AFFIRMATIVE ACTION POLICIES THROUGHOUT HISTORY

1961 – President John F. Kennedy's Executive Order (E.O.) 10925 used affirmative action for the first time by instructing federal contractors to take "affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin,” Established the Committee on Equal Employment Opportunity.

1964 – Civil Rights Act of 1964 was signed into law. This was landmark legislation prohibiting employment discrimination by large employers (over 15 employees), whether or not they have government contracts. Established the Equal Employment Opportunity Commission (EEOC).

1965 – President Lyndon B. Johnson issued E.O. 11246, requiring all government contractors and subcontractors to take affirmative action to expand job opportunities for minorities. Established the Office of Federal Contract Compliance (OFCC) in the Department of Labor to administer the order.

1966 – EEOC promulgates regulations that require employers with at least 100 employees or government contractors with 50 employees to fill out the EEO-1 Private Sector Report annually. This report is a snapshot of how many racial and ethnic minorities and women are working in a company. 29 C.F.R § 1602.7.

1967 – President Johnson amended E.O. 11246 to include affirmative action for women. Federal contractors are now required to make good-faith efforts to expand employment opportunities for women and minorities.

1970 – The Labor Department, under President Richard M. Nixon, issued Order No.4, authorizing flexible goals and timetables to correct "underutilization" of minorities by federal contractors.

1971 – Order No. 4 was revised to include women.

1971 – President Nixon issued E.O. 11625, directing federal agencies to develop comprehensive plans and specific program goals for a national Minority Business Enterprise (MBE) contracting program.

1973 – The Nixon administration issued "Memorandum-Permissible Goals and Timetables in State and Local Government Employment Practices," distinguishing between proper goals and timetables and impermissible quotas.

1973 – President Richard M. Nixon signs the Rehabilitation Act of 1973, which requires agencies to submit an affirmative action plan to the EEOC for the hiring, placement, and advancement of individuals with disabilities.

1978 – The U.S. Supreme Court in Regents of the University of California v. Bakke, 438 U.S. 912 (1978) upheld the use of race as one factor in choosing among qualified applicants for admission. At the same time, it also ruled unlawful the University Medical School's practice of reserving 18 seats in each entering class of 100 for disadvantaged minority students.

1979 – President Jimmy Carter issued E.O. 12138, creating a National Women's Business Enterprise Policy and requiring each agency to take affirmative action to support women's business enterprises.

1979 – The Supreme Court ruled in United Steel Workers of America, AFL-CIO v. Weber, 444 U.S. 889 (1979) that race-conscious affirmative action efforts designed to eliminate a conspicuous racial imbalance in an employer's workforce resulting from past discrimination are permissible if they are temporary and do not violate the rights of white employees.

1983 – President Ronald Reagan issued E.O. 12432, which directed each federal agency with substantial procurement or grant making authority to develop a Minority Business Enterprise (MBE) development plan.

1985 – Efforts by some in the Reagan administration to repeal Executive Order 11246 were thwarted by defenders of affirmative action, including other Reagan administration officials, members of Congress from both parties, civil rights organizations and corporate leaders.

1986 – The Supreme Court in Local 128 of the Sheet Metal Workers' International Association v. EEOC, 478 U.S. 421 (1986) upheld a judicially-ordered 29% minority "membership admission goal" for a union that had intentionally discriminated against minorities, confirming that courts may order race- conscious relief to correct and prevent future discrimination.

1987 – The Supreme Court ruled in Johnson v. Transportation Agency, Santa Clara County, California, 480 U.S. 616 (1987) that a severe under representation of women and minorities justified the use of race or sex as "one factor" in choosing among qualified candidates.

1989 – The Supreme Court in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) struck down Richmond's minority contracting program as unconstitutional, requiring that a state or local affirmative action program be supported by a "compelling interest" and be narrowly tailored to ensure that the program furthers that interest.

1990 – President George H.W. Bush signs the Americans with Disabilities Act of 1990.

1991 – President George H.W. Bush signs the Civil Rights Act of 1991.

