Racial and gender (sex) discrimination in the United States have a long history. Discrimination is defined as giving privileges to one group but not another. Throughout the eighteenth, nineteenth, and at least until the mid-twentieth century, racial and gender discrimination denied black Americans and women opportunities in the most basic aspects of their lives including work, education, and voting rights.

Following the American Civil War (1861–65), Congress passed and the states approved amendments to guarantee rights to former slaves. One of the amendments, the Fourteenth Amendment approved in 1868, made it unlawful to "deprive any person of life, liberty, or property" and promised "equal protection of the laws." Congress also found it necessary to pass laws to make sure the amendments were enforced. However, more often than not, the U.S. Supreme Court handed down rulings on these laws that allowed discrimination to continue. Blacks and women experienced little "equal protection of the laws."

Not until the 1950s and 1960s during the Civil Rights Movement did the Supreme Court begin to strike down laws that discriminated against individuals on the basis of race and sex. Through the Court's decisions in Brown v. Board of Education (1954) and Reed v. Reed (1971), the Court ruled that black Americans and women must have equal protection rights as guaranteed by the Fourteenth Amendment. During the same time period Congress passed the Civil Rights Act of 1964 prohibiting discrimination on the basis of race, color, religion, sex, or national origin. The Supreme Court in Heart of Atlanta Motel v. United States (1964) ruled on the 1964 act. The Court upheld the act finding Congress has the constitutional power to promote equality of opportunity and to prevent discrimination. Black Americans and women finally had a law under which they could claim equal protection rights when they were discriminated against in such areas as education and employment.

How Could Negative Effects of Discrimination Be Overcome?

Although jubilant over the civil rights successes, forward thinking leaders for black Americans and women knew the successes would not be enough to overcome two and a half centuries of discrimination. Organizations such as the National Association for the Advancement of Colored People (NAACP) and the National Organization of Women (NOW) proposed programs to give a degree of preferential (preferred) treatment to individuals of groups long discriminated against. The name affirmative action was given to these programs. "Affirm" means in this case to support an individual's civil rights by taking positive "action" to protect individuals from the lasting effects of discrimination. The goals of these action programs are increased job opportunities, employment promotions, and increased admissions to universities.

As early as 1961, three years before the landmark Civil Rights Act, President John F. Kennedy seemed to already be aware of the need. Actually using the term "affirmative action," he signed Executive Order 10925 requiring federal contractors (private companies who do work for the government) to hire more minority employees. Likewise, President Lyndon Johnson believed that the scars caused by years of legal discrimination could not be easily erased. In a commencement speech he delivered at Howard University on June 4, 1965, President Johnson showed a wise understanding of the problem saying, "You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, 'You're free to compete with all the others,' and justly believe that you have been completely fair." Johnson asserted that simply freedom from discrimination was not enough, opportunity had be provided as well. Johnson continued, "not just equality as a right and a theory, but equality as a fact."

Backing up his words that same year, President Johnson signed Executive Order 11246 providing a practical way to carry out affirmative action plans. The order required federal contractors to file written affirmative action plans with the Office of Federal Contract Compliance Programs (OFCCP) under the Department of Labor.

U.S. presidents continued to support affirmative action programs. President Richard M. Nixon was the first to require specific number goals or quotas and timetables for hiring minorities and women. For example, a federal contractor might be required to hire at least twelve minority or women workers for every one hundred workers and to hire those twelve within six months. Government set-asides also appeared. Set-aside programs have a goal that a certain percentage, such as five percent, of all government contracts should be given to minority and women-owned businesses. In 1977 President Jimmy Carter supported affirmative action by signing the Public Works Employment Act. The act required that at least ten percent of federal funds in each grant awarded by the Department of Commerce to state or local governments for local public works projects must be used to contract for services or supplies from businesses owned by minorities.

Characteristics of Affirmative Action Programs

Affirmative action programs have four general characteristics. First, they may be begun and supported by either government agencies or set up voluntarily by private organizations such as private universities or vocational schools, businesses, or labor unions.

Second, when considering an individual for a job, promotion, or admission to a school, the program must look at personal factors such as race or gender. However, the individual must also be qualified for the job or education program they apply to. Therefore, the individual may not receive job or education opportunities based solely on their race or gender.

Third, a program must clearly be designed to make up for unfair treatment in the past of the race or gender group to which the individual belongs. Fourth, affirmative action plans are to be only temporary solutions and are not meant to continue forever.

Affirmative Action as a Jump Start

Supporters claim only with these positive action programs can black Americans and women achieve equality of opportunity. The reason, which President Johnson referred to in his Howard University speech, lies in the fact that both blacks and women were prevented by long term discrimination from gaining education and job skills, pushing them into and keeping them in the lowest levels of employment. Whether required by the government or voluntarily begun by private employers or schools, affirmative action programs are the best means to overcoming the negative outcomes of discrimination. In effect, they serve as a "jump start" to put the discriminated groups on a more level playing field with those who traditionally have not suffered discrimination. Affirmative action programs are widely established in government agencies, businesses, and schools.

But What About the Fourteenth Amendment?

By the late 1970s public sentiment was growing against affirmative action programs. Whatever happened to "equal protection of the laws" under the Fourteenth Amendment? Does it allow certain kinds of preferential treatment typical of affirmative action plans for specific groups of persons? Similarly, what about the Civil Rights Act of 1964 prohibiting discrimination on the basis of race, color, religion, sex, and national origin? Cries of reverse discrimination began to be heard. Reverse discrimination is the lessening of opportunity for a group of people not traditionally discriminated against, such as white adult males.

