I am a member of a speaking club which was founded in Springfield over 100 years ago. Each month two members are required to give a talk on a subject of their choosing, and last month a friend and I spoke on the topic of affirmative action.
It was my task to review the legal/political history of affirmative action in the U.S. I began my research expecting that I would find federal legislation that had originated and explicitly defined such a policy. I didn’t.
The term seems to have first appeared in legislation with the Wagner Act of 1935 relating to union members who, if having been discriminated against in the workplace would be restored through affirmative action.
FDR in 1941 issued an executive order banning discrimination in the defense industries. Truman signed an executive order in 1948 stating that “all personnel actions taken by federal appointing officers shall be based solely on merit and fitness,” thereby prohibiting discrimination in federal hiring. Eisenhower institutionalized the desegregation of the military. JFK in 1961 extended this policy to government contractors requiring that “they take affirmative action to ensure applicants are employed … without regard to their race, creed, color, or national origin,” and then extended through an executive order in 1963 this prohibition of discrimination to all entities that accept taxpayer funds.
Each of these executive actions forbade discrimination, but none of them established or suggested a policy of preferential treatment of groups considered “protected classes,” or the segments of the population held to have been put at disadvantage from previous or historical discrimination.
The fount of affirmative action is found in the Civil Rights Bill of 1964, the landmark legislation which outlawed discrimination in all public venues, confirmed universal voting rights and gave support to school desegregation. Title VII is a small paragraph in the bill which states “In very narrowly defined situations, an employer is permitted to discriminate on the basis of a protected trait where the trait is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise … and there is no less-restrictive or reasonable alternative.”
To a non-lawyer, non-politician rube like me, the meaning of this paragraph would be consistent with the Supreme Court decision Dothard v. Rawlinson of 1977, in which the state of Alabama was within its rights to deny the hiring of a woman as a prison guard in an all-male maximum security prison.
The federal legislators of the time, however, recognized the potential for expansion of Title VII. The LBJ administration could not get the Civil Rights Bill through the Congressional Democrats, and needed the votes of the Republicans for its passage. The sticking point for Republicans was Title VII.
Vice President Hubert Humphrey was dispatched to win over the Republicans, and he argued that “there is nothing in Title VII … to require hiring, firing, and promotion to meet a racial quota … Title VII is designed to encourage the hiring on a basis of ability and qualifications, not race or religion.” With this assurance, he garnered the votes of many Republicans.
However, after the passage of the Civil Rights Act, many universities instituted practices of preferential admissions for members of “protected classes,” particularly African-Americans, Hispanics and later women. The universities would assert that discrimination in admissions in favor of minority students was justified under Title VII as having a diverse student population was necessary to ensure the delivery of the most effective educational experience, and the specific state which oversaw a particular university claimed a compelling interest in diversity in the classroom.
Several cases have been brought to the Supreme Court by white students who argued that they were excluded from admission because of their race, including University of California v. Bakke 1978, Hopwood v. Texas 1996, Grutter v. Bollinger 2003, and Fisher v. University of Texas 2013. Many of these cases had amicus briefs, or supporting legal arguments, filed by organizations supporting Asian-Americans who asserted that they also were subject to denial in admissions in favor of applicants of protected classes.
Generally, the Supreme Court has ruled that, even recognizing the compelling interest of a given state to see diversity in the student body, race could only be used narrowly as one of many factors in consideration of admission.
There is another avenue to creating contention in affirmative action legislation, one made evident by the conflicts set up by Title IX as it has been applied to the sports programs of colleges and universities. Title IX is a paragraph in the law U.S. Education Amendments of 1972 stating, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”
I believe few would argue with the sentiments expressed by this legislation, but with legislation the devil can be in the execution.
The bill was handed to the Department of Health, Education, and Welfare for the writing of the regulations for implementation, and in the effort to offer equal treatment for men and women in athletics, the agency established three tests to define compliance by a university.
The first of these tests “is satisfied when participation opportunities for men and women are “substantially proportionate” to their respective undergraduate enrollment.” Though funding would be greatly increased for women’s sports to match the percentage of female enrollment, budgetary considerations have led to the simultaneous elimination of many sports programs for men at the university level, particularly in wrestling, cross country, tennis, and gymnastics.
The countervailing legal authority that argues against the use of race-based preferences is the equal protection clause of the 14th amendment of the Constitution. As one of the reconstruction amendments ratified in 1868 after the Civil War, it was written to ensure the rights of the newly freed slave population, but it is the anchor on which opposition to affirmative action depends. Section One directs: “No state shall …deny to any person within its jurisdiction the equal protection of the laws.”
Several states have now passed laws to prohibit the use of affirmative action, particularly in school admissions and employment. They include Michigan, Nebraska, Arizona, New Hampshire and Oklahoma. The Supreme Court ruled in Schuette v. Coalition 2014 that there is no judicial authority to set aside the will of the voters, and so the courts have let stand the abolishment of affirmative action in these states.
Jay Fleitman, MD, of Northampton, writes a column published the first Tuesday of the month. He can be reached at opinion@gazettenet.com.