Unit
Years: 1961-Present
Economy & Society
Freedom & Equal Rights
Prior to this lesson, students should be familiar with the legal victories of the civil rights movement–especially Brown v. Board of Education, the Civil Rights Act of 1964, and the Voting Rights Act of 1965. It would also be beneficial for students to understand the context of urban Black experiences during and after the Great Migration, including continued racial discrimination in the workplace. Finally, studying the White backlash to school desegregation would provide context for the debate over Affirmative Action.
Affirmative Action policies were intended to ensure equal opportunities for people of color, women, and people with disabilities to participate in historically exclusive institutions such as workplaces and schools. Their impact and Constitutionality have been under debate since the 1960s.
Although current debates revolve around Affirmative Action programs as they are applied to college admissions procedures, the federal government in the 1960s and 1970s was more immediately concerned with promoting better employment practices through the granting of federal construction projects to contractors who adhered to minority hiring guidelines.
Introduction
The term “affirmative action” was first used by President John F. Kennedy in a 1961 Executive Order which stated that federal contractors should “take affirmative action” to ensure that job applicants and employees are treated “without regard to their race, creed, color, or national origin.” The civil rights movement made clear that anti-discrimination statutes, such as the Civil Rights Act of 1965, were not enough to break long-standing patterns and habits of discrimination, especially in the workplace. Thus, Affirmative Action policies aimed to even the playing field for people of color applying to work or attend school in historically White institutions.
Employment Discrimination
During World War II, wartime labor shortages led many employers to hire Black workers in higher numbers. However, racial segregation in the workplace continued through the 1960s, and employers continued to pay Black workers less and hire them for lower-skilled jobs than their White counterparts. In communities across the country, whole industries and job sectors were essentially all-White and all-male. People of color and women, for instance, were forbidden to apply for jobs in most local police and fire departments. In businesses that did hire Black Americans, they were often restricted to menial labor and precluded from any management positions. In the 1960s, Black Americans were almost twice as likely as White Americans to be poor and twice as likely to be unemployed. Legal change did not necessarily lead to social change.
Inadequate Legal Protections
While judicial and legislative victories such as Brown v. Board and the Voting Rights Act of 1965 helped advance the Constitution’s promise of equality to people of color and women, laws were not enough to overcome much of the invisible institutional discrimination that permeated American society. In part, this was because legal protections required evidence of overt and blatant bias and bigotry. Instead, workplace discrimination could often take on more subtle forms of exclusion, undetectable from a legal standpoint but very real in the lived experiences of Black people in majority-White institutions.
As a result, advocates for Affirmative Action argued that additional protections were necessary to ensure an integrated society in which all segments of the population had an equal opportunity to share in jobs, education, and other benefits of a democratic society. Proponents argued that quotas for hiring, promotions, and college admissions were necessary to integrate fields that were traditionally closed to people of color and women. While the modern debate and controversy surrounding affirmative action centers around admissions policies of universities and colleges in the United States, employment opportunities in traditionally restricted job sectors was the focus of the Kennedy, Johnson, and Nixon administrations.
Presidential Policies and Affirmative Action
President Kennedy created the Committee on Equal Employment Opportunity in 1961 and issued Executive Order 10925, which created Affirmative Action measures designed to eliminate racial discrimination in hiring. Johnson’s administration stepped up efforts in 1965 and applied more aggressive action by requiring businesses to report their workforce demographics and by naming women as another marginalized group in the workforce worthy of “affirmative action.” Johnson also directed and empowered the Department of Labor to prioritize diverse contractors. President Nixon and Labor Secretary George Schultz built on Johnson’s plan to bolster affirmative action policies in 1969, in what would later be known as the “Philadelphia Plan.”
The Philadelphia Plan encouraged construction companies (who often partnered with the federal government for public works projects) to hire people of color, women, and people with disabilities, and required companies to demonstrate a “good faith” effort to diversify their workforce in order to be considered for lucrative federal contracts. Nixon and his cabinet decided to focus on Philadelphia as a test case since the city had several hundred million dollars earmarked for federal construction projects, and also had a history of excluding Black workers through racist union policies and practices. When Nixon enacted the Philadelphia Plan in September 1969, it aroused controversy and heated opposition from unions, contractors, and politicians. Congress even considered–but ultimately rejected–legislation to ban the plan. Nevertheless, the plan worked, and in February 1970, the Department of Labor announced the policy would be extended to other cities unless they devised their own procedures for ending job discrimination in the construction industry. Many cities developed local Affirmative Action plans as a result.