1994 – In Adarand Constructors, Inc. v. Pena, 513 U.S. 1012 (1994) the Supreme Court held that a federal affirmative action program remains constitutional when narrowly tailored to accomplish a compelling government interest such as remedying discrimination.

1995 – President Bill Clinton reviewed all affirmative action guidelines by federal agencies and declared his support for affirmative action programs by announcing the Administration's policy of "Mend it, don't end it."

1995 – Senator Robert Dole and Representative Charles Canady introduced the so-called Equal Opportunity Act in Congress. The act would prohibit race- or gender-based affirmative action in all federal programs.

1995 – The Regents of the University of California voted to end affirmative action programs at all University of California campuses. Beginning in 1997 for graduate schools and 1998 for undergraduate admissions, officials at the University were no longer allowed to use race, gender, ethnicity or national origin as a factor in admissions decisions.

1995 – The bipartisan Glass Ceiling Commission released a report on the endurance of barriers that deny women and minorities access to decision-making positions and issued a recommendation "that corporate America use affirmative action as a tool ensuring that all qualified individuals have equal access and opportunity to compete based on ability and merit."

1996 – California's Proposition 209 passed by a narrow margin in the November election. Prop. 209 abolished all public-sector affirmative action programs in the state in employment, education and contracting. Clause (C) of Prop. 209 permits gender discrimination that is "reasonably necessary" to the "normal operation" of public education, employment and contracting.

1997 – Proposition 209 enacted in California which banned all forms of affirmation action “in the operation of public employment, public education, or public contracting.”

1996 – In Texas v. Hopwood, 518 U.S. 1033 (1996) the U.S. Court of Appeals for the Fifth Circuit ruled against the University of Texas, deciding that its law school's policy of considering race in the admissions process was a violation of the Constitution's equal-protection guarantee. The U.S. Supreme Court declined to hear an appeal of the ruling because the program at issue was no longer in use.

1997 – Voters in Houston supported affirmative action programs in city contracting and hiring by rejecting an initiative that would banish such efforts. Houston proved that the wording on an initiative is a critical factor in influencing the voters' response. Instead of deceptively focusing attention on "preferential treatment,” voters were asked directly if they wanted to "end affirmative action programs.” They said no.

1997 – The U.S. Supreme Court refused to hear a challenge to California's Prop. 209. By declining to review the case, the court did not decide the case on its merits but allowed Prop. 209 to go into effect.

1997 – The U.S. House Judiciary Committee voted 17-9, on a bipartisan basis, to defeat legislation aimed at dismantling federal affirmative action programs for women and minorities. Representative George Gekas (R-Pa.), who moved to table the bill, said that the bill was "useless and counterproductive. I fear that forcing the issue at this time could jeopardize the daily progress being made in ensuring equality."

1997 – Bill Lann Lee was appointed Acting Assistant Attorney General for Civil Rights after facing opposition to his confirmation because of his support for affirmative action when he worked for the NAACP Legal Defense and Educational Fund.

1997 – Lawsuits were filed against the University of Michigan and the University of Washington School of Law regarding their use of affirmative action policies in admissions standards.

1997 – In response to Hopwood v. Texas, the Texas legislature passed the Texas Ten Percent Plan, which ensures that the top ten percent of students at all high schools in Texas have guaranteed admission to the University of Texas and Texas A&M system, including the two flagships, UT – Austin and A&M College Station.

1998 – Both the United States House of Representatives and the United States Senate thwarted attempts to eliminate specific affirmative action programs. Both houses rejected amendments to abolish the Disadvantaged Business Enterprise program funded through the Transportation Bill, and the House rejected an attempt to eliminate use of affirmative action in admissions in higher education programs funded through the Higher Education Act.

1998 – Ban on use of affirmative action in admissions at the University of California went into effect. UC Berkeley had a 61% drop in admissions of African American, Latino/a and Native American students, and UCLA had a 36% decline.

1998 – Voters in Washington passed Initiative 200 banning affirmative action in higher education, public contracting, and hiring.

