The term affirmative action has been used in the United States since the late 1960s to refer to policies that go beyond the simple prohibition of discrimination on grounds of race, national origin, and sex in employment practices and educational programs. These policies require some further action, ”affirmative action,” to make jobs and promotions and admissions to educational programs available to individuals from groups that have historically suffered from discrimination in gaining these opportunities or are, whether discriminated against or not by formal policies and informal practices, infrequently found in certain occupations or educational institutions and programs.
Affirmative action policies may be policies of governments or governmental units, affecting their own procedures in employment or in granting contracts; or they may be policies of governments, affecting the employment procedures of companies or nonprofit agencies and organizations over whom the governments have power or with whom they deal; or they may be the policies of profit and nonprofit employers, adopted voluntarily or under varying degrees of public or private pressure. Affirmative action policies may include the policies of philanthropic foundations, when they affect the employment policies of their grantees, or educational accrediting agencies, when they affect the employment or admissions policies of the institutions they accredit.
The range of policies that can be called affirmative action is wide, but the term also has a specific legal meaning. It was first used in a legal context in the United States in an executive order of President John F. Kennedy. Subsequent presidential executive orders and other administrative requirements have expanded its scope and meaning, and since 1971 affirmative action so defined has set employment practice standards for contractors of the United States, that is, companies, colleges, universities, hospitals, or other institutions that have business with the U.S. government. These standards are enforced by an office of the Department of Labor, the Office of Federal Contract Compliance Programs. Because of the wide sweep of the executive order and its reach into the employment practices of almost every large employer, affirmative action policies have become extremely controversial.
Affirmative action, under other names, is also to be found in other countries to help groups, whether majority or minority, that have not fared as well as others in gaining employment in higher status occupations or admissions to advanced educational programs.
Affirmative action has been controversial because it appears to contradict a central objective of traditional liberalism and the U.S. civil rights movement, that is, the treatment of individuals on the basis of their individual talents and not on the basis of their color, race, national origin, or sex. Affirmative action, as it has developed, requires surveys by employers of the race, national origin, and sex of their employees to uncover patterns of ”underutilization” and to develop programs to overcome this underutilization and thus to take account of the race, national origin, and sex of applicants for employment and of candidates for promotion. To many advocates of expanded civil rights, this is seen as only the next and a most necessary step in achieving equality for groups that have in the past faced discrimination. To others, who may also deem themselves advocates of civil rights and of the interests of minority groups, affirmative action, in the form in which it has developed, is seen as a violation of the first requirement for a society that promises equal opportunity, that is, to treat individuals as individuals independent of race, national origin, or sex.
This apparent contradiction between civil rights and affirmative action may be glimpsed in the very language of the Civil Rights Act of 1964, the central piece of legislation that banned discrimination in government programs, public facilities, and employment. In the debate over that act, fears were expressed that the prohibition of discrimination in employment, as codified in Title VII, would be implemented by requiring certain numbers of employees to be of a given race. This fear was dealt with by placing language in the act that was understood at the time specifically to forbid the practices that are required under affirmative action since the late 1960s and early 1970s. Title 703 (j) reads:
Nothing contained in this title shall be interpreted to require any employer … to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer.
However, federal executive orders governing how the federal government does its business may set their own standards, independent of statutory law. The first executive order using the term affirmative action was issued by President John F. Kennedy in 1961. It created a President’s Committee on Equal Employment Opportunity to monitor the obligations contractors undertook to extend affirmative action. At this time, the general unders tan ding of affirmative action was that it required such things as giving public notice that the employer did not discriminate, making the availability of positions and promotions widely known, advertising in minority media, and the like. With the Civil Rights Act of 1964—which not only prohibited discrimination on grounds of race, color, and national origin but also on grounds of sex—a new executive order, no. 11,246, was formulated by President Lyndon B. Johnson and came into effect. It replaced the President’s Committee on Equal Employment Opportunity with an Office of Federal Contract Compliance Programs (which still operates). Subsequent federal regulations of the late 1960s and early 1970s specified what was meant by affirmative action in the executive order, and the meaning of affirmative action was considerably expanded into the full-fledged program that has existed since 1971. Revised order no. 4 of that year, which is part of the Code of Federal Regulations and is still in effect, reads in part:
An affirmative action program is a set of specific and result-oriented procedures to which a contractor commits itself to apply every good effort. The objective of those procedures plus such efforts is equal employment opportunity. Procedures without efforts to make them work are meaningless; and effort, undirected by specific and meaningful procedures, is inadequate. An effective affirmative action program must include an analysis of areas within which the contractor is deficient in the utilization of minority groups and women, and further, goals and timetables to which the contractor’s good faith efforts must be directed to correct the deficiencies and, [sic] thus to achieve prompt and full utilization of minorities and women, at all levels and in all segments of its work force where deficiencies exist. (Code of Federal Regulations 1990, pp. 121-122)
Much of the controversy over affirmative action is over the term goals and timetables: Are these ”quotas”? Supporters of affirmative action say not—only good faith efforts are required, and if they fail the contractor is not penalized. Further controversy exists over the term utilization: What is the basis on which a group is found ”underutilized,” and to what extent is this evidence of discrimination? Similarly, there is considerable dispute over how to label these programs. ”Affirmative action” has a positive air, and in public opinion polls will receive considerable support. Label the same programs ”racial preference”—which indeed is specifically what they are—and public support drops radically. In the 1990s, as campaigns were launched to ban affirmative action programs by popular referendum, just what language could or should be used in these referenda became hotly disputed.