Affirmative Action in Education
By the mid 1970s, educational institutions were also testing methods to diversify their student bodies, including the use of quotas–specific numbers of admissions slots that were reserved for applicants of color. Quotas faced immense backlash from some White critics, who claimed that racial quotas constituted racial discrimination against White people. In 1978, the U.S. Supreme Court weighed in on the debate in the University of California v. Bakke. The case revolved around Allan Bakke, a white applicant to medical school at the University of California Davis, which reserved 16 of 100 spots for “qualified” applicants of color. When the school rejected Bakke twice, he claimed the quota system violated his Fourteenth Amendment right to equal protection under the law. The Supreme Court sided with Bakke and outlawed the use of rigid quotas while still asserting that race could be one of many criteria for admission–so long as it wasn’t enumerated in any way.
Following Bakke, the Supreme Court made several rulings specifying the instances when affirmative action is Constitutional–namely when policies are narrowly tailored, temporary, or for a “compelling interest.” These guidelines were ambiguous though, and many institutions backed away from Affirmative Action programs–including the University of California, which removed race as a criterion for admission in 1998, resulting in a notable decline of Black, Latino, and indigenous students on UC campuses. Congress and state legislatures in California and Florida (among others) considered restrictions on Affirmative Action policies, and several other court cases, asked the Supreme Court to clarify when and how race might be used to diversify college campuses.
In 2023, the Supreme Court severely limited, and in some cases eliminated, Affirmative Action plans in Higher Education after ruling on a case against the University of North Carolina and Harvard College. The decision after a 6-3 vote, was that the schools violated the Constitution’s equal protection clause, which bars racial discrimination by government entities. Given the Supreme Court’s divided decision, and the exceptions the Court has permitted in other cases, Affiirmative Action will likely remain in some form as a strategy to ensure all Americans have equal opportunity to participate in American society.
“Affirmative Action Policies Throughout History.” American Association for Access, Equity, and Diversity, 2023. https://www.aaaed.org/aaaed/History_of_Affirmative_Action.asp
Anderson, Terry. The Pursuit of Fairness: A History of Affirmative Action. Oxford University Press, 2005.
Holzer, Harry, and David Neumark. “Assessing Affirmative Action.” Journal of Economic Literature, vol. 38, no. 3, 2000, pp. 483–568. JSTOR, http://www.jstor.org/stable/2565419. Accessed 3 May 2023.
Hood, J. Larry. “The Nixon Administration and the Revised Philadelphia Plan for Affirmative Action: A Study in Expanding Presidential Power and Divided Government.” Presidential Studies Quarterly, vol. 23, no. 1, 1993, pp. 145–67. JSTOR, http://www.jstor.org/stable/27551085.
“Is Affirmative Action Justified?” Bill of Rights Institute, 2023. https://billofrightsinstitute.org/activities/is-affirmative-action-justified
Jeffries, John C. “Bakke Revisited.” The Supreme Court Review, vol. 2003, 2003, pp. 1–25. JSTOR, http://www.jstor.org/stable/3536948. Accessed 3 May 2023.
Kahlenberg, Richard. The Remedy: Class, Race, and Affirmative Action. Basic Books, 1997.
Katznelson, Ira. When Affirmative Action Was White: An Untold Story of Racial Inequality in Twentieth Century America. Norton, 2006.
Kennedy, Randall. For Discrimination: Race, Affirmative Action, and the Law. New York: Pantheon, 2013.
Kohn, Sally. “Affirmative Action Has Helped More White Women Than Anyone.” Time, June 17, 2013. https://time.com/4884132/affirmative-action-civil-rights-white-women/
Leonard, Jonathan S. “The Impact of Affirmative Action on Employment.” Journal of Labor Economics, vol. 2, no. 4, 1984, pp. 439–63. JSTOR, http://www.jstor.org/stable/2534808. Accessed 3 May 2023.
Ooiman Robinson, Jo Ann ed. Affirmative Action: A Documentary History. Westport, Conn.: Greenwood Press, 2001.
Player, Mack A. Federal Law of Employment Discrimination in a Nutshell. 3rd ed. St. Paul: West Publishing Co., 1992.
Posner, Richard A. “The Bakke Case and the Future of ‘Affirmative Action.’” California Law Review, vol. 67, no. 1, 1979, pp. 171–89. JSTOR, https://doi.org/10.2307/3480093. Accessed 3 May 2023.
