Affirmative Action

Affirmative action is the policy of favoring members of a disadvantaged group when accepting applicants for jobs, schooling, or programs. The purpose of the practice is to resolve inequities that occur due to discrimination. The modern era of affirmative action can be traced to 1961, when President John F. Kennedy issued Executive Order 10925 requiring government contractors to “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.” In 1965 government contractors were required to file compliance reports. A few years later President Richard M. Nixon introduced the Philadelphia Plan, setting goals for increasing minority representation in construction.

The equal protection clause of the Fourteenth Amendment provides: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” Over time, the Supreme Court developed a threetiered framework of scrutiny in reviewing laws challenged as discriminatory, and deciding which level of scrutiny to apply is crucial to the outcome of each case. Reflecting skepticism of the legitimacy of laws based on race and national origin, the Court applies to them strict scrutiny, the most rigorous level, requiring the government to demonstrate a compelling reason for such laws and to show that the means are narrowly tailored to achieve a legitimate objective. In applying strict scrutiny to all racial classifications, the Court equates race-conscious affirmative-action plans, aimed at benefiting minorities, with laws enacted for unjust discriminatory purposes.

CONTENTIOUS DEBATE

The debate over affirmative action in the United States, both in the workplace and in higher education, is a contentious one, with each side claiming that its policies will lead to a more egalitarian society. Although the parameters of the debate have changed over time, the primary point of contention between proponents and opponents is whether or not racial or gender considerations should come into play in hiring or admissions decisions.

Proponents of affirmative action point to the history of discrimination in the nation, primarily in education and employment, on the basis of race, national origin, and gender, and argue that it is necessary to remedy the effects of this discrimination by ensuring equality with race- and gender-conscious policies. They contend that previous antidiscrimination policies have been insufficient to overcome past injustices. In their view, absent a policy of considering race or gender in hiring and admissions decisions, unequal conditions will continue to exist. Finally, they maintain that race- and gender-conscious policies are consistent with the Constitution's guarantees of equality and must remain in place until the effects of the discrimination are eradicated.

AFFIRMATIVE ACTION IN HIGHER EDUCATION

The Court first addressed the constitutionality of affirmative action in higher education in DeFunis v. Odegaard, 416 U.S. 312 ( 1974 ). Marco DeFunis sued the University of Washington when he was rejected from its law school in 1971, noting that his test scores were higher than some minority students who were admitted and claiming that the use of race and ethnicity in admissions decisions was unconstitutional. The lower court agreed and ordered the university to admit him. Although the state supreme court reversed the decision, DeFunis was allowed to remain in school. He was about to graduate when his case reached the Supreme Court, and the university agreed to allow him to complete his education whatever the outcome of the case. Because his status at the school would not be affected by the ruling, the Court held that there was no longer a controversy between the two sides and dismissed the case.

Regents of the University of California v. Bakke ( 1978 ). In 1978 the Court considered the constitutionality of a special admissions policy at the University of California, Davis. After his rejection from Davis's medical school, Allan Bakke, a Caucasian, sued, claiming that the special admissions program in which sixteen out of a hundred seats in the entering class were reserved for minority students violated his constitutional right of equal protection. Bakke prevailed in the California state courts, and the university appealed to the Supreme Court.




Protesters demonstrating against the Supreme Court's decision in the Bakke “reverse discrimination” case, October 8, 1977.





Protesters demonstrating against the Supreme Court's decision in the Bakke “reverse discrimination” case, October 8, 1977.
© AP IMAGES/CHARLES TASNADI

The Court addressed three major issues in Regents of the University of California v. Bakke, 438 U.S. 265 ( 1978

The Court was also divided on the larger question of whether public educational institutions could adopt a race-conscious admissions policy; Powell agreed with four justices (William Brennan, Thurgood Marshall, Byron White, and Harry Blackmun) that it was permissible to use race under some circumstances. Powell delivered a plurality opinion, stating that the Court must apply strict scrutiny to all racial classifications, including programs intended to benefit minorities. In assessing the university's justification for its admissions policy, he emphasized that Davis could not attempt to remedy racial discrimination not attributable to it, and no evidence indicated that it had discriminated against minorities.

Powell found the university's aim of creating a diverse student body compelling, based on its implied First Amendment right of academic freedom. However, the policy was unconstitutional because it aimed only at achieving racial diversity, whereas the university's compelling interest was in a student body diverse in a number of characteristics. To demonstrate a method for achieving such a diverse class, Powell pointed to a Harvard University policy in which race could be considered as a factor in admissions but not the only factor. Students receive a plus for characteristics that Harvard considers important in composing a diverse student body, such as geographic background, musical talent, economic disadvantage, or sports ability. Thus the Harvard approach considered the applicant in the context of the university's needs to create a student body representative of the nation. Because it did not isolate race as a determining factor in admissions, it did not offend the constitutional guarantee of equality.

