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 left-wing 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 “does 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. Said the President:
“But freedom is not enough. You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please. 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 just to open the gates of opportunity.”
Notably, President Johnson’s first official act vis a vis affirmative action explicitly refrained from endorsing preferential treatment for blacks. On September 24, 1965 he issued Executive Order 11246, which required federal contractors to adopt colorblind hiring practices. Calling for equal treatment rather than race-based preferences, this Order mandated that contractors “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.” To comply with the Order, employers were to take such “positive steps” as posting advertisements for job openings in places and publications where nonwhites would be likely to see them — all for the purpose of equalizing opportunities. Executive Order 11246 never even hinted at the notion of equalizing outcomes by means of racial preferences.
Before long, however, 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 by 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 landmark 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.”
The definition of “affirmative action” was gradually evolving. No longer meaning “positive steps” taken to publicize employment opportunities in minority neighborhoods, it was transformed into a mandate that required employers — as one Department of Health, Education and Welfare (HEW) official put it in 1971 — to “consider other factors than mere technical qualifications.” That same year, San Francisco State College announced that it was shifting “from the idea of equal opportunity employment to a deliberate effort to seek out qualified and qualify a bold people among ethnic minority groups and women to fill all jobs in our area.” Increasingly, affirmative action came to mean quotas.
Like “affirmative action,” the term “desegregation” — originally defined as the colorblind, open-door policy of admitting students into schools without regard to race — was also undergoing a wholesale transformation. Whereas the 1964 Civil Rights Act had warned that federal funds would be withheld from schools that failed to desegregate in accordance with the original definition, a scant four years later the Supreme Court ruled that desegregation was not enough, and ordered schools to actively integrate their student bodies. Toward this end, the Court called for the assignment of students to schools with regard to their race — as a “remedy for past unconstitutional segregation.” As author Dinesh D’Souza explains in his book The End of Racism, “Invoking proportional representation as the standard of justice, courts navigated around the seemingly clear language of the law to coerce integration in the name of enforcing desegregation, and to use the terms interchangeably to disguise this transition.”
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.
In 1971 the Supreme Court ruled that for the purpose of achieving racial balance, students were to be bussed to designated schools — even if those schools were located a considerable distance from the children’s homes.
The landmark 1971 Griggs v. Duke Power Company Supreme Court decision mandated that employers make all hiring decisions with, rather than without, regard to race. Whereas before Griggs, discrimination had referred to some action taken against an individual because of his or her ethnicity, after Griggs it meant nothing more than what Thomas Sowell has aptly termed the “lack of a politically acceptable statistical percentage.” If a given company’s workforce or a particular school’s student body consisted of proportionately fewer blacks than were living in the surrounding area, under Griggs that statistical disparity would now be deemed evidence of discrimination. As Stephan and Abigail Thernstrom write in their book America in Black and White, “For those who wished to avoid an expensive, time-consuming, and image damaging battle in the courts, the best defense was a good offense: anticipatory race-conscious hiring.”
Also in 1971, the Supreme Court ruled that no company’s employment criteria could include such assets as literacy or a high-school diploma — because those criteria would disproportionately disqualify blacks. Whereas the 1964 Civil Rights Act had been designed to prevent disparate treatment, now the courts were punishing the disparate impact of hiring criteria that were intended to be entirely race-neutral. Employers were increasingly required to rectify all “deficiencies in the utilization” of minorities, thereby transforming the guarantee of equal opportunity into a mandate for equal results. An “unbalanced” workforce was now sufficient reason to suspect discrimination, and employers accused of this transgression would be considered guilty-until-proven-innocent. As former EEOC chairman Evan Kemp put it, “We have vetoed the presumption of innocence.”
