Affirmative Action in Employment Law and College Admissions

Despite the mass of confusing political rhetoric, affirmative action is based on the simple idea of taking steps to attempt to correct past injustices suffered by groups of people based on their race, ethnicity, gender, or other protected class. The root of the concept of affirmative action is remedial in that it focuses on addressing and attempting to alleviate disadvantages that are unfairly placed upon certain groups as the result of harms that occurred in the past.

We will look at the legal basis of affirmative action, the status of affirmative action in the United States, affirmative action in the employment context, and the role of affirmative action in employment and in higher education admissions.

Legal Basis of Affirmative Action

The legal basis for affirmative action in the United States is the Equal Protection Clause, Title VII of the Civil Rights Act of 1964 and various Executive Orders that have addressed the topic in response to societal or legislative pressures. The earliest citation to affirmative action from the executive branch was in the 1960s, when President John F. Kennedy initiated efforts to equalize rights amongst individuals who had previously been marginalized. In Executive Order 10925, President Kennedy decreed that certain employers “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.”[i]

When the Civil Rights Act of 1964 became law, other Executive Orders referenced the concept President Kennedy raised to encourage employers to level the playing field in the employment context.[ii] Previously, in a constitutional amendment, the Equal Protection Clause provided language that would later be viewed as support for affirmative action.[iii] That text states that “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”[iv] Many opponents of affirmative action argue that such programs violate the Equal Protection Clause by encouraging differing treatment of similarly situated individuals.

Debate over Affirmative Action

Affirmative action has been the subject of intense debate in the United States for many decades. Those who support affirmative action believe that society has a duty to assuage the effects of intense, widespread discrimination that sets back entire groups of individuals.[v] At the core of this message is the idea that diversity is an important value that employers and schools should embrace to ensure the most fair, equitable, and productive society. Additionally, supporters of affirmative action argue that past injustices set back large groups of individuals on unlawful bases, and that the only way to correct those setbacks is to grant them more favorable status to balance the playing field.

On the other hand, opponents of affirmative action argue that it is not possible to right past wrongs, and, at worst, affirmative action actually results in increased discrimination and is counterproductive. For example, Thomas Sowell’s Affirmative Action Around the World: An Empirical Study, found that affirmative action programs benefit the most privileged groups, encourage individuals to identify with “preferred groups” with which they would not otherwise identify, and distract from the individual’s actual qualifications, which has the unintended consequence of undervaluing their ability to contribute. Both sides in the affirmative action debate cite the Equal Protection Clause, Title VII and other legal sources.

It is important to note that the constitutional equal protection clause only applies to public employers, and other sources of federal law also have limitations, so not every affirmative action plan will be scrutinized the same way. Ultimately, the Supreme Court has made it clear that there is plenty of room for interpretation and there is no clear answer when it comes to the legality of employer or school affirmative action programs.

Affirmative Action in the Employment Realm

In the employment context, U.S. Supreme Court cases have upheld public employers’ affirmative action plans only where the employer demonstrates a compelling interest to remediate using that method.[vi] In City of Richmond v. J.A. Croson Co., the Court held that it was insufficient for the City of Richmond to assert that the interest, from a legal perspective, was “past racial discrimination.”[vii] Applying the strict scrutiny standard, the Court also held that requiring a 30% set-aside for contracts awarded to minority businesses was not sufficiently narrowly tailored to accomplish the employer’s affirmative action goals. The Court later elaborated on this standard in Adarand Constructors, Inc. v. Peña, which held that the strict scrutiny standard also applies to situations where a government contract is lost because the subcontractor is not a minority.[viii] The Court additionally made it clear that past racial discrimination does not necessarily signal present or future wrongs. Every government sponsored affirmative action program must be narrow and serve a compelling interest for it to stand.

Private employers have much greater latitude. However, they also must remain cognizant of the directives of Title VII of the Civil Rights Act of 1964 when drafting and implementing affirmative action plans. Title VII prohibits employment decisions based on race (among other factors) and affirmative action plans could be interpreted as violations of Title VII. The U.S. Supreme Court held, in United Steelworkers of America v. Weber, that such plans are lawful if they are consistent with the intent of Title VII.[ix] Specifically, a private employer’s affirmative action plan is not unlawful if it also advances the employer’s general business interests and is temporary in nature.[x] The Court made it clear that Title VII was not intended to prohibit all race-based programs under circumstances where the employer demonstrates a clear need for remedial action and the affirmative action plan is narrowly drawn to advance the protected class. So, for example, an employer who hires more minorities in order to achieve better public relations in minority communities is generally within its rights under the Civil Rights Act.

Affirmative Action and Higher Education Admissions

Affirmative action has also become the subject of lawsuits focusing on higher education admissions standards. Many institutions of higher education rely upon applicants’ responses to questions about race and ethnicity to help distinguish between similarly situated students and to help narrow down the applicant pool to encourage a racially diverse study body. With college admissions becoming increasingly competitive, this topic has become hotly debated, particularly in cases where the schools are selective and set high GPA thresholds for admission. In Gratz v. Bollinger, the U.S. Supreme Court held that it is constitutional for a public university to consider race as a factor in its admissions standards to encourage a diverse student body.[xi] Affirmative action programs based on race must pass the strict scrutiny test, meaning that they must be narrowly tailored to serve a compelling interest. The Court found that student diversity was a compelling interest under constitutional standards. Significantly, four justices dissented, and the topic of affirmative action in an educational context has been the subject of intense scrutiny since Bollinger. This case also set in motion the adoption by many other schools of new and more extensive affirmative action plans in their admissions processes.

Most recently, in Fisher v. University of Texas, the U.S. Supreme Court affirmed the application of the strict scrutiny standard in race-based university admissions processes.[xii] In that case, two women who were denied admission to the university argued that data showed that they would have been admitted if not for their inability to be classified as a protected class under the affirmative action program standards. Both women demonstrated superior performance in their high school classes not only in terms of grades, but also in extracurricular activities and related honors that the university was shown to have valued in its admissions analysis. The plaintiffs cited the Equal Protection Clause and the Civil Rights Act in support of the argument that the admissions standards were unconstitutional. Although the Court affirmed the application of the strict scrutiny standard and the university’s policy, it is noteworthy that the divided Court cautioned: “The University must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest.”[xiii] The Court was sharply divided in both Fisher and Bollinger, which reflects an ongoing ambiguity about the legal basis of affirmative action, and an unclear future for affirmative action programs sanctioned by schools and employers.