually damaged by white-perpetrated historical injustices, Johnson asserted that civil rights laws guaranteeing equal opportunity were not enough to remedy the lingering effects of past discrimination.

Before long, the distinction between equal opportunities and equal outcomes would not only blur, but would actually shift in favor of the aforementioned color-conscious ideal favored by the NAACP, CORE, and the National Urban League. In the mid-1960s, the Equal Employment Opportunity Commission (EEOC) changed the legal standards by which employment discrimination was to be judged, tacitly endorsing the idea that unequal outcomes were prima facie evidence of unfair labor practices. Soon thereafter, both private and public institutions began implementing policies that gave preference -- by means of racially distinct standards and rating systems -- to minorities, particularly blacks, in an effort to raise their representation in a given workplace.

Beginning cautiously and secretively, this process was driven principally by the courts and the federal government’s newly created civil rights divisions, among which were the EEOC, the Office of Federal Contract Compliance Programs (OFCCP), and the Office of Civil Rights. These new agencies were staffed, for the most part, with black activists and white liberals. The policies they endorsed were generally signed into law behind closed doors, without democratic debate, by judges and bureaucrats.

In light of the fact that the 1964 Civil Rights Act’s underlying ideal of colorblindness had recently won the hearts and minds of most Americans, advocates of racial preferences well understood that only under a veil of secrecy could their blatantly color-conscious proposals gain a foothold in the United States. As Stephen and Abigail Thernstrom explain in their book America in Black and White, “[T]he move toward race-conscious preferential policies was quiet, gradual and subtle -- not the sort of tale that makes for headline news. Regulatory guidelines and executive orders governing such matters as federal contracting rules are low-visibility items.” In short, the public had no idea that such enormous changes were furtively taking place.

Open governmental endorsement of quotas made its first appearance with the Nixon Labor Department’s 1969 “Philadelphia Plan,” which mandated specific “goals and timetables” for hiring in that city’s construction industry. Government contractors were informed that if they failed to establish and attain minority-hiring “goals,” their bids would not even be considered. In short, an absence of discrimination in an employer’s hiring practices would no longer be enough to satisfy the Labor Department. Rather, employers would be now required to hire a certain number of nonwhites through race-conscious initiatives -- the very thing that the 1964 Civil Rights Act had prohibited. Philadelphia was selected as the test site for this plan because, as Assistant Secretary of Labor Arthur Fletcher explained, “The craft unions and the construction industry are among the most egregious offenders against equal opportunity laws … openly hostile toward letting blacks into their closed circle.”

By 1970 the Labor Department had codified a “goals and timetables” requirement for all federal contractors, and in 1971 the OFCCP made it clear that the central purpose of such “results-oriented procedures” was to “increase materially the utilization of minorities and women.” From that point onward, employers would be required to achieve proportional racial representation within specified time periods.

The most celebrated affirmative action case of the 1970s centered around a white medical student named Allan Bakke, who was twice rejected by the University of  California at Davis Medical School -- despite having registered MCAT (Medical College Admissions Test) scores that placed him in the top 3 percent of test-takers nationally. Bakke was the unfortunate victim of a UC Davis policy that reserved 16 percent of all first-year medical school seats for blacks and Hispanics -- to the exclusion of even the most superior white candidates. Thus it happened that the minorities who were accepted to UC Davis in preference to Bakke had a combined undergraduate grade-point-average of only C+ and MCAT scores that ranked in the bottom third of all test-takers.

Bakke sued the University for discrimination and won his case in state court, where a judge ruled that race could not be used as a factor in admissions decisions. UC Davis then brought the case before the Supreme Court, which, on June 28, 1978, delivered a 5-4 decision in Bakke’s favor but also stipulated that schools could consider race as one factor (termed a “plus” factor) in the admissions process. According to the University of Kansas Press, “The [Supreme] Court’s unusual split decision invalidated UC-Davis’s quota program for minorities but also struck down a California court’s ruling that race could not be used as a factor in considering applicants.”

