Affirmative action policies were first implemented in the United States during the 1960s as a response to widespread discrimination and underrepresentation faced by racial and ethnic minorities.
One of the earliest actions taken was by President John F. Kennedy, who signed Executive Order 10925 in 1961. This order required government contractors to take affirmative action to ensure equal employment opportunities regardless of race, creed, color, or national origin.
It established the concept of affirmative action within federal contracting practices.
President Lyndon B. Johnson further expanded affirmative action through the signing of the Civil Rights Act of 1964. Title VII of this landmark legislation prohibited discrimination in employment based on race, color, religion, sex, or national origin. It established the Equal Employment Opportunity Commission (EEOC) to investigate complaints and enforce the law.
Affirmative action also extended to the realm of education.
In 1978, the Supreme Court decision in Regents of the University of California v. Bakke confirmed the constitutionality of affirmative action in college admissions. The ruling allowed universities to consider race as one of many factors in their admissions decisions, aiming to promote diversity on campuses.
Perhaps predictably, affirmative action has muddied the water in hiring practices and admissions processes, giving an unfair advantage to some races while, and disenfranchising all others.
It’s argued that, while affirmative action has had its place in the evolving civil rights landscape, it’s no longer relevant and should not be a factor in recruitment for college admissions and hiring practices.
Furthermore, affirmative action is based on the flawed message that persons of color cannot succeed on their own.
As Chief Justice Roberts wrote, “A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. In other words, the student must be treated based on his or her experiences as an individual–not on the basis of race. Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”
The June ruling states that exclusively using race as a factor in college admissions is unlawful, chipping away at “free and equal opportunities for all.” The decision will not affect all higher learning institutions, however. Military academies will still be able to factor race into their admissions process.
The next target may be, predictably, the unfair practice of hiring minorities based on their race rather than their qualifications. The language of the Equal Protection Clause of the 14th Amendment makes it clear that employers cannot exclude candidates based on gender or race.
But breaking through corporate America’s mandatory diversity quotas is becoming increasingly challenging for applicants who are not considered minority candidates. Affirmative action, when used as an employment requirement, is at direct odds with Title VII, which prohibits discrimination by private employers.
At the forefront of the battle against discriminatory admissions practices is Edward Blum, a legal strategist who founded Students for Fair Admissions, the entity that toppled Harvard and the University of Carolina’s affirmative action approach to college admissions.
With a major victory under his belt, Blum is turning his sights to corporate America. “What is actionable is a corporation that says, ‘We are putting a ‘help wanted’ sign on the office door, and here’s the kind of employee that we’re looking to hire. We’re looking to hire those of this race, but not that race,’” Blum explains.
”So, all of these preferences, whether it’s in the employment arena, contracting arena, internships — all of that I think will be energized by this Supreme Court opinion.”
He goes on to add, “Employment is one area that I think will garner greater attention, not just from me, but from other organizations, other legal policy foundations.”
Blum further notes, “I also think that some of the things that we associate with higher education — internships, scholarships, certain research grants — those need to be revisited if they have been race-exclusive.”
Charles Elson, corporate lawyer and founder of the John L. Weinberg Center for Corporate Governance, agrees that corporate America needs to take notice of the SCOTUS ruling, stating that the decision “certainly could change DEI policies” and that “there will be a lot of lawsuits” at companies that considered race in hiring or promotion decisions.
Americans are divided on the court’s ruling, per a recent poll. Fifty-two percent of respondents agreed with the decision to end affirmative action in university admissions, and around one-third disapprove.
If these numbers are accurate, they prove that ending discriminatory affirmative action policies is an idea whose time has come, not just for college admissions, but in corporate America, too.
