The Emergence of Affirmative Action1
Prior to affirmative action’s modern-day connotation associated with education which emerged during the civil rights movement, the term is first referenced in the National Labor Relations Act of 1935. The National Labor Relations Act was created protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy. It also established the National Labor Relations Board which if a testimony of unfair treatment was brought before the Board, “then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without backpay…”(Sec. 10c).
The connection between affirmative action and racial equality had not been made until President Kennedy passed Executive Order 10925 in 1961 that required government contractors to “not discriminate against any employee or applicant for employment because of race, creed, color, or national origin.” It goes on to say, “the contractor will 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.”
Race-based affirmative action and education became associated in 1968 with the Supreme Court ruling in Green v. County School Board of New Kent County (1968), in which called into question the constitutionality of the “freedom of choice plan” – allowed students to choose which school the wanted to attend – and whether it violates equal protection where evidence shows that the plan is not likely to bring about desegregation.” The Supreme Court not only ruled that the plan did violate equal protection but also that school boards that had segregated school systems were charged with “the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.”2
Affirmative action, while rooted in employment law, overtime extended the same legal procedures and protections to education. It is necessary to look back on how affirmative action has evolved overtime – from a broad focus on employment to a more narrowly defined focus on racial equality – because it is in that established precedent we see affirmative action as it relates to educational opportunity and admissions take shape.
Though affirmative action remains a divisive topic to broach, it’s history serves as the context for shifts in not only the holistic admissions process from race-based (or race-conscious) affirmative action to socioeconomic-based affirmative action policies, but also in the current political, legal, and social discourse surrounding the topic of diversity in admissions more broadly.
Current State of Affairs
As the Trump Administration continues to roll back Obama-era policies, affirmative action policies now appear to be on shaky grounds. In July, the Trump Administration issued a statement conveying a strong stance in favor of race-blind admission. The New York Times noted that, “In a joint letter, the Education and Justice Departments announced that they had rescinded seven Obama-era policy guidelines on affirmative action, which, the departments said, “advocate policy preferences and positions beyond the requirements of the Constitution.” Those in favor of this decision see it as an opportunity to move away from race-based admissions completely, while others see the Administration’s position as a step further away from diversity. President Trump is in a unique position to ensure that his administration’s stance on race-based affirmative action remains in place after he leaves and proves exceedly difficult in overturning.
Prior to the Trump Administration issuing a statement rescinding Obama-era guidelines pertaining to diversifying student populations, Justice Anthony Kennedy announced that he was retiring from the Supreme Court, leaving another seat on the bench open for a Trump nominee to fill. The Atlantic noted that Kennedy was the deciding vote in Fisher v. Texas (2016) to uphold the consideration of race as a factor in admissions which, the next time affirmative action is challenged at the level of the Supreme Court, “assuming a Trump nominee gets confirmed to the Court, the decision will likely break the other way.”
That “next time” might be right around the corner as the lawsuit against Harvard University ramps up. Filed in 2014, the lawsuit accused Harvard of discriminating against Asian-Americans in the admissions process. Many believe that this will make it to the Supreme Court, which if it does would have monumental consequences for the future of race-based affirmative action admissions policies.
A 2016 Gallup-Inside Higher Ed poll highlighted the public’s discontent with the Supreme Court’s ruling in Fisher v. Texas (2016). The poll found that “Americans continue to believe colleges should admit applicants based solely on merit (70%), rather than taking into account applicants’ race and ethnicity in order to promote diversity (26%).” Among the implications, Gallup considers this could be due to a misperception of seeing colleges and universities taking into account race to hurt, rather than help minorities. Furthermore, they note a possible gap in American understanding as to why schools have such a commitment to student diversity.
Inside Higher Ed mirrors Gallup’s interpretation of the results. On the one hand, Inside Higher Ed featured Michele S. Moses3 who “said that the [poll] results raised concerns for her, as someone who believes that considering race in admissions is appropriate in some circumstances, and also a misunderstood practice” On the other, they featured Roger Clegg4, who opposed the consideration of race in admissions, and stated that, “Americans have been brought up to believe that it’s a bad thing to treat people differently because of their skin color or where their ancestors came from.”
Clegg’s comments echo the misperception that Gallup raised in its interpretation of the poll results. He doesn’t consider that the temporal boundaries of affirmative action aren’t just confined to the present day. By definition, affirmative action redresses both current discriminatory practices and historical injustices against specific groups. The social sphere – as opposed to the legal and political spheres – is the only space in which a conversation around affirmative action isn’t currently unfolding. That would be a great first step in working towards a common understanding around affirmative action. At the very least, it could be an opportunity to surface and clarify misunderstandings and misperceptions around how it’s used and when it’s beneficial.
1. See Arcidiacono, Lovenheim & Zhu (2015) for an in depth survey of affirmative action’s legal history. ↩
2. See Legal information Institute. ↩
3. Michele S. Moses – associate dean for graduate studies and professor of education philosophy and policy at University of Colorado Boulder School Education. ↩
4. Roger Clegg – president and general counsel of the Center for Equal Opportunity. ↩