When the EEOC in 1972 was granted legal power to sue private companies, it began systematically threatening to file discrimination lawsuits, the specter of which intimidated one company after another into hiring by race. The threats were aimed first at major corporations such as AT&T, General Electric, and General Motors — the usual result being a consent decree mandating that the accused discriminator not only give millions of dollars in back pay to the plaintiffs, but also implement an aggressive minority-hiring program. “Once we get the big boys,” predicted EEOC Chairman John Powell, “the others will soon fall in line.”
In America in Black and White, Stephan and Abigail Thernstrom describe the atmosphere that pervaded corporate America:
“By 1975 an employee did not need to show discriminatory intent in order to make a prima facie case of discrimination; nor could an employer point to evidence of good faith in defense. Good intent was irrelevant if the results were bad. Moreover, once a prima facie case, for which the standard was hazy, had been established, the employer bore the Herculean burden of justifying a test or other hiring or promotion process as a ‘business necessity’ under the EEOC’s guidelines. … Even if the employer could demonstrate a close and direct link between his test and performance in a particular job, he could still lose his shirt … if the plaintiff managed to unearth a similar test with less of a racial ‘impact.’ Again the obvious means of self-defense was race-based hiring.”
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.
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. Similar discrepancies were (and still are) ubiquitous in professional training academies like law schools and medical schools. Nonetheless, black students have long been admitted to virtually all academically competitive schools at much higher rates than whites. Some examples:
In United Steelworkers of America v. Weber (1979), the Supreme Court ruled that for the ostensible purpose of remedying past inequities that had favored whites over blacks, it was now permissible to discriminate against whites. The case centered around the United Steelworkers of America and the Kaiser Aluminum and Chemical Corporation, which together had implemented an affirmative action-based training program to increase the number of black skilled craftsmen in their workforce. Fifty percent of the eligible positions in that program were reserved for blacks, regardless of their seniority or qualifications as compared to their white co-workers. When Brian Weber, who was white, was passed over for the program, he claimed that he was the victim of racial discrimination. The Supreme Court ruled that Title VII of the 1964 Civil Rights Act did not forbid private employers and unions from adopting an affirmative action plan — like that of United Steelworkers/Kaiser — mandating explicit preferences for blacks. According to Justice William Brennan, Weber’s argument “rest[ed] on a literal interpretation” of the Civil Rights Act and, as such, was “misplaced.” Brennan explained that it was necessary to distinguish between “the letter of the statute” and its “spirit.”
In an impassioned dissent, Justice William Rehnquist argued that the affirmative action plan at issue had by no means been adopted voluntarily. Rather, he explained, Kaiser had adopted it for two overriding reasons: to protect itself from a lawsuit based on the racial imbalance of its skilled workforce, and to retain its eligibility for lucrative government contracts that were assigned only to companies with affirmative action policies in place.
The Supreme Court’s pro-affirmative action inclinations materialized again on July 2, 1980, when a majority of Justices ruled in Fullilove v. Klutznick that although the Bakke decision had struck down strict quotas, some modest quotas in employment and education were constitutional. Specifically, the Court upheld a federal law requiring that 15 percent of funds for public works be set aside for minority contractors — reasoning that the “narrowed focus and limited extent” of such a program did not violate the rights of non-minority contractors.
During the 1980s, the practice of race-norming was quietly introduced in a pilot program by the U.S. Labor Department. Adjusting scores on standardized tests (such as the skill and aptitude tests that employers commonly administered to job-seekers), race-norming used separate curves for evaluating members of different racial groups. It held whites and Asians to high performance standards, Hispanics to somewhat lower standards, and blacks to still lower ones. The ultimate goal was to develop racially “balanced” workforces, even if that meant enabling low-performing blacks and Hispanics to leapfrog ahead of more-qualified whites and Asians. The premise underlying this policy was that if different racial groups passed a given test at different rates, that test must have been structured in a way that was racially or culturally biased. In short, the problem was the test, not the test-takers. (By the end of the decade, 35 states would adopt some form of race-norming. The practice would eventually be banned, however, by the Civil Rights Restoration Act of 1991.)
