Origin of Affirmative Action

In a 4-3 decision, the U.S. Supreme Court upheld affirmative action in college admissions. The court approved the University of Texas' use of a student's race as one of several factors in admissions for a portion of each entering class. This decision follows the 2003 Grutter v. Bollinger case.

For several decades, affirmative action has been mislabeled as "quotas", "preferences" or "handouts that give out unfair advantage" by opponents who advocate for more colorblind approaches, such as class rank or socioeconomic status. However, recent government reports from the Government Accountability Office and the U.S. Department of Education revealed that we are far from a colorblind society. In reality, women and racial/ethnic minorities--especially African Americans, Latinos and Native Americans--continue to face insidious discriminatory barriers in educational, employment and economic opportunities. Breaking down these racial and gender barriers remains an ongoing national priority.

What is affirmative action? Why is affirmative action important? Here are six interesting facts that everyone should know about its origin.

1. The term, "affirmative action", is rooted in U.S. employment law. To take an "affirmative action" was to act affirmatively, i.e. not allowing events to run their course but rather having the government or employers take an active role in treating employees fairly.

2. One of the earliest sightings of the term "affirmative action" is the National Labor Relations Act of 1935 (better known as the Wagner Act). Signed into law by President Franklin D. Roosevelt, this legislation established the National Labor Relations Board and collective bargaining, as well as decreeing that employers engaged in practicing discriminatory labor laws would be required “...to take such affirmative action including reinstatement of employees with or without backpay...”. Many private sector employers opposed this legislation. The U.S. Supreme Court upheld the Wagner Act in 1937.

3. President John F. Kennedy would become the first president to connect the term “affirmative action” with its contemporary connotation of a policy seeking to ensure racial equality. On May, 6, 1961, in Executive Order 10925, Kennedy called on 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."
   President Lyndon B. Johnson's Commencement Speech at Howard University in Washington, DC, June 4, 1965

4. The phrase “affirmative action” entered the public discussion after President Lyndon B. Johnson issued Executive Order 11246 on September 28, 1965. This order demanded that federal contractors and subcontractors "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin." In 1966, Johnson then established the Office of Federal Contract Compliance Programs (OFCCP) in the U.S. Department of Labor to ensure that contractors followed Executive Order 11246.

5. The Harvard Plan is considered one of the earliest and most effective affirmative action plans in the country. Walter J. Leonard, the architect of the Harvard Plan, worked out a formula in which race was considered, among other factors, in the admission process. It resulted in growing numbers of minority students and women at the law school and broadened the diversity of the university’s faculty and staff members. The Harvard Plan became a blueprint for colleges and universities trying to reflect the country’s growing diversity.

6. While the U.S. Supreme declared quotas violated the Equal Protection Clause of the 14th Amendment, race-based affirmative action was declared constitutional in Regents of the University of California v. Bakke (1978). Race could be used as a factor in applications to promote diversity in education. The U.S. Supreme Court upheld the use of race as one of several factors in Grutter v. Bollinger (2003), Parents Involved in Community Schools v. Seattle School District No. 1 (2007), and Fisher v. University of Texas at Austin (2016).

Several research studies have shown that minority students are more likely to excel and graduate within six years at elite colleges and universities. Affirmative action does not harm minority students--racial isolation does. Justice Kennedy's pivotal vote in Fisher II assures colleges and universities will continue to have the right to shape their student bodies in a way that better reflects the diversity of American society.