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The History of Affirmative Action Policies

Americans for a Fair Chance
Washington D.C.

The following history of affirmative action policies is re-published with the permission of Americans for Fair Chance and was updated as of August 7, 2003 by Shirley J. Wilcher, president, Wilcher Global LLC, and former executive director of Americans for a Fair Chance.

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." Created 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 Office of Federal Contract Compliance (OFCC) in the Department of Labor to administer the order.

1967. President Johnson amended E.O. 11246 to include affirmative action for women. Federal contractors 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.

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.

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.

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, 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 affirmative action. 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, 228 F.3d 1147 (10th Cir. 2000) 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, 288 F.3d 732 (6th Cir. 2002) on May 14, 2002, and upheld as 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, 539 U.S.(2003) and Gratz v. Bollinger, 539 U.S. (2003). 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.

Published in In Motion Magazine October 12, 2003.