Affirmative Action History

A History and Timeline of Affirmative Action

In its tumultuous 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 Black people 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.

Regents of the University of California v. Bakke

By the late '70s, however, the policy faced backlash epitomized by the famous Bakke case in 1978. Allan Bakke, a white man, had been rejected two years in a row by a medical school that had accepted less-qualified applicants-the school reserved 16 out of 100 places for students from marginalized groups. The Supreme Court outlawed inflexible quota systems in affirmative action programs, which in this case had likely violated the 14th amendment. In the same ruling, however, the Court upheld the legality of affirmative action in the abstract, as "the attainment of a diverse student body...clearly is a constitutionally permissible goal for an institution of higher education" and previous civil rights cases allowed for institutions to use whatever means available to achieve goals of diversity. Regents of the University of California v. Bakke, 438 U.S. 312 (1978).

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. 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, was often characterized in her time as the pivotal judge in such cases because she straddled conservative and liberal views about affirmative action. She was 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."