The State of Affirmative Action

Affirmative Action is clearly one of the most debated topics in the country today; from California to Washington D.C., forces for and against affirmative action are quickly lining up to defend their position on the issue. Amid the debate lie questions regarding the future of affirmative action. In attempting to gauge its future, it is important to examine affirmative actions origin.

A Historical Overview

One hundred years after the end of the Civil War, the United States continued to struggle with issues related to race and equality. The social climate was such that the doors to employment were closed to fully qualified people, solely on the basis of their race, religion or national origin.

Title VII of the 1964 Civil Rights Act addressed this issue and made it unlawful for a state, local or private employer with at least 15 employees to engage in employment discrimination on the basis of race, color, religion, sex, pregnancy and national origin. It is unlawful for an employer to use these factors to fail to hire, discharge, or otherwise discriminate with respect to compensation, terms, conditions, or privileges of employment; OR limit or classify an employee applicant in any way that deprives or tends to deprive the individual of employment opportunities or otherwise adversely affects that persons status as an employee.

While the requirement under Title VII was for non-discrimination, affirmative action could be a part of a conciliation agreement or court order only after a finding of discrimination had been made. The remedy section for Title VII reads:

"If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to reinstatement or hiring of employees......"

Executive Order 11246 issued by President Lyndon Johnson in 1965 prohibits race discrimination by federal contractors and requires affirmative action. The order states that the contractor:

"will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will 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."

The prohibition against discrimination based on sex was added to the requirements under Executive Order No. 11375, which became effective in 1968.

Today, there are some 160 federal laws and regulations dealing with affirmative action. Regulations dealing with written affirmative action plans were first issued in 1968, and then became more detailed in 1970 under the Department of Labors requirements. In essence, federal contractors were to develop a written affirmative action program that included numerical goals and timetables for the hiring of minorities and women in those job classifications which had a smaller representation of these groups in proportion to their actual representation in the labor market. Educational institutions which had federal contracts are prohibited from employment discrimination on the basis of sex, race, color, religion and national origin.

Title VI of the Civil Rights Act of 1964 also had an impact on educational institutions. Under Title VI, federal funds can be withheld from any program or activity found in violation of discrimination based on race, color or national origin.

Affirmative Action in Education

The roots of affirmative action in education can be traced to many court decisions regarding discrimination born out of segregation. It was Brown v. Board of Education in 1954 which established that purportedly separate but equal classrooms are inherently unequal and violate the fifth and fourteenth amendments to the U.S. Constitution.

As the regulatory climate established guidelines for federal contractors, many institutions of higher learning also adopted voluntary measures for recruitment and admissions which mirrored court, ordered rulings. The 1978 U.S. Supreme Court case, Regents of the University of California v. Bakke, tackled the affirmative action issue head on. Allan Bakke challenged the admissions procedures of the university's medical school which had developed a special admissions program to increase the participation of minority students. Bakke, a white male, was denied admission twice, while minority candidates with lower grade averages and test scores were admitted. The justices on the court were split in their decision, thereby failing to render a majority opinion. While the university's affirmative action plan was found illegal, language in the Supreme Courts decision held that some forms of admissions procedures that were race conscious for the purpose of achieving a diverse student body are constitutional.

The recent changes in race-based admissions likely can be attributed to the lack of a clear-cut majority ruling in the reasonings made by the Justices in the Bakke case. Colleges that have relied on the portion of the ruling dealing with the use of racial preferences to achieve a diverse student body are now challenged by a recent case involving the University of Texas law school. In Hopwood v. State of Texas, the U.S. Court of Appeals for the Fifth Circuit, which is comprised of Texas, Mississippi and Louisiana, declared that race-based preferences in admissions violate the equal protection clause of the U.S. Constitution. Hopwood is not binding on states outside of the Fifth Circuit, and the decision has been appealed to the U.S. Supreme Court.

The entire educational community has cast a watchful eye on changes occurring in California. In November of 1996, a referendum called the California Civil Rights Initiative (CCRI) will go before that states voters. If passed, the proposed Constitutional amendment would prohibit the California State University System, the University of California and the states community colleges from using racial and gender preferences in the areas of admissions, hiring and contracting. A similar ban was adopted last year by the University of Californias board of regents.

Affirmative Action's Future

While opponents of affirmative action argue that the measure is nfair, giving some groups an unequal advantage over others, proponents argue that no major changes have occurred since its inception which show that minorities have displaced non-minorities in the job market or the educational arena. The debate on affirmative actions future is sure to heat up as we near the coming Presidential election.

As the recent trend of court decisions appears to lean toward the removal of race and gender preferences, particularly those which offer different criteria for entrance into an organization based on race or gender, many organizations no doubt question how they may achieve diversity in their workplaces and classrooms without affirmative action. Recent holdings challenge the use of race as a basis for any employment decision, whether for affirmative action purposes or otherwise. Whatever the future political climate holds for affirmative action, it is sure to undergo transformation.

Published in the Summer 1996 Edition of In Brief