Federal Affirmative Action Law: A Brief History

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Affirmative action remains a focal point of public debate as the result of legal and political
developments at the federal, state, and local levels. In recent years, federal courts have reviewed
minority admissions programs to state universities; scrutinized the constitutional status of racial
diversity policies in public elementary and secondary schools; ruled on minority preferences in
public and private employment as a remedy for violation of civil and constitutional rights;
invalidated a Federal Communications Commission policy requiring radio licensees to adopt
affirmative minority recruitment and outreach measures; and considered state and local efforts to
increase minority participation as contractors and subcontractors on publicly financed
construction projects. This report provides a brief history of federal affirmative action law.

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he origins of affirmative action law may be traced to the early 1960s as first the Warren,
and then the Burger Court, grappled with the seemingly intractable problem of racial ¹
segregation in the nation’s public schools. Judicial rulings from this period recognized an T

“affirmative duty,” cast upon local school boards by the Equal Protection Clause, to desegregate
formerly “dual school” systems and to eliminate “root and branch” the last “vestiges” of state-²
enforced segregation. These holdings ushered in a two decade era of “massive” desegregation—
first in the South, and later the urban North—marked by federal desegregation orders frequently
requiring drastic reconfiguration of school attendance patterns along racial lines and extensive
student transportation schemes. School districts across the nation operating under these decrees
later sought to be declared in compliance with constitutional requirements in order to gain release
from federal intervention. The Supreme Court eventually responded by holding that judicial
control of a school system previously found guilty of intentional segregation should be
relinquished if, looking to all aspects of school operations, it appears that the district has
complied with desegregation requirements in “good faith” for a “reasonable period of time” and ³
has eliminated “vestiges” of past discrimination “to the extent practicable.”
Following the Court’s lead, Congress and the Executive approved a panoply of laws and
regulations authorizing, either directly or by judicial or administrative interpretation, “race-
conscious” strategies to promote minority opportunity in jobs, education, and governmental
contracting. The basic statutory framework for affirmative action in employment and education
derives from the Civil Rights Act of 1964. Public and private employers with 15 or more
employees are subject to a comprehensive code of equal employment opportunity regulations ⁴
under Title VII of the 1964 Act. The Title VII remedial scheme rests largely on judicial power to
order monetary damages and injunctive relief, including “such affirmative action as may be
appropriate,” to make discrimination victims whole. Except as may be imposed by court order or
consent decree to remedy past discrimination, however, there is no general statutory obligation on
employers to adopt affirmative action remedies. Official approval of “affirmative action”
remedies was further codified by federal regulations construing the 1964 Act’s Title VI, which ⁵
prohibits racial or ethnic discrimination in all federally assisted “programs” and activities,
including public or private educational institutions. The Office of Civil Rights of the Department
of Education interpreted Title VI to require schools and colleges to take affirmative action to
overcome the effects of past discrimination and to encourage affirmative action “[e]ven in the
absence of past discrimination ... to overcome the effects of conditions which resulted in limiting ⁶
participation by persons of a particular race, color, or national origin.”
Since the early 1960s, minority participation “goals” have also been integral to Executive Branch
enforcement of minority hiring and employment standards on federally financed construction
projects and in connection with other large federal contracts. Executive Order 11246, as presently
administered by the Office of Federal Contract Compliance Programs, requires that all employers
with 50 or more employees and federal contracts in excess of $50,000 file written affirmative

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action plans with the government. These must include minority and female hiring goals and
timetables to which the contractor must commit its “good faith” efforts. Race and gender
considerations—which may include numerical goals—are also a fundamental aspect of
affirmative action planning by federal departments and agencies to eliminate minority and female ⁷
“underrepresentation” at various levels of agency employment.
Federal contract “set-asides” and minority subcontracting goals evolved from Small Business
Administration programs to foster participation by “socially and economically disadvantaged” ⁸
entrepreneurs (SDBs) in the federal procurement process. Minority group members and women
are presumed to be socially and economically disadvantaged under the Small Business Act, while
non-minority contractors must present evidence to prove their eligibility. “Goals” or “set-asides”
for minority groups, women, and other “disadvantaged” individuals have also been routinely
included in federal funding measures for education, defense, transportation, and other activities
over much of the last two decades. Currently, each federal department and agency must contribute
to achieving a government-wide, annual procurement goal of at least 5% with its own goal-⁹
oriented effort to create “maximum practicable opportunity” for minority and female contractors.
In addition, 10% of federal highway and surface transportation project funds must be set aside for ¹⁰
small disadvantaged firms through the end of FY2009.
By the mid-1980s, the Supreme Court had approved the temporary remedial use of race- or
gender-conscious selection criteria by private employers under Title VII. These measures were
deemed a proper remedy for “manifest racial imbalance” in “traditionally segregated” job ¹¹
categories, if voluntarily adopted by the employer, or for entrenched patterns of “egregious and ¹²
longstanding” discrimination by the employer, if imposed by judicial decree. In either
circumstance, however, the Court required proof of remedial justification rooted in the
employer’s own past discrimination and its persistent workplace effects. Thus, a “firm basis” in
evidence, as revealed by a “manifest imbalance”—or “historic,” “persistent,” and “egregious”
underrepresentation—of minorities or women in affected job categories was deemed an essential
predicate to preferential affirmative action. Of equal importance, all racial preferences in
employment were to be judged in terms of their adverse impact on “identifiable” non-minority
group members. Remedies that protected minorities from layoff, for example, were most suspect ¹³
and unlikely to pass muster if they displaced more senior white workers. But the consideration
of race or gender as a “plus” factor in employment decisions, when it did not unduly hinder or
“trammel” the “legitimate expectations” of non-minority employees, won ready judicial

