Author: Pam Sornson, JD

Despite decades of political, social, and legal directives, inequitable realities continue to permeate modern society. People of Color (PoC) and women are still negatively impacted by long-standing rules, regulations, and perspectives, regardless of mandates meant to change the practices that keep those inequities in place.

For 40+ years, America has attempted to address these challenges through “affirmative action” (AA) initiatives designed to reduce or eliminate discrimination based on skin color, gender, nationality, etc. By eliminating the inherent social biases that prevent these populations from reaching their personal goals, the government(s) intended for all their constituents to have access to the resources they needed to succeed in life. In 2023, however, the US Supreme Court struck down the portion of AA policies that apply to America’s colleges. The country’s higher education schools have struggled ever since to make sense of the new AA landscape created by that ruling.

The Life and Death of Affirmative Action

In 1961, President John F. Kennedy issued Executive Order (EO) 10925 aimed at the federal contracting community. The EO mandated that all federal contractors must “… take affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin, …” The federal legislature extended the protection to the general public by enacting that year’s Civil Rights Act, which prohibits any large employer (over 15 employees) from discriminating against potential and actual hires based on those individual factors. In the intervening decades, states, courts, and governments all contributed new regulations designed to slow or prevent discriminatory practices by government entities and affiliates, corporations, and other socially significant systems.

Among the advances over time, the federal government has been expanding and modifying these protective orders and decisions:

• Women were added to the ‘protected classes‘ list via President Johnson’s EO #11246 – 1971.
• People with Disabilities were added by President Richard Nixon (the Rehabilitation Act of 1973). In 1990, President George HW Bush expanded their protections again by signing the Americans with Disabilities Act.
• In 1979, President Jimmy Carter created a National Woman’s Business Enterprise Policy (1979) to compel better support for women-owned businesses by federal agencies.
• in 1983, President Ronald Reagan directed federal agencies to develop plans for hiring and contracting with ‘Minority Business Enterprises.’ Conversely, in 1985, some in his administration also tried and failed to repeal EO #11246, which would have removed protections for women.
• In 1991, President George HW Bush also signed the Civil Rights Act of 1991, which added penalties and remedies for individuals intentionally discriminated against by employers, service providers, etc.
• In 1998, both the US House of Representatives and Senate voted against pulling back laws that protected disadvantaged business owners and minority students applying for higher education opportunities.
• In 2008, President George W Bush issued a revised Americans with Disabilities Act Amendments Act ensuring that equitable practices were updated to reflect more modern sentiments.

While the legislatures were at work, the nation’s courts were working to interpret the equity rules. Their varied decisions have created a crazy quilt of regulations and bans across the country:

• In 1986, the Supreme Court indicated that courts could order ‘race-conscious relief’ to correct past and prevent future discrimination.
• In contrast, that same court in 1989 ruled that any entity compelling an affirmative action program must have a “compelling interest” to do so and that the program’s terms must be tailored to achieve those intentions.
• In 1997, the Supremes added more confusion to the issue by allowing California’s Proposition 209 to go into effect. That bill banned all affirmative action efforts in “the operation of public employment, public education, or public contracting.”

By the 2000s, appellate courts nationwide were hearing cases related to discriminatory practices and activities in several arenas, including higher education. Their decisions reflect the polarity of the concern and indicate deep divides in opinion about the value of the initiative:

• In 2000, the 10th Circuit Court upheld the federal Department of Transportation’s affirmative action activities, saying the rules ‘served a compelling state interest and were narrowly tailored’ to address discriminatory practices.
• In 2002, the 6th Circuit Court determined that Michigan’s use of race in admissions decisions was acceptable and
• that determination was upheld by the US Supreme Court in 2003.
• In 2008, Nebraska banned affirmative action by public entities, while Colorado voted to retain those legal protections in the same year.
• In 2011, Arizona banned using affirmative action initiatives applied in public employment, education, and contracting systems.

The back-and-forth arguments about the appropriateness of using individual characteristics to lift up or push down ‘minorities’ (non-whites and females, primarily) continue and have gotten more heated over time. The striking down of the practice at the nation’s colleges by the Supreme Court in 2023 only added more angst to the conversation.

Why Affirmative Action Matters

Fundamentally, affirmative action policies seek to balance access to economic and social resources across all populations, regardless of age, gender, ability, color, or other unique identifiers. In practice, attaining that goal has been hard to achieve, as many people doubt whether favoring a particular person because of their color or gender, for example, creates the sought-after ‘inclusive community.’ Recent data suggests, however, that misconceptions about AA often also misdirect opinions and practices.

At a 2023 Johns Hopkins University debate, participants explored those misconceptions through the lens of higher education. They were able to clarify myth from fact, as well as articulate some of the often unspoken nuances of the impact on students of decisions based on race, gender, ability, etc.

Myths

• Many people mistakenly believe that AA mandates racial quotas, meaning that schools will accept less-than-qualified applicants to fill their AA requirements. In fact, in 1978, the US Supreme Court banned the use of racial quotas in the acceptance process if it resulted in the denial of white students’ opportunity to compete for those openings.
• Another myth busted was related to who actually benefits from AA initiatives on campus. While many believe only those who’ve attained access because of AA practices enjoy elevated educational experiences, studies show that the whole school benefits from a more diverse student population through improved racial attitudes, enhanced civic engagement, and heightened academic engagement.

Unexpected Nuances

The Johns Hopkins panel also discussed the unexpected consequences of AA-driven practices and strategies. One panelist clarified the point well: students who work hard and attain all appropriate educational benchmarks can still be denied entry to college because of race; the AA student takes that seat instead. At the same time, those learners who receive the AA seat may forever wonder if they got to college because of their hard work – or because of the color of their skin.

Another panel member commented with dismay on how some colleges have constructed their AA representation. While the goal is to provide access to higher-level education for economically disadvantaged students, some elite schools have ‘fulfilled’ their AA mandate simply by adding wealthy people from protected populations, which does not achieve the goal of true diversity.

Ultimately, the conversation clarified that only 200 to 300 ‘selective’ colleges (where students must pass rigorous standards reviews to enroll) were using AA to guide enrollment decisions, so it isn’t as big a challenge across the country as some might think. (California voted to ban the use of AA as a selection tool in 1996.) Now that the policy has been struck down completely, schools are again assessing how to address the inequities still suffered by POC, women, differently-abled students, etc., as they seek to improve their lives through education.