Affirmative action is under attack. How did we get here?

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Since the Supreme Court ruled race-based college admissions unconstitutional last June, affirmative action in all forms has come under attack.

Conservative activists have filed dozens of complaints against Fortune 500 companies alleging discrimination against White people. Long-standing federal programs created to benefit minority-owned businesses find themselves on shaky ground; on Tuesday, a Texas federal judge ordered that a 55-year-old agency must serve all races. And the resignation of Harvard’s first Black president amid allegations of plagiarism and antisemitism on campus has been claimed as a victory by critics intent on dismantling diversity, equity and inclusion (DEI) programs in academia and the private sector.

Such policies divided Americans long before President John F. Kennedy popularized the term in 1961, when he urged defense contractors to “take affirmative action” to hire workers “without regard to their race, creed, color, or national origin.” Even as these policies have fueled upward mobility for women and minority groups, they have faced intense backlash. Here’s a look at the history of affirmative action and the moments that have advanced and repelled it.

Chapter 1

1865 — 1877

First steps toward equal rights

The earliest forms of affirmative action date to Reconstruction, the turbulent period after the Civil War. Slavery is outlawed in 1865, emancipating 4 million Black men, women and children. But freedom comes with no rights or protections. Efforts to remedy this legal limbo ignite fierce pushback, including claims of discrimination against White people. In the late 1870s, Southern states start enacting Jim Crow laws that enforce segregation in public transportation, schools, parks, cemeteries, theaters and restaurants.

Congress establishes the Freedmen’s Bureau

The bureau provides food, shelter, medical services and land to displaced Blacks from the South, whose prior status as enslaved people leaves them without economic means or legal protection — and vulnerable to assault by Southern Whites. It also establishes schools, supervises contracts, and manages confiscated and abandoned lands.

Congress passes first civil rights law

While the 13th Amendment outlawed slavery, it left the formerly enslaved without legal rights and vulnerable to Southern Black Codes that functionally re-enslave them. The Civil Rights Act — and later the 14th Amendment — offers protection, establishing citizenship for emancipated African Americans, including the right to own land, to create and enforce contracts, to sue and be sued.

Johnson vetoes it

President Andrew Johnson opposes the legislation, arguing that it discriminates against Whites. Congress overrides his veto but enforcement withers after 1877, when Reconstruction ends and Southern states and municipalities begin enacting Jim Crow laws to segregate citizens by race. The lynching of Black people becomes common.

The Freedmen’s Bureau closes

Facing resistance from Southerners and focused on other national matters, Congress defunds the bureau.

Andrew Johnson. (Library of Congress)

Chapter 2

1961 — 1964

Affirmative action is born

Nearly a century later, African Americans remain largely locked out of the skilled workforce. A 1960 report by the Department of Labor finds that Black workers make 60 percent less on average than Whites. Meanwhile, the modern civil rights movement begins challenging segregation in the South, and the landmark Brown v. Board of Education case leads to the desegregation of public schools.

Kennedy issues first affirmative action directive

Responding to growing demands for racial equality, Kennedy signs an executive order requiring federal contractors to “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.”

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President-elect John F. Kennedy in January 1961. (AP)

The order is unevenly enforced

Many contractors, especially in states bordering the South, ignore the order, keeping their workforces segregated and hiring mostly Whites.

Johnson signs the Civil Rights Act of 1964

Congress approves the sweeping legislation, which includes sections aimed at ending discrimination in the private sector (Title VII) and in federally funded programs (Title VI), with bipartisan support. President Lyndon B. Johnson later signs an executive order strengthening Kennedy’s affirmative action order for government contractors.

Confusion over implementation

Many businesses are confused about how to comply with the new laws, which encourage them to diversify their workforces while prohibiting discrimination. Critics say they would result in preferential treatment of Black Americans, claims that persist for decades.

Chapter 3

1969 — 1979

Affirmative action booms

Widespread adoption of affirmative action and equal opportunity measures leads to real-world advances. In 1969, the average income of “non-White” young, college-educated men is 98 percent of the average of U.S. workers, up from just 80 percent a decade earlier, according to one 1973 study, which attributes the improvement to a “virtual collapse in traditional discriminatory patterns in the labor market.” The wage gains coincide with an explosion in the number of Black people enrolling in colleges — 417,000 in 1970, up 83 percent from a decade earlier.

Riots erupt in several cities, leading President Richard M. Nixon to oversee a vast expansion of federal programs for minorities, some of which continue today. Meanwhile, the U.S. Supreme Court issues decisions that will define affirmative action in universities for generations.

Nixon implements the Philadelphia Plan

With Philadelphia slated to receive millions for schools, dorms, libraries and a new U.S. mint, the Nixon administration chooses the city for a new program to boost African American employment in the construction industry. The plan forces construction unions to integrate, and the initiative is expanded to New York, Los Angeles, Chicago and other cities.