The 1986 Supreme Court case Local 28 Sheet Metal Workers v. Equal Employment Opportunity Commission upheld a lower court’s order imposing race-conscious remedies such as “goals and timetables” to increase nonwhite union membership as a corrective measure to the union’s alleged history of “pervasive and egregious discrimination.”
Also in 1986, the Supreme Court case Local No. 93 International Association of Firefighters AFL-CIO v. Cleveland held that under Title VII of the Civil Rights Act of 1964, a federal court was permitted to enforce a public-sector affirmative action plan giving nonwhite minorities preference in hiring and promotion.
On May 19, 1986 the Supreme Court — in Wygant v. Jackson Board of Education — changed course and issued a decision invalidating an existing affirmative action program. At issue was a school board policy mandating that, when layoffs were necessary, white teachers (even those with more seniority than their nonwhite colleagues) should be terminated before nonwhites. The Court held that the policy’s benefits to minorities could not justify the injury it caused to whites: “We have previously expressed concern over the burden that a preferential-layoffs scheme imposes on innocent parties. In cases involving valid hiring goals, the burden to be borne by innocent individuals is diffused to a considerable extent among society generally. Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose. Denial of a future employment opportunity is not as intrusive as loss of an existing job.”
In the 1987 case Johnson v. Transportation Agency of Santa Clara County, California, the Supreme Court was back to supporting affirmative action programs. The Johnson ruling permitted employers to give preference to women over men when considering promotions to positions in which women had been historically underrepresented, and to consider as one factor the sex of a qualified job applicant. In his dissent, Justice Antonin Scalia said that the Santa Clara County plan was “not established to remedy prior sex discrimination by the agency, but imposed racial and sexual tailoring that would, in defiance of normal expectations and laws of probability, give each protected racial and sexual group a governmentally determined ‘proper’ proportion of each job category.”
On February 25, 1987 the Supreme Court — in United States v. Paradise — endorsed the use of strict quotas as a means of combating the lingering effects of past racism. The roots of this case could be traced back to July 1970, when a federal court found that the State of Alabama’s Department of Public Safety was guilty of “pervasive, systematic, and obstinate discriminatory exclusion of blacks” in its hiring process. By 1982, the department still had not promoted any blacks to positions above entry-level, thereby prompting the federal court to order that for every white hired or promoted, one black would also be hired or promoted until at least one-fourth of the upper ranks of the department were composed of blacks. This use of numerical quotas was challenged in United States v. Paradise, but the Supreme Court upheld the practice.
The year 1989 marked a temporary turning point in the trend which had seen the Supreme Court rule generally (though not exclusively) in favor of affirmative action programs since the early 1970s. On January 23, 1989, the Court — in City of Richmond v. J.A. Croson — disallowed a Richmond, Virginia set-aside plan requiring that 30 percent of subcontracts go to minority-owned firms. Ruling that an “amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota,” the Court maintained that affirmative action must be subject to “strict scrutiny” and was unconstitutional unless racial discrimination could be proven to be “widespread throughout a particular industry.” According to the Court, “the purpose of strict scrutiny was to ‘smoke out’ illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool” (i.e., affirmative action).
In the 1989 Martin v. Wilks case, the Supreme Court made it easier for plaintiffs harmed by existing affirmative action programs to challenge the latter. This case stemmed back to 1974, when the Jefferson County, Alabama Personnel Board had signed a consent decree requiring the hiring and promotion of more black firefighters in preference to whites. Wilks (a white fireman who was not a party to the original decree) challenged the agreement, claiming that he and other white firefighters were more qualified than some of the blacks who were receiving promotions. In a 5-4 decision, the Supreme Court ruled that the white firefighters had a constitutional right to challenge the existing decrees.
