Affirmative Action

Definition

A set of procedures designed to eliminate unlawful discrimination among 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. In modern American jurisprudence, it typically imposes remedies against discrimination on the basis of, at the very least, race, creed, color, and national origin.

Legal Origins

While the concept of affirmative action has existed in America since the 19th century, it first appeared in its current form in President Kennedy's Executive Order 10925 (1961): "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."

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 U.S. Department of Labor's Office of Federal Contract Compliance Programs.

In Richmond v. Croson, 488 U.S. 469 (1989), the Supreme Court held that strict scrutiny applies to state statutes which set standards for affirmative action.

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).

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)

Supreme Court Decisions Related to Education 

In chronological order, here is a non-exhaustive list of Supreme Court decisions related to affirmative action. 

Brown v Board

In Brown v. Board of Education, 374 U.S. 483 (1954), the Supreme Court held that public schools may not exclude minority students from white schools by sending the minority students to a school that separately services minority students. This decision acted as a precursor to many of the education-based affirmative action cases in the Supreme Court which followed in later years. 

Regents v. Bakke

In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the University of California's Medical School at Davis reserved 16 spots in each entering class of 100 students for minority students. The Court did not hold a majority opinion, but the main legal takeaway from Bakke is that the Constitution prohibits a school from having racial quotas.

​Gratz v. Bollinger

In Gratz v. Bollinger, 539 U.S. 244 (2003), the University of Michigan's Undergraduate Admissions Office used a points-based system in its admission process. The office added points for an applicant who was an underrepresented minority. The Supreme Court held that the race-based methods must use strict scrutiny. The Court held that the generalization of "underrepresented minorities" failed the narrow tailoring requirement that strict scrutiny imposes. 

Grutter v. Bollinger

In Grutter v. Bollinger, 539 U.S. 306 (2003), the University of Michigan Law School Admissions Office used race in its admissions process. However, the school did not assign points based on race. Instead, the school used race as one of a number of factors; race could not automatically result in an acceptance or a rejection (which contrasts with Gratz, in which those 20 points used n Gratz could have resulted in admission or rejection).The Court held that this plan is narrowly tailored enough to satisfy strict scrutiny because the "program is flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes race or ethnicity the defining feature of the application . . . The Law School engages in a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment." In dicta contained in the majority opinion, Justice O'Connor wrote, "The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

Fisher v. Texas

In Fisher v. University of Texas, 579 U.S. __ (2016), the University of Texas at Austin used a Top Ten Percent Law, in which any student who graduated in the top 10% of his or her high school class would be granted admission to the University. If an applicant was not in the top 10% of his or her high school class, the University would create an Academic Index (AI) and a Personal Achievement Index (PAI)for each student.  

The AI calculated SAT scores and high school academic performance, the PAI considered applicant’s essays, as well as a
full-file review" which included leadership and work experience, extracurricular activities, community service, and other “special characteristics” that might give the admissions committee insight into a student’s background; race was included as one of these special characteristics.

The Court found that the University's use of race constitutes a "factor of a factor of a factor," which, as one factor in the University's holistic review process, is narrow enough to meet strict scrutiny. The Court also held that there is a compelling interest in "obtaining the educational benefits that flow from student body diversity." As such, strict scrutiny is satisfied, and the Court held that the use of race in the University's admissions efforts was constitutional. 

Further Reading

For more on affirmative action, see this New York University Law Review article, this Harvard Law Review article, and this Michigan Law Review article

 

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