The plan faces resistance

Philadelphia contractors sue, alleging the plan creates hiring “quotas” that violate the Civil Rights Act of 1964, but they lose in court. Clarence Mitchell, chief lobbyist for the NAACP, denounces the plan as a calculated attempt by Nixon, a Republican, to drive a wedge between two traditionally Democratic factions: Blacks and unions.

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President Richard Nixon in 1970. (Bettmann Archive)

Colleges adopt affirmative action

In early 1970s, the University of California at Davis’s medical school, where only 3 percent of applicants are minorities, sets aside 16 of 100 spots for “disadvantaged” applicants; other top schools, including Harvard, form their own policies. A UC Davis applicant sues, alleging that disadvantaged students with lower test scores have been admitted over him. The case, Regents of the University of California v. Bakke, leads to a 1978 Supreme Court ruling that universities cannot use quotas but can factor race into admissions decisions to promote campus diversity.
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Allan Bakke, whose lawsuit set a precedent for affirmative action cases, at the University of California at Davis in 1978. (Walt Zeboski/AP)

Voluntary affirmative action plans survive

While the Bakke case challenges racial preferences in universities, a case brought by a steel plant worker challenges their use in the private sector. In 1974, Brian Weber sues the United Steelworkers of America, which had agreed with Kaiser Aluminum and Chemical Corp. to reserve a certain number of skilled training positions for Black workers. Weber, who is denied a position, alleges that Kaiser’s affirmative action plan violates the 1964 Civil Rights Act. The Supreme Court rules 5-2 that the plan — and therefore other voluntary plans — do not violate the act but rather fulfill its intent.

Chapter 4

1981 — 1989

Reagan’s ‘colorblind’ America

President Ronald Reagan presses to end affirmative action, promoting “colorblindness,” an ideology that opposes racial quotas as inherently unfair. By 1980, a Black man in the nation’s capital made an average of 80 percent of White wages, up eight percentage points from a decade earlier, according to a 2010 Federal Reserve study; during the 1970s, African Americans’ income had grown faster than that of Whites, by some estimates. Under Reagan, that growth stagnates.

Thomas takes over the EEOC

Clarence Thomas, the future Supreme Court justice and a harsh critic of affirmative action, is named to chair the Equal Employment Opportunity Commission, which enforces workplace anti-discrimination laws. Under Thomas, cases pile up, which stymies enforcement.

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Clarence Thomas at the Equal Opportunity Employment Commission in 1982. (Afro American Newspapers/Gado/Getty Images)

Reagan fails to change federal contracting rules

Plans leak that Reagan intends to replace Johnson’s executive order mandating affirmative action benchmarks for government contractors, sparking objections from civil rights groups as well as some Republicans and businesses. Companies, such as pharmaceutical giant Merck, signal that they intend to keep their affirmative action programs with or without the order, and Reagan ultimately backs off.
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President Ronald Reagan in 1985. (Hulton Archive/Getty Images)

Chapter 5

1990 — 1999

The battle becomes entrenched

In the 1990s, lawsuits challenge affirmative action practices in government, business and education. Some states argue affirmative action is discriminatory, and a few pursue bans in various forms. The nation’s highest courts debate whether diversity is a “public good.” Meanwhile, changing U.S. demographics prompt private companies to start considering how identity affects people’s lives at work and to explore training programs to help workers recognize “unconscious bias.”

Employment protections for disabled Americans

Key provisions of the Americans With Disabilities Act of 1990 take effect, barring discrimination against people with disabilities for the first time in the private sector.

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President George H.W. Bush signs the Americans With Disabilities Act in 1990. (Getty Images)

Standards for considering race

In Adarand Constructors Inc. v. Peña, the Supreme Court sets new standards for when federal, state and local governments may take race into account, ruling that programs designed to benefit racial minorities “must serve a compelling government interest, and must be narrowly tailored to further that interest.”

University policies take a hit

Siding with White law-school applicants in Hopwood v. Texas, the U.S. Court of Appeals for the 5th Circuit bars the University of Texas School of Law from using race as a factor in admissions. It’s the first successful legal challenge to a university affirmative action policy since Bakke.

California bans affirmative action

California voters approve Proposition 209, outlawing discrimination or preferences for “any individual or group on the basis of race, sex, color, ethnicity, or national origin” in public employment, education and contracting.

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People protest Proposition 209 in Santa Ana, Calif. (Alex Garcia/Los Angeles Times/Getty Images)

Texaco settles race-discrimination claim

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The Rev. Jesse Jackson calls for a boycott of Texaco in 1996. (Reuters)

Federal ban fails

In a bipartisan vote, the House Judiciary Committee votes 17-9 to reject the Civil Rights Act of 1997, which would have banned affirmative action in federal government. Rep. George Gekas (R-Pa.), who moves to table the bill, says “forcing the issue at this time could jeopardize the daily progress being in made in ensuring equality.”

