Backlash, Battle Lines, and Doomed to Fail

The Civil War Origins of Affirmative Action

The history of Affirmative Action is rooted in a complex interplay of historical circumstances, executive orders, legislation, & court decisions. It was a response to racial inequalities faced by marginalized groups. It aimed to counteract discrimination & create a more diverse & inclusive society by implementing policies that provided additional support to underrepresented individuals. These are the facts.

When abolitionists petitioned Congress to emancipate slaves, Senator John C. Calhoun objected, warning that “the next step would be to raise the Negroes to a social and political equality with whites; and that being effected, we would soon find the present condition of the two races reversed.” Black Americans would be masters and white people slaves.

President Andrew Johnson vetoed the nation’s inaugural civil rights legislation because, in his view, it discriminated against white people and privileged Black people. The Civil Rights Act of 1866 (which Congress enacted over the veto) bestowed citizenship upon all persons — except for certain American Indians — born in the United States and endowed all persons with the same rights as white people in terms of issuing contracts, owning property, suing or being sued or serving as witnesses. This law was proposed because the Supreme Court had ruled in Dred Scott v. Sanford that African Americans, free or enslaved, were ineligible as a matter of race for federal citizenship, and because many states had barred African Americans from enjoying even the most rudimentary civil rights.

Johnson vetoed the act in part because the citizenship provision would immediately make citizens of native-born Black people while European-born immigrants had to wait several years to qualify for citizenship via naturalization (which was then open only to white people). According to Johnson, this amounted to “a discrimination against large numbers of intelligent, worthy and patriotic foreigners, and in favor of the Negro, to whom, after long years of bondage, the avenues to freedom and intelligence have just now been suddenly opened.” Johnson similarly opposed the provision in the act affording federal protection to civil rights, charging that it made possible “discriminating protection to colored persons.”

A key defect of the Civil Rights Act, according to Johnson, was that it established “for the security of the colored race safeguards which go infinitely beyond any that the general government has ever provided for the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored and against the white race.” Johnson opposed as well the 14th Amendment, which decreed that states offer to all persons equal protection of the laws, a provision which he also saw as a wrongful venture in racial favoritism aimed at assisting the undeserving Negro.

In 1875, Congress enacted legislation that prohibited racial discrimination in the provision of public accommodations. Eight years later, in a judgment invalidating that provision, the Supreme Court disapprovingly lectured the Black plaintiffs, declaring that “when a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws.”

Twentieth Century Labor

The origins of the term, “affirmative action,” can be traced to the  Wagner Act , which granted workers the freedom to form unions without facing discrimination, while also establishing a National Labor Relations Board to examine instances of worker mistreatment. In cases of discrimination, 'affirmative action' was employed to reinstate employees to a suitable position within the company.

Although the Wagner Act safeguarded workers and unions, it failed to extend its protection to minorities who were frequently excluded from union membership, with the exception of the Congress of Industrial Organizations. Consequently, the initial usage of the term "affirmative action" is not closely aligned with the present-day policies associated with it. However, it played a crucial role in laying the foundation for policies aimed at redressing unjust treatment and providing compensation to individuals who faced discrimination.

In 1941, President Franklin D. Roosevelt promulgated Executive Order 8802, which prohibited racial discrimination in the employment of workers in defense industries and established the Fair Employment Practices Commission to carry out the order. Assailing the order, Representative Jamie Whitten, a Mississippi segregationist, complained that it would not so much prevent unfairness as “discriminate in favor of the Negro” — this at a time when anti-Black discrimination across the social landscape was blatant, rife and to a large extent, fully lawful.

Criticism wasn’t confined to southern racist politicians either. In 1945, the New York City administrator Robert Moses inveighed against pioneering municipal anti discrimination legislation in employment and college admissions. Displaying more anger at the distant prospect of racial quotas than the immediate reality of racial exclusions, Moses maintained that antidiscrimination measures would “mean the end of honest competition, and the death knell of selection and advancement on the basis of talent.”

