Legal History

Ariadne's Thread is designed to help you work out and defend your own views on the complicated subject of affirmative action, chiefly as it applies to race or color in the United States. Some fairly non-controversial legal history may serve as an introduction. Even this history, however, will make it clear that what counts as affirmative action has changed greatly over time and the law regarding it is still changing.

Affirmative action policies intended to help black Americans began fairly recently. The policies are derived from several sources: laws, executive orders, and court decisions. They have developed over the last 30 years, and have often been controversial. Comment

The Civil Rights Act of 1964

The Civil Rights Act of 1964 contained a section on equal employment opportunity. That section, called Title VII, made it illegal for employers with 25 or more employees to "fail or refuse to hire or to discharge any individual . . . because of such individual's race, color, religion, sex, or national origin...." Title VII also stated that none of its provisions should be interpreted as requiring "preferential treatment" for any individual or group because of race, color, religion, sex, or national origin. But it provided for "affirmative action" in some cases of discrimination. Title VII is sometimes referred to by authors who argue against affirmative action programs, but the situation became much more complicated as executive orders were issued and court decisions were made. Comment Source

Executive Order #11246 and the DOL

In 1965 President Johnson issued Executive Order #11246. The order required each federal department to develop a "positive program of equal employment opportunity" regardless of race or color. It also required federal contractors to take "affirmative action" to ensure non-discrimination in recruitment, hiring, promotion,and rates of pay.

The Department of Labor (DOL) issued rules and regulations to implement Johnson's order. The rules required contractors to undertake a "utilization analysis" to determine whether qualified women and minorities were under-represented among the contractor's employees. Contractors were to draw up numerical "goals" and "timetables" to remedy under-representation. Comment Source

The application of the DOL rules and regulations provoked controversy. Did the new rules merely require contractors to make good faith efforts to hire blacks and women? Or did they, in effect, establish quotas for hiring? Did the new rules require non-discrimination? Or did they, in effect, discriminate against white job applicants? Had affirmative action become "preferential treatment" for blacks and "reverse discrimination" for whites? These were some of the questions that were debated. If the new rules did allow, or require, strong preferential treatment, they raised an important moral issue: Was there a legal or a moral justification for giving preference to blacks? In a nutshell, that question is the subject of Ariadne's thread on affirmative action. Comment Source

Some private companies and unions responded by formulating affirmative action plans. In some cases these plans were simply designed to give blacks and whites an equal chance at jobs and promotions. For example, jobs were publicized in black newspapers. More recruitment was done at black schools. Training programs were created. Employers labeled themselves "equal opportunity employers" in their job advertisements.

In other cases the plans were more aggressive. This occurred especially when courts found a history of discrimination or marked segregation. For example, a training program might be required to have a certain percentage of black enrollment. A court might require an employer to hire one black for every white until a certain goal was reached. These plans were more controversial.

Supreme Court Decisions

A series of Supreme Court decisions in the 1970s helped define what counted as discrimination and what could or could not be done as affirmative action.

In Griggs v. Duke Power (1971) the Court determined that tests used by employers for hiring must be closely related to job performance if they have a "disparate impact" on minorities. Comment Source

In United Steelworkers of America v. Weber (1979) the Court upheld a voluntarily adopted plan to reserve 50% of the slots in a training program for blacks. The plan was an attempt to increase the number of blacks in the nearly all white skilled labor force at Kaiser Aluminum.

Many universities also adopted affirmative action programs in the 1970s. These programs were aimed at increasing black student enrollment and the number of black faculty. The constitutionality of some programs came into question in the case of Allan Bakke.

Bakke applied to, and was rejected by, the University of California medical school at Davis. Because the school had set aside 16 places for disadvantaged minority applicants, he argued that the school had violated his right to equal protection of the laws. In 1978 the Court declared the school's program unconstitutional, but it also allowed that "race-conscious" policies to benefit minorities were permissible if race was not the sole factor considered. Comment

The Reagan Administration

Ronald Reagan became president in 1981. He and his supporters were generally opposed to the stronger forms of affirmative action.

Some of those in the Reagan administration wanted the president to rescind Johnson's executive order #11246. That never happened. However, the administration did initially argue for a particular understanding of when courts should order or allow relief in discrimination cases. This understanding is sometimes called "victim specific." It allows that only the specific victims of proven discrimination by a particular employer must be given relief or compensation by that employer. The Supreme Court later rejected this view.

After Reagan

Although the victim specific interpretation was rejected, the administration still sought to change the results of the Griggs case and others. Success occurred just after Reagan left office. In City of Richmond v. J. A. Croson Co. (1989) the Court struck down a policy that set aside 30% of city contracts for minority-owned contractors.

In Wards Cove Packing Co. v. Atonio (1989) the Court decided that when there is a statistical imbalance in an employer's labor force, the employer does not have to prove that its hiring procedures are justified by "business necessity" as in Griggs. The burden of proving that the hiring procedures are not reasonably related to legitimate business concerns falls on the party bringing the suit. Comment

After the Croson and Wards Cove decisions, legislation was introduced into congress to reverse some of the effects of those decisions and write the results of the Griggs case into law. A new law required the complaining party to show that a particular employment practice had a "disparate impact" on blacks or others protected by the 1964 law. It then required the employer to prove that the practice was justified by "business necessity." The law also banned a practice sometimes called "race-norming" by which test scores are altered on the basis of race, color, religion, sex, or national origin.

The Croson decision did not end "set asides" connected with federal contracts. A 1987 law required that 10% of federal money for certain highway projects go to businesses owned by "disadvantaged individuals." In one such case, a contract was awarded to an Hispanic owned company. Another contractor, Adarand Constructors Inc., had entered a lower bid and lost. Adarand argued that the government's policy violated the equal protection guaranteed by the Fifth Amendment. In 1995, in Adarand Constructors v. Pena, the Supreme Court decided that only a "compelling interest" could justify race-based action by the federal government. This increased the level of scrutiny for all federal affirmative action. Source

Ongoing Debates

After much legislation and many Supreme Court decisions, affirmative action continues to be controversial. The law is complex and somewhat uncertain. Americans continue to debate questions like these:

These questions have been debated for over 20 years, with no sign of agreement. It appears that the controversy over strong affirmative action is unlikely to disappear or to be resolved. The conflict involves the distribution of important goods, including well paying jobs and the best education. There are interests, political power, and moral conviction on all sides. Furthermore, all sides can appeal to common sense moral notions and legal precedent. It is not surprising that some writers have described the debate as deadlocked.