by Sylvia Mendoza
In 1960, a report from the U.S. Labor Department found that Black workers on average made 60% less than white workers. In 1961, President John F. Kennedy took action, issuing Executive Order 10925, which prohibited government contractors from discriminating on the basis of race.
The order stated: “The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, 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, creed, color, or national origin.”
This was the first time the term “affirmative action” was used. The term was coined by Hobart Taylor Jr. who was serving as the Executive Vice Chairman of President Kennedy’s Committee on Equal Employment Opportunities, the precursor to the Equal Employment Opportunity Commission (EEOC). In an interview for the John F. Kennedy Library, Taylor, who was the first African American to head a presidential commission, recalled that when he received the original draft of the executive order, it stated only that employers needed to “take action.” In addition to other changes, Taylor inserted the word “affirmative.”
In a 1977 statement, the U.S. Commission on Civil Rights defined affirmative action as “any measure, beyond simple termination of a discriminatory practice, adopted to correct or compensate for past or present discrimination or to prevent discrimination from recurring in the future.”
In 1965, President Lyndon Johnson issued Executive Order 11246, which strengthened President Kennedy’s order. The Johnson administration amended its order again in 1967 to include sex on the list of attributes that could not be discriminated against.
According to reporting by The Washington Post, affirmative action had its intended consequence—African Americans made wage gains during the decade from 1969 to 1979 and the number of Black people enrolling in higher education increased 83% by 1970.
Affirmative action in employment
Marilynn Schuyler, a former vice president and regional director for the American Association for Access, Equity, and Diversity (AAAED)—formerly known as the American Association for Affirmative Action—says sometimes policies take time to work.
“Some people would say affirmative action is being done to correct years of historic disadvantages, which is partially true, but I would argue we know that women and racial minorities are still facing challenges on a day-to-day basis,” says Schuyler, who has been working in the affirmative action compliance field since 1988.
Affirmative action has been challenged many times in the courts. In 1979, the first case made its way to the U.S. Supreme Court. In United Steel Workers of America, AFL-CIO v. Weber the Court ruled race-conscious affirmative action efforts designed to eliminate a conspicuous racial imbalance in an employer’s workforce resulting from past discrimination are permissible if they are temporary and do not violate the rights of white employees.
In the 1986 case of Local 128 of the Sheet Metal Workers’ International Association v. EEOC, the U.S. Supreme Court upheld a judicially-ordered 29% “minority membership admission goal” for a union that had intentionally discriminated against minorities. The case confirmed that courts may order race-conscious relief to correct and prevent future discrimination. With the 1989 case of City of Richmond v. J.A. Croson Co., the U.S. Supreme Court struck down Richmond’s minority contracting program as unconstitutional. The program gave preference to minority-owned businesses when awarding municipal contracts. In its ruling, the Court stated that a state or local affirmative action program should support a “compelling interest” and be “narrowly tailored.”
Affirmative action in education
By the 1970s the concept of affirmative action was being applied in higher education. The U.S. Supreme Court has weighed in on affirmative action in higher education a number of times, the first being the 1978 landmark case of Bakke v. Regents of the University of California. In that case, an applicant to the school’s medical program, Allan Bakke, claimed the university unfairly rejected his application based on a quota system that set aside a fixed number of seats—16 out of 100—for minority students. In its Bakke decision, the Court upheld the use of race as one factor in choosing among qualified applicants for admission; however, it also ruled that the medical school’s use of a quota system was unlawful.
The U.S. Supreme Court ruled on two important affirmative action in higher education cases in 2003—Gratz v. Bollinger and Grutter v. Bollinger. In Gratz, the Court ruled that the University of Michigan used racial preferences in its undergraduate admissions policy, which relied on a formulaic point system for people in various racial groups. The Court said the system was not “narrowly tailored” and therefore it was struck down. In Grutter, the Court upheld the University of Michigan Law School’s admissions policy citing the “compelling interest and educational benefits that flow from a diverse student body.” In that case, the Court stated that the law school’s use of race in its admissions was “narrowly tailored.”
In 2023, the U.S. Supreme Court heard two separate affirmative action cases—one against Harvard University and one against the University of North Carolina (UNC). Both lawsuits were brought by Students for Fair Admissions (SFFA), a non-profit group that seeks equity in higher education admittance. SFFA asked the Court to prohibit the consideration of race in college admissions.
In its rulings, the Court struck down Harvard’s and UNC’s race-conscious admission policies as unconstitutional. The Court acknowledged permitting race-based college admissions programs in Bakke, as well as Grutter, but noted those initiatives were allowed under narrow restrictions. Neither Harvard’s nor UNC’s admissions programs operate under such narrow restrictions, the Court ruled. And while both schools use race-based evaluations to achieve “commendable” goals—idea exchange and leadership training, among others—those goals are too vague to truly measure, Chief Justice John G. Roberts Jr. wrote in the Court’s majority opinion.
“Many universities for too long…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. Our constitutional history does not tolerate that choice,” Chief Justice Roberts wrote.
The Court determined that Harvard and UNC use race in a negative manner for admission purposes through stereotyping and deliberately avoiding minority underrepresentation. Such efforts, consequently, ensure that “race will always be relevant…and the ultimate goal of eliminating race as a criterion will never be achieved,” the Court ruled.
After the Court’s 2023 affirmative action in higher education ruling, many thought it would affect employment hiring practices as well. Charlotte A. Burrows, chair of the EEOC in the Biden administration, told The New York Times that the decision “does not address employer efforts to foster diverse and inclusive work forces or to engage the talents of all qualified workers, regardless of their background.”
