Define: Affirmative Action

Affirmative Action
Affirmative Action
Quick Summary of Affirmative Action

A principle underlying policies in employment and education aimed at ensuring equal opportunities for all.

It extends non-discrimination on the grounds of race, ethnic origin, gender identity, religion and sexual orientation, to the objective of achieving, over the course of time, a profile of the workforce or organisational body that reflects the representation of various groups in the pool from which the institution or enterprise recruits it’s workers or members.

What is the dictionary definition of Affirmative Action?
Dictionary Definition of Affirmative Action

Affirmative Action: Noun 1. A policy or program implemented by governments, educational institutions, or employers to promote equal opportunities for individuals belonging to historically disadvantaged groups, especially in areas such as employment, education, and business. 2. A proactive measure aimed at addressing past and present discrimination, by providing preferential treatment or additional support to individuals from underrepresented or marginalized communities, with the goal of achieving diversity and inclusivity in society. 3. A strategy that seeks to counteract systemic barriers and promote fairness by considering factors such as race, gender, ethnicity, or socioeconomic background in decision-making processes, such as hiring, admissions, or awarding contracts, in order to create a more equitable society. 4. A controversial policy that has sparked debates regarding its effectiveness, fairness, and potential reverse discrimination, as it involves giving certain advantages to specific groups based on their protected characteristics, often leading to tensions and differing opinions on its necessity and impact.

n. the process of a business or governmental agency in which it gives special rights of hiring or advancement to ethnic minorities to make up for past discrimination against that minority. Affirmative action has been the subject of legal battles on the basis that it is reverse discrimination against Caucasians, but in most challenges to affirmative action, the programs have been upheld. In 1995 there was substantial political agitation to repeal or modify federal and state affirmative action laws. 

Full Definition Of Affirmative Action

Positive or constructive action rather than inaction. Affirmative action programs and regulations attempt to compensate for discriminatory practices that have in the past denied fair consideration to members of minority groups. For example, an all-white government office may take steps to hire people of colour. Or, a mostly male college program may seek to balance its admissions by giving preference to female applicants. Affirmative action programs are controversial in the present political climate — many have recently been eradicated or have come under attack — and the subject is likely to be hotly debated for many years to come.

Employment programs required by federal statutes and regulations designed to remedy discriminatory practices in hiring minority group members; i.e., positive steps designed to eliminate existing and continuing discrimination, to remedy lingering effects of past discrimination, and to create systems and procedures to prevent future discrimination; commonly based on population percentages of minority groups in a particular area. Factors considered are race, color, sex, creed, and age.

The idea of affirmative action was foreshadowed as early as the Reconstruction Era, which followed the U.S. Civil War. When that conflict ended, the former slave population throughout the South owned virtually nothing and had only a limited set of skills with which they could make a living. To help these newly emancipated citizens sustain a minimal economic base, the victorious General William T. Sherman proposed to divide up the land and goods from the sizable plantations of southeastern Georgia that were under his command and grant to each family of color “40 acres and a mule.” The proposal ran into powerful political opposition, however, and it was never widely adopted.

Nearly a century later, this idea of assisting whole classes of individuals to gain access to the goods of U.S. life reemerged in U.S. law and society through a series of court decisions and political initiatives interpreting the civil rights guarantees within the Equal Protection Clause of the Fourteenth Amendment. These decisions and initiatives came to be known as affirmative action.

The term itself refers to both mandatory and voluntary programs intended to affirm the civil rights of designated classes of individuals by taking positive action to protect them from, in the words of Justice William J. Brennan Jr., “the lingering effects of pervasive discrimination” (Local 28 of the Sheet Metal Workers’ Int’l Assoc. v. EEOC, 478 U.S. 421, 106 S. Ct. 3019, 92 L. Ed. 2d 344 [1986]). A law school, for example, might voluntarily take affirmative action to find and admit qualified students of color. An employer might recruit qualified women where only men have worked before, such as businesses that operate heavy equipment.

Affirmative action developed during the four decades following the decision in Brown v. Board of Education 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). In Brown, the Supreme Court held that public school segregation of children by race denied minority children equal educational opportunities, rejecting the doctrine of “separate but equal” in the public education context. During the 1960s and early 1970s, the Civil Rights Movement, as well as the Vietnam War, inspired members of minorities and women to advocate collectively for increased equality and opportunity within U.S. society. These groups appealed for equal rights under the Fourteenth Amendment, and they sought opportunity in the public arenas of education and employment. In many ways, they were successful. As affirmative action grew, however, it drew increasing criticism, often from men and whites, who opposed what they viewed as “reverse discrimination.