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acceptance. Affirmative action preferences, however, had to be sufficiently flexible, temporary in ¹⁴
duration, and “narrowly tailored” to avoid becoming rigid “quotas.”
The Regents of the University of California v. Bakke ruling in 1978 launched the contemporary
constitutional debate over state-sponsored affirmative action. A “notable lack of unanimity” was
evident from the six separate opinions filed in that case. One four-Justice plurality in Bakke voted
to strike down as a violation of Title VI a special admissions program of the University of
California at Davis medical school which set aside sixteen of one hundred positions in each
incoming class for minority students, where the institution itself was not shown to have
discriminated in the past. Another bloc of four Justices argued that racial classifications designed
to further remedial purposes were foreclosed neither by the Constitution nor the Civil Rights Act
and would have upheld the minority admissions quota. Justice Powell added a fifth vote to each
camp by condemning the Davis program on equal protection grounds while endorsing the ¹⁵
nonexclusive consideration of race as an admissions criteria to foster student diversity.
In Justice Powell’s view, neither the state’s asserted interest in remedying “societal
discrimination,” nor of providing “role models” for minority students was sufficiently
“compelling” to warrant the use of a “suspect” racial classification in the admission process. But
the attainment of a “diverse student body” was, for Justice Powell, “clearly a permissible goal for
an institution of higher education” since diversity of minority viewpoints furthered “academic ¹⁶
freedom,” a “special concern of the First Amendment.” Accordingly, race could be considered
by a university as a “plus” or “one element of a range of factors”—even if it “tipped the scale”
among qualified applicants—as long as it “did not insulate the individual from comparison with ¹⁷
all the other candidates for the available seats.” The “quota” in Bakke was infirm, however,
since it defined diversity only in racial terms and absolutely excluded non-minorities from a given
number of seats. By two 5-to-4 votes, therefore, the Supreme Court affirmed the lower court
order admitting Bakke but reversed the judicial ban on consideration of race in admissions.
The Powell opinion in Bakke may help to explain the conflicting results reached by the Court in ¹⁸
the Michigan Law School and undergraduate admissions cases. In Grutter v. Bollinger, a 5 to 4
majority of the Justices, led by Justice O’Connor, held that the University’s Law School had a
“compelling” interest in the “educational benefits that flow from a diverse student body,” which
justified its consideration of race in admissions to assemble a “critical mass” of ¹⁹
“underrepresented” minority students. But in Gratz v. Bollinger, six Justices decided that the
University’s undergraduate policy of awarding “racial bonus points” to minority applicants was
not “narrowly tailored” enough to pass constitutional muster. The law school program was
deemed constitutional because it was based on an individualized, holistic review of each
applicant’s file, in contrast to the undergraduate program, which “[did] not provide for a
meaningful individualized review of applicants” but instead “assign[ed] every underrepresented
minority applicant the same, automatic 20-point bonus without consideration of the particular