President Dwight D. Eisenhower expanded on Roosevelt’s efforts through the implementation of Executive Order 10479 in 1953. This order gave rise to the Government Contract Committee, which aimed to combat discrimination. 

But, it  was President John F. Kennedy who was the first president to link the term, affirmative action “ specifically with a policy meant to advance racial equality. In 1961, President Kennedy issued Executive Order 10925, which established the President's Committee on Equal Employment Opportunity & mandated federal contractors to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin.”  Plans for Progress was a voluntary association of more than 400 of the nation’s largest industrial employers, all of which offered equal opportunityprograms.  Over time, influenced by the civil rights movement and social unrest, the concept gained traction in the field of education.

A Fight No President Wanted

Similar to previous efforts, conservative critics voiced their opposition, but liberals also criticized measures they perceived as promoting unfair racial preferences for Black individuals. In the early 1960s, when the Congress of Racial Equality (CORE) suggested "compensatory" hiring programs, which aimed to give an advantage to Black individuals due to past victimization and the enduring consequences of historical mistreatment, many liberals pushed back against the idea. When asked about CORE's proposals, President John F. Kennedy expressed his belief that society couldn't change the past and considered it a mistake to introduce quotas based on religion, race, color, or nationality.

While addressing the issue, President Kennedy acknowledged the longstanding presence of unwritten but influential quotas that allowed white men to dominate highly influential and desirable positions in society. However, it was only when faced with  protests against this monopolization that he expressed his disapproval of quotas based on social status.

President Lyndon B. Johnson solidified the association through his own broader executive order. In his administration, the term "affirmative action" gained momentum. On September 24, 1965, Johnson signed Executive Order 11246, replacing Kennedy's Executive Order 10925, and entrusted the secretary of labor with overseeing affirmative action measures. Additionally, in 1965, he created the Office of Federal Contract Compliance within the U.S. Department of Labor to further support these initiatives.

Rev. Dr. Martin Luther King Jr.’s assassination  in 1968 marked a significant moment, prompting students to urge colleges to intensify their endeavors towards greater representation of American society. In under a month following Dr. King's tragic demise, Harvard's admissions dean declared a pledge to enroll a significantly larger number of Black students compared to previous years.

President Richard Nixon built upon President Johnson's efforts in affirmative action through his Executive Order 11478, enacted on August 8, 1969. This order emphasized unilateral affirmative action in government employment. As a result, there was a significant increase in Black enrollment for the Harvard University class of 1969. Out of the 1,202 freshmen admitted, 90 were African American, marking a notable 76 percent rise compared to the 51 enrolled in 1968. Notably, prestigious institutions such as Yale, Princeton, and Columbia also intensified their endeavors to recruit and enroll Black students during this period.

Affirmative action's progression into the realm of education took a significant stride with the Supreme Court's ruling in Green v. County School Board of New Kent County in 1968. This decision compelled all school boards to devise plans aimed at dismantling segregated systems within their districts, aligning with the principles established by Brown v. Board of Education in 1954. The order served as a focal point for both conservatives and liberals, drawing attention from various political factions.

As elucidated by the Virginia Historical Society, the challenges emerged due to the phenomenon of white families relocating to private academies and suburban areas, making it difficult to achieve racial balance in many city schools without extensive busing of students across citywide or city-county boundaries. These circumstances paved the way for a strong white backlash against what was perceived as judicially-driven social engineering, leading to a reinforcement of conservative political viewpoints.

Backlash, Battle Lines, and Doomed to Fail

Subsequently, affirmative action began to acquire widespread negative associations propagated by the media and individuals who sought its elimination or opposed its principles. This resistance caught the attention of the Supreme Court in 1978, when the case of Regents of the University of California v. Bakke emerged. The lawsuit was initiated by Allan Bakke, a white applicant who had been twice denied admission to the University of California, Davis School of Medicine, despite possessing a higher GPA and MCAT score than some accepted candidates. At that time, the medical school reserved 16 out of 100 spots specifically for minority students.

