In what can only be described as the purest form of irony, the Supreme Court of the United States (SCOTUS) announced this week that it would hear a challenge to the more than half-century old Affirmative Action policy - and within 48 hours after that, SCOTUS Justice Stephen Breyer announced his retirement, prompting a number of calls across the liberal spectrum for the appointment of a replacement based not on qualifications, but on a specific gender and race. Accordingly, the first justice appointed to the Supreme Court because of her gender and skin color, may be on the Court that changes the policy forever.
Affirmative Action: A Relic from Segregation
Affirmative Action is a government and business policy which places an emphasis on hiring and promoting individuals with certain immutable characteristics, like race and sex. The policy’s roots can be traced back to 1961 when President John F. Kennedy (having been president for less than two months) signed Executive Order 10925, entitled “Establishing the President’s Committee on Equal Employment Opportunity.” This was the era of segregation (pre-Civil Rights Act of 1964) when Jim Crowe laws were well within the nation’s recollection (in some cases, still on the books) and “separate but equal” was a fact of daily life. Indeed, slavery itself was still in living memory with a handful of notable former slaves who lived into the 1970’s. Accordingly, the Kennedy’s program was designed to be one component of his push to end segregation and bring the nation’s population more into line with its ideals of equality and opportunity.
The executive order was limited to government offices and private government contractors, but utilized the term for the first time:
“[A] 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.”
The original language did not indicate a demotion of a member of one race in favor of another, but rather the opposite: people were to be treated as individuals whose inalienable or inherited traits were not to be grounds upon which an otherwise qualified person would be disadvantaged. Hire the worker for the quality of the workmanship, not the color of his/her skin or the religion he/she practiced.
Kennedy’s provision in the executive order outlived him and was included in the Civil Rights Act of 1964, which expanded the the order’s application to the private sector, regardless of their involvement with the Federal Government. However, the term “Affirmative Action” was adopted by the Civil Rights Act of 1964 and converted into a remedy for violations of of the non-discrimination policies. If an employer discriminated against an employee or applicant based upon their race, creed, color or national origin (also called “protected classes”), the employer could be ordered by a judge to affirmatively hire/promote such persons from the discriminated class.
Affirmative Action grew again in 1965 and 1967 when Kennedy’s original language was expanded upon by President Johnson to require federal contractors to seek out and expand employment for protected classes of people as part of his “Great Society” vision.
“Thus, it is not enough just to open the gates of opportunity. All or citizens must have the ability to walk through those gates. This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.” - President Lyndon B. Johnson, 1965.
The regulations created from Johnson’s executive order still exist and set out “Placement Goals” which, as the Department of Labor states on their website, “are used to measure progress toward achieving equal employment opportunity.” However, despite the plain language indicating a preference for the hiring and placement of of protected classes of persons, the regulation contradicts itself in an effort to prevent the appearance of discriminating against unprotected classes:
“Placement goals do not provide the contractor with a justification to extend a preference to any individual, select an individual, or adversely affect an individual’s employment status on the basis of that person’s race, color, religion, sex, sexual orientation, gender identity, or national origin.” - U.S. Department of Labor, 2022
Note: Gender identity is a recent addition.
In reality, however, the affirmative selection of one applicant over another based upon his/her protected class status, where all other factors are the same, was by definition discrimination and inevitably led to lawsuits from those who were unprotected and discriminated against because of their own inalienable qualities.
The 14th Amendment
The 14th Amendment to the United States Constitution prohibits the states and the Federal Government from denying any person (regardless of citizenship status) the right of equal protection under the laws. Accordingly, a law or regulation which arbitrarily identifies groups of people for disadvantaged treatment is a violation of the constitution. Because of similarities between the provisions of the Civil Rights Act and the 14th Amendment, SCOTUS has traditionally interpreted the two under the same principles. Thus, when Congress passed the Civil Rights Act, the rules against discrimination that applied previously only to the government, were extended to cover private parties and entities as well.
Under such an analysis, Affirmative Action got its first significant legal test in the case Regents of University of California vs. Bakke, 438 U.S. 265 (1978), wherein a white-male applied to the Medical School of the University of California at Davis and was turned down for admission. As it turned out, the school had two admissions programs for being admitted into its class of 100 students. Under the regular admissions program, an applicant would be evaluated based upon an objective score comprised of an interview score, grade point average, test scores, and letters of recommendation. From there, the school made offers of admission based upon this benchmark score and any other “special skills” which were relevant to the applicant’s candidacy. These students competed for only 84 of the total 100 seats.
