Affirmative Action

Affirmative action requires employers and college/ university admissions procedures to give special consideration to minorities and female applicants. The purpose of affirmative action, as it was originally conceived, is to reverse the detrimental effects that discrimination had on minorities prior to 1964. Through subsequent Supreme Court rulings, affirmative action policies cannot impose quotas or inflict reverse discrimination. The goal of affirmative action policies is to increase diversity in employment and educational arenas.

Affirmative action was first mentioned on March 6, 1961, as part of President John F. Kennedy's Executive Order 10925, which mandated the creation of the Committee on Equal Employment Opportunity. However, it would be four years before affirmative action was brought to the public's attention.

The Civil Rights Act was signed into law on July 2, 1964. The Civil Rights Act prohibited discrimination based on race, creed, color, or national origin. The Act also included the creation of the Equal Employment Opportunity Commission to oversee the implementation of the Act in the workplace.

President Lyndon B. Johnson introduced affirmative action in 1965 through a speech at Howard University and the subsequent crafting of Executive Order 11246. Through this Executive Order, government contractors were required to show proof that minorities were provided equal access to and equal consideration during the employment process. The order also abolished the Committee on Equal Employment Opportunity and transferred its duties to the Department of Labor. In 1967, the order was amended to include gender as a consideration for equal access to employment.

In 1969, President Richard M. Nixon created the “Philadelphia Order” in which minorities were guaranteed fair hiring practices in construction jobs. The order was so named because Philadelphia was chosen as the test location given the rampant discrimination in the construction industry there. The ultimate goal of the Philadelphia Order was to increase minority employment in construction jobs. President Nixon noted that the order did not enforce racial quotas but, rather, employers were required to show “affirmative action” in meeting the goal of increasing minority employment.

[Page 11]The first test of affirmative action as reverse discrimination to reach the Supreme Court was DeFunis v. Odegaard (1974), involving law school admissions, but the court declared the case moot without deciding the issue because DeFunis (having been admitted to law school pending the appeals) effectively would have graduated from law school before the case was decided. Affirmative action programs were first tested on the merits in the Supreme Court in the case of The Regents of the University of California v. Bakke (1978). Allan Bakke was a white man who had applied for two consecutive years to medical school at University of California at Davis. Both years lesser qualified minority applicants were admitted while his application was denied. The Supreme Court ruled in Bakke's favor (5–4) stating that UC Davis had inflexible quotas that were unacceptable. Later Supreme Court decisions regarding affirmative action stated that “moderate” quotas were acceptable.

Another landmark Supreme Court case was Wygant v. Jackson Board of Education (1986). In this case, nonminority teachers with seniority were laid off in order to retain minority teachers. Ultimately the Supreme Court ruled that the harm inflicted on the nonminority teachers was greater than the benefits to the minority teachers that were retained.

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