Perhaps the most significant affirmative action-related case of the late 1980s was Wards Cove Packing Company v. Atonio (1989). Located in Alaska, the Wards Cove company packed salmon during the summer months and thus hired many of its workers almost exclusively on a seasonal basis. Its unskilled cannery jobs were filled mostly by local Alaska natives and Filipinos, whereas its skilled non-cannery positions were held largely by whites who had been hired through the company’s Seattle headquarters. The plaintiff (Frank Atonio) charged that the company’s hiring practices had resulted in an unacceptably large discrepancy in the racial composition of the two groups of workers. The Court, however, ruled in favor of Wards Cove.
In restricting the use of crude statistical comparisons, Wards Cove represented a major rethinking of Griggs and Weber. Plaintiffs wishing to sue for racial bias would now be required to show evidence supporting their charges, and to identify the “specific employment practices” causing the racial disproportion to which they objected. The Court had now shifted the burden of proof in discrimination lawsuits off of the defendants and onto the plaintiffs. It also gave employers more freedom to use aptitude tests to evaluate job candidates.
Most of the leaders of the Democratic Party, which then controlled both houses of Congress, condemned the Wards Cove decision as an assault on civil rights. Indeed, the decision served as the primary impetus behind the Democrat-led passage of the Civil Rights Restoration Act (CRRA) of 1991.
The road toward the CRRA began in October 1990, when Congress passed the Civil Rights Act of 1990 whose express purpose was — according to its most passionate supporter, Senator Edward Kennedy — to circumvent the recent series of Supreme Court decisions (most notably Wards Cove) that had weakened affirmative action. The Act was intended to reinstate the prohibition against job standards that were anything above the minimum and — in contradiction to Wards Cove — again rendered employers guilty-until-proven-innocent if their work forces did not mirror the demographics of the surrounding communities. The Act also provided for restitution in cases of job discrimination, and for massive punitive damages — even against employers whose workforces’ racial imbalance had nothing whatsoever to do with racism or discrimination.
The Civil Rights Act of 1990 was vetoed by President George H.W. Bush and fell one vote short of a Senate override. A virtually identical bill (the Civil Rights Restoration Act of 1991 ) was introduced the following year, and this time President Bush signed it into law. Like its failed precursor of the previous year, the CRRA overturned Wards Cove and largely restored Griggs’ presumption that employers accused of discrimination were guilty-until-proven-innocent. Employers would again be required to prove the business necessity of aptitude tests and other hiring practices whenever such practices had a disparate racial impact; i.e., whenever blacks were less successful than whites in meeting the tests’ standards. As noted earlier, the CRRA also outlawed race-norming.
After race-norming was declared illegal, “banding” became a popular method by which employers sought to bring racial “balance” to their workforces. Banding is a practice where ranges of scores on an exam are lumped together into groups or “bands” as a means of concealing differences in performance. All the scores within any particular band (or range of scores) are considered equivalent. As author Faye Crosby explains in her book Affirmative Action is Dead: Long Live Affirmative Action: “[S]cores from 90 to 100 might all be designated ‘excellent,’ and scores from 80 to 89 might all be considered ‘good.’ An evaluator would distinguish between excellent scores and good scores, but all scores within a band would be counted the same. Thus, an A differs from a B, but all A’s are treated as equivalent to one another, and so are all B’s.”
The June 27, 1990 Supreme Court decision in Metro Broadcasting, Inc. v. Federal Communications Commission upheld the use of preferences for minorities seeking broadcast licenses — on grounds that racial diversity constituted an overall benefit for the industry. At issue was the constitutionality of two minority-preference policies which had been adopted by the Federal Communications Commission (FCC). As a Cornell University Law School publication explained at the time, “First, the FCC awards an enhancement for minority ownership and participation in management … Second, the FCC’s so-called ‘distress sale’ policy allows a radio or television broadcaster whose qualifications to hold a license have come into question to transfer that license before the FCC resolves the matter in a noncomparative hearing, but only if the transferee is a minority enterprise that meets certain requirements.”
