Affirmative Action: Part 1

Hi Friends,
Welcome to Issue 55 of this newsletter. Today, June 29, the Supreme Court struck down college affirmative action programs. This week’s topic: Affirmative Action . A conservative supermajority in the Supreme Court upending decades of jurisprudence when they decided that race-conscious admissions programs at Harvard and the University of North Carolina are unconstitutional. This decision has many implications, including the potential to change the way that college admission processes are handled, and the potential to have a ripple effect that impacts the business world and corporate sector. The two cases were brought by Students for Fair Admissions, a group founded by Edward Blum. Blum is not a lawyer. According to a New York Times profile, “he is a one-man legal factory with a growing record of finding plaintiffs who match his causes, winning big victories and trying above all to erase racial preferences from American life”. He has orchestrated more than two dozen lawsuits challenging affirmative action practices and voting rights laws across the country. Rachel Kleinman, senior counsel at the NAACP Legal Defense and Educational Fund, said that Mr. Blum’s opposition to affirmative action was related to “this fear of white people that their privilege is being taken away from them and given to somebody else who they see as less deserving.” At its core, affirmative action is not the practice of giving Black and Latinx students priority during college admission. While people like Edward Blum ignore the historical backdrop of the American experience and reduce establish policies to feelings over facts, today we will learn the truth about what affirmative action really is, how it came to be, and why it has been an important—albeit imperfect—part of the admissions process.

After beginning to research the history and impact of affirmative action, I’ve decided to divide this newsletter into two. Today, we will discuss the history and background of affirmative action. Next time, we will discuss the impact and implications of affirmative action and the most recent Supreme Court decision. Let’s get into it.

Key Words

“Strict Scrutiny” : The Court calls for "strict scrutiny" in determining whether discrimination existed before implementing a federal affirmative action program. "Strict scrutiny" meant that affirmative action programs fulfilled a "compelling governmental interest," and were "narrowly tailored" to fit the particular situation. To pass the strict scrutiny test, a law must be narrowly tailored to serve a compelling government interest. The same test applies whether the racial classification aims to benefit or harm a racial group. Strict scrutiny also applies whether or not race is the only criteria used to classify.

“Race Neutral”: “Race neutral” does not appear in the opinion of the court, written by Chief Justice John Roberts, which states that colleges and universities have “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.” But when Roberts clarifies that students can still refer to their race in admissions essays, explaining challenges they’ve overcome, he and the majority are buying into the idea of race neutrality. Justice Clarence Thomas, who wrote his own concurring opinion, uses the term “race neutral” repeatedly, offering it as an antidote to affirmative action.

Supreme Court Opinion: The term “opinions” refers to several types of writing by the Justices. The most well-known opinions are those released or announced in cases in which the Court has heard oral argument. Each opinion sets out the Court’s judgment and its reasoning and may include the majority or principal opinion as well as any concurring or dissenting opinions.

Executive Order: An executive order is a signed, written, and published directive from the President of the United States that manages operations of the federal government. They are numbered consecutively, so executive orders may be referenced by their assigned number, or their topic.

The Civil Rights Act of 1964: The Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex or national origin. Provisions of this civil rights act forbade discrimination on the basis of sex, as well as, race in hiring, promoting, and firing. The Act prohibited discrimination in public accommodations and federally funded programs. It also strengthened the enforcement of voting rights and the desegregation of schools.

Title VII of the Civil Rights Act: As amended, Title VII protects employees and job applicants from employment discrimination based on race, color, religion, sex and national origin.

Equal Employment Opportunity Commission: The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information. Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered. The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.

Equal Protection Clause: The Equal Protection Clause of the 14th Amendment ensures that all Americans receive equal protection under the Constitution. Both the majority and the minority opinions in Thursday’s ruling cited the clause, using different interpretations. Chief Justice John G. Roberts Jr. wrote that race-based admissions programs “cannot be reconciled with the guarantees of the Equal Protection Clause,” while Sonia Sotomayor wrote in a dissent that the decision “subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education.”

Lets Get Into It

Affirmative action, as a term, came to the fore in 1935 with the Wagner Act, a federal law that gave workers the right to form and join unions. But John F. Kennedy was the first president to link the term specifically with a policy meant to advance racial equality, according to Smithsonian Magazine.

On March 6, 1961 President John F. Kennedy issued Executive Order 10925, which included a provision that government contractors "take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin." The intent of this executive order was to affirm the government's commitment to equal opportunity for all qualified persons, and to take positive action to strengthen efforts to realize true equal opportunity for all. This executive order was superseded by Executive Order 11246 in 1965.

So, where exactly are we in history in 1961 when it comes to the rights of Black Americans?