After the Bakke case, affirmative action became codified in university admissions policies across the United States. Most notably, black students' median SAT scores (on the math and verbal tests combined) in any given year were (and still are) anywhere from 180 to 230 points lower than the median scores of their white peers. Nonetheless, black students were admitted to virtually all academically competitive schools at much higher rates than whites. In their 1998 book The Shape of the River, Ivy League professors William Bowen and Derek Bok report that at five of America's most elite universities, black applicants whose SAT scores fell within the 1200 to 1249 range had a 60 percent chance of admission, whereas whites with similar scores had just a 19 percent chance.

At medical schools the situation was much the same. The Medical College Admissions Test (MCAT) scores of blacks who were accepted, were actually lower than those of whites who were rejected. At the University of Maryland Medical School in 2000, blacks with college GPAs of B or B+ and MCAT scores in the bottom half of all test-takers had a 70 percent chance of admission; for whites and Asians of similar credentials, the chance was 2 percent.

At the country's top law schools, blacks were admitted at fully 17 times the rate that a colorblind process would have allowed. At UCLA Law School in 1994, a black applicant with a college GPA between 2.5 and 3.5, and an LSAT score between 60 and 90, had a 61 percent chance of admission. The corresponding rates for similarly qualified Asians and whites were 7 percent and 1 percent, respectively.

On June 12, 1995, the Supreme Court (in Adarand Constructors, Inc. v. Peña) dealt a blow to preferential policies, stating that before any federal affirmative action program could be established, there must be “strict scrutiny” in determining whether discrimination actually existed. “Strict scrutiny” was intended to ensure that affirmative action programs fulfilled a “compelling governmental interest” and were “narrowly tailored” to fit a particular situation where discrimination could be shown to exist. Though two of the Justices (Antonin Scalia and Clarence Thomas) supported a complete ban on affirmative action, the majority asserted that “the unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country” justified the use of race-based measures in certain circumstances.

On July 19, 1995, President Clinton delivered a major speech about the Adarand decision and his own personal support for affirmative action. Among his comments -- founded on the premise that white racism remained a pervasive, intractable problem in America -- were the following:

“The purpose of affirmative action is to give our nation a way to finally address the systemic exclusion of individuals of talent on the basis of their gender or race from opportunities to develop, perform, achieve and contribute. Affirmative action is an effort to develop a systematic approach to open the doors of education, employment and business development opportunities to qualified individuals who happen to be members of groups that have experienced longstanding and persistent discrimination.…The vast majority of discrimination in America is still discrimination against [minorities and women].… Evidence abounds … of the persistence of the kind of bigotry that can affect the way we think even if we're not conscious of it, in hiring and promotion and business and educational decisions.… [W]e must, and we will, comply with the Supreme Court's Adarand decision of last month.... But I also want to emphasize that the Adarand decision did not dismantle affirmative action and did not dismantle set-asides. In fact, while setting stricter standards to mandate reform of affirmative action, it actually reaffirmed the need for affirmative action and reaffirmed the continuing existence of systematic discrimination in the United States.”

Notwithstanding the President's impassioned defense of affirmative action, the policy's inherent injustices and double standards sparked a groundswell of opposition from the American people. In 1996, University of California Regent Ward Connerly spearheaded a (successful) push for a ballot initiative known as “Proposition 209,” which stipulated: “The state [of California] 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 political Left characterized Prop 209 as an assault on civil rights. Jesse Jackson, for example, charged that California schools were “cleansing” themselves of black students, and he exhorted Americans to “pursue the dream of an inclusive society.”

On December 3, 1998, the voters of Washington state passed a similar measure called Initiative 200, thereby making Washington the second state to abolish affirmative action in its public sector.

On June 23, 2003 the Supreme Court ruled -- in Gratz v. Bollinger -- that the use of race as a factor in admissions at the University of Michigan was constitutional because it served “a compelling interest” by fostering the development of a racially diverse student body and all the educational benefits purportedly associated with such an arrangement. But the Court also ruled that the University’s then-existing policy, which automatically distributed 20 points, or one-fifth of the points needed to guarantee admission, to every “underrepresented minority” applicant solely because of race, was not permissible because it made an applicant's race the “decisive” factor “for virtually every minimally qualified underrepresented minority applicant.”