The Supreme Court ruling stated:
“The FCC policies do not violate equal protection, since they bear the imprimatur of longstanding congressional support and direction and are substantially related to the achievement of the important governmental objective of broadcast diversity. … Benign race-conscious measures mandated by Congress — even if those measures are not ‘remedial’ in the sense of being designed to compensate victims of past governmental or societal discrimination — are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to the achievement of those objectives. … Safeguarding the public’s right to receive a diversity of views and information over the airwaves is … an integral component of the FCC’s mission, serves important First Amendment values, and is, at the very least, an important governmental objective that is a sufficient basis for the policies in question.”
On June 26, 1992, the Supreme Court ruled — in United States v. Fordice — that the adoption of race-neutral policies alone does not fulfill a state’s (in this case, Mississippi’s) obligation to disestablish a prior de jure segregated university system. The Court decision stated:
“If the State perpetuates policies and practices traceable to its prior de jure dual system that continue to have segregative effects — whether by influencing student enrollment decisions or by fostering segregation in other facets of the university system — and such policies are without sound educational justification and can be practicably eliminated, the policies violate the Clause, even though the State has abolished the legal requirement that the races be educated separately and has established racially neutral policies not animated by a discriminatory purpose.”
Specifically, the Court found fault with “the State’s current admissions policy requiring higher minimum composite scores on the American College Testing Program (ACT) for the five historically white institutions than for the three historically black universities.” This policy, said the Court, was “constitutionally suspect, because it was originally enacted in 1963 by three of the white universities to discriminate against black students, who, at the time, had an average ACT score well below the required minimum.” Added the Court: “The policy also has present discriminatory effects, since a much higher percentage of white than of black high-school seniors recently scored at or above the minimum necessary to enter a white university. The segregative effect of this standard is especially striking …”
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.”
The next landmark event in the history of affirmative action was a March 18, 1996 ruling by the Fifth Circuit Court of Appeals in the case of Hopwood v. University of Texas Law School. This case centered around a law student named Cheryl Hopwood, who in 1992 applied for admission to the University of Texas Law School after graduating from California State University at Sacramento with a 3.80 GPA and scoring very well on her Law School Admissions Test (LSAT). Yet because she was white, she was denied admission to Texas Law.
Texas Law School’s customary practice was to set aside 15 percent of its seats for blacks and Mexican Americans, who were accepted under much lower standards than all other students. Not only were these preferred applicants given practically automatic admission, but most were awarded scholarships — even in cases where there was no financial need. Every black applicant with credentials similar to Hopwood’s received a $7,000 scholarship and free tuition. University officials acknowledged that had Hopwood been black, she would have “in all probability” been admitted. In the year she applied, Texas Law School rejected 668 white applicants before rejecting a single black. Among candidates who scored between 189 and 192 in the school’s academic rating system, 89 percent of Mexican Americans were admitted, as were 100 percent of blacks. Of white applicants with equivalent credentials, only 6 percent were admitted.
Along with Miss Hopwood, three other white students who were also denied admission filed suit against Texas Law, claiming “reverse discrimination.” In August 1994 a federal judge ruled that although the school’s policies were technically unconstitutional, it did not have to admit the four plaintiffs. The school’s only violation, said the judge, was its use of separate admissions committees to evaluate the applications of white and minority students — merely a “procedural flaw.” While the university would thereafter be required to utilize just one admissions committee, it would not be prevented from accepting minority students under lower standards than whites. The President of the University of Texas reacted happily to the court decision, saying: “It’s a real victory for affirmative action policies and universities because it concludes that they are necessary, that they are constitutionally required, and that they are proper.”
This 1994 verdict was overturned nineteen months later (on March 18, 1996), when the U.S. Court of Appeals for the Fifth Circuit ruled that Texas Law’s use of race as a factor in admissions was unconstitutional. This ruling contradicted the 1978 Bakke decision, which had rejected racial quotas but maintained that race could serve as a “plus” factor in admissions. Hopwood also rejected Bakke’s assertion that a diverse student body was essential to the development of a healthy educational environment. The Supreme Court allowed this Hopwood ruling to stand, though the ruling applied only to schools in Texas, Mississippi, and Louisiana — the three states covered by the Fifth Circuit.
