Affirmative Action's Origins and Legacies

Summary

The first time the phrase "affirmative action" was used was in a 1961 Executive Order by President John F. Kennedy. This first executive order on affirmative action set off a late 20th century pattern of expanding protections for minorities. Executive Order No. 10925 required federal regulators to take affirmative action to ensure applicants and employees are treated without regard to their race, creed, color, or national origin. The order also established the President's Committee on Equal Employment Opportunity. 

President Lyndon B. Johnson continued to expand affirmative action. In a commencement address to Howard University's 1965 graduating class, Johnson discussed the impact of the Voting Rights and Civil Rights Acts and where this legislation fell short to address systemic racism. President Johnson's Executive Order 11246 specified non-discriminatory hiring, firing, and training practices and affirmative action in federal government employment. This executive order also required federal contractors and subcontractors to expand job opportunities for minorities and was later amended to include women.  

President Richard Nixon continued the expansion of the federal government's affirmative action responsibilities. Executive Order 11478 issued in 1969 continued and increased directives to limit discrimination in the workplace based on sex as well as race. President Nixon also used the term affirmative action in the Rehabilitation Act of 1973 which required federal agencies to submit a plan to the Equal Employment Opportunity Commission for the hiring, placement, and advancement of individuals with disabilities. 

Presidents Jimmy Carter and Ronald Reagan both issued executive orders to continue these affirmative action policies. President Carter issued Executive Order 12138, creating a national policy that required federal agencies to take affirmative action to support women's businesses. Similarly, President Reagan's Executive Order 12432 directed agencies to develop a minority business enterprise development plan. 

The Judicial branch also played a role in expanding affirmative action. The Alabama State Police Force continued to exclusively employ white people into the early 1970s. After Black men tried to get jobs with the police force for several years without success, the NAACP sued on their behalf. The federal district court in Alabama ruled in NAACP v. Allen (1972) that the state had continuously engaged in discrimination in hiring that violated the 14th Amendment. As a part of the decision, the state police were ordered to hire one Black trooper for every white trooper until at least 25% of the force was Black.  

The Supreme Court considered affirmative action in Regents of the University of California v. Bakke (1978). In the mid-1970's the medical school admissions at the University of California-Davis set aside 16 slots out of 100 for minority students. The terms the Court believed should be used to rule on the case varied widely. Four justices believed intermediate scrutiny should be applied for racial classifications, and they would have upheld UC-Davis Medical School's affirmative action program. Four other justices believed affirmative action violated Title VI of the Civil Rights Act. The remaining justice, Justice Powell, wrote the decision of the Court. Powell believed strict scrutiny should apply for all racial classifications. Powell determined that UC-Davis Medical School's admissions process was unconstitutional; however, this ruling allowed for race to continue to be a factor in admissions decisions. In his opinion, Powell pointed toward Harvard's admissions protocol as a way universities could appropriately use race in their admissions decisions.  

The Supreme Court continued to scrutinize the way universities used race in admissions. In 2003, there were two cases from the University of Michigan. Grutter v. Bollinger considered Michigan's law school admissions policy, while Gratz v. Bollinger challenged the undergraduate admissions process. The law school's admissions process was upheld by the Supreme Court, because it looked at the entire file of the applicant and used race as a plus factor but not a defining characteristic. Using race as a plus factor was acceptable as long as admissions considered each application individually. The undergraduate admissions process used a point system where race was 20 points out of the 100 required to get in. The court determined that this system relied too heavily on race.  

More recently, in 2023, the Supreme Court made another important ruling on affirmative action, this time turning away from race as a valid criteria for college admissions decisions. In the decision of Students for Fair Admission v. Harvard, the Court ended affirmative action in university admissions by saying that race could not be a factor.