To many, there seemed to be conflict between civil rights laws and affirmative action. The civil rights laws basically forbid individuals and organizations, such as businesses and schools, to consider race and gender as factors for making decisions. Affirmative action policies, however, require that race and gender be taken into account when hiring or admitting to school individuals and that preference be given to minorities or women to make up for past discrimination. As affirmative action cases began to reach the Supreme Court in the mid-1970s, the Court wrestled with these questions of equal protection and fairness.

Affirmative action disputes eventually became the main form of civil rights cases before the Court. Between 1974 and 1987 the Court's record was mixed on affirmative action cases and in no case were more than six justices in agreement.

Cases Challenging Affirmative Action

The first case challenging affirmative action to be decided by the Supreme Court was Regents of the University of California v. Bakke in 1978. The case involved the charge of "reverse discrimination" in which a California university medical school had set aside sixteen slots out of one hundred solely for minority applicants. Allan Bakke, a non-minority applicant, was twice turned down by the medical school yet minorities with lower entrance scores were accepted. In reaction, Bakke charged he was discriminated against by the school in violation of the Fourteenth Amendment's Equal Protection Clause and Title VI of the 1964 Civil Rights Act. After hearing the arguments presented by Bakke and the University of California, the Court agreed with Bakke that the school had discriminated against him. The Court ruled that setting quotas (requiring that a predetermined number of openings be filled by minorities) was not an acceptable form of addressing past injustices. On the other hand, the Court also ruled that affirmative action programs could be appropriate under certain circumstances. Consideration of race would not violate the Equal Protection Clause if race is one of several factors considered, not the only factor considered. The Court said that for the government to treat citizens unequally the government must show a very important need, such as making up for past specific instances of discrimination, and that the program must be very carefully applied.

The Court's next affirmative action case was United Steelworkers v. Weber (1979). The case simply asked the question whether or not the Civil Rights Act prohibited an employer from voluntarily establishing a temporary affirmative action training program which favored blacks over whites. The Court decided to permit the program which would lead to better, more skilled jobs for black Americans in an industry which historically they had been under represented. Following the United Steelworkers case, Fullilove v. Klutznick (1980) led the Court to uphold the government set-aside program established by the 1977 Public Works Employment Act.

During the 1980s, President Ronald Reagan's administration was openly opposed to affirmative action and was pleased by two Supreme Court rulings. The Court determined in Firefighters Local Union No. 1784 v. Stotts (1984) and Wygant v. Jackson Board of Education (1986) that affirmative action policies could not be used by companies when laying off workers. Seniority, not race, should be a key factor in deciding who should be let go. But by 1987 the Court had established in Johnson v. Transportation Agency a firm stance in favor of affirmative action. The Court supported a county agency's action in promoting a woman ahead of a male with slightly higher test scores. Correcting the under representation of women in the agency was a suitable goal to justify the agency decision. In United States v. Paradise (1987) the Court upheld a temporary quota system to promote black state troopers in Alabama. The "one black, one white" promotion quota corrected employment discrimination long present in the Alabama state police.

Affirmative action cases continued into the 1990s. In Adarand Constructors, Inc. v. Pena (1995) the Court tightened requirements on affirmative action programs. Writing for the Court, Justice Sandra Day O'Connor commented, "Government may treat people differently because of their race only for the most compelling [very important] reasons." To ensure that all persons receive equal protection of the laws affirmative action programs could only be considered legal if they were designed to correct specific instances of past discrimination.

Becoming one of the most controversial social issues of the day, the affirmative action debate continued. President Bill Clinton delivered his "Mend it, but don't end it" speech in July of 1995. Summarizing the overall picture of affirmative action, he commented,

We had slavery for centuries before the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments. We waited another hundred years for the civil rights legislation. Women have had the vote for less than a hundred years. We have always had difficulty with these things, as most societies do. But we are making more progress than many other nations. Since, based on the evidence, the job is not done, here is what I think we should do. We should reaffirm the principle of affirmative action and fix the practices.

Despite the call to fix, not abandon affirmative action programs, in 1996 Californians voted to ban existing state government affirmative action programs. Supporters of the ban claimed that by eliminating preferences racial and gender equality under state law would be reestablished in education, contracting, and employment. Believing the initiative likely violated the Equal Protection Clause of the Fourteenth Amendment, a federal court judge stopped the ban from taking effect and allowed affirmative action programs to continue. A federal appeals court in 1997 reversed the judge's decision and allowed the ban to take effect.

To Be Fair and Equal—the Debate Continues

Fairness and equal protection are central questions in the affirmative action debate. White males and middle-class white females have strongly opposed affirmative action policies. White males commonly argue that they are being unfairly discriminated against for past injustices they had no personal responsibility for. Supporters of affirmative action, on the other hand, have contended that white males continue to directly benefit from past discrimination. They point to a 1995 study showing that white males still held 95 percent of top management positions in major companies and that men earned up to 45 percent more money than women or minorities. Critics of affirmative action also argue that the tradition of rewarding a job well done or hard work is lessened with a lessening in standards for hiring and promotion. Supporters counter that any influence in the reward system, if any, is minimal.

Aside from public debates, the courts have given their approval to affirmative action programs. However, the courts have sent a clear message that for a company to impose preferences to individuals based on their race or sex, they must be able to show the preferential treatment is directly related to making up for specific past discrimination. Likewise, government programs giving special consideration to previously disadvantaged groups must show their programs are very carefully designed and serve a compelling public purpose of making up for past injustices.