Legal History of Affirmative Action (1960-2011)
Executive Order 10925 is the first federal action to make a reference to affirmative action. With the March 6, 1961 order, President John F. Kennedy created the Committee on Equal Employment Opportunity to ensure that projects funded with federal funds “take affirmative action” to certify that all employees are treated without regard to their race, color, or national origin.
In 1964, President Lyndon B. Johnson signed the Civil Rights Act of 1964 into law. This law prohibited discriminationbased on race or gender in all public places. It also established the Commission on Equal Employment Opportunity to help prevent discrimination in the workplace.
On September 24, 1965, President Lyndon B. Johnson issued Executive Order 11246 to require government contractors to take “affirmative action” to ensure that minorities are treated equally in the hiring and employment process. The order was amended on October 13, 1967 to include a prohibition against discrimination based on gender.
In 1969, President Richard Nixon issued the Philadelphia Order, which implemented fair labor practices in the Philadelphia construction industry and required government contractors in the industry to use affirmative action in hiring minority workers. The plan was a test case designed to counteract overt racism in the industry. The success of the plan led to it being replicated around the country in the decade after it.
In 1970, President Richard Nixon issued Order No. 4, which ordered all contractors doing business with the federal government (regardless of industry) to correct the “underutilization” of minority workers in the workforce. This order was revised in 1971 to include women.
Title IX of the Education Amendments Act was passed in 1972 and prohibits discrimination against women and girls in federally funded education programs. Title IX is most well known for creating more opportunities for women in athletics.
In 1973, the Nixon Administration issued a memorandum outlining goals and timetables for state and local governments to implement new employment practices. It also distinguishes between appropriate goals and impermissible quotas.
In 1978, the Supreme Court of the United States rules in Regents of the University of California v. Bakke that race cannot be the only factor considered in a school admissions process.
In 1980, the Supreme Court decided that “modest” quotas were constitutional in Fullilove v. Klutznick. The case involved a congressional mandate that required 10 percent of federal funds going toward public works to be spent in minority businesses. The Court ruled that Congress had the power to remedy discrimination and did not have to do it “in a wholly ‘color-blind’ fashion.” This ruling was later overruled in 1995 in Adarand Constructors, Inc. v. Peña.
In 1983, President Ronald Reagan issued Executive Order 12432, which directed many federal agencies to develop a President Ronald Reagan Minority Business Enterprise (“MBE”) development plan. The development plans required agencies to encourage government contractors to use minority businesses and to submit reports outlining their progress on an annual basis.
In 1989, the Supreme Court in Richmond v. J.A. Croson Co. ruled that set-aside programs, which give preference to minority-owned businesses, are unconstitutional unless specific industry-wide discrimination can be proven and the only purpose of the programs is to remedy the past effects of that discrimination.
In 1995, President Clinton reviewed all federal affirmative action guidelines by federal agencies and declared his support for them by saying “mend it, don’t end it.” In the same year, the California Board of Regents votes to end affirmative action at the University of California.
In 1996, Californians amended their state constitution to prohibit government institutions in that state from considering race, sex, or ethnicity in their hiring decisions. This effectively ends affirmative action in public employment in California.
In 1997, the Texas legislature passed the Ten Percent Plan, which grants the top ten percent of all high school graduates guaranteed admission to any one of the public universities in Texas. In the same year, the IRS ends affirmative action hiring.
In 1998, the University of California – Berkeley experiences a 61 percent drop in black, Latino, and Native American admissions as a result of a ban on the use of affirmative action at the University of California. The University of California – Los Angeles experiences a 36 percent decline in the same racial categories.
In 2000, the Florida legislature passed the “One Florida” Plan, which banned affirmative action there. The same plan also guaranteed the top twenty percent of Florida high school graduates admission to the University of Florida.
The Department of Labor starts requiring federal contractors to report hiring, firing, promotions, and compensation by minority status and gender in an effort to begin tracking discrimination and promote more equal pay.
In 2001, California implements a plan granting the top 12.5 percent of high school graduates admission to the University of California public school system.
In 2003, the Supreme Court issues rulings in two major affirmative action cases. In Gratz v. Bollinger, the Supreme Court ruled that the school could not assign points to a person applying to a university solely on the basis of their race. The decision to admit a student has to be on the basis of what the student can contribute to the school environment. Nevertheless, in Grutter v. Bollinger, the Supreme Court ruled that race could be considered as one of many factors in the admission process.
In 2006, a ballot initiative in Michigan passed into law and barred state and local agencies from implementing affirmative action policies that would grant preferences to people on the basis of race, gender, ethnicity, or national origin. A three judge panel of the Court of Appeals for the Sixth Circuitoverturned the law on July 1, 2011. That decision was upheld by an en banc panel in late 2012. The ruling, however, is being appealed, which means the law is still in effect until the appeals process is over.
In a huge blow to affirmative action, the Supreme Court ruled 5-4 in Parents v. Seattle and Meredith v. Jefferson that school desegregation programs designed to maintain diversity in public schools despite the prevalence of racially segregated neighborhoods are unconstitutional.
The term “white guilt” refers to the idea that some white people experience guilt over the effects of racism in the past and the present. The term is often used to marginalize white allies and to dismiss difficult conversations between white people about the negative effects of racism. Usually the person using the term is trying to avoid the original focus of the conversation by reframing the discussion to be about the ally’s supposed guilt about being white.
The term “color-blind” refers to the idea that race should be actively ignored in all aspects of society because we live in a “post-racial” society.
Color-blind advocates are responsible for the success of anti-affirmative action initiatives that prohibit consideration of race in the public school admissions process. These advocates have also been successful at prohibiting preferential treatment for minorities applying for government jobs at the state and local level in California, Florida, Michigan, and Texas.
While overt racism may arguably be less of a problem today, the biggest problem with color-blindness is that it allows people to ignore more subtle systems of privilege that benefit the some at the expense of others. Examples of privilege are whiteness, maleness, heterosexuality, and financial security. Colorblindness allows people of privilege to shut down any effective discussion of racism and discrimination without having to acknowledge how privilege negatively affects minorities and women. It forces minorities to remain silent about the discrimination they experience. Color-blindness is essentially just another layer of harmful privilege that needs to go.