Conceived in the 1960s as a temporary measure to help blacks overcome centuries of discrimination, affirmative action has become an engrained part of American life. Even so, it remains one of the country’s most divisive issues. Opponents have pointed to Barack Obama’s election as president in 2008 as evidence that special treatment is no longer necessary. Advocates say affirmative action remains an essential tool against persistent racial disparities. The Supreme Court has been the arbiter of the debate.
In August 2017, there were reports that President Donald Trump’s Justice Department was recruiting lawyers from its Civil Rights Division to try to put the brakes on college affirmative action policies that the agency believes discriminate against white applicants. The department said, though, that it was only looking at one complaint filed by a group of Asian-American students. Harvard University and the University of North Carolina at Chapel Hill are being sued on claims that they used racial preferences to unlawfully limit the admission of Asian-Americans. The last time the Supreme Court weighed in on the issue, in June 2016, it upheld an affirmative action policy used by the University of Texas to foster campus diversity. The case involved a white woman rejected from the university who said its policy was unjustified because a program that guaranteed admission to Texans graduating near the top of their high school class had created a sufficient racial mix. Race is often a consideration when U.S. employers are making hiring decisions, governments are awarding contracts or universities are admitting applicants. The goal is to increase the percentage of minorities to more closely resemble the population at large. Some strategies are generally accepted, such as encouraging minorities to apply for positions. More controversial are policies that favor certain groups, usually blacks and Hispanics, at the expense of whites and Asians. Courts have permitted racial preferences for the sake of fostering diversity or as a remedy for specific instances of past discrimination. But the law does impose restrictions, both through federal anti-discrimination statutes and the Constitution’s equal protection clause.
Affirmative action is a child of the civil rights movement. The phrase itself was coined by President John F. Kennedy in a 1961 executive order. At least at first, affirmative action sought to eradicate lingering discrimination that dates from the time of slavery, ensuring that blacks could compete on an equal footing for jobs, government contracts and university slots. A host of legal and moral issues soon arose, in part because efforts to eradicate bias against minorities were hard to distinguish from programs that discriminated in favor of them. The Supreme Court weighed in for the first time in 1978, striking down a University of California medical school policy that set aside 16 seats for minority applicants. The court, however, said schools could consider race on a more limited basis. Subsequent decisions allowed voluntary affirmative-action programs by private employers and upheld a federal set-aside program that benefited minority-owned government contractors. In 2003, the court reaffirmed that universities could consider race in admissions for the purpose of ensuring a diverse student body. In that ruling, Justice Sandra Day O’Connor said she expected preferences would no longer be necessary in 25 years.
Opponents of racial preferences say they run counter to the ideal of a color-blind nation. Among them is Justice Clarence Thomas, the Supreme Court’s only black member, who says minorities are stigmatized by the perception that they aren’t worthy of their achievements. Some policy makers have advocated shifting to race-neutral approaches, such as class-based affirmative action. Proponents say race still matters in American society. They point to statistics that show a drop in minority enrollment at universities that no longer use racial preferences and a lack of diversity in professions like science, technology, engineering and mathematics. Universities say that diversity means a richer learning environment and race-conscious admissions are an indispensable tool. Companies say affirmative action helps them develop products and services for a wide set of customers. And in the U.S. military, where 31 percent of active-duty forces are non-white, leaders say a diverse officer corps promotes cohesion and effectiveness by giving non-white troops more confidence in the armed forces as an institution.
The Reference Shelf
- Richard Sander and Stuart Taylor’s book, “Mismatch,” argued that racial preferences are counterproductive.
- Randall Kennedy’s book, “For Discrimination,” defends affirmative action.
- The Century Foundation’s report advocating a shift to socio-economic affirmative action.
- Greg Stohr’s book, “A Black and White Case,” on the landmark University of Michigan cases decided by the Supreme Court in 2003.
First published Nov. 18, 2015
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