What is affirmative action? Biden's Supreme Court nomination pledge raises the issue
- Affirmative action first appeared in a 1961 executive order.
- The Civil Rights Act and executive orders establish guidelines around it.
- In recent decades, affirmative action has been scrutinized by courts and voters.
President Joe Biden's pledge to nominate a Black woman to the Supreme Court has drawn criticism from some Republicans who take issue with immediately narrowing the field of candidates based on race and gender.
The president's pick will be historic and a prominent example of an effort to dismantle systemic racism in American society, which Biden called for on mulitple occasions.
Sen. Ted Cruz of Texas called the president's plan "offensive," noting a majority of Americans would be "ineligible" to be nominated.
Republican Sen. Roger Wicker, R-Miss., elicited strong criticism for saying Biden’s pick will have benefited from affirmative action and suggesting she may not be able to be objective when deciding such cases.
Republican Sen. Lindsey Graham lent his interpretation of affirmative action to the discussion during an interview with CBS News: "Affirmative action is picking somebody not as well qualified for past wrongs," adding that J. Michelle Childs, the South Carolina federal judge reportedly on Biden's short list, is "highly qualified."
Senate Minority Leader Mitch McConnell, R-Ky., referenced the concept of a "racial quota" when asked how many of his staffers are Black women and how that might influence his decision on Biden's court nominee. McConnell replied, "Actually, I haven't checked, we don't have a racial quota in my office."
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As affirmative action, as well as quotas, are mentioned in conversations surrounding Biden's historical Supreme Court pick, here's what to know about the policies.
Affirmative action becomes law in 1961
Affirmative action in its basic form first appeared in a 1961 Executive Order signed by President John F. Kennedy. It established that government contractors "will take affirmative action to ensure that applicants are employed" and treated equally during the length of employment regardless of "their race, creed, color, or national origin."
Kennedy's order came after years of desegregation efforts and decades of discrimination against African Americans, which had deprived generations of career opportunities and wealth.
The Civil Rights Act of 1964, passed during President Lyndon B. Johnson's administration, was amended to include affirmative action, according to Mo Cayer, professor of human resources at the University of New Haven in Connecticut.
"Certainly, affirmative action (became) a common practice for business organizations as well as government organizations to make up for a history of discriminating against Blacks and other minorities," Cayer said. "And the Civil Rights Act, of course, included race, but also religion, ethnic origin, gender. And so, affirmative action became kind of like an accepted practice."
Title VI of the Civil Rights Act prohibits exclusion from any program or activity receiving federal financial assistance on the grounds of race, color or national origin. And Title VII of the same law "prohibits employment discrimination based on race, color, religion, sex and national origin," according to the Equal Employment Opportunity Commission.
The Office of Federal Contract Compliance was established to administer Johnson's 1965 executive order requiring all government contractors and subcontractors to expand job opportunities to minorities, according to the American Association for Access, Equity and Diversity. Two years later, he amended the order to include affirmative action for women.
Colleges and universities began to endorse "racially-attentive" admission and recruitment programs in the mid-1960s in response to the social and political upheaval of the civil rights era, according to a 2008 paper written by sociology professors Lisa Stulberg and Anthony Chen.
Black students "were either more or less officially shut out in Southern, predominately white colleges. And in the Northern selective colleges, were effectively mostly shut out," said Natasha Warikoo, professor of sociology at Tufts University in Massachusetts. "And so, these universities recognize this is not fair. And this is like a racial justice issue. And they wanted to be on the right side of racial justice."
In 1970, President Richard Nixon issued Order No. 4, which authorized flexible goals and timetables to correct an "underutilization" of minorities by federal contractors. Women were included in the 1971 revision.
Affirmative action is scrutinized
In the years following Order No. 4, high-level challenges to affirmative actions arose.
The Supreme Court ruling in Regents of the University of California v. Bakke (1978) upheld race as one considerable factor in choosing among qualified applicants for admission, but also ruled the university's special admissions program, which reserved spots solely on race, was illegal.
The following year, in United Steel Workers of America, AFL-CIO v. Weber (1979), the court ruled that temporary race-conscious affirmative action efforts designed to mitigate consequences from racial discrimination are permissible if they do not violate rights of white employees.
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President Ronald Reagan expanded the Minority Business Enterprise contracting program in 1983. But the administration's efforts in 1985 to repeal Johnson's original executive order on affirmative action were thwarted by advocates in Congress, civil rights organizations and in corporate leadership.
The University of California system voted in 1995 to end affirmative action programs at all campuses, beginning in 1997.
In 1997, the Supreme Court refused to hear a challenge to California's Proposition 209, which passed by a narrow margin the previous year and abolished all statewide public sector affirmative action programs in employment, education and contracting.
In 1998, Washington state enacted a measure comparable to California's. Florida followed suit in banning affirmative action with the “One Florida” Plan in 2000.
In 2014, the Supreme Court upheld Michigan's ban on affirmative action in public college admissions, paving the way for other states to enact similar statutes. In all, 10 states have outlawed affirmative action in some capacity, though the Texas policy was reversed in 2003.
This January, the Supreme Court announced it would decide two affirmative action cases challenging the constitutionality of universities – specifically, Harvard and University of North Carolina – considering race when accepting students. It's the first time since 2016 the court has agreed to decide the contentious issue.
Over time, persistent attacks against affirmative action have rendered it less impactful, said Robert Solomon, attorney and vice president of the Office for Inclusion, Diversity and Equal Opportunity at Case Western Reserve University in Cleveland.
"It's really been restricted in terms of its remedial views, even though we still know that there are present effects in our society of past discrimination. And they continue today," Solomon said. "But a predominant, conservative – very conservative – Supreme Court has continued to restrict that use. And you have had many state legislators that have restricted the use. So today, affirmative action really doesn't function in the way that it originally was.
"In other words, one can try to address past discrimination," Solomon said. "But what most people are doing is really focusing on the value of diversity, certainly in the higher education context, but in every context."
What is a 'quota'?
The topic of affirmative action is commonly mentioned along with "quotas": when an individual's race and gender are the only selection criteria instead of being among many factors in hiring, admissions and awarding grants or other types of financial aid, according to the American Civil Liberties Union.
Quotas are often confused with placement and utilization goals or hiring benchmarks, according to the U.S. Office of Federal Contract Compliance Programs. Such practices are strictly forbidden under federal program rules.
Cayer said there is a difference between diverse hiring priorities and quota-filling.
"Just because you have affirmative action, where (an) organization goes above and beyond to try and cast a wider net, in terms of recruiting qualified candidates, and then giving them attention and perhaps additional training so that they would qualify for positions ... it's certainly not a quota, it is an affirmative action," he said.
A legal affirmative action plan does not include quotas. The Supreme Court upheld this standard in the Bakke decision.,
"Affirmative action was never intended to be about quotas, or numbers," Solomon said. "It was intended basically to be intentional about getting fair consideration, or opportunities, for those who had been discriminated against historically, but through court decisions."
He cited two 1997 cases, Gratz v. Bollinger and Grutter v. Bollinger, in which white students at the University of Michigan challenged the use of race in the admission processes for the College of Literature Science and the Arts and the Law School, respectively. The undergraduate program failed "strict scrutiny," while the law school program survived it because "they did it in the right way, where race was a factor among a multiplicity of factors. And it was not the determining factor," Solomon said.
"Affirmative action, really, is about making sure that everybody has a seat at the table. It is not about taking a position or taking an opportunity from someone else, because that's usually the mentality," he said. "There are things that one individual might think about or recognize that another will not, simply because of their lived experiences."
Reach out to Chelsey Cox on Twitter at @therealco.