The topic of affirmative action isn’t exactly a new one. But it was thrust into the spotlight again earlier this month when the Trump administration tasked the Justice Department’s civil rights division with investigating and potentially suing higher education institutions over affirmative action admissions policies found by the White House to discriminate against white applicants, according to a report from The New York Times.
Wondering what all the fuss is about? Read on for everything you’ve always wanted to know about affirmative action.
What is the History of Affirmative Action?
The words “affirmative action” may be among the most politically loaded ones in the English language. And while they first came into popular use in the mid-60s, they go back much further than that and were originally used in the context of employment law. Shirley J. Wilcher, executive director of the American Association for Access, Equity and Diversity, told Smithsonian Magazine, “To take an ‘affirmative action’ was to literally act affirmatively—not allowing events to run their course but rather having the government (or employers) take an active role in treating employees fairly.”
An example of an early appearance of the phrase? The National Labor Relations Act of 1935, AKA the “Wagner Act,” which established that employers deemed to be practicing discriminating labor laws would be mandated to take corrective measures, AKA “affirmative action.” At this point, continues Smithsonian Magazine, “The race-based affiliation of this phrase hadn’t been codified yet.”
While the Wagner act was rejected by employers and eventually ruled unconstitutional by the Supreme Court, the principles upon which it was enacted have emerged (and remerged) throughout American history. The phrase was used in 1961 when President John F. Kennedy used it in Executive Order 10925, which sought to ensure equal treatment during employment “without regard to their race, creed, color, or national origin.” “Affirmative action” finally entered the general lexicon, however, when President Lyndon Johnson issued Executive Order 11246, which instructed contractors to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin." This was eventually expanded to all government employment, as well as to the education sector.
Today, the debates about affirmative action continue to rage on both sides. Wilcher told Smithsonian Magazine, “Affirmative action has taken on negative connotations through the media and those that would like to do away with it or oppose the concept, but the impetus is on action, not nondiscrimination. You have got to show that you tried, and that’s what affirmative action under the Johnson order means that’s what it meant in 1965, and that’s what it means today.”
Affirmative action opponents, meanwhile, claim that the practice is just another form of discrimination, with Chief Justice John Roberts famously writing, “The way to stop discrimination on the basis of race, is to stop discriminating on the basis of race.”
Higher Education and Affirmative Action
Race relations issues are interwoven throughout the fabric of American history, and while they can be seen across society at large, attention is often focused on how they play out in the higher education sphere.
Write Michael Werz, Senior Fellow at the Center for American Progress, and Julie Margetta Morgan, CAP Policy Analyst, “The movement toward affirmative action in higher education evolved out of a desire to address effects of past discrimination and segregation on the achievement of minority students and to increase diversity in higher education. The key argument was that a more diverse student body promotes democratic values, cross-racial tolerance and understanding, as well as the preparation of leaders who are equipped to compete in a global marketplace.”
The State of Affirmative Action
Certainly, the path to the implementation of affirmative action has been a rocky one. Continue Werz and Morgan, “From their inception, affirmative action policies in higher education have been controversial; even though the ultimate goal of diversity may be agreeable to most Americans, the methods of achieving it generated both constitutional questions and concerns about the consequences of race-based preferences for minority students.”
And the US is hardly alone in its struggles. Said CNN in 2012 of the growing preponderance of affirmative action, “Though quotas have been outlawed in the United States, the European Union has had a recent push to punish companies whose boards aren't composed of at least 40% women. And India, Brazil and Malaysia, among other countries, have laws and policies that address affirmative action in schools and throughout society.”
Given the passionate divide and lack of resolution, it’s hardly a surprise that the topic of affirmative action is once again making headlines. Perhaps more notably, it may be in greater jeopardy than ever. Writes Harvard professor of constitutional and international law Noah Feldman for Bloomberg, “A year ago, affirmative action in higher education seemed safe for a generation, after Justice Anthony Kennedy blessed it in a landmark Supreme Court opinion. Now President Donald Trump’s Department of Justice is signaling that it plans to challenge the constitutionality of the practice in a way the federal government has never done before. And with Justice Neil Gorsuch in place and the possibility that Kennedy might retire in the next few years, the challenge could succeed. The legal reality is that higher ed affirmative action is now vulnerable.”
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