Future of affirmative action
Schuyler believes that affirmative action can still form a vital foundation for equity—connecting education and employment.
“Limited access to education affects economics,” says Schuyler. “If you don’t have a diverse student body, you won’t have diversity in applicants, and you’re not going to get diversity in employment. Equity benefits everybody.”
Today, the concept of “affirmative action” has morphed into diversity equity and inclusion (DEI) programs with the goal of achieving equality and equity in employment. Whether these programs can stand up to constitutional scrutiny may be for the courts to decide.
“The key is whether, whatever the name, there is a racial or gender preference for members of historically discriminated against groups,” says Charles A. Sullivan, a professor at Seton Hall Law School who teaches courses in employment discrimination.
Professor Sullivan says that prior U.S. Supreme Court decisions stipulate that temporary racial and gender preferences are allowed “as long as the rights of white workers are not unduly hindered.”
Some think affirmative action is no longer necessary and society should be “colorblind.” In 1987, then U.S. Supreme Court Justice Thurgood Marshall, the first African American to be appointed to the Court, serving from 1967 to 1991, gave a speech on the topic of affirmative action to a gathering of federal judges. In the speech Justice Marshall spoke of a “colorblind society” but noted that it was an aspirational goal and “given the position from which America began, we still have a very long way to go.”
“What recent statements in opposition to affirmative action do not consider, in my judgment, is the fundamental importance of eradicating the consequences of discrimination which are so visible throughout our society, and the basic injustice which is done by imposing all the costs of those lingering consequences upon those who have traditionally been the victims,” he said.
Justice Marshall ended his speech by saying, “The goal of a true democracy such as ours, explained simply, is that any baby born in these United States, even if he is born to the blackest, most illiterate, most unprivileged Negro in Mississippi, is, merely by being born and drawing his first breath in this democracy, endowed with the exact same rights as a child born to a Rockefeller. Of course, it’s not true. Of course, it never will be true. But I challenge anybody to tell me that it isn’t the type of goal we should try to get to as fast as we can.”
Discussion Questions
- Is it reasonable to use race and gender to improve diversity in employment and education? Explain your answer.
- With challenges to affirmative action policies on the rise, what other ways do you think an employer or educational institution can achieve the goal of a diverse work force or student body?
- In 1987, Justice Thurgood Marshall spoke of a colorblind society as an aspirational goal that we haven’t achieved yet. Do you think a colorblind society is possible or desirable? Explain your answer.
BONUS CONTENT: Before Affirmative Action, There was Reconstruction
While the term “affirmative action” may not have been coined until 1961, the concept was embodied in the Reconstruction Era (1865-1877), the period after the Civil War when Congress passed measures to help the four million people across the nation who were formerly enslaved. One such measure was the establishment in 1865 of the Bureau of Refugees, Freedmen and Abandoned Lands, usually referred to simply as the Freedmen’s Bureau.
Arguing for the need of such a bureau from the floor of the U.S. Senate in 1864, Senator Charles Sumner of Massachusetts said, “The curse of slavery is still upon them. Call it charity or duty, it is sacred as humanity.”
In another speech before Congress, Senator Lyman Trumbull of Illinois implored members of the Southern states to be “as zealous and active in the passage of laws and the inauguration of measures to elevate, develop and improve the Negro as they have hitherto been to enslave and degrade him.”
The arguments against any type of legislation to help the newly freed echo the arguments today against affirmative action, which is that any legislation or program that only benefits Blacks to the exclusion of white people is unconstitutional. For example, Representative Nelson Taylor of New York, arguing against the Freedmen’s Bureau in 1866, said, “This, sir, is what I call class legislation—legislation for a particular class of the Blacks to the exclusion of all whites. Such partial legislation, it seems to me to be in opposition to the plain spirit pervading nearly every section of the Constitution that congressional legislation should in its operation affect all alike.”
Ultimately, the Freedmen’s Bureau was established, but not before a compromise was reached that allowed the legislation to benefit poor white people as well. Still, the Bureau mostly helped formerly enslaved people to establish schools, purchase land, locate family members, legalize marriages and assisted in contracts between the freedmen and employers. One of its greatest successes was the establishment of Historically Black Colleges and Universities (HBCUs), including Howard University and Morehouse College.
A president weighs in
Other Reconstruction legislation, such as the Civil Rights Act of 1866, the first federal civil rights bill in our nation’s history, met with similar objections. The Act stated that the newly freed were entitled to basic rights of citizenship.
When he vetoed the Act, President Andrew Johnson said, “In all our history, in all our experience as a people living under Federal and State law, no such system as that contemplated by the details of this bill has ever before been proposed or adopted. They establish 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.”
In response, Senator Trumbull said, “Never before in the history of this Government have nearly four million people been emancipated from the most abject and degrading slavery ever imposed upon human beings…Can we not provide for those among us who have been held in bondage all their lives, who have never been permitted to earn one dollar for themselves…”
Eventually, Congress passed the Civil Rights Act of 1866, as well as other Reconstruction Era legislation, over President Johnson’s veto. —Jodi L. Miller
Glossary Words
majority opinion — a statement written by a judge or justice that reflects the opinion reached by the majority of his or her colleagues.
minority—a non-dominant race within a group.
upheld — supported; kept the same.
veto—to refuse approval or passage of a bill that has been approved by a legislative body. The executive branch of government has the power to veto, but that power may be overridden with enough support.
This article originally appeared in Respect’s Special Issue: Challenging Racism from Past to Present.