Affirmative Action History

Affirmative Action: A History

“Affirmative action” means positive steps taken to increase the representation of women and minorities in areas of employment, education, and business from which they have been historically excluded. When those steps involve preferential selection—selection on the basis of race, gender, or ethnicity—affirmative action generates intense controversy.

The development, defense, and contestation of preferential affirmative action has proceeded along two paths. One has been legal and administrative as courts, legislatures, and executive departments of government have made and applied rules requiring affirmative action. The other has been the path of public debate, where the practice of preferential treatment has spawned a vast literature, pro and con. Often enough, the two paths have failed to make adequate contact, with the public quarrels not always very securely anchored in any existing legal basis or practice.

The ebb and flow of public controversy over affirmative action can be pictured as two spikes on a line, the first spike representing a period of passionate debate that began around 1972 and tapered off after 1980, and the second indicating a resurgence of debate in the 1990s leading up to the Supreme Court's decision in the summer of 2003 upholding certain kinds of affirmative action. The first spike encompassed controversy about gender and racial preferences alike. This is because in the beginning affirmative action was as much about the factory, the firehouse, and the corporate suite as about the university campus. The second spike represents a quarrel about race and ethnicity. This is because the burning issue at the turn of the twentieth-first century is about college admissions. In admissions to selective colleges, women need no boost; blacks and Hispanics do.

1. In the Beginning

In 1972, affirmative action became an inflammatory public issue. True enough, the Civil Rights Act of 1964 already had made something called “affirmative action” a remedy federal courts could impose on violators of the Act. Likewise, after 1965 federal contractors had been subject to President Lyndon Johnson's Executive Order 11246, requiring them to take “affirmative action” to make sure they were not discriminating. But what did this 1965 mandate amount to? The Executive Order assigned to the Secretary of Labor the job of specifying rules of implementation. In the meantime, as the federal courts were enforcing the Civil Rights Act against discriminating companies, unions, and other institutions, the Department of Labor mounted an ad hoc attack on the construction industry by cajoling, threatening, negotiating, and generally strong-arming reluctant construction firms into a series of region-wide “plans” in which they committed themselves to numerical hiring goals. Through these contractor commitments, the Department could indirectly pressure recalcitrant labor unions, who supplied the employees at job sites.

While the occasional court case and government initiative made the news and stirred some controversy, affirmative action was pretty far down the list of public excitements until the autumn of 1972, when the Secretary of Labor's Revised Order No. 4, fully implementing the Executive Order, landed on campus by way of directives from the Department of Health, Education, and Welfare. Its predecessor, Order No. 4, first promulgated in 1970, cast a wide net over American institutions, both public and private. By extending to all contractors the basic apparatus of the construction industry “plans,” the Order imposed a one-size-fits-all system of “underutilization analyses,” “goals,” and “timetables” on hospitals, banks, trucking companies, steel mills, printers, airlines—indeed, on all the scores of thousands of institutions, large and small, that did business with the government, including a special set of institutions with a particularly voluble and articulate constituency, namely, American universities.

At first, university administrators and faculty found the rules of Order No. 4 murky but hardly a threat to the established order. The number of racial and ethnic minorities receiving PhDs each year and thus eligible for faculty jobs was tiny. Any mandate to increase their representation on campus would require more diligent searches by universities, to be sure, but searches fated nevertheless largely to mirror past results. The Revised Order, on the other hand, effected a change that punctured any campus complacency: it included women among the “protected classes” whose “underutilization” demanded the setting of “goals” and “timetables” for “full utilization.” Unlike blacks and Hispanics, women were getting PhDs in substantial and growing numbers. If the affirmative action required of federal contractors was a recipe for “proportional representation,” then Revised Order No. 4 was bound to leave a large footprint on campus. Some among the professoriate exploded in a fury of opposition to the new rules, while others responded with an equally vehement defense of them.

