Attack on Affirmative Action: Navigating the Ongoing Battle

Written by Kennedy Kibler

Edited by Mizla Shrestha, Hannah Fuchs, and Juliette Draper

In 1961, John F. Kennedy established a policy that remains a controversy today: affirmative action. This became official with Executive Order 10925, where Kennedy stated, “The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, 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, creed, color, or national origin.”[1] Affirmative action policies have changed throughout time, becoming more sophisticated. In 1967, Executive Order 11375 expanded affirmative action to include women.[2] Later executive orders established further protected demographic categories, including handicap status and age in 1969, as well as sexual orientation in 1998.[3] The complexity of affirmative action is clear, so it is important to define what affirmative action truly means and what these policies entail. Affirmative action is defined by Meriam-Webster as the use of policies, legislation, programs, and procedures to improve the educational or employment opportunities of members of certain demographics (such as minority groups, women, and the elderly) as a remedy to the effects of long-standing discrimination against such groups.[4] It is also important to identify what affirmative action is not. Affirmative action is not meant to be quotas or reverse discrimination. Rather, it is an effort towards a world without discrimination, though there is still a long road to get there.


Why is Affirmative Action Controversial?

The current court case, Students for Fair Admissions Inc. v. President & Fellows of Harvard College, demonstrates the ongoing controversy of affirmative action policy in the college admissions process specifically; however, similar concepts apply to other sectors like employment and contracting as well. The lawsuit is deciding whether the Supreme Court holds that race cannot be considered in the college admissions process and if Harvard is in violation of Title VI of the Civil Rights Act.[5] This would also mean overturning a previous lawsuit, Grutter v. Bollinger (2003), which upheld the use of affirmative action in college admissions. This case involved the University of Michigan law school, where Grutter, a white Michigan resident, claimed that the school had violated the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964; essentially, she thought the school discriminated against her on the basis of race. Ultimately, though, the court held that the University of Michigan Law School had used a holistic approach to the admissions process, with race being one of the many factors in this decision.[6] The Supreme Court upheld this notion another time in the 2013 case of Abigail Fisher v. The University of Texas at Austin, with a nearly identical situation of Abigail Fisher suing the university and arguing that her Fourteenth Amendment rights were violated. Once again, The University of Texas at Austin’s admissions process was able to survive strict scrutiny.[7]

Affirmative action faces large amounts of criticism from different groups. Some people believe that the controversial outcomes regarding affirmative action can hurt the intended beneficiaries of the process in general. Although it may create more opportunities, people may not necessarily be prepared for such opportunities due to prejudices, personal biases, and reinforced stereotypes. Others oppose affirmative action because they believe it creates “reverse discrimination” or involves quotas. One important case, Regents of The University of California v. Bakke (1978), helped establish how race should be used in processes like admissions. Bakke, a white male, claimed that the medical school at The University of California at Davis rejected him due to a racial quota put in place, which said that white applicants could only take up 84 out of 100 spots. The court ruled that race can be considered as one factor in the admissions process, but a racial quota system violates the Equal Protection Clause and Civil Rights Act of 1964.[8] This decision demonstrates that there is a necessary line between quotas and plans to increase the representation and opportunity of historically oppressed groups in certain sectors. However, not everyone is able to agree on the use of affirmative action at all. Hence the controversy is likely to continue to appear in the U.S. Supreme Court, like the current Harvard case. In said case, Students for Fair Admissions Inc. contend that Harvard holds Asian Americans to a higher standard in the admissions process, while Harvard counters that it sets no limits for Asian American students and that all applicants are considered individually based on a holistic process. This issue has actually been moving through lower courts since 2014, but now will be heard at the Supreme Court level, where a decision could be nothing short of instrumental in not only college admissions but could also impact many other sectors in the United States.