2000 – Many Circuit Courts throughout the country heard cases regarding affirmative action in higher education, including the 5th Circuit in Texas (Hopwood), the 6th Circuit in Michigan (Grutter and Gratz), the 9th Circuit in Washington (Smith), and the 11th Circuit in Georgia (Johnson). The same District Court in Michigan made two different rulings regarding affirmative action in Michigan, with one judge deciding that the undergraduate program was constitutional while another judge found the law school program unconstitutional.

2000 – The Florida legislature passed “One Florida” Plan, banning using race as a factor in college admissions. The program also included the Talented 20% Plan that guarantees the top 20% admission to the University of Florida system.

2000 – In an effort to promote equal pay, the US Department of Labor promulgated new affirmative action regulations including an Equal Opportunity Survey, which requires federal contractors to report hiring, termination, promotions and compensation data by minority status and gender. This is the first time in history that employers have been required to report information regarding compensation by gender and minority status to the federal equal employment agencies.

2000 – The 10th Circuit issued an opinion in Adarand Constructors v. Mineta and ruled that the Disadvantaged Business Enterprise as administered by the Department of Transportation was constitutional because it served a compelling government interest and was narrowly tailored to achieve that interest. The court also analyzed the constitutionality of the program in use when Adarand first filed suit in 1989 and determined that the previous program was unconstitutional. Adarand then petitioned the Supreme Court for a writ of certiorari.

2001 – In Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (2001) the Supreme Court dismissed the case as “improvidently granted”, thereby leaving undisturbed the 10th Circuit’s decision, which upheld the government’s revised federal contracting program.

2001 – California enacted a new plan allowing the top 12.5% of high school student’s admission to the UC system, either for all four years or after two years outside the system, and guaranteeing the top 4% of all high school seniors’ admission into the UC system.

2002 – The Sixth Circuit handed down its decision in Grutter v. Bollinger and upheld constitutional the use of race as one of many factors in making admissions decisions at the University of Michigan’s Law School.

2003 – The Supreme Court handed down its decisions in Grutter v. Bollinger and Gratz v. Bollinger. In Grutter, the Court held that the University of Michigan’s use of race among other factors in its law school admissions program was constitutional because the program furthered a compelling interest in obtaining “an educational benefit that flows from student body diversity”. The Court also found that the law school’s program was narrowly tailored; it was flexible and provided for a “holistic” review of each applicant. In Gratz, the Court rejected the undergraduate admissions program at the College of Literature, Science and the Arts, which granted points based on race and ethnicity and did not provide for a review of each applicant’s entire file.

2007 – Proposal 2 enacted in Michigan banning preferential treatment of minorities in public college admissions, public employment, public education or public contracting.

2008 – Ballot measure banning affirmative action by public entities approved in Nebraska, rejected in Colorado.

2008 – President George W. Bush signs the Americans with Disabilities Act Amendments Act of 2008, effective in 2009, that amended the American with Disabilities Act of 1990.

2011 – Arizona enacted Proposition 107 banning preferential treatment of minorities in public employment, public education, and public contracting.

AFFIRMATIVE ACTION IN THE COURTS

Regents of the University of California v. Bakke

1978 – In Regents of the University of California v. Bakke, the Supreme Court ruled that the University's special admission program setting aside a fixed number of seats for minorities at its medical school violated Title VI of the 1964 Civil Rights Act (which prohibits discrimination by federally funded programs). At the same time, however, in an opinion written by Justice Powell, it ruled that race could lawfully be considered as one of several factors in making admissions decisions. In his opinion, Justice Powell noted that lawful affirmative action programs may be based on reasons other than redressing past discrimination -- in particular, a university's educational interest in attaining a diverse student body could justify appropriate affirmative action programs.

