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Affirmative Action
Affirmative action means taking positive steps to improve the material status of the less
advantaged in society, usually through the provision of educational or economic benefits.
In the United States, affirmative action usually takes place through the provision of
government or private benefits in education, employment, or contracting. Affirmative
action is controversial, particularly when the beneficiaries are women or people of color.
Affirmative action can take many forms—ranging from rigid quotas to targeted outreach
meant to encourage minorities to apply—but all have in common the effort to increase
the number of minorities in educational institutions, in the workplace, or in receiving
contracts. Affirmative action programs differ in terms of how much weight they give to
race as a factor in decision making and the extent to which they require results. For
example, rigid quotas or set-asides that mandate that a certain percentage of beneficiaries
be members of designated racial groups are very different from programs that use race as
one factor among many in decision making. Likewise, there is a significant difference
between the government’s setting targets or goals and the government’s mandating that
there be specific results.
Several justifications can be offered for affirmative action. Because, by definition,
affirmative action involves working to assist society’s less-advantaged members, one
reason to promote affirmative action policies is to remedy the effects of past
discrimination. This remedial justification of affirmative action recognizes that wrongs
have been committed in the past and acknowledges a moral obligation to set things right.
Opponents of affirmative action do not contest the moral obligation to remediate past
harm. Their objection to remedial policies is frequently centered on the claim that
specific affirmative action policies will not help those who have in fact been harmed, but
will sweep too broadly and provide benefits to those who do not deserve them.
Sometimes opponents of affirmative action argue that the harm to be remediated did not
occur, or if it did occur—as in the case of racial discrimination in the United States—the
harm has dissipated so that remedial measures are no longer necessary.
Another important justification for affirmative action is the so-called diversity rationale.
Advocates for the diversity rationale argue that society as a whole benefits when
affirmative action is used to maintain diverse schools, workplaces, and businesses.
According to this argument, people from different backgrounds, cultures, and genders
bring complementary skills that collectively enrich the places where they work and learn.
Some affirmative action opponents reject the diversity argument outright. They claim
there is no inherent social benefit to diverse work-places or schools. Others accept the
assertion that diversity is a social benefit, but express doubt over whether racial or gender
characteristics provide a meaningful basis on which to assess diversity’s social benefit.
This latter claim is related to what is arguably the most important objection to affirmative
action. Opponents of affirmative action argue that it is wrong to allocate social benefits
on the basis of immutable characteristics, such as race or gender. They claim that
affirmative action is itself a form of racial/gender discrimination that discriminates
against white males, contrary to historic forms of discrimination that were targeted
against women and people of color. Thus the charge is often made that affirmative action
is in fact “reverse discrimination.” Supporters of affirmative action argue that the claim
that affirmative action is discriminatory is overly formalistic. Although admitting that
affirmative action does discriminate in a technical sense, supporters claim affirmative
action is morally justified because its goal is not to harm the white majority, but to
provide social justice for those who have been deprived of opportunity in the past.
The concept of affirmative action can be traced to efforts after the Civil War to remedy
the devastating effects of slavery. Government efforts, such as the creation of the
Freeman’s Bureau, unquestionably were forms of affirmative action in that they provided
benefits to racial minorities. The term affirmative action apparently was first used in the
National Labor Relations Act (29 U.S.C. §§151–169), adopted in 1935. The context was
not race, but rather the affirmative duty of employers to remedy discrimination against
union members and union organizers. Employers found to have engaged in such
discrimination were required to remedy this by taking steps to ensure that the employers
were in the same position in which they would have been had there been no
The term apparently was first used in the race context by President John F. Kennedy. In
1961, three years prior to the enactment of the first major post-Reconstruction civil rights
law, President Kennedy issued an executive order preventing race discrimination by
federal agencies. Executive Order 10,925, promulgated in 1961, mandated “affirmative
action to ensure that the applicants are employed, and that employees are treated during
employment without regard to race, color, creed, or national origin.” President Lyndon
Johnson extended this policy, though without using the phase affirmative action, when he
issued Executive Order 11,246, demanding that all executive departments and agencies
“shall establish and maintain a positive program of equal employment opportunity.”
The 1964 Civil Rights Act (42 U.S.C. §2000[e]) implemented this prohibition of race
discrimination by statute. Title II of the 1964 act prohibited places of public
accommodation, such as restaurants or hotels, from discriminating based on race. Title
VII prohibited employers from discriminating on the basis of race, gender, or religion.
The act did not speak directly to affirmative action, but it did prohibit discrimination and
open the door to claims that affirmative action was essential to meet the statutory
prohibition against discrimination. It was quickly realized that prohibiting discrimination
is not enough to achieve equality. Positive steps toward remedying the legacy of
discrimination and enhancing diversity are essential. Thus affirmative action programs of
all sorts began to proliferate and flourish in the 1970s.
