Background on Affirmative Action

Background on Affirmative Action

In its tumultuous 45-year history, affirmative action has been both praised and denounced as an answer to racial inequality. The term "affirmative action" was first introduced by President Kennedy in 1961 as a method of redressing discrimination that had persisted in spite of civil rights laws and constitutional guarantees. It was developed and enforced for the first time by President Johnson, who said, “This is the next and more profound stage of the battle for civil rights. We seek… not just equality as a right and a theory, but equality as a fact and as a result."

A Temporary Measure to Level the Playing Field

Focusing on education and jobs, affirmative action policies required that active measures be taken to ensure that blacks and other minorities enjoyed the same opportunities for promotions, salary increases, career advancement, school admissions, scholarships, and financial aid that had been the nearly exclusive province of whites. From the outset, affirmative action was envisioned as a temporary remedy that would end once there was a "level playing field" for all Americans.

Reverse Discrimination

By the late '70s, reverse discrimination became an issue, exemplified by the famous Bakke case in 1978. Allan Bakke, a white male, had been rejected two years in a row by the University of California Medical School at Davis that had accepted minority applicants with lower test and GPA scores. The school had a separate admissions policy for minorities and reserved 16 out of 100 places for minority students.

After being rejected for the second time, Bakke filed suit in the Superior Court of California claiming that the school had discriminated against him on the basis of his race, violating his rights under the Equal Protection Clause of the 14th Amendment, the California Constitution, and Title VI of the Civil Rights Act of 1964. As a result, the Supreme Court outlawed inflexible quota systems in affirmative action programs, which in this case had unfairly discriminated against a white applicant. In the same ruling, however, the Court upheld the constitutionality of affirmative action programs giving equal access to minorities.

The Backlash

Fueled by conservatives, a backlash against affirmative action began to mount. To conservatives, the system was a zero-sum game that opened the door for jobs, promotions, or education to minorities while it shut the door on whites. In a country that prized the values of self-reliance and pulling oneself up by one's bootstraps, conservatives believed that unqualified minorities were getting a free ride on the American system. "Preferential treatment" and "quotas" became expressions of contempt. Even more controversial was the accusation that some minorities enjoyed playing the role of professional victim. Why could some minorities who had also experienced terrible adversity and racism - Jews and Asians, in particular - manage to make the American way work for them without government handouts?

The Liberal Argument

Liberals countered that "the land of opportunity" was a very different place for European immigrants than it was for those forced here in the chains of slavery. As historian Roger Wilkins pointed out, "blacks have a 375-year history on this continent: 245 involving slavery, 100 involving legalized discrimination, and only 30 involving anything else."

Considering that Jim Crow laws and lynching existed well into the '60s, and that countless subtler forms of racism in housing, employment, and education persisted well beyond the Civil Rights Movement, conservatives impatient for blacks to "get over" the legacy of slavery needed to realize that slavery was just the beginning of racism in America. Liberals also pointed out that another popular conservative argument - that because of affirmative action, minorities were threatening the jobs of whites - contradicted the reality that white men were still the undisputed "rulers of the roost" when it came to salaries, positions, and prestige.

The Issue Turns Gray

The debate about affirmative action has also grown more murky in recent years. Many liberals, for example, can understand the injustice of affirmative action in a case like Wygant (1986) where black employees kept their jobs while white employees with seniority were laid off. And many conservatives would not be able to come up with a better alternative to the imposition of a strict quota system in Paradise (1987) in which the defiantly racist Alabama Department of Public Safety refused to promote any black above entry level even after a full 12 years of court orders demanded they did.

The Supreme Court Remains Divided

The Supreme Court justices have been divided in their opinions in these cases, not only because of opposing political ideologies but also because the issue is so complex. The Court has approached the cases in a piecemeal fashion, focusing on narrow aspects of policy rather than grappling with the real issue. Even in Bakke - the closest thing to a definitive affirmative action case - the Court was split five to four, and the judges' various opinions were far more distinct than most reports of the case indicate.

Landmark Ruling Supports Affirmative Action

In a landmark 2003 case involving the University of Michigan's affirmative action policies, the Supreme Court decisively upheld the right of affirmative action in higher education. Two cases, first tried in federal courts in 2000 and 2001, were involved: the University of Michigan's undergraduate program (Gratz v. Bollinger) and its law school (Grutter v. Bollinger). The Supreme Court upheld the University of Michigan Law School's policy, ruling that race can be one of many factors considered by colleges when selecting their students because there is a compelling interest to create diversity in an education setting. The Supreme Court, however, ruled that the more formulaic approach of the University of Michigan's undergraduate admissions program, which uses a point system that rate students and awards additional points to minorities, had to be modified. In the Michigan cases, the Supreme Court ruled that although affirmative action was no longer justified as a way of redressing past oppression and injustice, it promoted a "compelling state interest" in diversity at all levels of society.

What It Means Today

Affirmative action programs acknowledge that hundreds of years of discrimination cannot be erased in a few decades and continue to hold women and people of color back. However, it is the bridge between changing the laws and changing the culture. It is an important tool to provide qualified individuals with equal access to educational and professional opportunities they would otherwise have been denied despite their strong qualifications. These policies make certain that all Americans are considered fairly and equally for jobs and educational opportunities.

Discrimination continues to be a problem in America, and disparities in opportunities continue to persist. In fact, a recent study found that black job applicants without a criminal record were no more likely to receive a callback from employers than were white applicants with a felony conviction. In addition, residential segregation, which greatly impacts education and job opportunities, has been found to be as great if not greater than it was at the end of the Jim Crow era in the early 1960s. It is for these reasons that affirmative action policies exist.

Sources: CivilRights.org
Info Please
Welcome to the White House
CRS Report for Congress – Federal Affirmative Action Law: A brief history
Northeastern Observer
Salon.com Feature