af·firm·a·tive ac·tion

/əˈfɜr·mə·t̬ɪv ˈæk·ʃən/





A Little History of Affirmative Action:


The Fourteenth Amendment very clearly prohibits discrimination based on the color of someone’s skin: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

But, in the early 1960’s, America had a major problem:  Because Black Americans were excluded from government protections for decades, severe inequality was massive between the White and Black the point that the racial imbalance in colleges and universities was nearly impossible to rectify without outside intervention.​

The term “affirmative action” first appeared in 1961, when President John F. Kennedy signed Executive Order 10925.  The order said, in part: “In connection with the performance of work under this contract, the contractor agrees as follows: The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin.  The contractor 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.” 

This was followed by Executive Order 11246, signed by President Lyndon B. Johnson in 1965, which “prohibited discrimination in employment because of race, creed, color, or national origin, and to promote the full realization of equal employment opportunity through a positive, continuing program in each (federal) executive department and agency.”

Thirteen years later, the first affirmative action case was heard by the United States Supreme Court.  In Regents of the University of California v. Bakke, the Court ruled that, although racial quotas supported by government entities violate the Civil Rights Act of 1964, the use of race was acceptable as one of many admission criteria.    

​In 2003, in the case of Grutter v. Bollinger, the Supreme Court upheld the affirmative action admissions policy of the University of Michigan Law School.  At the time, the school used race as a factor in the admissions process because they believed race served as a “compelling interest in achieving diversity among its student body” (the petitioner was a White student who was denied admission to the school).  

The Court decided that “in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School’s race-conscious admissions program does not unduly harm non-minority applicants.”  In this case, the Court found that, because the school looked at many other factors regarding each applicant, their admissions process did not violate the Court’s decision in Regents of the University of California v. Bakke. 

​In Gratz v. Bollinger, which was decided the same day and involved the same university, the Court ruled that the point system used by the university to determine admissions did not meet the standards of strict scrutiny (in this case, minority students automatically received 20 points in a 100-point system).


Then the Supreme Court started to evolve:


In 2007, the Court ruled on two cases — Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1.  The Court decided that public school systems can’t seek to maintain integration through measures that consider a student’s race.  This is the case where Chief Justice John Roberts famously said, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Six years later, in the case of Fisher v. University of Texas, the Court found that the Equal Protection Clause of the Fourteenth Amendment does allow for the consideration of race in undergraduate admissions decisions, but that admission policies must be “precisely tailored to serve a compelling governmental interest.”  If a school fails to meet this standard, race may not be used as a factor for admission.

The Court also held that it was the responsibility of the lower court to confirm that the University’s admission policy met this standard, but that the lower court in question failed to conduct an appropriately strict and thorough examination of the policy.

​Most recently, the affirmative action debate has encompassed the Asian American community.  A group of Asian American students who were rejected admission to Harvard University sued the school. 

In the case, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the group claims that, to make room for less qualified students of other races, Harvard discriminated against them by placing an admissions cap on the number of qualified Asian Americans granted admission to the school (in other words, the students alleged that Harvard favored Black and Hispanic applicants at the expense of Asian Americans, who, themselves, are also a minority group).  


In October 2019, a federal judge rejected the claim that Harvard had intentionally discriminated against the students.


In her decision, Judge Allison Burroughs, wrote: 

Diversity will foster the tolerance, acceptance and understanding that will ultimately make race conscious admissions obsolete. At least for now, ensuring diversity at Harvard relies, in part, on race conscious admissions.  Harvard’s admission program passes constitutional muster in that it satisfies the dictates of strict scrutiny.  The students who are admitted to Harvard and choose to attend will live and learn surrounded by all sorts of people, with all sorts of experiences, beliefs and talents.  They will have the opportunity to know and understand one another beyond race, as whole individuals with unique histories and experiences.  It is this, at Harvard and elsewhere that will move us, one day, to the point where we see that race is a fact, but not the defining fact and not the fact that tells us what is important, but we are not there yet.  Until we are, race conscious admissions programs that survive strict scrutiny will have an important place in society and help ensure that colleges and universities can offer a diverse atmosphere that fosters learning, improves scholarship, and encourages mutual respect and understanding.

In January 2022, the United States Supreme Court agreed to hear the case, along with one involving the University of North Carolina (Students for Fair Admissions, Inc. v. University of North Carolina).  The cases are set to be argued during the High Court’s 2022-2023 term. 


1. Eliza Shapiro.  “Only 7 Black Students Got Into Stuyvesant, N.Y.’s Most Selective High School, Out of 895 Spots.”  New York Times.  18 Mar 2019
2. Eliza Shapiro.  “This Year, Only 10 Black Students Got Into NYC’s Top High School.”  New York Times.  19 Mar 2020
3. Eliza Shapiro.  “Only 8 Black Students Are Admitted To Stuyvesant High School.”  New York Times.  29 Apr 2021
4. Jeremy Ashkenas, Haeyoun Park and Adam Pearce.  “Even With Affirmative Action, Blacks and Hispanics Are More Underrepresented at Top Colleges Than 35 Years Ago.”  New York Times.  24 Aug 2017
5. Merriam-Webster.  “Affirmative Action.”  26 May 2018
6. United States.  Constitution.  Fourteenth Amendment.
7. United States.  Equal Employment Opportunity Commission. “Executive Order 10925: Establishing The President’s Committee On Equal Employment Opportunity.” 6 Mar 1961
8. United States.  Equal Employment Opportunity Commission. “Executive Order 11246:  Equal Employment Opportunity.”  28 Sept 1965
9. United States.  Supreme Court.  “Regents of the University of California v. Bakke.” 438 US 265 (1978).  26 June 1978
10. United States.  Supreme Court.  “Grutter v. Bollinger. 539 US 306 (2003).  23 June 2003

11. United States.  Supreme Court.  “Gratz v. Bollinger.”  02-516.  23 June 2003
12. United States.  Supreme Court.  “Meredith v. Jefferson County Board of Education.” 551 US 701 (2007).  28 June 2007
13. United States.  Supreme Court.  “Parents Involved in Community Schools v. Seattle School District No. 1.”  551 US 701 (2007).  28 June 2007
14. United States.  Supreme Court.  “Fisher v. University of Texas.” 570 US (2013) 24 June 2013
15. United States.  District Court.  “Students for Fair Admissions, Inc. Plaintiff v. President and Fellows of Harvard College (Harvard Corporation).”  30 Sept 2019