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background, experiences, or qualities of each individual applicant.”²⁰ In effect, Grutter enshrined
in law the Powell diversity rationale—embraced by no other Justice in Bakke—that the state has a
“compelling” interest in promoting racial diversity in higher education.
In another series of decisions, the Court approved of congressionally mandated racial preferences
to allocate the benefits of contracts on federally sponsored public works projects, Fullilove v. ²¹
Klutznick, while condemning similar actions taken by local governmental entities to promote ²²
public contracting opportunities for minority entrepreneurs, City of Richmond v. J.A. Croson Co.
Contextual differences in the particular kind of governmental activity being challenged frequently
account for variations in judicial approach to affirmative action in public employment,
government contracting, admission to public institutions of higher education, and election ²³
redistricting. Almost uniformly, however, the law has been marked by a failure of consensus on
most issues, with bare majorities, pluralities, or—as in Bakke—a single Justice, determining the
“law” of the case.
Not until 1989 did a majority of the Justices resolve the proper constitutional standard for review
of governmental classifications by race enacted for a remedial or other “benign” legislative
purpose. Disputes prior to the City of Richmond case yielded divergent views as to whether state
affirmative action measures for the benefit of racial minorities were subject to the same “strict
scrutiny” as applied to “invidious” racial discrimination under the Equal Protection Clause, an
“intermediate” standard resembling the test for gender-based classifications, or simple rationality.
In City of Richmond, a 5 to 4 majority settled on strict scrutiny to invalidate a 30% set-aside of
city contracts for minority-owned businesses because the program was not “narrowly tailored” to
a “compelling” governmental interest. While “race-conscious” remedies could be legislated in
response to proven past discrimination by the affected governmental entities, “racial balancing”
untailored to “specific” and “identified” evidence of minority exclusion was impermissible. City
of Richmond suggested, however, that because of its unique equal protection enforcement
authority, a constitutional standard more tolerant of racial line-drawing may apply to Congress. ²⁴
This conclusion was reinforced a year later when, in Metro Broadcasting, Inc. v. FCC, the Court
upheld certain preferences for minorities in broadcast licensing proceedings, approved by
Congress not as a remedy for past discrimination but to promote the “important” governmental
interest in “broadcast diversity.”
This two-tiered approach to equal protection analysis of governmental affirmative action was ²⁵
short-lived, however. In Adarand Constructors, Inc. v. Pena, the Court applied “strict scrutiny”
to a federal transportation program of financial incentives for prime contractors who
subcontracted to firms owned by “socially and economically disadvantaged individuals,” defined
so as to prefer members of designated racial minorities. Although the Court refrained from
deciding the constitutional merits of the particular program before it, and remanded for further
proceedings below, it determined that all “racial classifications” by government at any level must

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be justified by a “compelling governmental interest” and “narrowly tailored” to that end. But the
majority opinion, by Justice O’Connor, sought to “dispel the notion” that “strict scrutiny is ‘strict
in theory, but fatal in fact,’” by acknowledging a role for Congress as architect of remedies for
discrimination nationwide. “The unhappy persistence of both the practices and lingering effects
of racial discrimination against minorities in this country is an unfortunate reality, and the
government is not disqualified from acting in response to it.” No further guidance is provided,
however, as to the scope of remedial power remaining in congressional hands, or of the
conditions required for its exercise. Bottom line, Adarand suggests that racial preferences in
federal law are a remedy of last resort, which must be adequately justified and narrowly drawn to
pass constitutional muster.
More recently, the Court agreed to review new legal questions regarding racial diversity in
education. Although the Grutter and Gratz decisions settled the question of whether race-based
policies to promote diversity in higher education are ever constitutionally acceptable, the decision
did not address whether diversity is a permissible goal in the elementary and secondary
educational setting. To resolve this question, the Supreme Court agreed to review two cases that
involved the use of race to maintain racially diverse public schools in Seattle and Louisville. In
Parents Involved in Community Schools v. Seattle School District No. 1, a consolidated ruling that
resolved both cases, the Court, in a fractured decision, struck down the school plans at issue, ²⁶
holding that they violated the equal protection guarantee of the Fourteenth Amendment.
Announcing the judgment of the Court was Chief Justice Roberts, who led a plurality of four
Justices in concluding that the school plans were unconstitutional because they did not serve a
compelling governmental interest. Although Justice Kennedy concurred in the Court’s judgment
striking down the plans, he declined to sign on to the plurality opinion in full, in part because he
disagreed with its implication that diversity in elementary and secondary education, at least as
properly defined, does not serve a compelling governmental interest. According to Justice
Kennedy, “[d]iversity, depending on its meaning and definition, is a compelling educational goal ²⁷
a school district may pursue,” but neither Seattle nor Louisville had shown that its plans served
a compelling interest in promoting diversity or that the plans were narrowly tailored to achieve
that goal. The Court’s ruling appears to indicate that race-conscious measures to promote racial
diversity in public education remain constitutionally permissible in theory, although in practice it
is less clear what types of programs the Court would consider to be sufficiently narrowly tailored ²⁸
to pass constitutional muster.
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