Affirmative Action in the Workplace

Affirmative action policies are not only important in the college admissions process, but they also affect employment. Essentially, affirmative action plans must be a part of a firm if they contract with the federal government; if not, they can choose to implement these plans.[9] Furthermore, if written, they must be documented, filed, and updated every year.[10] One example of a landmark court case in the work sector was United Steelworkers of America v. Weber (1979). In this case, the United Steelworkers of America had voluntarily established a program to reserve 50 percent of the positions for Black employees and the other 50 percent for white employees, as they had a clearly underrepresented minority workforce. However, this plan was only temporary to ultimately mend the extreme racial imbalance. Weber, a white employee, then sued them for racial discrimination. The court ruled that Title VII of the Civil Rights Act of 1964 allows for private entities to create affirmative action plans seeking minorities.[11] This demonstrates the difference when looking at public versus private entities, as well as how affirmative action can lessen representation gaps in employment. Affirmative action works towards increased equal opportunity in the workforce. As a result, affirmative action plans put in place by businesses include greater workforce diversity, which leads to greater inclusivity and productivity. A diverse workspace that brings in multiple perspectives can foster better productivity and profitability. For instance, according to S&P insights, McKinsey initiated research that concluded that “companies in the top 25% for ethnic and cultural diversity were 36% more profitable than those in the bottom quarter, and when women are well represented in the C-suite, profits can be almost 50% higher.”[12] Underrepresented groups bring in unique skills that can raise the ceiling of companies and industries to new heights.[13]


Implications to the Possibility of Ending Affirmative Action Programs

When reexamining the Students for Fair Admissions Inc. v. President & Fellows of Harvard College case, a decision in favor of Students for Fair Admissions Inc. could have substantial effects. For example, there are states that have already banned affirmative action. One instance is California, which enacted Proposition 209, banning all forms of affirmative action, referring to the workforce, education, and contracting. As a result, underrepresented groups have suffered, especially African Americans, Native Americans, and Latinos. For instance, based on Backes (2012),[14] there has been a decrease in college enrollment by a percentage change of over 25 percent for Blacks and almost 20 percent for Hispanics.[15] According to another study, the ban on affirmative action decreases underrepresented minority enrollment and increases white enrollment at selective colleges.[16] Additionally, according to A Natural Experiment Approach Using State-Level Affirmative Action Laws and EEO-4 Data, the states that have ended affirmative action have experienced a great decrease in workplace diversity when being compared to the states that have these plans put in place. According to the study, “Once affirmative action was repealed in a state (four states in the years ranging from 1996 to 2008 within the study period of 1990 to 2009), minorities working in state or local government decreased relative to the control group of states that kept affirmative action in place: Hispanic men’s participation decreased by 7%, Black women’s decreased by 4%, and Asian women’s decreased by 37%”[17] It is clear that ending affirmative action policies has significant implications, which demonstrates the importance of the Supreme Court in the Students for Fair Admissions Inc. v. President & Fellows of Harvard College case.

Ultimately, many issues in today’s society do not have black and white answers or ways to fully satisfy both sides. Navigating through the gray can be a difficult but necessary task. The debate on affirmative action is a prime example of finding solutions in the gray where we can continue fighting for a world with less bias, discrimination, and underrepresentation of minority groups. Affirmative action policy is an undeniable necessity in this fight, with the hopes that one day, there will no longer be such a divide. As John F. Kennedy said, “The heart of the question is whether all Americans are to be afforded equal rights and equal opportunities; whether we are going to treat our fellow Americans as we want to be treated.”


 


[1] Executive Order 10925—Establishing the President's Committee on Equal Employment Opportunity, Tʜᴇ Aᴍᴇʀɪᴄᴀɴ Pʀᴇsɪᴅᴇɴᴄʏ Pʀᴏᴊᴇᴄᴛ, https://www.presidency.ucsb.edu/documents/executive-order-10925-establishing-the-presidents-committee-equal-employment-opportunity.

[2] Executive Order 11375—Amending Executive Order No. 11246, Relating to Equal Employment Opportunity, Tʜᴇ Aᴍᴇʀɪᴄᴀɴ Pʀᴇsɪᴅᴇɴᴄʏ Pʀᴏᴊᴇᴄᴛ, https://www.presidency.ucsb.edu/documents/executive-order-11375-amending-executive-order-no-11246-relating-equal-employment.

[3] Hiring and Recruiting: Affirmative Action, Mɪᴄʜ. Sᴛ. U., https://inclusion.msu.edu/hiring/affirmative-action.html#:~:text=Affirmative%20Action%20Executive%20Order%20%28EO%29%2011246%20issued%20in,sexual%20orientation%20%281998%29%20to%20the%20definition%20of%20discrimination.