As it happened, these events coincided with another development, namely the “public turn” in philosophy. For several decades Anglo-American philosophy had treated moral and political questions obliquely. On the prevailing view, philosophers were suited only to do “conceptual analysis”—they could lay bare, for example, the conceptual architecture of the idea of justice, but they were not competent to suggest political principles, constitutional arrangements, or social policies that actually did justice. Philosophers might do “meta-ethics” but not “normative ethics.” This viewed collapsed in the 1970s under the weight of two counter-blows. First, John Rawls published in 1971 A Theory of Justice, an elaborate, elegant, and inspiring defense of a normative theory of justice. Second, in the same year Philosophy & Public Affairs, with Princeton University's impeccable pedigree, began life, a few months after Florida State's Social Theory and Practice. These journals, along with a re-tooled older periodical, Ethics, became self-conscious platforms for socially and politically engaged philosophical writing, born out of the feeling that in time of war (the Vietnam War) and social tumult (the Civil Rights Movement, Women's Liberation), philosophers ought to do, not simply talk about, ethics. In 1973, Philosophy & Public Affairs published Thomas Nagel's “Equal Treatment and Compensatory Justice”^[6] and Judith Jarvis Thomson's “Preferential Hiring,” and the philosophical literature on affirmative action burgeoned forth.

In contention was the nature of those “goals” and “timetables” imposed on every contractor by Revised Order No. 4. Weren't the “goals” tantamount to “quotas,” requiring institutions to use racial or gender preferences in their selection processes? Some answered “no.” Properly understood, affirmative action did not require (or even permit) the use of gender or racial preferences. Others said “yes.” Affirmative action, if it did not impose preferences outright, at least countenanced them. Among the yea-sayers, opinion divided between those who said preferences were morally permissible and those who said they were not. Within the first set, different people put forward different justifications.

2. The Controversy Engaged

The essays by Thomson and Nagel defended the use of preferences but on different grounds. Thomson endorsed job preferences for women and blacks as a form of compensation for their past exclusion from the academy and the workplace. Preferential policies, in her view, worked a kind of justice. Nagel, by contrast, argued that preferences might work a kind of social good, and without doing violence to justice. Institutions could for one or another good reason properly depart from standard meritocratic selection criteria because the whole system of tying economic reward to earned credentials was itself indefensible.

Justice and desert lay at the heart of subsequent arguments. Several writers took to task Thomson's argument that preferential hiring justifiably makes up for past wrongs. Preferential hiring seen as compensation looks perverse, they contended, since it benefits individuals (blacks and women possessing good educational credentials) least likely harmed by past wrongs while it burdens individuals (younger white male applicants) least likely to be responsible for past wrongs.^[11] Instead of doing justice, preferential treatment violates rights (the right of an applicant “to equal consideration,”^[12] the right of the maximally competent to an open position,^[13] the right of everyone to equal opportunity^[14]) and confounds desert (by severing reward from a “person's character, talents, choices and abilities;”^[15] by “subordinating merit, conduct, and character to race;”^[16] by disconnecting outcomes from actual liability and damage^[17]).

Defenders of preferences were no less quick to enlist justice and desert in their cause. Mary Anne Warren, for example, argued that in a context of entrenched gender discrimination, gender preferences might improve the “overall fairness” of job selections. Justice and individual desert need not be violated.

If individual men's careers are temporarily set back because of…[job preferences given to women], the odds are good that these same men will have benefited in the past and/or will benefit in the future—not necessarily in the job competition, but in some ways—from sexist discrimination against women. Conversely, if individual women receive apparently unearned bonuses [through preferential selection], it is highly likely that these same women will have suffered in the past and/or will suffer in the future from…sexist attitudes.^[18]

Likewise, James Rachels defended racial preferences as devices to neutralize unearned advantages by whites. Given the pervasiveness of racial discrimination, it is likely, he argued, that the superior credentials offered by white applicants do not reflect their greater effort, desert, or even ability. Rather, the credentials reflect their mere luck at being born white. “Some white…[applicants] have better qualifications…only because they have not had to contend with the obstacles faced by their black competitors.”^[19] Rachels was less confident than Warren that preferences worked uniformly accurate offsets. Reverse discrimination might do injustice to some whites; yet its absence would result in injustices to blacks who have been unfairly handicapped by their lesser advantages.