United Steelworkers of America v. Weber

1979 – United Steelworkers of America v. Weber involved a new in-plant training program for workers at a Louisiana plant that had hired few minorities in skilled positions. The employer and the union had agreed that 50 percent of the positions in the training program would go to African American employees and 50 percent to whites. Within each group, positions would be filled on the basis of seniority, meaning some junior African Americans would be admitted ahead of more senior whites. In rejecting the claims of a white employee that the program violated Title VII of the 1964 Civil Rights Act, the Court said the law allowed affirmative action by private parties "to eliminate traditional patterns of racial segregation". One test of lawfulness was whether the program "unduly" trampled on the interests of white workers. The Court held that the plan passed the test because it did not require firing any white workers, nor did it create an "absolute bar" to white advancement. The plan was also permissible because it was "a temporary measure; it [was] not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance."

Fullilove v. Klutznick

1980 – In Fullilove v. Klutznick, the Supreme Court upheld a congressionally- enacted 10 percent minority business set-aside of federal funds for state and local public works. In the ruling, the Court stressed the remedial nature of the set-aside, with Chief Justice Burger writing that the program "was designed to ensure that ... grantees ... would not employ procurement practices that Congress had decided might result in perpetuation of the effects of prior discrimination which had impaired or foreclosed access by minority business to public contracting opportunities."

Stotts v. Memphis Fire Department

1984 – In Stotts v. Memphis Fire Department the Court took on the hard issue of whether seniority would determine the order of layoffs in the Memphis fire department even at the cost of wiping out affirmative action. It ruled that Title VII "precludes a district court from displacing a non-minority employee with seniority under the contractually established seniority system absent either a finding that the seniority system was adopted with discriminatory intent or a determination that such a remedy was necessary to make whole a proven victim of discrimination." The decision did not, however, prevent the use of affirmative action in hiring and promotion situations, as the Court apparently viewed displacing white workers from their jobs as far more serious than simply disappointing their hopes for a new opportunity.

Even before the ruling in Stotts, the Reagan Justice Department, under Assistant Attorney General William Bradford Reynolds, had abandoned the department's traditionally vigorous enforcement of federal equal employment laws. In 1987 testimony before Congress, Reynolds said the department would end the use of any goals and timetables as a remedy to correct discrimination -- a stance the department carried into its court cases, relying almost exclusively on recruitment programs as remedies for employment discrimination, but refusing to look at the number of minorities or women actually hired or promoted. At the same time, Reynolds and the department sought to undo the affirmative action remedies that had been agreed to prior to the Reagan administration. Reynolds construed Stotts as holding that any form of race or gender-conscious relief were impermissible. These views were rejected by the courts.

Wygant v. Jackson Board of Education

1986 – The court once again emphasized that lawful affirmative action programs cannot require that male workers be discharged to make way for female workers. In Wygant v. Jackson Board of Education, the Court held that a public employer may not lay off more senior white workers to protect the jobs of less senior black workers. Men and whites cannot be excluded from consideration for opportunities; all candidates must have the chance to compete and have their qualifications compared to others.

U.S. v. Paradise and Johnson v. Santa Clara County Transportation Agency

1987 – In U.S. v. Paradise and Johnson v. Santa Clara County Transportation Agency, the Court upheld a one-for-one promotion requirement (i.e., for every white candidate promoted, a qualified African American would also be promoted) in the Alabama Department of Public Safety, finding it to be narrowly tailored and necessary to eliminate the effects of Alabama's long-term discrimination which the lower court had found "blatant and continuous." The Justice Department, which had originally intervened in the suit in the 1970s on the side of the African American plaintiff, switched sides during the Reagan administration.

Johnson v. Transportation Agency, Santa Clara County

1987 – In Johnson v. Transportation Agency, Santa Clara County the Court upheld an employer's affirmative action plan that allowed gender to be considered as a positive factor when choosing among qualified candidates for jobs in which women were severely underrepresented. The employer developed its plan after its review found that no women were employed in any of its 238 skilled craft jobs. Both Paul Johnson (the male plaintiff claiming reverse discrimination) and Diane Joyce (the woman who ultimately received the promotion to road dispatcher) had the requisite four years' experience, although Ms. Joyce's experience was more recent and arguably more relevant. Mr. Johnson received a score of 75 to Ms. Joyce's 73 in the graded oral interview, where 70 was a passing score. The Court upheld the county's use of Ms. Joyce's gender as a positive factor in choosing between these similarly-qualified candidates -- especially since no woman had ever held the position of road dispatcher.

