Isabella Carter
Affirmative action refers to policies that promote diversity by offering opportunities to people from historically disadvantaged groups. The Fourteenth Amendment to the United States Constitution, which took effect on July 9, 1868, guarantees equal protection under the law. While the Supreme Court initially upheld racial segregation in Plessy v. Ferguson (1896), it later reversed this decision in Brown v. Board of Education (1954), mandating desegregation in education and public racial discrimination. The Court's interpretation of affirmative action has evolved over time, with rulings such as Regents of the University of California v. Bakke (1978) and Grutter v. Bollinger (2003) shaping the legal landscape. The use of affirmative action in college admissions and public employment has been a controversial topic, with proponents arguing for equality and representation, while opponents view it as unconstitutional. The Supreme Court's decision in Students for Fair Admissions v. Harvard (2023) marked a significant shift by ruling that race-based affirmative action in college admissions violated the Equal Protection Clause of the Fourteenth Amendment.
| Characteristics | Values |
|---|---|
| Amendment Number | Fourteenth Amendment |
| Date of Enactment | July 9, 1868 |
| Key Provisions | Grants citizenship to everyone born or naturalized in the US, extends due process protections to state government actions, and guarantees equal protection under the law |
| Supreme Court Cases | Regents of the University of California v. Bakke (1978), Gratz v. Bollinger (2003), Grutter v. Bollinger (2003), Schuette v. Coalition to Defend Affirmative Action (2014), Students for Fair Admissions v. Harvard (2023) |
| Rulings Related to Affirmative Action | Regents of the University of California v. Bakke: The Court ruled that "diversity" is a factor in constitutional law and that race can be considered a plus factor in admissions |
| Gratz v. Bollinger: The Court ruled that a school could not establish racial quotas or insulate certain races from the normal admission processes | |
| Grutter v. Bollinger: The Court imposed a 25-year limit on race-based admissions programs, stating that racial preferences would no longer be necessary or constitutional after this period | |
| Schuette v. Coalition to Defend Affirmative Action: The Court upheld a ban on affirmative action in Michigan, stating that voters could determine whether racial preferences may be considered in governmental decisions | |
| Students for Fair Admissions v. Harvard: The Court ruled that race-based affirmative action in college admissions violated the Equal Protection Clause |
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What You'll Learn
Fourteenth Amendment and affirmative action
The Fourteenth Amendment to the United States Constitution, which came into effect on July 9, 1868, granted citizenship to all individuals born or naturalized in the country. It also extended due process protections to actions by state governments. The Fourteenth Amendment's Equal Protection Clause states: "No state shall... deny to any person within its jurisdiction the equal protection of the laws." This clause originally addressed racial discrimination against Black Americans.
"Affirmative action" refers to policies that promote diversity by offering opportunities to people from historically disadvantaged groups. For many years, several public colleges and universities in the United States used race as a factor in admissions decisions as part of affirmative action. The Supreme Court upheld this practice for decades, citing the underlying goal of the Fourteenth Amendment—eliminating oppression—as a justification for affirmative action programs. The Supreme Court upheld this idea in several cases, including Adarand Constructors v. Pena, Grutter v. Bollinger, and Fullilove v. Klutznick.
However, in 2023, the Supreme Court overturned race-conscious admissions policies, saying they violated the Fourteenth Amendment. This ruling came in a decision consolidating two cases that challenged the use of race-conscious admissions policies by private and public universities aimed at maintaining racially diverse student bodies. The Supreme Court held that certain affirmative action admissions policies violated the Equal Protection Clause of the Fourteenth Amendment, as they "lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints."
The Fourteenth Amendment's relationship with affirmative action is complex, with critics arguing that giving preferential treatment based on race or ethnicity is unfair. Supporters, however, counter that affirmative action is necessary to address past discrimination and segregation and promote diversity in higher education and the workplace.