While the Brown decision declared segregated schools unlawful, it did not create affirmative action to remedy discriminatory practices. A decade after Brown, little had changed to integrate the nation’s schools. The Court acted ahead of business executives and legislatures when it mandated, in Green v. County School Board, 391 U.S. 430, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968), that positive actions must be taken to integrate schools. There followed the adoption of an array of devices such as redistricting, majority-to-minority transfers, school pairings, magnet schools, busing, new construction, and abandonment of all-black schools.

The first major legal setback for voluntary affirmation action was Regents of the University of California v. Bakke 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), in which the Supreme Court struck down an admission plan at the University of California, Davis, medical school. The plan, which had set aside 16 places for minority applicants, was challenged by white applicant Allan Bakke, who had been refused admission even though he had higher test scores than some of the minority applicants. The Court held that by setting aside a specific number, or quota, of places by race, the school had violated Bakke’s civil rights. By denying the “set-aside” practice of an affirmative action plan, the decision seemed to threaten the principle underlying affirmative action as well.

The following year, however, the Court found in United Steelworkers v. Weber 443U.S. 193, 99 S. Ct. 2721, 61 L. Ed. 2d 480 (1979), that the voluntary plan of Kaiser Aluminum Company to promote some of its black workers into a special training program ahead of more senior white workers did not violate the latter’s civil rights when it did not involve quotas. The Court also found in Local 28 of Sheet Metal Workers’ International Ass’n v. EEOC, 478 U.S. 421, 106 S. Ct. 3019, 92 L. Ed. 2d 344 (1986), that rights were not being violated by a court-ordered membership goal of 29.23 percent minorities. Writing for the plurality, Justice Brennan said Title VII of the Civil Rights Act of 1964 does not prohibit courts from ordering “affirmative race-conscious relief as a remedy for past discrimination” in appropriate circumstances. Such circumstances might include “where an employer or labor union has engaged in persistent or egregious discrimination, or where necessary to dissipate the lingering effect of pervasive discrimination.”

The Court later found, in the City of Richmond v. J. A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989), that the Minority Business Utilization Plan of Richmond, Virginia, violated the rights of private contractors. The plan, which required 30 percent of all subcontracts to be awarded to minority-owned companies, was struck down because this municipality had failed to show compelling state interest for such a measure. The Court applied the compelling interest test after holding that race-based action by state and local government was subject to strict scrutiny. The Court extended this to the federal government in Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995).

In Johnson v. Transportation Agency, 480 U.S. 616, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987), the Court ruled that a county agency had not violated Title VII of the Civil Rights Act when, as part of an affirmative action plan, it took a female employee’s gender into account in promoting her ahead of a male employee with a slightly higher test score. The Court held that a “manifest imbalance” existed in this workforce because of an underrepresentation of women and that the employer had acted properly in using a “moderate, flexible, case-by-case approach to effecting a gradual improvement in the representation of minorities and women.”

At issue in affirmative action cases, is whether the Equal Protection Clause of the Fourteenth Amendment can be employed to advance the welfare of one class of individuals for compelling social reasons even when that advancement may infringe in some way upon the life or liberty of another. The continuing existence of affirmative action laws and programs suggests that so far, the Supreme Court’s answer has been yes.

Affirmative action plans may be undertaken voluntarily, as in the case of a private school’s admissions goals; imposed by the courts to protect civil rights; or required by law to qualify for federal contracts. Plans required to qualify for federal contracts are enforced by the Office of Federal Contract Compliance Programs (OFCCP), an agency of the U.S. Labor Department. The OFCCP defines its mission with its critics in mind: “Affirmative action is not preferential treatment. Nor does it mean that unqualified persons should be hired or promoted over other people. What affirmative action does mean is that positive steps must be taken to provide equal employment opportunity” (EEOC, U.S. Labor Department, Pub. No. 2850, Making EEO and Affirmative Action Work 8 [1993]). One ranking OFCCP administrator defended the program even more sharply by saying,”Affirmative action is not about goals and has nothing to do with preferences. It is about inclusion versus exclusion: people who have been excluded from participation in the process for years are now to be included.

Affirmation action plans are subject to mandatory compliance procedures, which may include monitoring by review, conciliation of disputes, exclusion from federal contract work, or even suit by the Justice Department.

Criticism of affirmative action has been constant since the Supreme Court first articulated its views. By the 1990s, opponents began to press the Court to reverse its precedents both in employment and in higher education admission policies. Supporters of affirmative action openly worried that the Court would severely restrict affirmative action. For example, in 1997, the Court was scheduled to hear an appeal involving a New Jersey schoolteacher who claimed she had suffered discrimination because of an improper affirmative action plan (Taxman v. Piscataway Township Bd. of Educ., 91 F.3d 1547 [3d. Cir. 1996]). Weeks before the oral argument, supporters of affirmative action made the schoolteacher a financial settlement in return for her dismissing the case. They admitted that this was hardly a victory, but supporters pointed to troubling developments.

