3.13 - Affirmative Action
Defining Affirmative Action
Policies meant to address workplace and educational gaps related to race, ethnic origin, gender, disability, and age, often by giving some preference in hiring and admissions to groups that faced discrimination.
- Optional: no federal requirement exists; it's up to individual employers and universities. Some states actually ban it.
- Origins: began in the 1960s Civil Rights era to counter discrimination in hiring and college admissions.
- Current status: since the Court's 2023 ruling (below), colleges can't use race as a factor in admissions. Affirmative action in hiring and contracting is still debated, and several states, like California and Michigan, had already banned racial preferences in public colleges and jobs.
Supreme Court Restrictions
- No quota systems: schools can't set aside a fixed number of spots for specific racial or gender groups. This came from Regents of the University of California v. Bakke (1978), where UC Davis's medical school had saved 16 of its 100 seats for minority applicants. The Court struck down the quota but said race could still be one factor.
- Grutter and Gratz v. Bollinger (2003): established that race can be a factor in admissions, but not the factor. It can be weighed alongside GPA, test scores, extracurriculars, and legacy status, but universities can't award specific points for race (the Court struck down the University of Michigan's practice of doing exactly that).
- Students for Fair Admissions v. Harvard and v. University of North Carolina (2023): the Court ruled (6-3 in the UNC case, 6-2 in the Harvard case) that both schools' race-conscious admissions violated the Equal Protection Clause (and Title VI of the Civil Rights Act of 1964, which applies the same rule to private colleges that take federal money). The majority (Chief Justice Roberts) said the programs had no measurable goals, used race as a negative for some applicants, and had no end point. Colleges can no longer treat race itself as a factor, though applicants can still write about how race affected their lives. This effectively ended the Grutter approach.
The Constitutional Debate
The Court's debate centers on the 14th Amendment's Equal Protection Clause: does it allow the government to treat people differently by race to make up for past discrimination, or does it ban racial classifications altogether?
- Race-conscious view (equity): proponents argue minorities need a boost to offset historical barriers like worse-funded schools.
- Colorblind view (equality): opponents argue any racial preference is unequal treatment, plain and simple.
- This mirrors the same debate seen in Shaw v. Reno over race-based redistricting.
Where the debate stands: the 2023 ruling sided with the colorblind view in college admissions. The debate continues over affirmative action in hiring and contracting, and over race-neutral ways to build diverse schools, like recruiting from low-income areas.
Big picture
Affirmative action began as an optional tool to counter historical discrimination in hiring and admissions, but the Court steadily limited it, first banning quota systems (Bakke) and specific race-based point systems (Gratz v. Bollinger), and then ending race-conscious college admissions in SFFA v. Harvard (2023). The whole debate comes down to a clash between the race-conscious view, which sees a boost as necessary for equity, and the colorblind view, which sees any racial preference as a violation of equal treatment.