Sowell, Thomas. Affirmative Action Around the World: An Empirical Study. Yale University Press, 2005.
Seeing as debates about Affirmative Action are often politicized, it may be helpful to ground discussions in the historical context for Affirmative Action policies, focusing on the rationale that Kennedy, Johnson, and Nixon used to justify Affirmative Action. Statistics about workplace diversity and the demographics of institutions of higher education before and after Affirmative Action policies would help students understand the measurable impact of Affirmative Action. It may also be helpful to identify for students that Affirmative Action policies were supported by presidents from both the Democratic and the Republican party.
Additionally, contemporary affirmative action debates center on race, but historically most beneficiaries of Affirmative Action are White women. We recommend taking an intersectional approach to this lesson and highlighting the role of the social constructs of gender, race, and disability as students grapple with the intended beneficiaries of Affirmative Action, as well as the primary critiques of these policies.
Finally, please note that resources provided in the activities contain racist language. We recommend having a conversation with students about the ways in which the language we use about race has changed and to clarify that students should be mindful with language that they use to discuss the past, when terms, such as negro or colored, differ from what is most appropriate to use today.
While current debates around Affirmative Action center around the role of race as a factor in college admissions, the very first Affirmative Action policies were intended to eliminate discrimination in hiring decisions and to diversify historically-White workplaces. The term “affirmative action” was first used by President John F. Kennedy in a 1961 Executive Order which stated that employers should “take affirmative action” to ensure that job applicants and employees are treated “without regard to their race, creed, color, or national origin.” Kennedy–followed by Presidents Johnson and Nixon–used his executive powers to quicken the pace of change and open more opportunities for Black Americans, women, and people with disabilities to benefit from the legal victories of the civil rights movement. Presidential policies such as Nixon’s Philadelphia plan forced companies who partnered with the federal government to demonstrate a “good faith” effort to diversify their workforces, and soon colleges and universities were also experimenting with new ways to even the playing field for applicants from marginalized communities.
Not everyone agreed that this was the best course of action. Affirmative Action policies were controversial and faced a great deal of backlash from White Americans who argued that Affirmative Action constituted racial discrimination against White people. The Supreme Court considered this argument in University of California v. Bakke (1978) and ruled that rigid racial quotas in college admissions were unconstitutional. Following Bakke, the court suggested that race could be one of many criteria for admission when such policies are narrowly tailored, temporary, or for a “compelling interest.”
Then in 2023, the Supreme Court severely limited, and in some cases eliminated, Affirmative Action plans in Higher Education after ruling on a case against the University of North Carolina and Harvard College. The decision after a 6-3 vote, was that the schools violated the Constitution’s equal protection clause, which bars racial discrimination by government entities. As it was not a unanimous decision, even Supreme Court justices have spoken out against this decision.
With legal confusion and disputes over Affirmative Action policies, Affirmative Action remains a controversial strategy. The efforts and policies to ensure all Americans have equal opportunity to participate in American society and the role of race in hiring and college admissions will likely generate continuing debates in years to come.
Select the activities and sources you would like to include in the student view and click “Launch Student View.”
It is highly recommended that you review the Teaching Tips and sources before selecting the activities to best meet the needs and readiness of your students. Activities may utilize resources or primary sources that contain historical expressions of racism, outdated language or racial slurs.
To begin the activity, have students read the Student Context and briefly discuss as a whole class. Then have students begin to create a timeline with 1961 as the starting year and 2023 as the ending year.
Students should include any other relevant dates from the student content.
Then, to build content knowledge and vocabulary, instruct students to work in groups of 3 to create a timeline of other key events in the history of affirmative action policies. Timelines can be made on poster or electronically using a graphic design software or slideshow program. Assign each group one or more key events to research further (teacher may select or identify additional events to incorporate).
For each event, students should list the date, a visual aid, and a brief explanation of what happened. At the conclusion of building the timelines, have students share out to the full class. Key events that are learned should be added to timelines during presentations.
As a whole class, end the activity by holding a discussion with the following questions:
In preparation for a Gallery Walk, place the following documents on posters around the room.
Have students walk around the room three times, visiting every poster with each round. For each round, the students should consider just one of the following questions, and respond in writing on the poster.
Assign 3-4 students to each poster, and have them read through all the comments on their assigned poster and report out to the class. They should share the main idea of the document and at least one student comment that resonated with the group.