One of these developments was the Supreme Court’s refusal to review a decision that struck down a university admission plan that used race as one factor for acceptance. In Hopwood v. Texas, 78 F. 3d. 932 (5th Cir. 1996), the Fifth Circuit Court of Appeals ruled that the practice of providing preferential treatment to minorities in a public university’s admissions policy was repugnant to the Constitution.

The University of Texas Law School implemented an admissions policy in which the standards for admission were lowered for minorities. The school employed an index (called the Texas Index, or TI) that combined standardized test scores with grade point averages. A minimum score for acceptance was ten points higher for whites than for non-whites. The appeals court found problems with the structure of the TI. While minorities, specifically African Americans and Mexican Americans, earned scores sufficient to be categorized as “presumptive admits” (certain to be accepted), whites that received the same scores were categorized as “presumptive denials” (certain to be rejected). The court invalidated the admissions policy, concluding that using race as a criterion for admissions is as arbitrary as using one’s blood type.

In Grutter v. Bollinger, ___U.S.___, 123 S.Ct. 2325, 156 L.Ed.2d 304, 2003 WL 21433492 (U.S., Jun 23, 2003) (NO. 02-241), the U.S. Supreme Court narrowly endorsed the use of race in choosing students for America’s top universities and the concept of racial diversity as a compelling governmental interest. In a landmark decision with wide-ranging implications for affirmative action programs across the United States, the Court ruled that it does not violate the Equal Protection Clause to give some preferential treatment to disadvantaged minorities, calling the diversity that minorities bring to education, business, and the military necessity for the cultivation of “a set of leaders with legitimacy in the eyes of the citizenry.” But the victory for affirmative action was conditional, as the Court emphasized that racial preferences should be a temporary rather than permanent fixture in American society, and called for “periodic reviews” and “sunset provisions” for race-conscious admissions.

In the 5-4 decision, written by Justice Sandra Day O’Connor and joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, the Court ruled that attaining a diverse student body is at the heart of a law school’s proper institutional mission, and that good faith on the part of a university in pursuing diversity should be presumed, absent a showing to the contrary.

The Supreme Court emphasized that the law school sought to enroll a “critical mass” of minority students, not simply to assure that its student body had some specified percentage of a particular group. In concluding that the law school’s admissions policy was narrowly tailored, the Supreme Court stated that the policy did not operate as a quota, but used race as a “plus” factor, such that the policy was flexible enough to ensure that each applicant was evaluated as an individual.

The plaintiff was a white Michigan resident whose application was rejected by the law school. She alleged that her application was denied because the law school used race as a “predominant factor.” A district court agreed with the plaintiff, but the Sixth Circuit Court of Appeals reversed.

In a separate 6-3 decision handed down the same day as Grutter v. Bollinger, the Court struck down a separate University of Michigan under-graduate-admissions process based on a point system because the admissions process made race a “decisive” factor, rather than just one of many in determining who was admitted. Gratz v. Bollinger, ___U.S.___, 123 S.Ct. 2411, 156L.Ed.2d 257, 2003 WL 21434002 (U.S. Jun 23,2003) (NO. 02-516). The opinion was delivered by Chief Justice William Rehnquist, who was joined by Justices O’Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas.

This point-system ruling is expected to force state schools that use similar numerical methods to revise them, and it could cause companies to rethink their reliance on quantitative evaluations of job applicants and employees. Although Michigan is a public university, the decision is considered likely to apply to selective private universities as well because they receive government funding. It also will affect admission practices at selective public high schools where affirmative action has also been eliminated or besieged.

Distaste for affirmative action also led opponents to attack the policy at the state level through ballot initiatives and referendums. In November 1998, the California electorate passed Proposition 209 (54 to 46 percent), which banned many of the affirmative action programs in California. The referendum was promoted by the nonprofit Center for Individual Rights, which was also instrumental in building opposition to the University of Texas admissions policy that was struck down in Hopwood. The proposition has remained a controversial topic, with supporters arguing that state and local officials have avoided dismantling affirmative action. These same supporters continue to call on state officials to enforce the law. Officials, however, have pointed out that under the proposition, when federal laws mandate affirmative action to qualify for federal monies, the state law must give way.

In 2000, Florida became the first state to voluntarily end affirmative action in higher education and state contracts. Public universities put into place new college admission policies that prohibit affirmative action. One new component was the Talented 20 Plan, which mandates that students who graduate in the top 20 percent of their class and who complete a college preparatory curriculum must be admitted into one of the ten state universities. These changes were designed to increase opportunity and diversity while ending racial preferences and set-asides.