Controversy also arises over the categories of employees that contractors must report on and over whose utilization they must be concerned. The executive order lists four categories: blacks, Spanish-surnamed Americans, American Indians, and Orientals. (These are the terms in the order as of 1971 and are still used in the Code of Federal Regulations.) The preferred names of these groups have changed since then to Afro- or African Americans, Hispanics or Latinos, Native Americans, and Asians. While the original executive order and the Civil Rights Act was a response to the political action of black civil rights groups, and it was the plight of blacks that motivated both the executive order and the Civil Rights Act, it was apparently deemed unwise in the mid-1960s to limit affirmative action requirements to blacks alone. The Civil Rights Act bans discrimination against any person on grounds of race, national origin, and sex and specifies no group in particular for protection; but the Equal Employment Opportunity Commission, set up by the Civil Rights Act to monitor discrimination in employment, from the beginning required reports on the four groups listed above, despite the fact that even in the 1960s it could be argued that discrimination against Asians was far less acute and much less of a problem than discrimination against blacks, that discrimination against American Indians also differed in severity and character from discrimination against blacks, and that discrimination against Spanish-surnamed Americans ranged from the nonexistent or hardly existent (Spaniards from Spain? Cubans? Sephardic Jews?) to the possibly significant. Nevertheless, these four categories set up in the mid-1960s are still the groups that governmental programs of affirmative action target for special attention (Glaz-er 1987).
Since affirmative action is a governmental program operated by government agencies that grant contracts and is overseen by the Office of Federal Contract Compliance Programs, one major issue of controversy has been over the degree to which these programs are really enforced. It is generally believed that enforcement is more severe under Democratic administrations than under Republican administrations, even though the program was first fully developed under the Republican administration of President Richard Nixon. President Ronald Reagan was an avowed opponent of affirmative action, but despite his eight-year administration no modification of the program took place. Changes were proposed by some parts of the Republican administration but opposed by others. Business, in particular big business, had learned to live with affirmative action and was not eager to upset the apple cart (Belz 1990).
One of the most controversial areas in which affirmative action is applied is in the employment and promotion of police, firefighting and sanitation personnel, and teachers and other local government employees. Here strict racial quotas often do apply. They are strongly resented by many employees when new employees are hired by race and even more when promotions are given out by race and layoffs are determined by race. The basis of these quotas is not the presidential executive order but rather consent decrees entered into by local government on the basis of charges of discrimination brought by the federal government. These charges are brought on the basis of the Civil Rights Act; under this act, if discrimination is found, quotas can be required by courts as a remedy. Since local government employment is generally on the basis of tests, one very controversial aspect of such cases is the role of civil service examinations. Blacks and Hispanics characteristically do worse than white applicants. Are these poorer results to be taken as evidence of discrimination? A complex body of law has been built up on the basis of various cases determining when a test should be considered discriminatory. In the Civil Rights Act of 1964, one provision read ”it shall not be an unlawful employment practice . . . for an employer to give and act upon the results of any professionally developed ability test provided that such test . . . is not designed, intended, or used to discriminate.” But the courts decide whether the test is ”designed, intended, or used to discriminate.” Because of the frequency with which courts have found tests for the police, fire, or sanitation force discriminatory, and because state and local governments believe they will lose such cases, many have entered into ”consent decrees” in which they agree to hire and promote on the basis of racial and sex criteria.
