Affirmative Action History
by Borgna Brunner
In its tumultuous 45-year history, affirmative action has been both praised and
pilloried as an answer to racial inequality. The term "affirmative action" was
first introduced by President Kennedy in 1961 as a method of redressing
discrimination that had persisted in spite of civil rights laws and constitutional
guarantees. It was developed and enforced for the first time by President
Johnson. "This is the next and more profound stage of the battle for civil
rights," Johnson asserted. "We seek… not just equality as a right and a
theory, but equality as a fact and as a result."
A Temporary Measure to Level the Playing Field
Focusing in particular on education and jobs, affirmative action policies
required that active measures be taken to ensure that blacks and other
minorities enjoyed the same opportunities for promotions, salary increases,
career advancement, school admissions, scholarships, and financial aid that
had been the nearly exclusive province of whites. From the outset, affirmative
action was envisioned as a temporary remedy that would end once there was
a "level playing field" for all Americans.
Bakke and Reverse Discrimination
By the late '70s, however, flaws in the policy began to show up amid its good
intentions. Reverse discrimination became an issue, epitomized by the
famous Bakke case in 1978. Allan Bakke, a white male, had been rejected two
years in a row by a medical school that had accepted less qualified minority
applicants-the school had a separate admissions policy for minorities and
reserved 16 out of 100 places for minority students. The Supreme Court
outlawed inflexible quota systems in affirmative action programs, which in this
case had unfairly discriminated against a white applicant. In the same ruling,
however, the Court upheld the legality of affirmative action per se.
A Zero-Sum Game for Conservatives
Fueled by "angry white men," a backlash against affirmative action began to
mount. To conservatives, the system was a zero-sum game that opened the
door for jobs, promotions, or education to minorities while it shut the door on
whites. In a country that prized the values of self-reliance and pulling oneself
up by one's bootstraps, conservatives resented the idea that some
unqualified minorities were getting a free ride on the American system.
"Preferential treatment" and "quotas" became expressions of contempt. Even
more contentious was the accusation that some minorities enjoyed playing the
role of professional victim. Why could some minorities who had also
experienced terrible adversity and racism-Jews and Asians, in particular-
manage to make the American way work for them without government
handouts?
"Justice and Freedom for All" Still in Its Infancy
Liberals countered that "the land of opportunity" was a very different place for
the European immigrants who landed on its shores than it was for those who
arrived in the chains of slavery. As historian Roger Wilkins pointed out,
"blacks have a 375-year history on this continent: 245 involving slavery, 100
involving legalized discrimination, and only 30 involving anything else."
Considering that Jim Crow laws and lynching existed well into the '60s, and
that myriad subtler forms of racism in housing, employment, and education
persisted well beyond the civil rights movement, conservatives impatient for
blacks to "get over" the legacy of slavery needed to realize that slavery was
just the beginning of racism in America. Liberals also pointed out that another
popular conservative argument-that because of affirmative action, minorities
were threatening the jobs of whites-belied the reality that white men were still
the undisputed rulers of the roost when it came to salaries, positions, and
prestige.
Black-and-White Polemics Turn Gray
The debate about affirmative action has also grown more murky and difficult
as the public has come to appreciate its complexity. Many liberals, for
example, can understand the injustice of affirmative action in a case like
Wygant (1986): black employees kept their jobs while white employees with
seniority were laid off. And many conservatives would be hard pressed to
come up with a better alternative to the imposition of a strict quota system in
Paradise (1987), in which the defiantly racist Alabama Department of Public
Safety refused to promote any black above entry level even after a full 12
years of court orders demanded they did.
The Supreme Court: Wary of "Abstractions Going Wrong"
The Supreme Court justices have been divided in their opinions in affirmative
action cases, partially because of opposing political ideologies but also
because the issue is simply so complex. The Court has approached most of
the cases in a piecemeal fashion, focusing on narrow aspects of policy rather
than grappling with the whole.
Even in Bakke-the closest thing to a landmark affirmative action case-the
Court was split 5-4, and the judges' various opinions were far more nuanced
than most glosses of the case indicate. Sandra Day O'Connor, often
characterized as the pivotal judge in such cases because she straddles
conservative and liberal views about affirmative action, has been described
by University of Chicago law professor Cass Sunstein as "nervous about rules
and abstractions going wrong. She's very alert to the need for the Court to
depend on the details of each case."
Landmark Ruling Buttresses Affirmative Action
But in a landmark 2003 case involving the University of Michigan's affirmative
action policies-one of the most important rulings on the issue in twenty-five
years-the Supreme Court decisively upheld the right of affirmative action in
higher education. Two cases, first tried in federal courts in 2000 and 2001,
were involved: the University of Michigan's undergraduate program (Gratz v.
Bollinger) and its law school (Grutter v. Bollinger). The Supreme Court (5-4)
upheld the University of Michigan Law School's policy, ruling that race can be
one of many factors considered by colleges when selecting their students
because it furthers "a compelling interest in obtaining the educational benefits
that flow from a diverse student body." The Supreme Court, however, ruled (6-
3) that the more formulaic approach of the University of Michigan's
undergraduate admissions program, which uses a point system that rate
students and awards additional points to minorities, had to be modified. The
undergraduate program, unlike the law school's, did not provide the
"individualized consideration" of applicants deemed necessary in previous
Supreme Court decisions on affirmative action.
In the Michigan cases, the Supreme Court ruled that although affirmative
action was no longer justified as a way of redressing past oppression and
injustice, it promoted a "compelling state interest" in diversity at all levels of
society. A record number of "friend-of-court" briefs were filed in support of
Michigan's affirmative action case by hundreds of organizations representing
academia, business, labor unions, and the military, arguing the benefits of
broad racial representation. As Sandra Day O'Connor wrote for the majority,
"In order to cultivate a set of leaders with legitimacy in the eyes of the
citizenry, it is necessary that the path to leadership be visibly open to talented
and qualified individuals of every race and ethnicity."