In a narrow 5-4 decision, the Supreme Court determined that while strict quotas violated the Equal Protection Clause of the 14th Amendment, race could still be considered as a factor in the admissions process to foster educational diversity. This ruling allowed for the consideration of race as one element among others in college applications.

In the case of Grutter v. Bollinger (2003), the focus revolved around Barbara Grutter, a white applicant to the University of Michigan Law School. While the school did not employ quotas, it held a favorable stance toward minority applicants in its admission process. In a similar 5-4 verdict, the court concluded that the university's individualized evaluation of candidates, wherein race served as a limited factor among many in the decision-making process, upheld the legality of its admissions procedure.

In 2014, President Barack Obama signed an executive order, known as Johnson's Executive Order 11246, that broadened the scope of protected classes for federal contractors. The order extended the existing protections beyond race, color, religion, sex, and national origin to include sexual orientation and gender as well. This step aimed to ensure equal treatment and opportunities in the workplace for individuals based on their sexual orientation and gender identity within federal contracting organizations.

Fisher v. University of Texas was a significant legal case that reached the US Supreme Court in 2016. The case centered around the University of Texas at Austin's undergraduate admissions policy, which considered race as a factor in the admissions process. The plaintiff, Abigail Fisher, argued that she was denied admission based on her race, which she claimed violated her rights under the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court, in a 4-3 decision, upheld the constitutionality of the university's race-conscious admissions policy, affirming that it met the strict scrutiny standard. This ruling established important precedent regarding the use of race in college admissions and emphasized the need for universities to narrowly tailor their affirmative action policies to achieve diversity while ensuring individual rights are protected.

On June 29, 2023, the Supreme Court made a significant ruling that invalidated significant aspects of Affirmative Action in education. The court’s decision came as a response to lawsuits against Harvard University and the University of North Carolina, where allegations of discriminatory practices were raised. Opponents of affirmative action argued that these elite educational institutions, while aiming to support African Americans and Latinos, were unfairly treating individuals of white and Asian ancestry.

The assessment of affirmative action’s purpose and effectiveness differs among individuals with different ideological perspectives. Chief Justice John Roberts expressed a conservative viewpoint when he famously stated in 2007 that to eliminate racial discrimination, one must refrain from discriminating based on race.

Over the years, the concept and interpretation of affirmative action have evolved through various legal decisions, deviating from initial expectations held by educational institutions. Universities are no longer permitted to solely rely on affirmative action as a means to address centuries of racism in the United States. This pattern has repeated itself in subsequent years, where every significant policy aiming to improve the status of Black individuals has faced opposition, citing concerns of race-consciousness, racial discrimination, preferential treatment, and potential social harm. That racial affirmative action in university admissions and other domains existed as long as it did is remarkable, considering the formidable opposition it  encountered.

Throughout the racial history of the United States, significant efforts aimed at promoting the progress of African Americans and rectifying the impact of racial subordination have consistently faced allegations of "reverse discrimination" and perceived unfair "preference." While progress has been made in dismantling long-held prejudices and outdated customs, the underlying roots of institutionalized racism in America remain deeply embedded, indicating that there is still a substantial journey ahead of us.

Resources

https://www.smithsonianmag.com/history/learn-origins-term-affirmative-action-180959531/

https://www.aaaed.org/aaaed/History_of_Affirmative_Action.asp

https://www.nytimes.com/2023/06/07/opinion/resistance-black-advancement-affirmative-action.html

https://clintonwhitehouse3.archives.gov/WH/EOP/OP/html/aa/aa02.html

https://www.history.com/topics/us-government-and-politics/affirmative-action

https://newsone.com/4624577/history-of-affirmative-action-in-america/

https://penntoday.upenn.edu/news/look-history-affirmative-action-mary-frances-berry

Books

Jerome Karabel, The Chosen, Harper, 2006.

Randall Kennedy, For Discrimination: Race, Affirmative Action, and the Law, Pantheon, 2013.

Ira Katznelson, When Affirmative Action was White:,An Untold History of Racial Inequality in Twentieth-Century America, Liveright, 2023.