Affirmative action is also used in the granting of government contracts on the basis of either statutes (federal, state, or local) or administrative procedures. It is in this area that the edifice of affirmative action was first effectively attacked in the 1980s and 1990s, in the wake of the failure of Republican administrations to take any action limiting affirmative action. The first major crack came in the U.S. Supreme Court’s decision in City of Richmond v. Croson, in which the Court ruled against a Richmond, Virginia, city program to set aside 30 percent of city contracts for minority-owned businesses. The Court ruled that such programs could only stand, under the judicial ”strict scrutiny” standard triggered by apparent government discrimination, if it could be demonstrated there had been discrimination against these groups by the city in the past. The response of cities to this judicial limitation on their minority ”set-aside” programs was often to commission studies to demonstrate they had indeed discriminated, in order to save the set-aside programs (LaNoue 1993). In a later decision, Adarand v. Pena (1995), the Court ruled against a federal statute requiring that 10 percent of public works contracts be set aside for minorities. While these programs still continue in many jurisdictions, including the federal government, they are all legally threatened.
One issue in minority contract set-asides has been that of possible fraud, as various contractors find it to their advantage to take on black partners so as to present themselves as minority contractors and thus to get whatever advantages in bidding that status provides. In this area, as in other areas where advantage might follow from minority status, there have been debates over what groups may be included as minorities. It was unclear, for example, whether Asian Indians—immigrants and American citizens of Indian origin—were to be considered Asian. Asian Indian Americans were divided among themselves on this question, but during the Reagan administration they were reclassified as Asian, presumably in part for the modest political advantage this gave the Republican administration.
Affirmative action also governs the employment practices of colleges and universities, whether public or private, because they all make use of federal grants and loans for their students, and many have government research contracts. Colleges and universities therefore must also survey their faculties and other staffs for underutilization, and they develop elaborate affirmative action programs. Affirmative action applies to women as well as to racial and ethnic minority groups. There has been, perhaps in part because of affirmative action programs, a substantial increase in female faculty. But there has been little increase in black faculty during the 1980s. The numbers of blacks taking doctorates in arts and sciences has been small and has not increased. The higher rewards of law, business, and medicine have attracted into those fields black students who could prepare themselves for an academic career. Many campuses have been shaken by controversies over the small number of black faculty, with administrators arguing that few were available and protestors, often black students, arguing that greater effort would change the situation.
In the 1990s, the most controversial area of affirmative action became admissions to selective colleges and universities and professional schools. Affirmative action in admissions is not required by government regulations, as in the case of employment, except in the special case of southern public higher education institutions. There parallel and separate black and white institutions existed, and while all of these institutions have been open to both white and black students since at least the early 1970s, an extended lawsuit has charged that they still preserve their identity as traditionally black and traditionally white institutions. As a result of this litigation, many of these institutions must recruit a certain number of black students. But the major pressure on many other institutions to increase the number of black students has come from goals voluntarily accepted by administrators or as a result of black student demands. (In one case, that of the University of California, the state legislature has called on the institution to mirror in its racial-ethnic composition the graduating classes of California high schools.) Voluntary affirmative action programs for admission of students, targeted on black, Hispanic, and Native American students, became widespread in the late 1960s and early 1970s, particularly after the assassination of Martin Luther King.
The first affirmative action cases to reach the Supreme Court challenged such programs of preference for black and other minority students. A rejected Jewish applicant for admission to the University of Washington Law School, which had set a quota to increase the number of its minority students, sued for admission, and his case reached the Supreme Court. It did not rule on it. The Court did rule on a subsequent case, in 1978, that of Allan Bakke, a rejected applicant to the University of California, Davis, Medical School, which also had set a quota. The Court, splitting into a number of factions, rejected fixed numerical quotas but asserted race was a factor that could be taken into account in admissions decisions for purposes of promoting academic diversity. Under the protection offered by this complex decision, most colleges and universities and professional schools do grant preferences to black and Hispanic students. Asian Americans, also considered a minority, did not receive preference, but this was hardly necessary since their academic achievement is high. Indeed, by the 1980s, Asian American students were protesting that it was more difficult for them than whites to gain admission to selective institutions (Bunzel and Au 1987).