1996 was also the year when a monumentally important ballot initiative called “Proposition 209“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 November 27, 1996, U.S. District Court Judge Thelton Henderson blocked the enforcement of Prop 209. His ruling was subsequently overturned by a three-judge panel of the 9th Circuit Court of Appeals, and Prop 209 finally went into effect on November 3, 1997, a full year after California’s electorate had voted in favor of it.
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. Initiative 200 declared: “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.” Like Proposition 209, whose language was identical, Initiative 200 was the very antithesis of discrimination.
On February 22, 2000, the Florida legislature approved the education component of Governor Jeb Bush’s “One Florida” initiative, which sought to end affirmative action in that state. The initiative called for the elimination of race and ethnicity as factors in university admissions. To counteract whatever effect such a move might have in reducing black college enrollments, the plan also called for: the creation of a “Talented 20” program that would “guarantee state university admission to the top 20 percent of students in every Florida high school senior class”; funding to make the Preliminary Scholastic Achievement Test available to all Florida tenth-graders so that they would be better prepared to take the Scholastic Achievement Test in eleventh grade; “increased availability of Advanced Placement courses in low-performing schools”; and “a new partnership with the College Board to improve college preparation for students at low-performing high schools.” The state-contracting component of Governor Bush’s “One Florida” initiative called for the elimination of racial set-asides and racial price preferences; a reduction of the red tape in the minority certification process (in an effort to encourage more minority businesses to become certified); and the enhancement of minority business development through financial and technical assistance programs.
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, wrote 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 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.
In June 2007 the Supreme Court ruled (in the case of Parents Involved in Community Schools v. Seattle School District No. 1) that public school systems may not achieve or preserve racial integration through measures that take explicit account of students’ racial backgrounds. Specifically, the Court’s split decision invalidated programs in Seattle and Louisville (Kentucky) that sought to maintain “diversity” in local schools by factoring race into decisions about which students could be admitted to any particular school, or which students could be allowed to transfer from one school to another. Both the Seattle and Louisville programs were representative of similar plans in hundreds of other school districts nationwide. Under these programs, parents were not free to send their children to the schools of their choice.
The political Left repudiated the Court’s decision:
Many critics of the Court’s decision contended that it had undone the landmark Brown v. Board of Education ruling of 1954:
These criticisms, however, were gross mischaracterizations of the Brown decision, which addressed the issue of mandatory racial segregation in America’s public schools.
But leftists — as evidenced by their condemnation of the June 2007 decision — were now seeking to “turn back the clock” in their own way, to a time when assigning students to schools on the basis of race was common practice. The modern-day leftist approach merely substitutes present-day discrimination against whites for past discrimination against blacks, as a “compensatory” measure. The philosophical premise underlying this approach is consistent with that of Thurgood Marshall, who, early in his tenure as a Supreme Court Justice, told fellow Justice William O. Douglas in a conversation about the legitimacy of racial preferences: “You [white] guys have been practicing discrimination for years. Now it’s our [blacks’] turn.” That was the same Thurgood Marshall, who, as NAACP Chief Counsel in 1954, had written in a brief for the Brown case: “Distinctions by race are so evil, so arbitrary and invidious that a state, bound to defend the equal protection of the laws must not invoke them in any public sphere.”
In 2008, a federal judge in Detroit upheld Michigan’s MCRI, saying it was race-neutral.
On June 29, 2009, the Supreme Court handed down an important 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 2006 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. As The New York Times explained: “The appeals court majority said the problem with the law was that it restructured the state’s political process by making it harder for disfavored minorities to press for change.” 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 could 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.”
Federal Affirmative Action Law: A Brief History
By The Congressional Research Service
September 13, 2005
Timeline of Affirmative Action Milestones