• The 13th Amendment abolished slavery in 1865, 96 years prior

  • To put this in context, if a Black American lived to be around 100, they would have lived through being a slave and also been alive when President John F. Kennedy issued Executive Order 10925. Most Black Americans at this time would have parents and grandparents who were slaves when President John F. Kennedy issued Executive Order 10925.

• The first “Jim Crow Law” is passed in Tennessee mandating the separation of African Americans from whites on trains in 1870, 91 years prior

• Plessy v. Ferguson established the “separate but equal” doctrine that allows segregation, discrimination and racism to flourish in 1896, 65 years prior

• Jackie Robinson became the first Black American in the twentieth century to play baseball in the major leagues in 1947, 14 years prior

• Brown v. Board of education which desegregated public schools was in 1954, 7 years prior

• Rosa Parks and the Montgomery Bus Boycott took place in 1955, 6 years prior

• The Civil Rights Act, which extended civil, political, and legal rights and protections to Black Americans, including former slaves and their descendants, and put an end segregation in public and private facilities was in 1964, 3 years after

• The Voting Rights Act, which allowed all Americans access to the polls was in 1965, 4 years after

• Martin Luther King Jr was assassinated in 1968, 7 years after

The History of Affirmative Action

• 1961: The first use of the term “affirmative action” specifically with a policy meant to advance racial equality is in Executive Order 10925, as discussed above.

• 1961: The “Plan for Progress” is signed by Vice President Johnson and Courtlandt Gross, the president of Lockheed

  • NAACP labor secretary Herbert Hill filed complaints against the hiring and promoting practices of Lockheed Aircraft Corporation. Lockheed was doing business with the Defense Department on the first billion-dollar contract. Due to taxpayer-funding being 90% of Lockheed's business, along with disproportionate hiring practices, Black workers charged Lockheed with "overt discrimination." Lockheed signed an agreement with Vice President Johnson that pledged an "aggressive seeking out for more qualified minority candidates for technical and skill positions.” Soon, other defense contractors signed similar voluntary agreements. However, most corporations in the south, still ruled by Jim Crow Laws, ignored the recommendations.

• 1964: The Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex or national origin.

  • Note that this same act was used to continue discrimination. The Civil Rights Act of 1964 had limited the type of remedies possible by forbidding any form of discrimination. This was interpreted to include preferential hiring, which was seen as compensatory discrimination. To put it plainly — folks found a way to reason that giving Black workers preferential treatment by hiring them with an emphasis on their race could be considered discriminatory in and of itself.

• 1964: The Equal Employment Opportunity Commission (EEOC) was created by Congress in 1964 to enforce Title VII of the Civil Rights Act of 1964. Title VII of the Civil Rights Act, as amended, protects employees and job applicants from employment discrimination based on race, color, religion, sex and national origin.

• 1965: President Lyndon B. Johnson issued Executive Order 11246, prohibiting employment discrimination based on race, color, religion, and national origin by those organizations receiving federal contracts and subcontracts. This executive order requires federal contractors to take affirmative action to promote the full realization of equal opportunity for women and minorities. The Office of Federal Contract Compliance Programs (OFCCP), under the Department of Labor, monitors this requirement for all federal contractors, including all UC campuses. Compliance with these regulations (for ederal contractors employing more than 50 people and having federal contracts totaling more than $50,000) includes disseminating and enforcing a nondiscrimination policy, establishing a written affirmative action plan and placement goals for women and minorities, and implementing action-oriented programs for accomplishing these goals.

• 1967: President Johnson amended Executive Order 11246 to also include sex.

“The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will 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. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.”

• 1969: The Philadelphia Plan was implemented by Richard Nixon. For the first time, a specific industry was required to articulate a plan for hiring minority workers. The Nixon administration created specific hiring goals in the highly segregated construction industry. The Philadelphia Plan required Philadelphia government contractors in six construction trades to set goals and timetables for the hiring of minority workers or risk losing the valuable contracts. No quotas were set. This left businesses a fair amount of autonomy in determining how to meet the goals. As a result, the Philadelphia Plan withstood a court challenge and growing public hostility to affirmative action.

• 1969: Colleges voluntarily adopted similar policies to combat racial discrimination. In 1969, many elite universities admitted more than twice as many Black students as they had the year before. This change was directly linked to the civil rights movement. With civil rights activists urging schools to admit more Black applicants, colleges responded. Higher education had been almost exclusively white for most of its history, but a growing number of universities were now crafting affirmative action policies in an effort to expand access to higher education.

