Affirmative action has emerged as a controversial issue in American political and constitutional discourse. The phrase, which covers a range of meanings, encompasses programs designed to help women and particularly African Americans and other historically disadvantaged minorities.
Affirmative action only became a national preoccupation after the Supreme Court and Congress first took steps in the 1950s and 1960s to outlaw de jure discrimination. Although the Wagner Act of 1935 used the term as a remedy for unfair labor practices, President John F. Kennedy’s Executive Order 10925 introduced it into civil rights discourse by directing government contractors to take ‘‘affirmative action’’ to employ persons without regard to ‘‘race, creed, color or national origin.’’ This meaning of the concept, which looks to recruitment to expand applicant pools, has proved relatively uncontroversial. Yet, President Lyndon B. Johnson in his June 1965 speech at Howard University implied that more might be required. A second familiar application of affirmative action involves race-conscious decision-making that gives some degree of preference to disadvantaged minorities in college admissions, employment, or government contracting.
This latter use of the concept has proved controversial. Proponents of race-conscious programs argue that they are appropriate vehicles to remedy past discrimination against certain historically disadvantaged minorities and to create opportunity for members of those groups to succeed in America. Some, like John Hart Ely, argued that racial classifications that a white majority used to benefit minorities were of an entirely different character than those used to oppress minorities. Conversely, critics condemn affirmative action as reverse discrimination that unfairly disadvantages members of other groups who may have been innocent of any personal wrongdoing.
As a constitutional matter the issue turns in part on whether one believes that the equal protection clause of the Fourteenth Amendment forbids government from drawing racial classifications, in which case race-conscious programs are suspect, or whether it simply forbids subjugation of minority groups, in which case a constitutional distinction might be drawn between benevolent and malevolent racial classifications.
In a series of divided decisions, the Supreme Court has held that race-conscious programs must be subject to strict scrutiny that requires that any race classification be narrowly tailored to serve a compelling state interest. As such, it has refused to distinguish between race classifications that benefit or burden a disadvantaged minority. The Court has rejected redressing past societal discrimination as an interest justifying racial classification.
The Supreme Court’s 2003 decisions in Grutter v. Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger, 539 U.S. 244 (2003), addressed race preferences in university admissions. In Grutter, the Court held that diversity is a compelling state interest that justifies considering race as one diversity factor among others in a process that makes an individual judgment in each applicant. The Court deemed racial quotas unconstitutional but allowed schools to use numerical targets to guide decisions. Grutter expanded the diversity rationale by recognizing that it helped create ‘‘one nation indivisible.’’ In Gratz the Court rejected a formulaic approach that awarded a specified number of points to persons based on race.
JOEL K. GOLDSTEIN
References and Further Reading
Cases and Statutes Cited
See also Equal Protection of Law (XIV); Fourteenth Amendment; Johnson, Lyndon Baines