Have students write a paragraph in response to the following question:
For the future of affirmative action policy, Titles VI and VII proved to be of central importance, a pillar around which future legislation would be crafted.
Title VI, Sec. 601. No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Title VII, Sec. 703. (a) It shall be an unlawful employment practice for an employer to…discriminate against any individual with respect to his compensation [pay], terms, conditions, or privileges of employment, because of such individual’s race, color, religion or national origin.
Source: Laws of the 88th Congress, 2nd Session (July 2, 1964): 301
Document 5.15.2: Excerpts from President Johnson’s Commencement Address at Howard University, June 4, 1965
Civil rights leaders and the media recognized the far-reaching implications of the President’s address at the historically black college, concerning the effective means of eradicating racism.
“To Fulfill These Rights”
You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, “you are free to compete with all the others.” And still justly believe that you have been completely fair…We seek, not just equality as a right and a theory but equality as a fact and equality as a result…Much of the Negro community is buried under a blanket of history and circumstance. It is not a lasting solution to lift just one corner of that blanket. We must stand on all sides and we must raise the entire cover if we are to liberate our fellow citizens…Perhaps most important…is the breakdown of the Negro family structure. For this, most of all, white America must accept responsibility. If flows from centuries of oppression and persecution of the Negro man…..
There is no single easy answer…
Jobs are part of the answer….
Decent homes…are part of the answer…
Document 5.15.3: Statement by President Nixon on Minority Business Enterprise, March 5, 1969.
In March 1969, President Nixon established the Office of Minority Business Enterprise (OMBE), which sought to support African American and other minority business owners with federal support.
Blacks, Mexican-Americans, Puerto Ricans, Indians, and others must increasingly be encouraged to enter the field of business…not only as workers, but also as managers and owners…
What we are doing is recognizing that in addition to the basic problems of poverty itself, there is an additional need to stimulate those enterprises that can give members of minority groups confidence that…Blacks, Mexican-Americans, and others can participate in a growing economy on the basis of equal opportunity at the top of the ladder as well as on its lower rungs.
In preparation to engage in a Socratic Seminar, have students read two sources, both about the Philadelphia plan.
After the seminar, lead a reflection in which students answer the following questions:
Document 5.15.4: Excerpts from the U.S. Department of Labor memorandum regarding The Philadelphia Plan, June 27, 1969
The Philadelphia Plan was a priority of the Nixon Administration. The plan required contractors submitting bids for federal construction jobs to indicate how many minority workers were assigned to every division of a labor crew. After this approach was tried in several different cities, Philadelphia became the focus because several hundred million dollars of federal money was designated for public construction in that city and because black laborers were threatening strikes to protest racist hiring policies that excluded them.
Subject: Revised Philadelphia Plan for Compliance with Equal Employment Opportunity
Requirements of Executive Order 11246 for Federally-Involved Construction.
Iron workers
Plumbers, pipefitters
Steamfitters
Sheet metal workers
Electrical workers
Roofers and water proofers
Elevator construction workers.
Because of the exclusionary practices of the labor organizations, there traditionally has been only a small number of Negroes employed in these seven trades. These exclusionary practices include: (1) failure to admit Negroes into membership and into apprenticeship programs. At the end of 1967, less than one-half of one percent of the membership of the unions representing employees in these seven trades were Negro, although the population in the Philadelphia area during the past several decades included substantial numbers of Negroes. As of April 1965, the Commission on Human Relations in Philadelphia found that unions in five trades (plumbers, steamfitters, electrical workers, sheet metal workers and roofers) were “discriminatory” in their admission practices. In a report by the Philadelphia local AFL-CIO Human Relations Committee made public in 1964, virtually no Negro apprentices were found in any of the building trades classes….
Since the Philadelphia Plan was put into effect, some progress has been made. Several groups of contractors and Local 543 of the International union of operating Engineers have developed an area program of affirmative action which has been approved by OFCC in lieu of other compliance procedures but subject to periodic evaluation. The original Plan was suspended because of an Opinion by the Comptroller General that it violated the principles of competitive bidding.
Equal employment opportunity in these trades in the Philadelphia area is still far from a reality. The unions in these trades still have only about 1.6 percent minority group membership and they continue to change in practices, including the granting of referral priorities to union members and to persons who have work experience under union contracts, which result in few Negroes being referred for employment. We find, therefore, that special measures are required to provide equal employment opportunity in these seven trades.
