The University of Michigan's Office of Undergraduate Admissions had an affirmative action scheme which gave minority applicants a fixed number of points in their admissions formula. This scheme was found to be an unconstitutional violation of Equal Protection by the Supreme Court. Gratz v. Bollinger, 539 U.S. 244 (2003). However, the University of Michigan Law School’s affirmative action policy, which consisted of a “flexible assessment of applicants’ talents, experiences, and potential,” including race, was found to be constitutional. Grutter v. Bollinger, 539 U.S. 306 (2003).
Affirmative action
Definition
A set of procedures designed to eliminate unlawful discrimination between applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future. Applicants may be seeking admission to an educational program or looking for professional employment.
Legal Origins
....The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.
-- Executive Order 10925 (1961)
....In administering a program regarding which the recipient [of federal funding] has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination.
-- Civil Rights Act (1964) (34 CFR § 100.3(b)(6)(i))
Employment: Government Contractors
In 1961, President John F. Kennedy issued an executive order mandating government contractors to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." (Executive Order 10925) Since 1965, government contractors have been required to document their affirmative action programs through compliance reports, to contain "such information as to the practices, policies, programs, and employment policies, programs, and employment statistics of the contractor and each subcontractor . . . " (Executive Order 11246). Enforcement is conducted by the Office of Federal Contract Compliance Programs, US Department of labor.
Employment: General
Employers who contract with the government or who otherwise receive federal funds are required to document their affirmative action practices and metrics. Affirmative action is also a remedy, under the Civil Rights Act of 1964, where a court finds that an employer has intentionally engaged in discriminatory practices.
The Equal Employment Opportunity commission, created by Title VII of the Civil Rights Act of 1964, enforces the following employment anti-discrimination laws: (source: EEOC).
- Equal Pay Act of 1963
- Title VII of the Civil Rights Act of 1964 (race, color, religion, national origin)
- Age Discrimination in Employment Act of 1967 (people of a certain age)
- Rehabilitation Act of 1973, Sections 501 and 505 (people with disabilities)
- Titles I and V of the Americans with Disabilities Act of 1990
- Civil Rights Act of 1991
Education
Recipients of federal funds are required to document their affirmative action practices and metrics. Educational institutions which have acted discriminatorily in the past must take affirmative action as a remedy. (34 CFR § 100.3(6)(ii)).
The Office of Civil Rights enforces the following education anti-discrimination laws: (source: OCR)
- Title VI of the Civil Rights Act of 1964 (race, color, religion, national origin)
- Age Discrimination Act of 1975 (people of a certain age)
- Title IX of the Educational Amendments of 1972 (gender)
- Section 504 of the Rehabilitation Act of 1973 (people with disabilities)
- Title II of the Americans with Disabilities Act of 1990
- The Boy Scouts of America Equal Access Act (Section 9525 of the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001) (equal access for outside community groups to school facilities during non-school hours)
Definition from Nolo’s Plain-English Law Dictionary
Policies of governments and other institutions, private and public, intended to promote employment, contracting, educational, and other opportunities for members of historically disadvantaged groups. Because they may favor some groups over others, affirmative action policies must be narrowly tailored to meet the institution's legitimate goals, such as remedying the effects of past discrimination or promoting full diversity in a school setting.
Definition provided by Nolo’s Plain-English Law Dictionary.
August 19, 2010, 5:10 pm
menu of sources
Supreme Court & case resources
- University of California Regents v. Bakke, 438 U.S. 265 (1978)
- Fullilove v. Klutznick, 448 U.S. 448 (1980)
- Wygant v. Jackson Board of Education, 476 U.S. 267 (1986)
- United States v. Paradise, 480 U.S. 149 (1987)
- City of Richmond v. Croson, 488 U.S. 469 (1989)
- Adarand Constructors v. Pena, 515 U.S. 200 (1995)
- Grutter v. Bollinger, 539 U.S. 306 (2003)
- Gratz v. Bollinger, 539 U.S. 244 (2003)
- Alexander v. Sandoval, 532 U.S. 275 (2001)
- Pennsylvania State Police v. Suders, 542 U.S. 129 (2004)
- General Dynamics Land Systems Inc. v. Cline et al., 540 U.S. 581 (2004)
Documents
- Executive Order 10925 (1961)
- Executive Order 11246 (1965)
- Civil Rights Act of 1964 (42 U.S.C. Ch. 21)
Agencies
- Office of Federal Contract Compliance Programs, Department of Labor
- Equal Employment Opportunity Commission
- Office of Civil Rights, Department of Education
Federal Material
US Constitution
Federal Statutes
- USC §§ 1981, 1981a, 1983, 1988 - Nineteenth Century Civil Rights Acts
- 29 USC § 206 - Equal Pay Act of 1963
- 42 USC Ch. 21 - Civil Rights Act of 1964
- 29 USC §§ 621 - 634 - The Age Discrimination in Employment Act (1967)
- 20 USC §§ 1681-1688 - Title IX Education Amendments (1972)
- 29 USC §§ 791, 793, 794(a) - The Rehabilitation Act of 1973
- 38 USC § 4212 - Vietnam Era Veterans' Readjustment Assistance Act of 1974
- 42 USC Ch. 126 - Americans with Disabilities Act of 1990
- Civil Rights Act of 1991
Federal Agency Regulations
- 34 CFR Chapt. I - Office of Civil Rights
- 34 CFR 100.3(b)(6)(i)
- 29 CFR Chapt. XIV - Equal Employment Opportunity Commission
- 41 CFR Part 60-2 Affirmative Action Programs - Office of Federal Contract Compliance
Federal Judicial Decisions
- U.S. Supreme Court:
- U.S. Circuit Courts of Appeals: Recent Decisions on Affirmative Action