There was a second “special” admissions program. This special program was overseen by a different board than the normal admissions program, and was comprised of a majority of members who had minority backgrounds. Under the special program, the special board evaluated candidates who were from “minority groups” for purposes of offering admission. These applicants were not subject to the same GPA requirements or standards that the other admissions applicants were and were not ranked or compared to candidates from the regular admissions pool. Instead, the applicants competed for the 84 seats that the regular admissions students were granted, and the additional sixteen seats which were specifically set aside for the special admissions candidates.
The applicant involved in the lawsuit, Mr. Bakke, was processed through the regular admissions process and, despite scoring better than the special applicants who were admitted with materially lower scores, was rejected twice by the school. The Supreme Court ultimately struck down the special admissions practice and the racial quota, and upheld a lower court’s order to admit Mr. Bakke into the program. In the words of Supreme Court Justice Powell,
"The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal…
Moreover, there are serious problems of justice connected with the idea of preference itself. First, it may not always be clear that a so-called preference is in fact benign. Courts may be asked to validate burdens imposed upon individual members of a particular group in order to advance the group’s general interest. Nothing in the Constitution supports the notion that individuals may be asked to suffer otherwise impermissible burdens in order to enhance the societal standing of their ethnic groups. Second, preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor have no relationship to individual worth. Third, there is a measure of inequity in forcing innocent persons in respondent’s position to bear the burdens of redressing grievances not of their making.” - Supreme Court Justice Powell, 1978.
Subsequent Supreme Court decisions have maintained similar tones - often striking down quotas and applying strict-scrutiny in those cases where it deemed the greater interest in permitting Affirmative Action to continue. Such circumstances often include an effort by schools, businesses or government to temporarily engage in such efforts to cure past discriminations and do not otherwise violate the rights of other employees. Furthermore, schools which were attempting to achieve certain mixes of students with different backgrounds were permitted to give those students a “plus” on their application, but only where the students were evaluated individually and not awarded additional points based on their race and ethnicity.
Affirmative Action, In Vogue
Though Affirmative Action has remained in certain university and public sector activities (and was subject of a number of Republican efforts to remove it upon grounds of discriminatory effect in the 1990’s), the program has recently become wildly popular with Corporate America since George Floyd’s murder in 2020. In perhaps one of the most transparent examples, United Airlines announced in 2021 that it would open a new flight school to train its pilots. The school, United Aviate Academy, opened yesterday (January 27th, 2022) and was proud to announce that 80% of its inaugural class of future pilots were women or people of color. United’s program, which costs in the vicinity of $100,000 per student, was underwritten by JPMorgan Chase & Co. who willingly bought into the project and marketed its participation.
Other major corporations, such as Google, have made similar commitments. Google in particular promised that it would increase the number of African Americans in senior roles to 30% of the entire company by 2025. Facebook, now called “Meta,” made similar commitments two weeks after Google, indicating it too would hire African Americans with the goal of increasing its current levels by 30%. Achieving such levels without discriminatory practices is difficult to imagine, which has likely brought the issue back to the awareness and interest of the current SCOTUS.
The most astonishing example of recent Affirmative Action adaptation has been the two year long effort by President Biden to select people to positions of authority and power utilizing their their race and gender as the threshold requirements for consideration. During his campaign for President in 2020, Biden promised that his selection for Vice President would be a black woman, and indeed selected Senator Kamala Harris to be his running mate. Just yesterday (January 27th, 2022), President Biden continued that practice when he made a public announcement that his Supreme Court nomination would be a black woman:
“While I’ve been studying candidates’ backgrounds and writings, I’ve made no decision except one. The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court.” -President Biden
To be clear, President Biden is not bound by the 14th Amendment to make his selections to any particular office based upon certain criteria. If he wanted to select only right-handed, brown-eyed persons from Peabody, Kansas, he could do so without offending the Constitution.
But the brazen threshold qualification of race and gender utilized by President Biden has driven a certain amount of outrage for the fact that it arbitrarily eliminates otherwise eligible and competent persons from consideration because of the color of their skin and their gender. This identity-based selection system, as compared to the traditional qualification-based, has not been successful for President Biden thus far. The most notable selection based on race and gender was Vice President Harris, who has earned a lower approval rating than her four predecessors - including the oft lambasted Dick Cheney. According to the LA Times, even Vice President Cheney’s lowest net-favorability ranking was well above where Harris sits presently - and Cheney shot someone while he was a sitting Vice President. Biden’s continued use of an identity based system is not likely to be of any more success for him when selecting a person who will serve a life-term on the Supreme Court.