In view of the foregoing and in order to implement the affirmative action obligations imposed by the equal employment opportunity clause in Executive Order 11246, and in order to assure that the requirements of this Order conform to the principles of competitive bidding, as construed by the Comptroller General of the United States, the Office of Federal Contract Compliance finds that it is necessary that this Order, requiring bidders to commit themselves to special goals of minority manpower utilization, be issued….
Source: Department of Labor memorandum reprinted in Congressional Record 112, Pt.2 (December 18, 1969): 39951
Document 5.15.5: Excerpts from the Senate Debate on the Philadelphia Plan, December 1969
During Senate hearings on the Plan, opponents denounced it as a quota system and an unwarranted extension of federal authority, while supporters of the Plan emphasized the need for bold action against the seemingly perpetual forces of discrimination.
Senator John Pastore (Democrat from Rhode Island)
What we are confronted with is the fact that this Nation suffers with a difficult situation, a very distressing one, which erupted in Philadelphia not too long ago. Because the administration has the responsibility of doing something about it before it erupts all over the country, it initiated a plan it thought would solve the problem for the time being.
The fact remains that the administration, in trying to bring about a solution of this tremendous problem, initiated the so-called Philadelphia plan…the program [is] essential for the stabilization of the situation, which has become a quite irritable one and a serious one in the Nation.
Senator John McClellan (Democrat from Arkansas)
The Philadelphia Plan does not constitute an implementation of the Civil Rights Act [of 1964] or the congressional intent which was enunciated then. The plan’s requirement that certain Government contractors meet prescribed racial employment quotas is simply an example of the overreaching exercise of Executive power.
Senator Edward Brooke (Republican from Massachusetts)
In 1966, Senator Brooke became the first African American elected to the Senate since Reconstruction.
The real problem of discrimination in America is…what I prefer to call “systemic” or “intrinsic” discrimination. Discrimination against minorities, particularly in the employment field, is built into the very structure of American society. Three black children in four in America attend an essentially segregated school from the day they enter kindergarten…
Even those blacks who survive the system, however, find obstacles placed in their way which do not confront most other Americans. If a minority applicant seeks employment…he will find that the employment is often based upon union recommendation. The union passes the word to its members that an employer is looking for men; those members are predominantly white, and the social patterns are such that they will pass the word along to predominantly white friends…
The policy of assigning minority employees to “traditional” jobs or departments is also an informal, systemic barrier to full opportunity in employment…
These are the kinds of situations which the Philadelphia plan…[was] designed to overcome.
Source: Congressional Record 115, Pt.2 (December 18, 1969): 39961, 39964-39965, 39966-39967
To begin the Research Jigsaw, create small groups and assign each to one of the case studies below:
Have each group work together to research the effects of affirmative action for their case study. Each group should answer these questions:
Have students share out in a mixed group with students from all the different case studies, and then lead a class discussion with the following questions:
All students should read the following sources on the landmark Supreme Court case of University of California v. Bakke.
Divide students into two groups. One group is assigned to argue that the Supreme Court made the right decision in UC v. Bakke, and the other group is assigned to argue that the Supreme Court made the wrong decision.
Students work in their team to prepare an opening statement and central argument. They should support their claims with evidence from the sources and additional research as needed. Run the debate with the following schedule:
Students reflect on the debate by writing a paragraph in response to the following question:
Lewis Powell’s Announcement on the Supreme Court’s Decision in UC v. Bakke (Excerpts)
. . . The guarantees of the Fourteenth Amendment extend to all persons. . . . The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal. . . .
. . . Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.
This perception of racial and ethnic distinctions is rooted in our Nation’s constitutional and demographic history. The Court’s initial view of the Fourteenth Amendment was that its “one pervading purpose” was “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised dominion over him” (Slaughter-House Cases [1873]). . . .
Although many of the Framers of the Fourteenth Amendment conceived of its primary function as bridging the vast distance between members of the Negro race and the white “majority,” the Amendment itself was framed in universal terms, without reference to color, ethnic origin, or condition of prior servitude. . . .
[The Medical School] urges us to . . . hold that discrimination against members of the white “majority” cannot be suspect if its purpose can be characterized as “benign.” The clock of our liberties, however, cannot be turned back to 1868.. It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others. . . .
Second, preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth. Third, there is a measure of inequity in forcing innocent persons in [Bakke’s] position to bear the burdens of redressing grievances not of their making. . . .
If [the Medical School’s] purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial, but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids (e. g., Brown v. Board of Education [1954]).