• 1974: Marco DeFunis Jr. v. Odegaard — Marco DeFunis, a white man, argued that he was denied admission to the University of Washington Law School because the school had prioritized admitting minority students who were less qualified, saying that this violated the Fourteenth Amendment’s equal protection clause. By the time the United States Supreme Court considered the case, DeFunis was already in his last year of law school and the court ruled that the case was moot. Though the court chose not to address the issues within the case, it was the first case heard on affirmative action since the policy was established in the 1960s.

• 1978: Regents of the University of California v. Bakke — Alan Bakke was rejected twice from the medical school at the University of California, Davis. Mr. Bakke, who is white, argued that the school’s affirmative action policy to reserve 16 out of 100 spots for qualified minority students violated the equal protection clause as well as the Civil Rights Act of 1964. The Supreme Court ruled that the racial quota system used by the university did violate the Civil Rights Act and that Mr. Bakke should be admitted. Justice Lewis F. Powell acknowledged in his opinion that a state had legitimate interests in considering the race of applicants, and that a diverse student body could provide compelling educational benefits. The case established the court’s position on affirmative action for decades. A state university had to meet a standard of judicial review known as strict scrutiny: Race could be a narrowly tailored factor in admissions policies. Racial quotas, however, went too far.

• 1980: Fullilove v. Klutznick —While Bakke struck down strict quotas, in Fullilove the Supreme Court ruled that some modest quotas were perfectly constitutional. The Court upheld a federal law requiring that 15% of funds for public works be set aside for qualified minority contractors. The "narrowed focus and limited extent" of the affirmative action program did not violate the equal rights of non-minority contractors, according to the Court—there was no "allocation of federal funds according to inflexible percentages solely based on race or ethnicity."

• 1983: Reagan signed Executive Order 12432. The executive order requires that each federal agency with grant making capabilities establish an Annual Minority Business Development Plan with the stated goal to increase minority business participation. Agencies are expected to establish programs that assist minority business enterprises to procure contracts and manage those contracts awarded. As a stipulation of the executive order, the progress toward these goals is to be annually reported to the Secretary of Commerce. While the Reagan administration opposed discriminatory practices, it did not support the implementation of quotas and goals and did not support Executive Order 11246. Bi-partisan opposition in Congress and other government officials blocked the repeal of Executive Order 11246 but he reduced funding for the Equal Employment Opportunity Commission, arguing that "reverse discrimination" resulted from these policies.

• 1997: Proposition 209 was enacted in California, which is a state ban on all forms of affirmative action: "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." Proposed in 1996, the controversial ban had been delayed in the courts for almost a year before it went into effect. Over the past three decades, 10 states have banned affirmative action in college admissions. And in many cases, voters approved those bans.

• 1998: Washington becomes the second state to abolish state affirmative action measures when it passed "I 200," which is similar to California's Proposition 209.

• 2000: Florida legislature approves education component of Gov. Jeb Bush's "One Florida" initiative, aimed at ending affirmative action in the state.

• 2003: Grutter v. Bollinger — Barbara Grutter, a white woman who was denied admission to the University of Michigan Law School, said that the school had used race as a predominant factor for admitting students. When the case reached the Supreme Court, a 5-4 opinion led by Justice Sandra Day O’Connor upheld the Bakke decision. The Court ruled that each admissions decision is based on multiple factors, and that the school could fairly use race as one of them. The case reaffirmed the court’s position that diversity on campus is a compelling state interest.

• 2003: Gratz v. Bollinger — Though decided on the same day and focused on the same university, the Gratz case and Grutter case had different outcomes. Jennifer Gratz and Patrick Hamacher, both white, were denied admission to the University of Michigan. They argued that a point system in use by the admissions office beginning in 1998 was unconstitutional. Students who were part of an underrepresented minority group automatically received 20 points in a system that required 100 points for admittance, which meant that nearly every applicant of an underrepresented minority group was admitted. In a 6-3 opinion led by Justice William H. Rehnquist, the Supreme Court ruled that the point system did not meet the standards of strict scrutiny established in previous cases. The Grutter and Gratz cases provided a blueprint for how schools could use race as a factor in admissions policies. The Court held that the OUA’s policies were not sufficiently narrowly tailored to meet the strict scrutiny standard. Because the policy did not provide individual consideration, but rather resulted in the admission of nearly every applicant of “underrepresented minority” status, it was not narrowly tailored in the manner required by previous jurisprudence on the issue.

• 2006: Meredith v. Jefferson — Jefferson County Public Schools (JCPS) were integrated by court order until 2000. After its release from the order, JCPS implemented an enrollment plan to maintain substantial racial integration. Students were given a choice of schools, but not all schools could accommodate all applicants. In those cases, student enrollment was decided on the basis of several factors, including place of residence, school capacity, and random chance, as well as race. However, no school was allowed to have an enrollment of black students less than 15% or greater than 50% of its student population. The District Court ruled that the plan was constitutional because the school had a compelling interest in maintaining racial diversity.