Rachels' diffidence was warranted in light of the counter-responses. If racial and gender preferences for jobs (or college admissions) were supposed to neutralize unfair competitive advantages, they needed to be calibrated to fit the variety of backgrounds aspirants brought to any competition for these goods. Simply giving blanket preferences to blacks or women seemed much too ham-handed an approach if the point was to micro-distribute opportunities fairly.^[20]

3. Rights and Consistency

To many of its critics, reverse discrimination was simply incoherent. When “the employers and the schools favor women and blacks,” objected Lisa Newton, they commit the same injustice perpetrated by Jim Crow discrimination. “Just as the previous discrimination did, this reverse discrimination violates the public equality which defines citizenship.”^[21]

William Bennett and Terry Eastland likewise saw racial preferences as in some sense illogical:

To count by race, to use the means of numerical equality to achieve the end of moral equality, is counterproductive, for to count by race is to deny the end by virtue of the means. The means of race counting will not, cannot, issue in an end where race does not matter.^[22]

When Eastland and Bennett alluded to those who favored using race to get to a point where race doesn't count, they had in mind specifically the Supreme Court's Justice Blackmun who, in the famous 1978 Bakke case (discussed below), put his own views in just those simple terms. For Blackmun, the legitimacy of racial preferences was to be measured by how fast using them moves us toward a society where race doesn't matter (a view developed in subtle detail by the philosopher Richard Wasserstrom^[23]). While the critics of preferences feigned to find the very idea of using race to end racism illogical and incoherent, they also fell back on principle to block Blackmun's instrumental defense should it actually prove both reasonable and plausible. “The moral issue comes in classic form,” wrote Carl Cohen. “Terribly important objectives…appear to require impermissible means. Might we not wink at the Constitution this once” and allow preferences to do their good work? asked Cohen^[24] Neither he nor other critics thought so. Principle must hold firm. “[I]n the distribution of benefits under the laws all racial classifications are invidious.”^[25]

But what, exactly, is the principle—constitutional or moral—that bars the use of race as a means to “terribly important objectives”? Alan Goldman did more than anyone in the early debate to formulate and ground a relevant principle. Using a contractualist framework, he surmised that rational contractors would choose a rule of justice requiring positions to be awarded by competence. They would choose this rule because it instantiates a principle of equal opportunity which in turn instantiates a broad right to equal consideration of interests, this last principle springing from the basic condition of the contracting parties as rational, self-interested, and equally situated choosers. On its face, the rule of competence would seem to preclude filling positions by reference to factors like race and gender that are unrelated to competence. However, Goldman's “rule” blocked preferences only under certain empirical conditions. Goldman explained the derivation of the rule and its consequent limit this way:

The rule for hiring the most competent was justified as part of a right to equal opportunity to succeed through socially productive effort, and on grounds of increased welfare for all members of society. Since it is justified in relation to a right to equal opportunity, and since the application of the rule may simply compound injustices when opportunities are unequal elsewhere in the system, the creation of more equal opportunities takes precedence when in conflict with the rule for awarding positions. Thus short-run violations of the rule are justified to create a more just distribution of benefits by applying the rule itself in future years.^[26]

In other words, if “terribly important objectives”—especially objectives having to do with equalizing opportunities in a system rife with inequality—in fact could be furthered by measured and targeted reverse discrimination, justice wouldn't stand in the way. Goldman's principle did not have the adamantine character Cohen and other critics sought in a bar to preferences. Where can such an unyielding principle be found? I postpone further examination of this question until I discuss the Bakke case, below, whose split opinions constitute an extended debate on the meaning of constitutional equality.

4. Real-World Affirmative Action: The Workplace

The terms of the popular debate over racial and gender preferences often mirrored the arguments philosophers and other academics were making to each other. Preference's defenders offered many reasons to justify them, reasons having to do with compensatory or distributive justice, as well as reasons having to do with social utility (more blacks in the police department would enable it better to serve the community, more female professors in the classroom would inspire young women to greater achievements). Critics of preferences retorted by pointing to the law. And well they should, since the text of the Civil Rights Act of 1964 seemed a solid anchor even if general principle proved elusive. Title VI of the Act promised that “[n]o person…shall, on the ground 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.”^[27] Title VII prohibited all employment practices that discriminated on the basis of race, gender, religion, or national origin.^[28] However, unlike Title VI, Title VII went on to spell out some exceptions. Under special circumstances, the Title permitted the use of gender, religion, and national origin as legitimate bases for employer selection. But it made no such exception for race. While being a woman or being a Roman Catholic could sometimes count as a legitimate occupational qualification, being black could not.