Matters turned around in the mid-1990s. In 1995, the regents of the University of California banned any consideration of race or ethnicity in admission to the university. In 1996 the voters of California approved the California Civil Rights Initiative, which banned the use of race or ethnic criteria in state government action, in employment and contracts as well as college admissions. This initiative, launched by one academic and one former academic, became the basis of a movement to extend the ban on affirmative action. In 1998 the State of Washington became the second state to pass such an initiative. In Texas, the assault on affirmative action in admissions led to a wide-ranging decision by the Fifth Circuit Court of Appeals in 1996 banning the use of race and ethnicity in admissions to the University of Texas Law School. This decision affects all institutions of higher education in the states covered by the fifth Circuit. Massive changes have followed in the admissions procedures of the University of California, the peak institution in the system of public higher education in California, and the University of Texas, which holds a similar position in Texas.
Initially, there were substantial drops in enrollment of black and Hispanic students, but energetic action by the university administrations has stemmed this fall-off, and the decline statistically is not as drastic as originally projected or feared. The commitment by university administrators to maintain a substantial representation of black and Hispanic students is so strong that they have devised new admissions practices and procedures designed to keep the number up, and have had some success in doing so. Further, the Texas legislature has voted that the top 10 percent of every high school graduating class be eligible for admission to the University of Texas, and the Board of Regents of the University of California has similarly voted that the top 4 percent of California high school graduating classes should be eligible for enrollment in the University of California. The effect of such actions, in view of the high concentration of black and Hispanic students in low-achieving high schools, which ordinarily send few students to the selective state institutions, is to keep up the number of black and Hispanic students.
Affirmative action in admissions has become perhaps the best-researched area of affirmative action as a result of these controversies. An important study by William Bowen and Derek Bok of admissions procedures in selective institutions has argued effectively that ”race-sensitive” admissions have been good for the students, good for the institutions, and good for the country. Their conclusions, however, have been sharply disputed by critics of affirmative action. (Bowen and Bok 1998; Trow 1999). At this writing (Fall, 1999) the Supreme Court has not yet ruled on the issue of the degree to which public colleges and universities may take race into account. In view of the fact that neither Congress nor state legislatures will take decisive action on race preference owing to the political sensitivity of the issue, it is clear the key decisions in this area will have to be taken by the Supreme Court. It is possible that the age of affirmative action in American race relations and race policy is coming to an end.
Affirmative action has been a divisive issue in American political life and has sometimes been raised effectively in political campaigns. It has divided former allies on civil rights issues, in particular AmericanJews, normally liberal, from blacks. Jews oppose quotas in admissions to medical and law schools because they were in the past victims of very low quotas imposed by American universities.
Affirmative action under various names and legal arrangements is found in many countries: in India, to provide opportunities to scheduled castes, scheduled tribes, and other backward classes, where different requirements operate at the national level and within the states and where some degree of preference has existed in some areas and for some purposes as far back as the 1920s (Galanter 1984); in Malaysia, to protect the native Malay population; in Sri Lanka, to benefit the majority Sri Lankan population (Sowell 1990); and in Australia and Canada, where milder forms of affirmative action than those found in the United States operate. It is now being raised in the countries of Western Europe, which have received since World War II large numbers of immigrants who now form distinctive communities who lag behind the native populations in education and occupational status. The policies called affirmative action in the United States are called ”reservations” in India, and ”positive discrimination” in some other countries.
There is considerable debate as to the effects of affirmative action policies and how weighty these can be as against other factors affecting employment, promotion, and educational achievement (Leonard 1984a; 1984b). A summary judgment is difficult to make. Black leaders generally consider affirmative action an essential foundation for black progress, but some black intellectuals and publicists have been skeptical. Black leaders often denounce opponents of affirmative action as racists, hidden or otherwise, yet it is clear that many opponents simply find the use, required or otherwise, of racial and sexual characteristics to determine job and promotion opportunities and admission to selective college programs in contradiction with the basic liberal principles of treating individuals without regard to race, national origin, color, and sex. Affirmative action has undoubtedly increased the number of blacks who hold good jobs and gain admission to selective programs. But it has also had other costs in the form of increased racial tensions. It has coincided with a period in which a pattern of black advancement occupation-ally and educationally since World War II has been surprisingly slowed. The defenders of affirmative action argue that this is because it has not yet been applied vigorously enough. The opponents argue that the concentration on affirmative action encourages the neglect of the key factors that promote educational and occupational progress, which are basically the acquisition of qualifications for better jobs and superior educational programs. (see also: Discrimination; Equality of Opportunity)