Nevertheless, according to Politico, President Biden’s shortlist includes: Ketanji Jackson (she’s a sitting federal court of appeals judge); Leondra Kruger (a California Supreme Court Associate Justice); J. Michelle Childs (a district court judge in South Carolina); and Leslie Abrams Gardner (a district court judge in Georgia). Whether these candidates are better suited than candidates who do not share their skin color or gender may never be known, but certainly wont be considered.
End of the Road for Affirmative Action?
As the policy nears its 61st birthday, SCOTUS accepted the case Students for Fair Admissions, Inc. vs. President and Fellows of Harvard College. Generally, the case claims that Harvard actively discriminated against Asian American applicants and utilized a system called “racial balancing.” The plaintiffs argued that the end result of Harvard’s practice was the exclusion of students based purely on race.
As set out in the lawsuit, racial balancing is a practice where admissions leadership kept track of the racial totals of the student body it admitted each year. Where one race met a particular threshold, other races were given preference. To this end, Harvard leadership sent recruitment letters to applicants which intentionally disfavored Asian Americans, and scored Asian applicants lower as a group on a personal rating system. The district court and First Circuit Court of Appeals both found that despite engaging in “racial balancing,” Harvard had not violated the Civil Rights Act.
Consolidated with the Harvard case is a second matter, Students for Fair Admissions, Inc. v. University of North Carolina, which involves similar facts but was filed on behalf of White students and did not allege the use racial balancing in quite the same way. Instead, the University chose to utilize an undefined volume of racial identity (referred to as a “critical mass”) to decide whether or not the incoming class was representative of enough minorities.
In short, the fight on the table before SCOTUS in both cases is whether or not racial balancing and critical mass are the functional equivalents of racial quotas. The fight below the surface, however, is whether or not we have become a country of minorities, and what the impact of Affirmative Action would be in an environment where the majority of the population is considered a protected minority. Such a conundrum was contemplated by SCOTUS in the Regents of University of California case from 1978:
“The concepts of ‘majority’ and ‘minority’ necessarily reflect temporary arrangements and political judgments. As observed above, the white ‘majority’ itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals. Not all of these groups can receive preferential treatment and corresponding judicial tolerance of distinctions drawn in terms of race and nationality, for then the only ‘majority’ left would be a new minority of White Anglo-Saxon Protestants. There is no principled basis for deciding which groups would merit "‘heightened judicial solicitude’ and which would not… As these preferences began to have their desired effect, and the consequences of past discrimination were undone, new judicial rankings would be necessary.” Supreme Court Justice Powell, 1978
The protected classes now include all racial and ethnic minorities, women, individuals of varying gender and sexual identities, and individuals with physical or mental disabilities - thereby increasing the likelihood of conflict between protected classes. This is of course to say nothing of the only remaining class that is not afforded any protections: straight White men without disability. As such, the question of whether or not Affirmative Action has run its course, and whether or not the Supreme Court will weigh in on the roader issue when it rules over the summer of 2023.
What’s Next
The Harvard case is more likely to elicit a significant determination than the case out of the University of North Carolina if for no other reason than involves one minority against the school’s favoritism of other minorities - thereby pitting the purpose of Affirmative Action against itself. It is conceivable the the Court will address the whole practice as fundamentally outdated and either replace the current system of policy interpretations with another, or strike the concept altogether in favor of the color-blind language present in the statute and the 14th Amendment. Such a ruling, however, is less likely than the continuance of SCOTUS’s more recent decisions which have been largely in line with the other cases stemming from the Bakke case in 1978.
Traditionally, the Chief Justice Roberts Court has avoided making sweeping rulings, instead favoring decisions based upon narrow issues that have smaller implications. Such was the case with the Obamacare rulings and many of the freedom of religion matters over the past decade. Recent determinations by the Court regarding Affirmative Action before Justice Barrett’s addition in 2020 suggest just such an outcome. Nevertheless, the addition of Justice Barrett has caused concern amongst liberals that the conservative majority will be more likely to make groundbreaking rulings the way that the Court did in the 1950’s and 1960’s. The addition of President Biden’s selection, who is being picked predominantly upon racial and gender grounds, is not likely have an impact on the outcome of the cases as the new justice is not expected to deviate from Justice Breyer’s philosophy. However, if the highest court in the land, and perhaps the most influential judicial tribunal in the history of civilization, has membership selected as a result of Affirmative Action, perhaps the policy’s intent to correct past wrongs has been as fulfilled as it can be without causing undue collateral damage elsewhere.