Affirmative Action

While our own Constitution’s language on its face is color neutral—it does not authorize special privileges based on race, sex, or similar minority status as do some other national constitutions— all three branches of government have authority, especially under the Fourteenth Amendment (1868), to fashion remedies for past discrimination. The problem is complicated by several issues: Who are the victims of the discrimination? Who should be compensated? And how should they be compensated?

In Brown v. Board of Education of Topeka (1954), the Supreme Court, led by Chief Justice Earl Warren (1891–1974), declared segregation unconstitutional and invalidated “separate but equal” public schools for black and white children. The following year, in what became known as Brown v. Board of Education II (1955), the Court began the process of large-scale institutional reform of public school systems to remedy the injury that had been done to a large class of people for a long time. In Green v. County School Board of New Kent County (1968), the Warren Court found an affirmative duty to “take whatever steps might be necessary to convert to a unitary [public school] system in which racial discrimination would be eliminated root and branch.”

In 1941 President Franklin D. Roosevelt (1882–1945) had signed an executive order prohibiting segregationist policies in hiring for defense-related industries, and in 1953 the Committee on Government Contract Compliance created by President Harry S. Truman (1884–1972) promoted efforts “to act positively and affirmatively to implement the policy of nondiscrimination.” President Lyndon B. Johnson (1908–73), however, was the first to use the term affirmative action in a 1965 executive order designed to ensure that federal contractors treated job applicants and employees “without regard to their race, creed, color, or national origin.”

In its decision in the 1954 Brown case, the Supreme Court found that segregation violated the Equal Protection provision of the Fourteenth Amendment (1868). In the same year, the Court held that exclusion of Mexican Americans from juries also flew in the face of equal protection. In [Page 22] Califano v. Goldfarb (1977), the Court found that discrimination against female workers in the matter of Social Security death benefits—presuming that widows and not widowers are dependents— violated the equal protection clause as well.

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