Grutter v. Bollinger ( 2003 ). When Barbara Grutter, a white applicant to the University of Michigan's Law School, was rejected in 1997, she sued, claiming the law school discriminated against her by considering race as a “predominant factor” in its admissions decisions. In Grutter v. Bollinger, 539 U.S. 306 ( 2003 ), the Supreme Court divided 5–4, with Stevens, Sandra Day O'Connor, Ruth Bader Ginsburg, Stephen Breyer, and David Souter in the majority and Clarence Thomas, Antonin Scalia, Anthony Kennedy, and Chief Justice William Rehnquist dissenting.

The Court acknowledged that racial and ethnic diversity were important in a law school to prepare students for leadership positions in a multiethnic and multiracial society as well as to prevent minority students from feeling isolated in the classroom. It found the admissions policy justified by the law school's compelling interest in gathering a “critical mass of underrepresented students” (539 U.S. at 319). The Court found that the Michigan program satisfied the “narrowly tailored” prong of strict scrutiny because it was based on a “highly individualized, holistic review of each applicant's file” (539 U.S. at 337) in which a multitude of factors, not limited to race and ethnicity, were weighed. Moreover, the Court was satisfied that the school had carefully considered using race-neutral alternatives.

O'Connor ended by noting that, twenty-five years earlier, Powell had sanctioned a race-conscious admissions policy to advance the University of California's compelling interest in a diverse student body. Pointing to the increase in applications from minority students with good grades and high test scores, she expressed her belief that “25 years from now, the use of racial preferences will no longer be necessary” (539 U.S. at 343) to advance the university's aims.

Gratz v. Bollinger ( 2003 ). On the day it announced Grutter, the Court also ruled on the constitutionality of the University of Michigan's undergraduate admissions policy in Gratz v. Bollinger, 539 U.S. 244 ( 2003 ). Beginning in 1995, the university considered an applicant's grade-point average and standardized test scores as well as other factors, such as the quality of the applicant's high school and its curriculum as well as his or her state of residence. In subsequent years it included other factors, such as relationships with alumni, the applicant's personal statement, and leadership attributes; students also received twenty points in a miscellaneous category for being a member of an underrepresented racial or ethnic minority group. Beginning in 1998, successful applicants for admission needed to score 100 out of a maximum of 150 points.

When Jennifer Gratz was denied admission to Michigan's College of Literature, Science, and the Arts (LSA), she sued, contending that the policy was unconstitutional because it considered race. The university countered that there were important educational benefits in a racially and ethnically diverse student body, and that, as Powell had recognized in Bakke, there is a compelling justification for an admissions policy that achieves this goal through race-conscious means.

Fisher v. University of Texas at Austin ( 2013 ). A decade later the Supreme Court addressed another challenge to a race-conscious admissions plan in higher education. In response to a Fifth Circuit Court of Appeals ruling against the University of Texas Law School's affirmative action program in Hopwood v. Texas, 78 F.3d 932 ( 5th Cir. 1996 ), the Texas legislature had established a policy in which the state university system automatically accepted applicants from the top 10 percent of each high school graduating class in the state. Believing that this procedure did not accomplish its goal of diversity, the university also began to subject applicants to a holistic review, in which it included numerous personal characteristics in its admissions decisions, but not race. Following the Court's ruling in Grutter, it added race as an explicit factor.

When Abigail Fisher's application was rejected by the University of Texas at Austin in 2008, she filed suit, arguing that considering race violated the Fourteenth Amendment's guarantee of equality. The university contended that its policy satisfied Grutter because in attempting to achieve its goal of enrolling a “critical mass” of minority students, it considered race only as one of many factors and awarded no points to minorities. Applying strict scrutiny, the lower courts ruled in the university's favor.

In Fisher v. University of Texas at Austin, 570 U.S. ___ ( 2013 ), Kennedy announced the majority opinion for himself, Chief Justice John Roberts, Scalia, Thomas, Breyer, and Samuel Alito. Sonia Sotomayor and Ginsburg dissented, with Elena Kagan taking no part in the case. Kennedy began by criticizing the Fifth Circuit for failing to apply strict scrutiny correctly as required by Bakke and Grutter. He acknowledged that in accepting Michigan's view that it had a compelling interest in student diversity, the Grutter Court had deferred to the university's judgment that diversity was essential to its educational mission. He emphasized, however, under strict scrutiny the university must demonstrate that the means chosen are “narrowly tailored to that goal.” Moreover, he continued, “on this point, the University receives no deference” ( 570 U.S. at 2420 ) from the courts. To survive a constitutional challenge, the university must show that considering race is essential to its mission and that the reviewing court must satisfy itself that no race-neutral alternative would achieve “the educational benefits of diversity” ( 570 U.S. at 2420 ). Because the circuit court had only asked whether the university acted in “good faith” in adopting the raceconscious policy, the Court remanded the case, with instructions to the lower court to apply strict scrutiny properly, that is, to require the university to prove that the policy was a necessary means to achieve its purported goal of diversity.

On remand, in Fisher v. University of Texas atAustin, 758 F.3d 633 ( 5th Cir. 2014 ), with one dissent, the three-judge panel of the circuit court agreed with the university that its “holistic review” was narrowly tailored, satisfying the Supreme Court's requirement of an “individualized” admissions decision and that it did not overly rely on race.