On the very same day -- June 23, 2003 -- the Supreme Court issued a ruling in a parallel case known as Grutter v. Bollinger, affirming that while hard, race-based quotas were impermissible, the “use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body” was a legitimate practice. Justice Sandra Day O’Connor, who cast the deciding vote in Grutter, said that affirmative action was still needed as a counterbalance to America’s allegedly pervasive racism, though she added: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

In November 2006, voters in Michigan passed a ballot initiative called the Michigan Civil Rights Initiative (MCRI) -- also known as Proposal 2 -- by a 58 to 42 percent margin. Banning the use of race and gender preferences in college admissions and government hiring and contracting, it essentially mirrored California’s Proposition 209 and Washington’s Initiative 200. In 2008, a federal judge in Detroit upheld the law, saying it was race-neutral.

In the freshman class which was admitted to the University of Michigan in the fall of 2006 -- the last class admitted before the passage of Proposal 2 -- blacks, Hispanics, and Native Americans made up 12.6 percent of the students. The proportion dropped somewhat during each of the next three school years, falling to 9.1 percent in the fall of 2009. In the fall 2010, however, minority freshman enrollment rebounded to 10.6 percent.

On June 29, 2009, the Supreme Court handed down a monumentally significant 5-4 decision (in Ricci v. DeStefano) against affirmative action, when it ruled in favor of 18 white firefighters in New Haven, Connecticut, who charged that they had been victims of discrimination when the city elected not to promote them within the local fire department solely because of their skin color. This ruling was a decisive rejection of race-based preferences, and an affirmation of merit that would have wide-ranging implications for workplaces across America.

in 2011, the law firm of Scheff, Washington and [Shanta] Driver filed a lawsuit aimed at striking down the Michigan Civil Rights Initiative of 2006 (a.k.a. Proposal 2). In a 2-1 ruling issued on July 1, 2011, a Michigan appeals court overturned MCRI on grounds that it violated the equal-protection clause of the 14th Amendment and thus was unconstitutional. "Proposal 2 reorders the political process in Michigan to place special burdens on minority interests," said judges R. Guy Cole Jr. and Martha Craig Daughtrey, on striking down MCRI. George Washington, the chief attorney for MCRI's opponents, applauded the decision: "It's a great victory. It means affirmative action is legal again in college admissions. It means that thousands of talented black, Latino and Native Americans can go to our public universities."

In 2012 the will of Michigan's electorate (as expressed in 2008 via Proposal 2) was thwarted by the United States Court of Appeals for the Sixth Circuit, in Cincinnati. In an 8-7 vote, the Court ruled that Proposal 2 violated the United States Constitution’s equal protection clause, using the argument that the elimination of racial preferences disproportionately affects those who would have been the beneficiaries of those preferences. Writing for the majority, Judge R. Guy Cole Jr. said:

“A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s Constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution–a lengthy, expensive and arduous process–to repeal the consequences of Proposal 2.”

On April 22, 2014, the United States Supreme Court issued a 6-2 ruling that upheld Michigan’s ban on the use of race as a factor for determining college admissions. Writing for the majority, Justice Anthony Kennedy suggested the ban can also be extended to other arenas. “There is no authority in the federal constitution or in the precedents for the judiciary to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in governmental decisions, in particular with respect to school admissions,” he wrote. Kennedy further clarified the Court’s intent: “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.” 

RESOURCES:

Affirmative Action: Origins, History, and Policy Evolution
By John Perazzo
August 2007

Federal Affirmative Action Law: A Brief History
By The Congressional Research Service
September 13, 2005

How the 1964 Civil Rights Act Made Racial Group Entitlements Inevitable
By Lawrence Auster
May 18, 2005

Timeline of Affirmative Action Milestones
By InfoPlease.com

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