U.S. courts have addressed the question of whether the use of affirmative action to help a
disadvantaged group is as objectionable as the use of race or gender to harm or subjugate
socially disfavored groups. Dominated since the 1980s by conservative judges appointed
by Presidents Ronald Reagan and, later, George H. W. Bush, the courts have concluded
that “any” use of affirmative action is a form of racial discrimination. In the courts,
invidious racial discrimination must meet strict scrutiny ; that is, it must be necessary to
achieve a compelling government purpose. Strict scrutiny is a very rigorous level of
judicial review that is rarely met. Indeed, Stanford law professor Gerald Gunther once
famously claimed that strict scrutiny was “strict in theory, but fatal in fact.” In Adarand
Constructors, Inc. v. Pena , in 1995, the Supreme Court said: “All racial classifications,
imposed by whatever federal, state, or local governmental actor, must be analyzed by a
reviewing court under strict scrutiny.”
Those who are opposed to affirmative action argue that the Constitution requires that the
government treat each person as an individual without regard to his or her race; strict
scrutiny is used to ensure that this occurs. Justice Clarence Thomas, in Adarand ,
espoused this view: “In my mind, government-sponsored racial discrimination based on
benign prejudice is just as noxious as discrimination inspired by malicious prejudice. In
each instance, it is racial discrimination, plain and simple.” Moreover, supporters of strict
scrutiny for affirmative action argue that all racial classifications stigmatize and breed
racial hostility, and therefore all should be subjected to strict scrutiny. Justice Sandra Day
O’Connor stated: “Classifications based in race carry a danger of stigmatic harm. Unless
they are strictly reserved for remedial settings, they may in fact promote notions of racial
inferiority and lead to politics of racial hostility.”
On the other side of the debate, supporters of affirmative action argue that there is a
significant difference between the government’s use of racial classifications to benefit
minorities and the government’s use of racial classifications to disadvantage minorities.
There is a long history of racism and discrimination against minorities, but no similar
history of persecution of whites. Those in favor of affirmative action point to the
tremendous continuing disparities between blacks and whites in areas such as education,
employment, and public contracting as necessitating remedial action.
Supporters also argue that there is a major difference between a majority discriminating
against a minority and the majority discriminating against itself. John Hart Ely explains
in a 1974 article:
When the group that controls the decision making process classifies so as to advantage a
minority and disadvantage itself, the reasons for being unusually suspicious, and
consequently, employing a stringent brand of review are lacking. A White majority is
unlikely to disadvantage itself for reasons of racial prejudice; nor is it likely to be
tempted either to underestimate the needs and deserts of Whites relative to those of
others, or to overestimate the cost of devising an alternative classification that would
extend to certain Whites the disadvantages generally extended to Blacks.
In the Rehnquist court of the 1990s the Supreme Court was split, five to four, between
these two views. The majority—Chief Justice William Rehnquist, and Justices O’Connor,
Antonin Scalia, Anthony Kennedy, and Thomas—adopted strict scrutiny in evaluating
racial classifications benefiting minorities. The dissenters—Justices John Paul Stevens,
David Souter, Stephen Breyer, and Ruth Bader Ginsburg—would use intermediate
scrutiny, a less stringent standard of review.
Affirmative action has been tremendously divisive. Opponents of affirmative action
embrace the noble-sounding rhetoric of color-blindness and maintain that it is wrong for
a person to lose out on something valuable solely because of his or her race. Supporters
of affirmative action point out that it is designed to remedy a long history of
discrimination and ensure racial equality in the long term.
One manifestation of the political and social debate is the initiatives that have been
adopted across the country limiting affirmative action. In 1996 California voters passed
Proposition 209, the so-called California Civil Rights Initiative. The initiative amended
the state constitution to bar discrimination or preferences on the basis of race in
government contracting, education, or employment. A similar initiative was adopted
almost simultaneously in Washington state. In November 2006, Michigan voters passed
Proposition 2, which was almost identical to California Proposition 209 in banning
discrimination or preference based on race.
These initiatives reflect the public’s disapproval of affirmative action. The rhetoric that
the government should be color-blind is appealing and allows for people to limit (or
eliminate) affirmative action while feeling noble. On the other hand, those who believe
that affirmative action is essential to remedy past discrimination and achieve diversity
have had a hard time overcoming the impression that such programs are reverse
Affirmative action remains enormously controversial, and political and legal battles over
the issue are sure to continue. In the courts, challenges to affirmative action programs
may gain additional momentum with a change in the composition of the Supreme Court.
With the departure of Justice O’Connor from the High Court, opponents of affirmative
action are sure to look for test cases to bring the issue back for reconsideration. The
Supreme Court has limited, but not ended, affirmative action as reflected in the Grutter
decision. The survival of government affirmative action programs is a topic likely to be
considered again in the years ahead.