Affirmative Action in The United States - Legal History

Legal History

• 1868 - The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution

mandates that no state "deny to any person within its jurisdiction the equal protection of the laws." This Clause grants citizens the protection of their Fifth Amendment rights from state actors.

• 1954 - Brown v. Board of Education

The NAACP filed on behalf of a black student, Linda Brown, who was transported out of her white neighborhood to attend a black school in Topeka, Kansas. The Supreme Court ruled that separate educational facilities were "inherently unequal" and violated the Fourteenth Amendment. The next year the Court ordered segregated districts to integrate with "all deliberate speed."

• 1961 - Executive Order No. 10925, issued by President Kennedy

Established the concept of affirmative action by mandating that projects financed with federal funds "take affirmative action" to ensure that hiring and employment practices are free of racial bias.

• 1964 - Section 717 of Title VII of the Civil Rights Act of 1964

• 1965 - U.S. Executive Order 11246 and Executive Order 11375

The Johnson administration embraced affirmative action in 1965, by issuing U.S Executive order 11246, later amended by Executive order 11375. The order, as amended, aims "to correct the effects of past and present discrimination". It prohibits federal contractors and subcontractors from discriminating against any employee or applicant for employment because of race, skin color, religion, gender, or national origin. The order requires that contractors take affirmative action to ensure that "protected class, underutilized applicants" are employed when available, and that employees are treated without negative discriminatory regard to their protected-class status.

The order specifically requires certain organizations accepting federal funds to take affirmative action to increase employment of members of preferred racial or ethnic groups and women. Any organization with fifty or more employees and an aggregate revenue exceeding $50,000 from a single federal contract during a twelve month period must have a written affirmative action plan. This plan must include goals and timetables for achieving full utilization of women and members of racial minorities, in quotas based on an analysis of the current workforce compared to the availability in the general labor pool of women and members of racial minorities.

The order is enforced by the Office of Federal Contract Compliance Programs of the Employment Standards Administration of the U. S. Department of Labor and by the Office of Civil Rights of the Justice Department.

• 1969 - Revised Philadelphia Plan

During the Nixon administration, affirmative action was adopted as a federal mandate for companies with federal contracts and for labor unions whose workers were engaged in those projects. This revised Philadelphia Plan was spearheaded by Labor Department official Arthur Fletcher.

• 1971 - Executive Order No. 11625, issued by President Nixon

This order claims to build upon the Office of Minority Business Enterprise (MBE) established in 1969 by clarifying the Secretary of Commerce's authority to "(a) implement Federal policy in support of the minority business enterprise program; (b) provide additional technical and management assistance to disadvantaged businesses; (c) to assist in demonstration projects; and (d) to coordinate the participation of all Federal departments and agencies in an increased minority enterprise effort."

• 1971 - Griggs v. Duke Power Company 401 U.S. 424 (1971)

• 1973 - Section 501 of the Rehabilitation Act of 1973

Section 717 of Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 require all United States Federal Agencies to implement affirmative employment opportunity programs for all federal employees. EEOC Equal Employment Opportunity Management Directive 715 (MD 715) provides guidance as to how such programs are to be implemented.

• 1974 - DeFunis v. Odegaard 416 U.S. 312 (1974)

• 1978 - Regents of the University of California v. Bakke 438 U.S. 265 (1978)

The Supreme Court held that the UC Davis medical school admissions program violated the equal protection clause with the institution of quotas for underrepresented minorities. However, Justice Lewis Powell's decision in the majority upheld diversity in higher education as a "compelling interest" and held that race could be one of the factors in university admissions.

• 1979 - U.S. Executive Order 12138

Issued by President Carter, this executive order created a National Women's Business Enterprise Policy and required government agencies to take affirmative action in support of women's business enterprises.

• 1989 - City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (strict scrutiny standard to state and local programs).

• 1989 - Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) revised the standards established by the 1971 Griggs decision.

• 1990 - Americans with Disabilities Act of 1990

People with disabilities as a group were more fully recognized as being protected by this act.

• 1995 - Adarand Constructors v. Peña, 515 U.S. 200 (1995)

established strict scrutiny standard of review for race and ethnic-based Federal Affirmative Action programs.

• 1996 - Hopwood v. Texas, 78 F.3d 932 (5th Cir.1996)

(first successful legal challenge to racial preferences in student admissions since Regents of the University of California v. Bakke).

• 1998 - President Clinton's Affirmative Action Review

• 2003 - Grutter v. Bollinger (02-241) 539 U.S. 306 (2003)

• 2006 - Parents Involved in Community Schools v. Seattle School District No. 1

• 2009 - Ricci v. DeStefano

• 2012 - Fisher v. University of Texas