In the United States, affirmative action consists of government-mandated, government-approved, and voluntary private programs granting special consideration to groups considered or classified as historically excluded, specifically racial minorities and women. These programs tend to focus on access to education and employment in order to redress the disadvantages associated with past and present discrimination. Another goal of affirmative action policies is to ensure that public institutions, such as universities, hospitals, and police forces, are more representative of the populations they serve.
As of 2024, affirmative action rhetoric has been increasingly replaced by emphasis on diversity, equity, and inclusion. Nine states explicitly ban its use in the employment processNino Monea, " Next on the Chopping Block: The Litigation Campaign against Race-Conscious Policies Beyond Affirmative Action in University Admissions" (SSRN 4440549, 2023).Schwarzschild, Maimon and Heriot, Gail L., Race Preferences, Diversity, and Students for Fair Admissions: A New Day, a New Clarity (January 16, 2024). SMU Law Review, Forthcoming (2024), San Diego Legal Studies Paper No. 24-003. and it was banned in college admissions nationwide by the Supreme Court in Students for Fair Admissions v. Harvard in 2023.
History Summary In 1961, President John F. Kennedy issued Executive Order 10925 which required government contractors to take "affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin."Robert J. Weiss, "Affirmative Action: A Brief History" Journal of intergroup relations (1987), 15#2 p.40-53. Affirmative action then evolved into a complex system of group preferences which would face many legal challenges. Affirmative action included the use of racial quotas until the Supreme Court ruled that quotas were unconstitutional in 1978. Affirmative action currently tends to emphasize not specific quotas but rather "targeted goals" to address past discrimination in a particular institution or in broader society through "good-faith efforts ... to identify, select, and train potentially qualified minorities and women." For example, many higher education institutions have voluntarily adopted policies which seek to increase recruitment of racial minorities. Outreach campaigns, targeted recruitment, employee and management development, and employee support programs are examples of affirmative action in employment. Nine states in the United States have banned race-based affirmative action: California (1996), Washington (1998, rescinded 2022), Florida (1999), Michigan (2006), Nebraska (2008), Arizona (2010), New Hampshire (2012), Oklahoma (2012), and Idaho (2020). Florida's ban was via an executive order and New Hampshire and Idaho's bans were passed by the legislature. The other six bans were approved at the ballot. The 1996 Hopwood v. Texas decision effectively barred affirmative action in the three states within the United States Court of Appeals for the Fifth Circuit—Louisiana, Mississippi, and Texas—until Grutter v. Bollinger abrogated it in 2003.
Affirmative action policies were developed to address long histories of discrimination faced by minorities and women, which reports suggest produced corresponding unfair advantages for whites and males. Pdf. They first emerged from debates over non-discrimination policies in the 1940s and during the civil rights movement. These debates led to federal executive orders requiring non-discrimination in the employment policies of some government agencies and contractors in the 1940s and onward, and to Title VII of the Civil Rights Act of 1964 which prohibited racial discrimination in firms with over 25 employees. The first federal policy of race-conscious affirmative action was the Revised Philadelphia Plan, implemented in 1969, which required certain government contractors to set "goals and timetables" for integrating and diversifying their workforce. Similar policies emerged through a mix of voluntary practices and federal and state policies in employment and education. Affirmative action as a practice was partially upheld by the Supreme Court in Grutter v. Bollinger (2003), while the use of racial quotas for college admissions was ruled unconstitutional in Regents of the University of California v. Bakke (1978). In Students for Fair Admissions v. Harvard (2023), the Supreme Court majority ruled that race-based affirmative action in college admissions violated the Equal Protection Clause of the Fourteenth Amendment, with concurrences highlighting race-based affirmative action's violation of Title VI of the Civil Rights Act.
Affirmative action remains controversial in American politics. Supporters claim that it promotes equality and representation for groups which are socioeconomically disadvantaged or have faced historical discrimination or oppression and counteracts continuing bias and prejudice against women and minorities. Supporters also point to contemporary examples of conscious and unconscious biases, such as the finding that job-seekers with African American sounding names may be less likely to get a callback than those with white-sounding names, as proof that affirmative action is not obsolete. Coversely, opponents argue that these policies constitute racism and/or amount to discrimination against other racial and ethnic groups, such as Asian Americans and White Americans, which entails favoring one group over another based upon racial preference rather than achievement, and many believe that the diversity of current American society suggests that affirmative action policies succeeded and are no longer required. Opponents also argue that it tends to benefit the most privileged within minority groups at the expense of the least fortunate within majority groups, or that when applied to universities it can hinder minority students by placing them in courses too difficult for them.