City of Richmond v. Croson

1989 – By 1989, the composition of the Supreme Court had changed and now included a strong majority of justices who were suspicious, if not downright hostile, to affirmative action. That hostility was evidenced in the Court's ruling in City of Richmond v. Croson, invalidating Richmond, Virginia's local ordinance establishing a minority business set-aside program. For the first time, the Court adopted the strict scrutiny standard of review demanding that an affirmative action program be supported by a "compelling government interest" and narrowly tailored to ensure the program fits that interest. While not rejecting all governmental race- conscious remedies, the Court set a very high standard for their continued use by state and local governments.

Adarand Constructors v. Pena

1995 – The court extended this tough standard in Adarand Constructors v. Pena, a 5-4 decision holding that strict scrutiny would also apply to federal affirmative action programs (although leaving open some issues, such as the degree of deference to be given to programs established by Congress). Again, however, the Court refused to reject properly-designed affirmative action. As Justice O'Connor emphasized: "The unhappy persistence of both the practice and the lingering effects of racial discrimination against minorities in this country is an unfortunate reality and government is not disqualified from acting in response to it."

The court's decision in Adarand emboldened affirmative action's opponents to launch a full-scale assault in Congress and in state legislatures, as well as in the courts. They saw some success on the state level, as California enacted Proposition 209 in 1996, which prohibits all affirmative action programs in employment, education, and contracting. The State of Washington followed suit as well, with Initiative 200. The effect of such efforts soon became clear, as the number of African Americans and Latinos admitted to California's top public universities quickly plummeted. Such initiatives, however, have failed in other states. At the federal level, President Clinton immediately made clear his determination to "mend, not end" affirmative action in light of the Adarand decision. In a speech at the National Archives President Clinton said, “The job of ending discrimination in this Country is not over.” https://www.washingtonpost.com/wp-srv/politics/special/affirm/stories/aa072095.htm

The Administration's efforts paid off. Affirmative action's opponents failed in their attempts to move legislation in the late 1990s that would have banned all federal affirmative action programs. In fact, in 1998, Congress reauthorized the disadvantaged business enterprise (DBE) program run by the Department of Transportation (DOT) by an overwhelming bipartisan vote. This DBE program directs that not less than 10% of funds appropriated for federal transportation procurement should be expended with small disadvantaged business enterprises (generally owned and controlled by women and minorities; however, socially and economically disadvantaged white males are also eligible to compete in the program). The DBE program relies on a system of aspirational goals established by states and localities based on the local availability of qualified DBEs. DOT has never penalized a state or locality for failing to achieve its goals, and the program explicitly prohibits quotas.

While consistently maintaining the constitutionality of its DBE regulations, the Department of Transportation made further changes in the DBE designed to improve the program's effectiveness and tailor it even more narrowly in response to the 1995 Adarand decision. In the fall of 2000, the 10th Circuit agreed, concluding that the regulations satisfied strict scrutiny because they were justified by the government's compelling interest in ending discrimination against minority contractors and they were appropriately and narrowly tailored. In 2001, the Supreme Court accepted this case for review.

Hopwood v. Texas

1996 – In Hopwood v. Texas, the Fifth Circuit dismissed Justice Powell's opinion in Bakke, ruling that a university's interest in a diverse student body was never compelling, and that race could no longer be used as one among several factors in admissions decisions in Texas, Louisiana, and Mississippi. Earlier, in 1994, a Fourth Circuit panel ruled in Podberesky v. Kirwan that race-based scholarships were unconstitutional despite extensive evidence offered by the state of Maryland that such scholarships were an effective means of correcting the state's own past discrimination against African American students. The years 2000 and 2001 brought mixed results in the lower courts, as one district court judge, for example, upheld the affirmative action program used by the University of Michigan Law School, while another struck down the university's undergraduate admissions program.

