Affirmative Action

The Early Civil Rights Legislation

While legislation intended to eliminate discrimination based on race began soon after the end of the Civil War, affirmative action policies per se did not occur until the 1930s with New Deal programs. The Thirteenth Amendment, ratified in 1865, led to the Civil Rights Act of 1866, and the ratification of the Fourteenth Amendment in 1868 led to the passage of the Civil Rights Act of 1875.

Constitutional protections against slavery and state denial of “due process of law, equal protection, and privileges and immunities” gave Congress the authority to enact legislation that sought to protect the rights of the newly freed slaves. The Fifteenth Amendment (1870) and Enforcement Act of 1870 granted and guaranteed the rights of former slaves to vote in all elections. The Civil Rights Act of 1875 accorded social rights to African Americans, specifically prohibiting state discrimination on the basis of race or color, in “inns, public conveyances on land or water, theaters, and other places of public amusement.”

These post–Civil War attempts to guarantee civil and political rights to African Americans, while providing the basis for later efforts at affirmative action, did not grant African Americans any rights that white Americans did not already possess. To that extent, the amendments and Civil Rights Acts of 1866 and 1875 did not affirmatively promote any civil rights but simply prohibited state discrimination against African Americans solely based on race. When the Supreme Court ruled in The Civil Right Cases of 1883 that the Civil Rights Act of 1875 was unconstitutional as it applied to discrimination by private actors, even those limited protections diminished.

From 1870 to 1890, Southern states began to impose Jim Crow laws that segregated African Americans and made them subservient to whites. In 1896, the Supreme Court in Plessy v. Ferguson upheld the principle of “separate but equal,” which began nearly sixty years of economic, educational, and social separation during which African Americans were denied the same opportunities available to white Americans.

The Beginnings of Affirmative Action Policy

Efforts to end discrimination have long been a part of American public policy. Affirmative action goes beyond efforts to prevent discrimination and includes positive efforts to provide a remedy for the damage done by years of discrimination. For African Americans, the first instance of “affirmative action” occurred when President Franklin D. Roosevelt issued Executive Order 8802, which required “special measures” to end discrimination in the employment of workers in the defense industries or government on the basis of race, creed, color, or national origin. Roosevelt's order came as part of a compromise with A. Philip Randolph, leader of a union called the Brotherhood of Sleeping Car Porters, who compromised and called off a large civil rights march on Washington, D.C., in return for Roosevelt's action.

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