Washington state bans affirmative action

Washington voters pass Initiative 200, which bans affirmative action in hiring, public contracting and higher education.

Florida ends race-conscious admissions

Florida Gov. Jeb Bush (R) signs executive order “One Florida,” which bans race-conscious admissions at the state’s public universities.

Chapter 6

2000 — 2010

Divisions over diversity

State bans spur pushback across the country and keep affirmative action on the ballot. The Supreme Court repeatedly is asked to weigh in on race-conscious admissions in higher education. But as the legal tug-of-war rages, affirmative action continues to gain momentum in corporate America, where research begins to show that a diverse workforce is beneficial to the bottom line.

Coca-Cola settles $192 million discrimination suit

Coca-Cola Co. agrees to pay $192 million to Black workers who claim the company had systematically denied them opportunities and had created a racially hostile environment. Coca-Cola admits no wrongdoing but agrees to make significant changes to its performance evaluation and promotion practices.

The University of Michigan cases

The Supreme Court weighs in on two cases involving affirmative action admissions policies: Grutter v. Bollinger and Gratz v. Bollinger. In Gratz, the court rules against an undergraduate admissions policy that relies on a formulaic point system for people in various racial groups, determining it was “not narrowly tailored.” In Grutter, the court upholds the law school’s admissions policy, citing the “compelling interest” of “educational benefits that flow from a diverse student body.”

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The University of Michigan campus in 2003. (Bill Pugliano/Getty Images)

Michigan bans affirmative action

Voters approve the “Michigan Civil Rights Initiative,” banning preferential treatment of minorities in public employment, public education, public contracting or public college admissions — which includes the University of Michigan.

No affirmative action for K-12

The Supreme Court rules against considering race when assigning students to public grade schools in two cases: Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education.

Arizona bans affirmative action

Arizona enacts Proposition 107, which claims it “reaffirms the colorblind principles of the Civil Rights Act of 1964,”by banning preferential treatment of minorities in public employment, public education and public contracting. The move follows a similar ban in Nebraska in 2008.

Chapter 7

2011 — present

DEI and beyond

After George Floyd, a Black man, is murdered by a White police officer in 2020, American corporations face public pressure to show they are actively confronting systemic racism, and support for these efforts soars. Companies hire chief DEI officers and pledge to invest billions in racial equity. But many firms backpedal in 2023, and the Supreme Court for the first time rules that preferences based on race in college admissions are unconstitutional.

New Hampshire bans affirmative action

New Hampshire’s ban on affirmative action in the public sector and college admissions takes effect.

Landmark decision in Texas

The Supreme Court reaffirms the legality of race-conscious college admissions in Fisher v. University of Texas, ruling that the use of race as a factor at the University of Texas at Austin is well founded and narrowly tailored.

The DEI boom

Floyd’s murder and subsequent protests spark a rush of boardroom commitments: Companies around the world spend an estimated $7.5 billion on DEI programs and hire chief DEI officers.

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Protesters in Chicago after the death of George Floyd.
(Tim Gruber for The Washington Post)

Washington state reverses ban

Washington Gov. Jay Inslee rescinds the state’s affirmative action ban, in place since 1998, and announces an executive order meant to boost diversity in government contracting.

Supreme Court bars race-based admissions

Upending decades of legal precedent, the Supreme Court rules that race-conscious college admissions programs at Harvard and the University of North Carolina are unconstitutional, causing colleges and universities to shift to race-neutral policies.

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The United States Supreme Court in 2023. (Jahi Chikwendiu/The Washington Post)

What’s next?

After affirmative action is banned from college admissions, DEI becomes a lightning rod. Dozens of bills targeting DEI policies in higher education are pending across the country. Companies are facing challenges to diversity policies from shareholders and conservative activists. Some top law firms have opened race-focused fellowships to applicants of all races. The battle is likely to heat up in 2024 as companies adapt to a shifting legal landscape and DEI becomes a talking point on the presidential campaign trail.

Methodology

This timeline is based interviews with historians, sociologists and DEI experts, as well as the books “The Pursuit of Fairness: A History of Affirmative Action” (2005) by Terry H. Anderson; “The Affirmative Action Puzzle” (2020) by Melvin I. Urofsky; and “Inventing Equal Opportunity” by Frank Dobbin (2009).

About this story

Editing by Lisa Bonos, Robbie Olivas DiMesio, Lori Montgomery and Karly Domb Sadof. Design editing by Betty Chavarria. Photo editing by Haley Hamblin.

Illustrations by Emma Kumer/The Washington Post with images from (in order of appearance) FPG/Archive Photos/Getty Images; Reuters; Hulton Archive/Getty Images; Eric Lee for The Washington Post; the Library of Congress; Jack Delano/PhotoQuest/Getty Images; Jackson State University/Getty Images; Walt Zeboski/AP; Frank Wiese/AP; Marcio Jose Sanchez/AP.

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