Gratz v. Bollinger and Grutter v. Bollinger

2003 – In Gratz v. Bollinger and Grutter v. Bollinger, the U.S. Supreme Court handed down its most significant decisions in the area of affirmative action/diversity in higher education admissions since Bakke. The Court addressed challenges to the University of Michigan’s undergraduate and law school admissions programs respectively. In Gratz and Grutter the Court gave deference to the University's experience and expertise about its educational mission. However, once the University has established that its goal of diversity is consistent with strict scrutiny, the University must prove that the means it chose to attain that diversity are narrowly tailored to its goal.

Abigail Fisher v. the University of Texas at Austin

2013 – The Supreme Court once again upheld the notion that diversity in higher education admissions was a compelling state interest. In Abigail Fisher v. the University of Texas at Austin, the Court reiterated Justice Powell’s opinion that the consideration of race was a compelling interest where one considers the educational benefits that flow from a diverse student body. However, in the Fisher case it also restated previous decisions that found that the University’s admissions process, which considers race as a factor, must withstand strict judicial scrutiny. Moreover, in remanding the case to the lower court, the Court held that the University must show that such a classification is "necessary . . . to the accomplishment of its purpose.”

Students for Fair Admissions v. President and Fellows of Harvard College

November 17, 2014 - The organization, Students for Fair Admissions (SFFA), and other plaintiffs filed a lawsuit against Harvard College in the District Court of Massachusetts, claiming Harvard’s race conscious admissions policy unlawfully discriminates against Asian-American applicants in violation of Title VI of the Civil Rights Act of 1964. (Harvard considers race as one factor among many in its undergraduate admission process, an effort to expand diversity for minority students who have been under-represented in higher education).

September 30, 2019 - Judge Allison Burroughs rejected the plantiffs’ claims, ruling that Harvard does not discriminate against Asian-Americans or engage in racial balancing, and that its admissions practice use of race is consistent with Supreme Court precedent. Following this decision, SFFA filed an appeal.

November 12, 2020 - The Court of Appeals for the First Circuit upheld the lower court’s decision, affirming Harvard’s race-conscious admissions program does not violate Title VI of the Civil Rights Act.

February 2021 - SFFA filed a petition for a writ of certiorari in hopes of getting the case reviewed by the Supreme Court. The petition introduces a new argument, to overturn Grutter v. Bollinger, a 2003 landmark decision in which the Supreme Court upheld the right of college admissions boards to factor in applicant’s race in order to promote student diversity.

May 17, 2021 - Harvard filed its opposing brief to have SFFA’s petition rejected, noting four decades of established legal precedent and the two lower court rulings found in their favor.

January 24, 2022 – The Supreme Court agreed to hear SFFA v. President & Fellows of Harvard College, consolidated with SFFA v. University of North Carolina. Unlike Harvard, UNC is a public university, which is covered by the 14^th Amendment’s guarantee of equal protection. In this case, the plaintiffs argue that the university’s consideration of race in its undergraduate admissions process violates both Title VI and the Constitution.

Links:

Original Complaint

https://lawyerscommittee.org/wp-content/uploads/2020/07/Original-Complaint.pdf

District Court’s Decision Upholding Harvard’s Race Conscious Policy

https://admissionscase.harvard.edu/files/adm-case/files/2019-10-30_dkt_672_findings_of_fact_and_conclusions_of_law.pdf

First Circuit Court of Appeals Opinion

https://admissionscase.harvard.edu/files/adm-case/files/first_circuit_court_of_appeals_opinion.pdf

Petition for Writ of Certorari

https://www.supremecourt.gov/DocketPDF/20/20-1199/169941/20210225095525027_Harvard%20Cert%20Petn%20Feb%2025.pdf

Brief in Opposition:

https://admissionscase.harvard.edu/files/adm-case/files/legal_-_filing_-_210517_-_harvard_-_20-1199_brief_in_opposition_002.pdf

Supporting Documents: Harvard legal filings and report/Amici legal filings