Origins The policy now called affirmative action was talked about as early as the Reconstruction Era (1863–1877) in which a former slave population lacked the skills and resources for independent living. Pdf. In 1865, General William Tecumseh Sherman proposed dividing the land and goods from Confederates in Georgia and granting those items to freed black slaves. The idea was called the "Forty acres and a mule" policy. The proposal was controversial because it would reverse the policy of peaceful reunion between North and South. Congress never approved. Sherman's military orders were soon revoked by President Andrew Johnson, who was a consistent opponent of any such remedies. For example, when Johnson vetoed the Civil Rights Act of 1866, his stated rationale was that it established "for the security of the colored race safeguards which go infinitely beyond any that the general government has ever provided for the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored and against the white race." He similarly opposed the 14th Amendment's Equal Protection Clause, a provision which Johnson saw as "a wrongful venture in racial favoritism aimed at assisting the undeserving Negro."
Requiring private construction firms to hire Blacks on public housing projects funded by the Public Works Administration (PWA) was an innovative New Deal policy in the 1930s. About 13% of these new hires were Black, but the policy was not publicized and ended by 1941.Robert J. Weiss, "Affirmative Action: A Brief History" Journal of intergroup relations (1987), 15#2 pp.41-42; In the 1950s and 1960s, the discussion of policies to assist classes of individuals reemerged during the Civil Rights Movement. Civil rights guarantees that came through the interpretation of the Equal Protection Clause of the 14th Amendment affirmed the civil rights of people of color. Originally as:
Presidential administrations Roosevelt (1933–1945) The first appearance of the term 'affirmative action' was in the National Labor Relations Act, better known as the Wagner Act, of 1935. Proposed and championed by U.S. Senator Robert F. Wagner, Democrat of New York, the Wagner Act was in line with President Franklin D. Roosevelt's goal of providing economic security to workers and other low-income groups. During this time period it was not uncommon for employers to blacklist or fire employees associated with unions. The Wagner Act allowed workers to unionize without fear of being discriminated against, and empowered a National Labor Relations Board to review potential cases of worker discrimination. In the event of discrimination, employees were to be restored to an appropriate status in the company through 'affirmative action'. While the Wagner Act protected workers and unions it did not protect minorities, who, exempting the Congress of Industrial Organizations, were often barred from union ranks. This original coining of the term therefore has little to do with affirmative action policy as it is seen today, but helped set the stage for all policy meant to compensate or address an individual's unjust treatment.Melvin I. Urofsky, The Affirmative Action Puzzle: A Living History From Reconstruction to Today (2020) p 11.
FDR's New Deal programs often contained equal opportunity clauses stating "no discrimination shall be made on account of race, color or creed". No enforcement was attempted outside the PWA housing projects. FDR's largest contribution to affirmative action, however, lay in his Executive Order 8802 of 1941 which prohibited discrimination in the defense industry or government. The executive order promoted the idea that if taxpayer funds were accepted through a government contract, then all taxpayers should have an equal opportunity to work through the contractor. To enforce this idea, Roosevelt created the Fair Employment Practices Committee (FEPC) with the power to investigate hiring practices by government contractors.
Truman (1945–1953) Following the Sergeant Isaac Woodard incident, President Harry S. Truman, himself a combat veteran of World War I, issued Executive Order 9808 establishing the President's Committee on Civil Rights to examine the violence and recommend appropriate federal legislation. Hearing of the incident, Truman turned to NAACP leader Walter Francis White and declared, "My God! I had no idea it was as terrible as that. We've got to do something." In 1947 the committee published its findings, To Secure These Rights. The book was widely read, influential, and considered utopian for the times: "In our land men are equal, but they are free to be different. From these very differences among our people has come the great human and national strength of America." The report discussed and demonstrated racial discrimination in basic freedoms, education, public facilities, personal safety, and employment opportunities. The committee was disturbed by the state of race relations, and included the evacuation of Americans of Japanese descent during the war "made without a trial or any sort of hearing...Fundamental to our whole system of law is the belief that guilt is personal and not a matter of heredity or association." The recommendations were radical, calling for federal policies and laws to end racial discrimination and bring about equality: "We can tolerate no restrictions upon the individual which depend upon irrelevant factors such as his race, his color, his religion, or the social position to which he is born." To Secure These Rights set the liberal legislative agenda for the next generation that eventually would be signed into law by Lyndon B. Johnson.