In the face of continuing legal challenges, the fate of U.S. affirmative action programs remained unclear in early 2004. Recent federal court decisions, as well as state government actions, suggested that affirmative action policies might need to change in order to pass constitutional muster in the future. Commentators speculated that a Supreme Court—after the expected retirement of the older justices—might be more likely to signal its rejection of existing affirmative action principles.

Affirmative action refers to policies and practices aimed at promoting equal opportunities for historically disadvantaged groups, particularly in employment and education. It is a proactive approach to address past and present discrimination and to ensure diversity and inclusion in various sectors of society.

The legal basis for affirmative action in the United States can be traced back to the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex, or national origin. The act allows for the consideration of race, ethnicity, and gender as factors in admissions and employment decisions, as long as they are used to promote diversity and not to establish quotas or discriminate against individuals from non-preferred groups.

The Supreme Court has played a significant role in shaping the legal framework for affirmative action through several landmark cases. In the 1978 case Regents of the University of California v. Bakke, the Court ruled that race could be considered as one of many factors in college admissions, but strict racial quotas were unconstitutional. This decision established the concept of “affirmative action” as a permissible practice.

Subsequent cases, such as Grutter v. Bollinger in 2003 and Fisher v. University of Texas at Austin in 2016, further clarified the legal standards for affirmative action. The Court held that educational institutions could consider race as a factor in admissions to achieve the educational benefits of diversity, but they must demonstrate a compelling interest and use narrowly tailored means to achieve their diversity goals.

Affirmative action policies have faced ongoing debates and legal challenges. Critics argue that such policies can lead to reverse discrimination and perpetuate racial stereotypes. Supporters, on the other hand, contend that affirmative action is necessary to address systemic inequalities and promote equal opportunities for historically marginalized groups.

In conclusion, affirmative action is a legal framework that allows for the consideration of race, ethnicity, and gender as factors in admissions and employment decisions to promote diversity and equal opportunities. The Supreme Court has established guidelines for its implementation, emphasizing the importance of narrowly tailored means and compelling interests.

Affirmative Action FAQ'S

Affirmative action refers to policies and programs designed to address past and present discrimination by providing preferential treatment or opportunities to individuals from underrepresented or disadvantaged groups.

The primary purpose of affirmative action is to promote equal opportunity and diversity by ensuring that historically marginalised groups have access to educational, employment, and other opportunities.

Affirmative action policies may involve various measures, such as setting hiring or admissions quotas, implementing outreach and recruitment programs, providing scholarships or financial aid, and offering training and development opportunities for underrepresented groups.

The legality of affirmative action varies depending on the jurisdiction and the specific policies implemented. In some countries, affirmative action is mandated by law, while in others, it may be subject to legal challenges based on principles of equality or discrimination.

Proponents of affirmative action argue that it helps address systemic inequality, promotes diversity and inclusion, corrects historical injustices, and contributes to a more equitable society by ensuring that all individuals have access to opportunities regardless of their background.

Critics of affirmative action contend that it promotes reverse discrimination, undermines merit-based selection processes, stigmatises beneficiaries, perpetuates stereotypes, and fails to address the root causes of inequality.

Affirmative action policies typically consider factors such as race, gender, ethnicity, or socioeconomic status as part of a holistic review process but do not guarantee preferential treatment solely based on these characteristics. The goal is to create a more diverse and inclusive environment, not to discriminate against other groups.

In college admissions, affirmative action may involve considering race or ethnicity as one of many factors in the admissions process to achieve a diverse student body. However, affirmative action policies vary by institution and may be subject to legal restrictions or challenges.

Yes, affirmative action policies can be challenged in court if they are perceived to violate laws prohibiting discrimination or if they are deemed unconstitutional. Legal challenges may focus on issues such as quotas, preferential treatment, or the use of race or gender as factors in decision-making.

Alternative approaches to promoting diversity and equal opportunity include race-neutral policies, socioeconomic-based affirmative action, targeted recruitment and outreach efforts, mentoring and support programs, and investments in K-12 education to address disparities at an earlier stage.

Related Phrases
No related content found.
Disclaimer

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 28th March, 2024.

Cite Term

To help you cite our definitions in your bibliography, here is the proper citation layout for the three major formatting styles, with all of the relevant information filled in.

  • Page URL:https://dlssolicitors.com/define/affirmative-action/
  • Modern Language Association (MLA):Affirmative Action. dlssolicitors.com. DLS Solicitors. March 28, 2024 https://dlssolicitors.com/define/affirmative-action/.
  • Chicago Manual of Style (CMS):Affirmative Action. dlssolicitors.com. DLS Solicitors. https://dlssolicitors.com/define/affirmative-action/ (accessed: March 28, 2024).
  • American Psychological Association (APA):Affirmative Action. dlssolicitors.com. Retrieved March 28, 2024, from dlssolicitors.com website: https://dlssolicitors.com/define/affirmative-action/