• 2006: Parents Involved in Community Schools v. Seattle School District No. 1 — The Seattle School District allowed students to apply to any high school in the District. Since certain schools often became oversubscribed when too many students chose them as their first choice, the District used a system of tiebreakers to decide which students would be admitted to the popular schools. The second most important tiebreaker was a racial factor intended to maintain racial diversity. At a particular school either whites or non-whites could be favored for admission depending on which race would bring the racial balance closer to the goal. A non-profit group, Parents Involved in Community Schools (Parents), sued the District, arguing that the racial tiebreaker violated the Equal Protection Clause of the Fourteenth Amendment as well as the Civil Rights Act of 1964 and Washington state law. A federal District Court dismissed the suit, upholding the tiebreaker. On appeal, a three-judge panel the U.S. Court of Appeals for the Ninth Circuit reversed. By a 5-4 vote, the Court applied a "strict scrutiny" framework and found the District's racial tiebreaker plan unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. This was a major setback for affirmative action.

• 2016: Fisher v. University of Texas (Two Cases) — Abigail Fisher, a white woman who was rejected from the University of Texas, said that the school’s two-part admissions system, which takes race into consideration, is unconstitutional. The university first admits roughly the top 10 percent of every in-state graduating high school class, a policy known as the Top Ten Percent Plan, and then reviews several factors, including race, to fill the remaining spots. Upon a second review of the case by the Supreme Court, a 4-3 opinion led by Justice Anthony M. Kennedy ruled that the university’s policy met the standard of strict scrutiny, meaning this was okay for the school to do.

Affirmative Action in Colleges and Universities

If you’re like me, you’re reading through this timeline and thinking that a lot of these policies seem directly aimed at businesses, while there’s no clear law that might ask a college or university to do something specific in regards to affirmative action. Affirmative action in colleges and universities was not enacted through a specific federal law, but rather through a series of executive orders and court rulings. Executive Order 10925 in 1961 and Executive Order 11246 in 1965 are cited when discussing affrimative action in schooling. The Supreme Court case of Regents of the University of California v. Bakke in 1978 upheld the constitutionality of affirmative action in a university setting. Since then, there have been ongoing debates and legal challenges regarding the implementation of affirmative action in college admissions. The policies and specific requirements for affirmative action have varied across states and institutions, with some implementing more extensive programs than others. However, affirmative action as a concept has been recognized and practiced by many colleges and universities throughout the country. Personally, I’m always surprised by the ways laws work in the United States. From what we hear and see on the news, you would imagine schools were being forced to meet quotas (which is actually unconstitutional) or do something really specific and widespread, but thats completely not the case.

So, what positive impact has affirmative action had on colleges and universities?

Affirmative action has played a crucial role in fostering diversity on college campuses. By considering race or ethnicity as one factor among many in the admissions process, universities have been able to create more inclusive environments that reflect the broader society. It also seeks to address historical and ongoing inequalities by providing equal opportunities for underrepresented groups, such as Black Americans, Latinx Americans, and Indigenous peoples. It acknowledges that systemic barriers and discrimination have limited access to education for certain communities, and aims to level the playing field by considering the broader context in which applicants' achievements and qualifications are evaluated. Affirmative action has also helped mitigate the impact of unconscious biases that can influence the admissions process. Unconscious biases, often shaped by societal stereotypes, can unintentionally favor certain groups while disadvantaging others. By explicitly considering race or ethnicity, universities can counteract these biases and ensure fairer evaluations. Affirmative action also contributes to breaking down stereotypes and reducing isolation on college campuses. It helps create environments where students can engage with diverse peers, challenge stereotypes, and build relationships based on shared experiences and understanding. Affirmative action has been essential tool for advancing diversity and equal opportunity in higher education. Reports have shown that schools that once implemented affirmative action policies experience a massive drop in Black and Latinx students when those policies are changed. Without affirmative action, schools will surely become more white and less diverse.

The most noteworthy and compelling piece of the affirmative action conversation, in my opinion is the concept that affirmative action is an inherently unequal policy alongside the inescapable fact that historic inequalities exist in America. The truth is, there are so many ways in which everyday Americans are afforded certain privileges in education, business, housing, funding, and nearly every facet of life. It is noteworthy that affirmative action is often attacked when these other areas are not. The next newsletter will discuss some of these concepts along with more reactions to the most recent Supreme Court decision. See ya then.

“We are the ones we’ve been waiting for, we are the change we seek” — With love and light, Taylor Rae