The fourth goal asserted by [the Medical School]is the attainment of a diverse student body. This clearly is a constitutionally permissible goal for an institution of higher education. Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body. . . .
Thus, in arguing that its universities must be accorded the right to select those students who will contribute the most to the “robust exchange of ideas,” [the Medical School] invokes a countervailing constitutional interest, that of the First Amendment. In this light, [the Medical School] must be viewed as seeking to achieve a goal that is of paramount importance in the fulfillment of its mission. . . .
. . . As the interest of diversity is compelling in the context of a university’s admissions program, the question remains whether the program’s racial classification is necessary to promote this interest.
It may be assumed that the reservation of a specified number of seats in each class for individuals from the preferred ethnic groups would contribute to the attainment of considerable ethnic diversity in the student body. But [the Medical School’s] argument that this is the only effective means of serving the interest of diversity is seriously flawed. . . . The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics, of which racial or ethnic origin is but a single, though important, element. [The Medical School’s] special admissions program, focused solely on ethnic diversity, would hinder, rather than further, attainment of genuine diversity.
The experience of other university admissions programs, which take race into account in achieving the educational diversity valued by the First Amendment, demonstrates that the assignment of a fixed number of places to a minority group is not a necessary means toward that end. An illuminating example is found in the Harvard College program. . . .
In such an admissions program, race or ethnic background may be deemed a “plus” in a particular applicant’s file, yet it does not insulate the individual from comparison with all other candidates for the available seats. The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism. Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important. In short, an admissions program operated in this way is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight. Indeed, the weight attributed to a particular quality may vary from year to year depending upon the “mix” both of the student body and the applicants for the incoming class.
This kind of program treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate receiving a “plus” on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment. . . .
Justice Thurgood Marshall’s Dissenting Opinion in UC v. Bakke (Excerpts)
I agree with the judgment of the Court only insofar as it permits a university to consider the race of an applicant in making admissions decisions. I do not agree that [the Davis] admissions program violates the Constitution. For it must be remembered that, during most of the past 200 years, the Constitution, as interpreted by this Court, did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier. . . .
. . . The position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment. Measured by any benchmark of comfort or achievement, meaningful equality remains a distant dream for the Negro. . . .
I do not believe that the Fourteenth Amendment requires us to accept that fate. Neither its history nor our past cases lend any support to the conclusion that a university may not remedy the cumulative effects of society’s discrimination by giving consideration to race in an effort to increase the number and percentage of Negro doctors. . . .
Introduce to students that federal hiring standards are the guidelines and criteria that U.S. federal agencies must follow when recruiting and selecting candidates for jobs. These standards are intended to ensure fairness, transparency, and compliance with laws related to equal employment opportunity and merit-based hiring. Key components of these standards include how jobs are announced, eligibility requirements, and a transparent selection process across federal agencies.
Next, provide students with a resource of your choosing or time to familiarize themselves with some of the qualifications for a federal job. Note that qualifications and eligibility may differ and this may be a point of conversation you may want to broach. A resource to support this discussion may be the Eligibility and Qualifications sections found on USA Jobs.
Once students have familiarity with federal hiring standards, divide students into different interest groups and ask them to review the standards from the standpoint of the group. Note that several groups have already established positions to reference around the standards. Interest groups:
Students should begin by researching their group’s position on affirmative action and writing a proposal for federal hiring standards. Proposals should contain the following elements:
In the second half of the activity, have students from different interests groups meet together to review their position and proposal. Students should then work together to negotiate a plan that works for all stakeholders. They should come up with a final policy to which all interest groups agree.
To connect their historical study of affirmative action to current events, have students research one of the following contemporary court cases debating affirmative action since the Bakke decision. They can use a high-quality website such as Oyez.org to search for cases and explore their issues.
Lead a Four Corners discussion by dividing the room into four quadrants and labeling them “Strongly Agree,” “Agree,” “Disagree,” and “Strongly Disagree.” For each statement below, instruct students to move to the quadrant that represents their personal views. Call on 2-3 students from each quadrant to share their opinions with the class before moving on to the next statement.
In partners, students research one of the landmark Supreme Court cases about affirmative action in college admissions. Direct them to high-quality databases such as the Supreme Court Website, Oyez, or FindLaw as well as the reference resources of your school library. Instruct each pair to prepare a 10-minute in-class presentation and slideshow to educate their peers on the causes and effects of the case. Each presentation should incorporate both secondary and primary sources and answer the following questions:
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