In face of the plain language of Titles VI and VII, how did preferential hiring and promotion ever arise in the first place? How could they be justified legally? Part of the answer lay in the meaning of “discrimination.” The Civil Rights Act did not define the term. The federal courts had to do that job themselves, and the cases before them drove the definition in a particular direction. Many factories and businesses prior to 1964, especially in the South, had in place facially discriminatory policies and rules. For example, a company's policy might have openly relegated blacks to the maintenance department and channeled whites into operations, sales, and management departments, where the pay and opportunities for advancement were far better. If, after passage of the Civil Rights Act, the company willingly abandoned its facially segregative policy, it could still carry forward the effects of its past segregation through other already-existing facially neutral rules. A company policy, say, that required workers to give up their seniority in one department if they transferred to another would have locked in place older black maintenance workers as effectively as the company's prior segregative rule that made them ineligible to transfer at all. Consequently, courts began striking down facially neutral rules that carried through the effects of an employer's past discrimination, regardless of the original intent or provenance of the rules. “Intent” was effectively decoupled from “discrimination.” In 1971, the Supreme Court ratified this process, giving in the Griggs decision the following construction of Title VII:

The objective of Congress in the enactment of Title VII…was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices.

What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to exclude on the basis of racial or other impermissible classification.^[29]

In a few short paragraphs the Court advanced from proscribing practices that froze in place the effects of a firm's own past discrimination to proscribing practices that carried through the effects of past discrimination generally. The Court characterized statutory discrimination as any exclusionary practice not necessary to an institution's activities. Since many practices in most institutions were likely to be exclusionary, rejecting minorities and women in greater proportion than white men, all institutions needed to reassess the full range of their practices to look for, and correct, discriminatory effect. Against this backdrop, the generic idea of affirmative action took form:

Each institution should effectively monitor its practices for exclusionary effect and revise those that cannot be defended as “necessary” to doing business. In order to make its monitoring and revising effective, an institution ought to predict, as best it can, how many minorities and women it would select over time, were it successfully nondiscriminating. These predictions constitute the institution's affirmative action “goals,” and failure to meet the goals signals to the institution (and to the government) that it needs to revisit its efforts at eliminating exclusionary practices.There may still remain practices that ought to be modified or eliminated.^[30]

The point of such affirmative action: to induce change in institutions so that they could comply with the nondiscrimination mandate of the Civil Rights Act.

However, suppose this self-monitoring and revising fell short? In early litigation under the Civil Rights Act, courts concluded that some institutions, because of their past exclusionary histories and continuing failure to find qualified women or minorities, needed stronger medicine. Courts ordered these institutions to adopt “quotas,” to take in specific numbers of formerly excluded groups on the assumption that once these new workers were securely lodged in place, the institutions would adapt to this new reality.^[31]

Throughout the 1970s, courts and government enforcement agencies extended this idea across the board, requiring a wide range of firms and organizations—from AT&T to the Alabama Highway Patrol—temporarily to select by the numbers. In all these cases, the use of preferences was tied to a single purpose: to prevent ongoing and future discrimination. Courts carved out this justification for preferences not through caprice but through necessity. They found themselves confronted with a practical dilemma that Congress had never envisaged and thus never addressed when it wrote the Civil Rights Act. The dilemma was this: courts could impose racial preferences to change foot-dragging or inept defendants (and by doing so apparently transgress the plain prohibition in Title VII) or they could order less onerous steps they knew would be ineffective, thus letting discrimination continue (and by doing so violate their duty under Title VII). Reasonably enough, the federal courts resolved this dilemma by appeal to the broad purposes of the Civil Rights Act and justified racial preferences where needed to prevent ongoing and future discrimination.^[32]

Thus, preferential affirmative action in the workplace served the same rationale as the non-preferential sort. Its purpose was not to compensate for past wrongs, offset unfair advantage, appropriately reward the deserving, or yield a variety of social goods; its purpose was to change institutions so they could comply with the nondiscrimination mandate of the Civil Rights Act.