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Affirmative action in college admissions
In theory, federal law permits the limited use of affirmative action in college admissions to promote diversity in higher education. However, the federal courts and the Supreme Court have significantly narrowed the circumstances under which race can be considered. The Supreme Court's ruling in 2023, particularly in the case of Students for Fair Admissions v. Harvard, marked a significant shift. The Court held that race-based affirmative action in college admissions violated the Equal Protection Clause of the Fourteenth Amendment, as well as Title VI of the Civil Rights Act, which prohibits discrimination based on race, colour, or national origin.
Public opinion on affirmative action varies, with surveys indicating that a majority of Americans disapprove of colleges considering race and ethnicity in admissions decisions. However, there are differences in opinion across racial and political lines, with a higher percentage of Black adults approving of these policies compared to White and Asian adults. Additionally, Democrats are more likely to approve than Republicans.
Despite the legal and political controversies, institutions of higher education remain committed to fostering a diverse student body. The debate surrounding affirmative action in college admissions continues to evolve, with ongoing discussions about the weight of factors such as race, legacy, athletic recruitment, and academic merit in the admissions process.
While the Supreme Court's 2023 ruling restricted the use of affirmative action, it has not entirely eliminated it. Colleges and universities are navigating the complex landscape of admissions, seeking to balance diversity and equality while adhering to legal requirements.
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Affirmative action in public employment
Affirmative action refers to policies that promote diversity and inclusion by offering opportunities to people from historically disadvantaged groups. In the United States, affirmative action consists of government-mandated, government-approved, and voluntary private programs that grant special consideration to racial minorities, women, and other historically excluded groups. These programs focus on access to education and employment to address past and present discrimination.
The term "affirmative action" was first used in the United States in Executive Order 10925, signed by President John F. Kennedy in 1961. This order included a provision requiring government contractors to "take affirmative action to ensure that applicants are employed and treated fairly." The National Labor Relations Act of 1935, also known as the Wagner Act, was an earlier appearance of the concept, as it aimed to provide economic security to workers and low-income groups.
Legal cases have also addressed affirmative action in public employment. In Paradise v. Alabama, the District Court found that the Alabama Department of Public Safety had systematically excluded African Americans from employment as state troopers. As a result, the court imposed a hiring quota, which the Supreme Court upheld as constitutional under the Fourteenth Amendment. This ruling affirmed that affirmative action could be used to remedy past discrimination within narrow and temporary parameters.
Another case, Adarand Constructors, Inc. v. Pena, involved a challenge to a federal program that incentivized contractors to hire minority-owned subcontractors. The Supreme Court's decision in this case set a precedent for evaluating affirmative action policies, shifting away from the strict scrutiny standard.
While affirmative action in public employment aims to promote equality and representation, critics argue that it can lead to reverse discrimination and hinder minority individuals within majority groups. The debate around affirmative action reflects the complexities of addressing historical injustices while ensuring fairness in the present.
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Affirmative action in public contracting
Affirmative action refers to policies that promote diversity and inclusion by offering opportunities to people from historically disadvantaged groups. While affirmative action remains controversial in American politics, supporters argue that it promotes equality and representation for groups that are socioeconomically disadvantaged or have faced historical discrimination.
In the context of public contracting, affirmative action has been a significant aspect of federal contracting processes. The Office of Federal Contract Compliance Programs (OFCCP) within the US Department of Labor enforces nondiscrimination and affirmative action obligations to ensure equal opportunity in the federal contractor workforce.
Prior to 2025, federal contractors were required to adhere to affirmative action obligations under Executive Order 11246, issued in 1965. This order prohibited discrimination in employment practices based on race, colour, creed, national origin, and sex. Contractors were also required to adopt written affirmative action plans (AAPs) to promote diverse workplaces, particularly when the size of the employer and the value of their contracts exceeded certain thresholds.
However, in January 2025, President Donald Trump issued Executive Order No. 14173, titled "Ending Illegal Discrimination and Restoring Merit-Based Opportunity". This order revoked the previous affirmative action obligations concerning women and minorities under Executive Order 11246. It prohibited the OFCCP from enforcing these obligations and from allowing contractors to engage in "workforce balancing" based on characteristics such as race, colour, sex, religion, or national origin.