[4] Affirmative Action, Mᴇʀʀɪᴀᴍ-Wᴇʙsᴛᴇʀ's Dɪᴄᴛɪᴏɴᴀʀʏ, https://www.merriam-webster.com/dictionary/affirmative%20action.

[5] Students for Fair Admissions Inc. v. President & Fellows of Harvard College, SCOTUS Bʟᴏɢ, https://www.scotusblog.com/case-files/cases/students-for-fair-admissions-inc-v-president-fellows-of-harvard-college

[6] Grutter v. Bollinger 539 U.S. 306 (2003), Cᴏʀɴᴇʟʟ LII, https://www.law.cornell.edu/supct/html/02-241.ZS.html.

[7] Thomas Santoro & Stephen Kent Wirth, Fisher v. University of Texas at Austin, Cornell LII Sᴜᴘ. Cᴛ. Bᴜʟʟ., https://www.law.cornell.edu/supct/cert/11-345.

[8] Regents of the University of California v. Bakke (1978),Wᴇx Oɴʟɪɴᴇ Lᴇɢᴀʟ Dɪᴄᴛɪᴏɴᴀʀʏ (Dec. 2020), https://www.law.cornell.edu/wex/regents_of_the_university_of_california_v_bakke_%281978%29.

[9] Affirmative Action Laws: Everything You Need to Know, Uᴘᴄᴏᴜɴsᴇʟ, https://www.upcounsel.com/affirmative-action-laws.

[10] Basia Hellwig, What Affirmative Action Means for Businesses: How Affirmative Action Programs Operate in the Workplace, Iɴᴠᴇsᴛᴏᴘᴇᴅɪᴀ (June 1, 2021), https://www.investopedia.com/articles/investing/021215/guide-affirmative-action-and-business.asp.

[11] United Steelworkers of America v. Weber (1979), Wᴇx Oɴʟɪɴᴇ Lᴇɢᴀʟ Dɪᴄᴛɪᴏɴᴀʀʏ (Apr. 2021), https://www.law.cornell.edu/wex/united_steelworkers_of_america_v_weber_%281979%29.

[12] Workplace Diversity: The Statistics Are In, SAP Iɴsɪɢʜᴛs, https://insights.sap.com/workplace-diversity-statistics/#:~:text=Profitability%3A%20Multiple%20studies%20show%20that%20diverse%20companies%20are,the%20C-suite%2C%20profits%20can%20be%20almost%2050%25%20higher.

[13] Michèle Müller-Itten & Aniko Öry, Study: To Maximize Productivity, Affirmative Action Should Continue Indefinitely, Yᴀʟᴇ Iɴsɪɢʜᴛs (Aug. 17, 2020), https://insights.som.yale.edu/insights/study-to-maximize-productivity-affirmative-action-should-continue-indefinitely.

[14] Ben Backes, Do Affirmative Action Bans Lower Minority College Enrollment and Attainment?, 47 Tʜᴇ J.ᴏғ Hᴜᴍ. Rᴇsᴏᴜʀᴄᴇs 435, 455 (2012), http://jhr.uwpress.org/content/47/2/435.refs.

[15] David Mickey-Pabello, Scholarly Findings on Affirmative Action Bans, Tʜᴇ Cɪᴠɪʟ Rɪɢʜᴛs Pʀᴏᴊᴇᴄᴛ (Oct. 26, 2020), https://files.eric.ed.gov/fulltext/ED609274.pdf.

[16] Peter Hinrichs, The Effects of Affirmative Action Bans on College Enrollment, Educational, Attainment, and the Demographic Composition of Universities, 94 Tʜᴇ Rᴇᴠ. ᴏғ Eᴄᴏɴ. ᴀɴᴅ Sᴛᴀᴛ. 712, 722 (2012), http://www.jstor.org/stable/23261474.

[17] Fidan Ana Kurtulus, The Impact of Eliminating Affirmative Action on Minority and Female Employment: A Natural Experiment Approach Using State-Level Affirmative Action Laws and EEO-4 Data, U. ᴏғ Mᴀss. Aᴍʜᴇʀsᴛ ᴀɴᴅ Hᴀʀᴠ. L. Sᴄʜ. (Oct. 30, 2013), https://gap.hks.harvard.edu/impact-eliminating-affirmative-action-minority-and-female-employment-natural-experiment-approach.


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