Unit
Years: 1961-Present
Economy & Society
Freedom & Equal Rights
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.
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
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. . . .
Policies or programs designed to address past discrimination and promote equal opportunity for members of disadvantaged groups, often through preferential treatment or quotas in hiring, admissions, or contracting.
A fixed or predetermined limit, quantity, or proportion established for allocation, distribution, or participation in a particular activity, resource, or opportunity, often set by authorities, regulations, or agreements, and intended to ensure fairness, equity, or control over specific outcomes, such as admissions quotas in educational institutions, import quotas on foreign goods, or production quotas in manufacturing industries. Quotas may be based on factors such as population, market demand, or historical precedent, and can impact access, representation, and competitiveness in various sectors.
Landmark legislation passed by the United States Congress that outlawed discrimination based on race, color, religion, sex, or national origin, and ended segregation in public places and employment practices.
The Voting Rights Act of 1965 is landmark federal legislation in the United States that prohibits racial discrimination in voting practices and enforces voting rights protections, particularly for minority voters. It played a pivotal role in combating voter suppression and ensuring equitable access to the ballot.
A landmark Supreme Court case in 1954 that declared racial segregation in public schools unconstitutional, overturning the "separate but equal" doctrine established by Plessy v. Ferguson.
The 35th President of the United States, serving from 1961 until his assassination in 1963, known for his leadership during the Cuban Missile Crisis, his commitment to civil rights and social justice, and his vision of progress and innovation, as articulated in initiatives such as the New Frontier program.
The 36th President of the United States, serving from 1963 to 1969, who succeeded to the presidency following the assassination of President John F. Kennedy, and known for his leadership during the Civil Rights Movement, his Great Society programs, and his escalation of the Vietnam War.
The 37th President of the United States, serving from 1969 to 1974, associated with significant domestic and foreign policy initiatives but overshadowed by the Watergate scandal, leading to his resignation from office in 1974.
An executive order issued by President John F. Kennedy in 1961, which established the Committee on Equal Employment Opportunity (CEEO) and mandated that government contractors take affirmative action to ensure equal employment opportunities regardless of race, color, religion, or national origin. This order marked a significant milestone in the advancement of civil rights and equal opportunity in the United States.
A committee established to monitor and enforce policies related to equal employment opportunity, particularly with regard to preventing discrimination and ensuring fairness and equity in hiring, promotion, and employment practices.
A government initiative implemented in the United States in the late 1960s and early 1970s to promote equal employment opportunities for minority workers, particularly African Americans, through affirmative action measures, including goals and timetables for hiring and promoting minority employees in federally funded construction projects and contractors. The Philadelphia Plan aimed to address racial discrimination and promote diversity and inclusion in the workforce.
University of California v. Bakke was a landmark U.S. Supreme Court case in 1978 that addressed affirmative action in college admissions. The Court ruled that race could be considered as one of several factors in admissions decisions but prohibited the use of racial quotas.