Despite the changes brought about by Executive Order No. 14173, it is important to note that federal contractors' obligations concerning individuals with disabilities and protected veteran status remain unchanged. These obligations are statutory and will likely remain in place unless repealed by Congress. Contractors are still required to maintain plans for individuals with disabilities and set hiring benchmarks for protected veterans, ensuring reasonable accommodations and avoiding discrimination.
In summary, while affirmative action in public contracting has undergone significant changes with the revocation of Executive Order 11246, federal contractors continue to have obligations towards individuals with disabilities and protected veterans. These obligations promote equal opportunity and diversity in the federal contractor workforce.
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Affirmative action and the First Amendment
Affirmative action is the practice of promoting diversity and offering opportunities to people from historically disadvantaged groups. This has often been a factor in university admissions decisions, with institutions considering an applicant's race. The Supreme Court upheld this practice for decades, citing the First Amendment and academic freedom, which allows colleges to choose their students. However, in 2023, the Supreme Court overturned race-conscious admissions policies, stating they violated the Fourteenth Amendment's Equal Protection Clause.
The First Amendment and affirmative action have a complex relationship. While the First Amendment guarantees freedom of speech and expression, it also plays a role in shaping policies like affirmative action, which seeks to address past discrimination and promote diversity. The Supreme Court has considered the First Amendment in several affirmative action cases, including Regents of the University of California v. Bakke (1978). In this case, the University of California at Davis denied admission to Alan Bakke, a white man, despite his grades and test scores, due to a special admissions program that considered race. The Supreme Court ruled that UC Davis discriminated against Bakke based on the color of his skin, violating the Equal Protection Clause of the Fourteenth Amendment.
The Supreme Court has also addressed affirmative action in cases like Gratz v. Bollinger (2003), where the admissions policy of the University of Michigan's undergraduate college was classified as a quota system, which the Court had prohibited in Bakke. In 2023, the Supreme Court struck down affirmative action programs at Harvard College and the University of North Carolina, citing violations of the Fourteenth Amendment's Equal Protection Clause and racial stereotyping.
While the First Amendment has been invoked in some affirmative action cases, the Supreme Court has also considered other amendments, like the Fourteenth Amendment, which guarantees "equal protection under the law." This amendment has been central to many affirmative action cases, with critics arguing that giving preferential treatment based on race or ethnicity violates this amendment. Supporters, however, argue that affirmative action is necessary to redress past discrimination and promote diversity, aligning with the Fourteenth Amendment's goal of eliminating oppression.
In summary, the First Amendment has played a role in shaping affirmative action policies, particularly in the context of academic freedom and universities' admissions decisions. However, the Fourteenth Amendment's Equal Protection Clause has taken center stage in recent years, with the Supreme Court striking down race-conscious admissions policies as violations of equal protection. The complex interplay between these amendments and affirmative action continues to shape policies and court decisions, highlighting the ongoing debate surrounding affirmative action in the United States.
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Frequently asked questions
Affirmative action refers to policies that promote diversity by offering opportunities to people from historically disadvantaged groups.
Affirmative action has been challenged in the courts as a potential violation of the Fourteenth Amendment's guarantee of equal protection under the law. The Supreme Court has upheld affirmative action as constitutional when it is narrowly tailored to remedy the effects of past discrimination. However, in 2023, the Supreme Court ruled that race-based affirmative action in college admissions violated the Equal Protection Clause of the Fourteenth Amendment.
Some examples of affirmative action in the United States include the following:
- In 1978, Regents of the University of California v. Bakke, which involved a set-aside admissions program at the University of California, Davis, that considered race as a factor in admissions.
- In 1982, Mississippi University for Women v. Hogan, which questioned whether a publicly funded women's college could exclude men from its nursing school admissions.
- In 1995, Adarand Constructors, Inc. v. Pena, which involved a challenge to a federal program that provided financial incentives to contractors to hire minority-owned subcontractors.
- In 2006, voters in the State of Michigan banned affirmative action by passing Proposal 2, a statewide referendum amending the Michigan Constitution.