THE ROLE OF INTEREST GROUPS

Numerous interest groups on both sides of the controversy have played key roles in shaping affirmative action policy. In addition to their efforts to influence legislatures and public opinion, interest groups regularly submit amicus curiae (friend of the court) briefs to provide the Court with additional information as well as to argue the merits of cases. Submitting briefs to the Court allows groups to play an indirect but important part in the policy-making process.




Barbara Grutter and Jennifer Gratz, plaintiffs in two cases concerning affirmative action admissions policies at the University of Michigan, 2003.





Barbara Grutter and Jennifer Gratz, plaintiffs in two cases concerning affirmative action admissions policies at the University of Michigan, 2003.
© AP IMAGES/SUSAN WALSH

Fewer groups submitted briefs opposing affirmative action. The leading anti-affirmative action groups were the Pacific Legal Foundation, the Independent Women's Forum, the Center for Equal Opportunity, the Claremont Institute Center for Constitutional Jurisprudence, the Center for Individual Freedom, the American Civil Rights Institute, and the Cato Institute.

ANTI-AFFIRMATIVE ACTION BALLOT MEASURES

Beginning in 1996, in part because of the influence of groups and individuals opposed to affirmative action, a number of states—California in 1996, Washington in 1998, Florida in 2000 (by executive order), Michigan in 2006, Nebraska in 2008, Arizona in 2010, and Oklahoma and New Hampshire in 2012—enacted anti-affirmative action measures. Most prohibited preferences based on race, gender, and national origin in higher education, employment, and government contracting. Prominent anti-affirmative action groups such as the Institute for Justice, the American Civil Rights Institute, and the Center for Equal Opportunity helped persuade voters and legislators to approve them. Only Colorado voters defeated a constitutional amendment to ban affirmative action in 2008.

9th Cir. 1997 ). The Supreme Court declined to review the appellate court's ruling.

A decade after Proposition 209's passage, Michigan voters approved a similar ballot initiative, Proposal 2, in the November 2006 election. Known as the Michigan Civil Rights Initiative, the measure proposed “to amend the state constitution to ban affirmative action programs that give preferential treatment to groups or individuals based on their race, gender, color, ethnicity, or national origin for public employment, education or contracting purposes.” After its passage, Proposal 2 was included in the Michigan Constitution as Article I, section 26.

After years of litigation over section 26, the Sixth Circuit Court of Appeals held in Coalition to Defend Affirmative Action v. Regents of the University of Michigan, 701 F.3d 466 ( 6th Cir. 2012 ), that the state's ban on the use of race in admissions decisions by public universities was unconstitutional because it placed a particular burden on racial minorities to have policies benefiting them. The court found the state violated the “political process doctrine,” an equal protection principle that bars a state from making it more difficult to enact laws or policies giving advantages to minorities than other types of laws.

In Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), 572 U.S. ___ ( 2014 ), the Supreme Court reversed the appellate court with a 6–2 majority, with the justices writing five separate opinions. The plurality opinion, announced by Kennedy, began by noting that the ruling was not about “the constitutionality, or the merits, of race-conscious admissions policies in higher education” ( 572 U.S. at 1630 ). Rather, he said, it revolved around the issue of “whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular, with respect to school admissions” ( 572 U.S. at 1630 ). Kennedy described the amendment as exemplifying the democratic process at work in the controversial area of affirmative action and concluded that because section 26 caused no injury based on race, courts should not intervene to prevent voters from exercising their policy choices and eliminating racial preference policies.

In a vigorous dissent, Sotomayor argued that section 26 abridged the “political process” doctrine by singling out citizens in favor of gender or race-conscious policies and requiring them to amend the state constitution to effectuate their goals. Those in favor of any other policy goals may seek to achieve them through a less onerous process of lobbying governmental officials or resorting to the ballot box. In her view, the Fourteenth Amendment did not permit the “majority [to] reconfigure the political process in a manner that burdens only a racial minority” without a rigorous judicial review analysis, that is, strict scrutiny ( 572 U.S. at 1653 ). And because Michigan did not offer a compelling reason for this alteration to the policy-making process, she believed the amendment did not survive strict scrutiny.

SEE ALSO Civil Rights Movement ; Fourteenth Amendment: Equal Protection Clause ; O'Connor, Sandra Day ; Race Discrimination ; Thomas, Clarence .

BIBLIOGRAPHY

Fallon, Richard H., Jr. “Strict Judicial Scrutiny.” UCLA Law Review 54 (2007): 1267–337.

Jackson, Darrell D., and Michele S. Moses. “Understanding Public Perceptions of Affirmative Action.” Kansas Journal of Law & Public Policy 22, no. 2 (2013): 205–34.

Poreda, Michael. “Perspectives on Fisher v. University of Texas and the Strict Scrutiny Standard in the University Admissions Context.” Brigham Young University Education and Law Journal 2013, no. 2 (2013): 319–40.

“The Supreme Court 2013 Term: Leading Case: Constitutional Law: Fourteenth Amendment, Equal Protection: Schuette v. Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN).” Harvard Law Review 128, no. 1 (November 2014): 281–90.

Susan Gluck Mezey
Loyola University Chicago