Affirmative Action

Affirmative action refers to institutional measures taken to increase the representation of women and people of color in areas of employment, government contracts, and higher education from which they have been excluded historically. The policy began as a response to the failure of businesses with government contracts to hire women, persons with disabilities, and minorities. These groups were discriminated against and denied equal access and opportunity. Hence, following the Civil Rights Act of 1964, affirmative action was initiated by Executive Order 11246 by President Lyndon Johnson in 1965. The executive order required organizations receiving government funding or contracts to adopt programs to promote the aggressive recruitment and retention of underrep-resented populations.

Three major concepts form the basis for affirmative action. First, all of society is strengthened by diversity, equality, and inclusion. Second, preferences for women and minorities help to (a) neutralize unearned advantages that favor the privileged majority and (b) prevent further exclusion of women and minorities from higher education and the workplace. Finally, the federal government has the legal and social responsibility for enforcing programs to eliminate existing discriminatory practices of institutional racial preference that infringe on equal opportunity.

Over the past 3 decades, affirmative action has faced considerable opposition in the courts and public debate forums. In the late 1970s, the establishment of racial quotas under affirmative action was criticized as an antithetical practice of promoting preferential treatment. This “reverse discrimination” argument was accepted by the U.S. Supreme Court in Regents of the University of California v. Bakke (1978), which let existing programs remain but reduced the use of affirmative action to voluntary programs. In 1989, the Supreme Court ruled in favor of reverse discrimination claims and eliminated the use of minority set-asides where past discrimination was unproven. Still, affirmative action is often associated with being a quota system, when, in fact, affirmative action programs can only require that institutions take cognizance of the demographics of their constituents. Quotas have only been court ordered in instances after a finding of overt discriminatory practices by a company. Even in such cases, proving discriminatory practices was extremely difficult in that statistics were deemed inadmissible, as they did not prove intent. As a result of these rulings, the federal government's role in affirmative action was significantly diminished.

The Civil Rights Act of 1991 was established in effort to restore government commitment to affirmative action, but a 1995 Supreme Court decision limited the use of race as a criterion in awarding government contracts. In response to that decision, President Clinton put forward a White House memorandum that called for the elimination of any program that “(a) creates a quota; (b) creates preferences for unqualified individuals; (c) creates reverse discrimination; or (d) continues even after its equal opportunity purposes have been achieved.” In 1996, Proposition 209 called for an end to the use of affirmative action in California, and the use of race- and gender-based preferences was banned in the state the following year. Affirmative action was also abolished by Initiative 200 in Washington State, further demonstrating a strong opposition to the policy on a state level.

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