Isabella Carter
Affirmative action is a highly contested topic in the United States, with supporters claiming it promotes equality and representation for disadvantaged groups, while critics argue it constitutes racism and discrimination against other racial groups. The constitutional concept most closely associated with affirmative action is the Equal Protection Clause of the Fourteenth Amendment, which prohibits discrimination and mandates equal treatment under the law. This clause has been interpreted to mean that the government cannot discriminate against any group of people, including minorities, and that all individuals must be treated equally under the law. Affirmative action programs aim to address historical discrimination against certain groups, such as racial minorities and women, by providing them with opportunities that may have been denied in the past.
| Characteristics | Values |
|---|---|
| Part of the Constitution | Equal Protection Clause |
| Found in | Fourteenth Amendment |
| Purpose | Prohibits discrimination and mandates equal treatment under the law |
| Affirmative Action Purpose | Provide equal opportunities to historically marginalized groups |
| Focus Areas | Access to education and employment |
| Supporters' View | Promotes equality and representation for socioeconomically disadvantaged groups |
| Opponents' View | Constitutes racism and discrimination against other racial and ethnic groups |
| Supreme Court Ruling | Rejected race-based affirmative action in college admissions in 2023 |
| States with Bans | Michigan, nine other unnamed states |
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What You'll Learn
Fourteenth Amendment
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 and extended due process protections to state government actions. The amendment's Equal Protection Clause, which states that "no state shall... deny to any person within its jurisdiction the equal protection of the laws," is the part that correlates most closely with affirmative action.
The Equal Protection Clause prohibits discrimination and ensures equal treatment under the law, regardless of race, creed, colour, or national origin. This clause has been interpreted to mean that the government cannot discriminate against any group and that affirmative action programmes are necessary to address historical discrimination against certain groups, such as racial minorities and women. These programmes aim to provide equal opportunities and promote fairness in areas like employment and education.
Affirmative action refers to policies that promote diversity and equal representation by offering opportunities to people from historically disadvantaged groups. These policies are often implemented in public institutions, such as universities, hospitals, and police forces, to increase diversity and ensure that these institutions are more representative of the populations they serve. Affirmative action programmes may include measures such as hiring quotas or special admissions programmes to increase diversity in the workforce and educational institutions.
The interpretation of the Equal Protection Clause by the Supreme Court in landmark cases has provided legal grounding for affirmative action. For example, in Brown v. Board of Education (1954), the Supreme Court used the Equal Protection Clause to end racial segregation in public schools, setting a precedent for later discussions on affirmative action. In Grutter v. Bollinger (2003), the Supreme Court upheld a law school's affirmative action policy, emphasising the importance of diversity in education.
While affirmative action has been a contested topic, with some arguing that it constitutes reverse discrimination, it remains a crucial tool for addressing systemic inequalities and ensuring equal opportunities for all. The Fourteenth Amendment's Equal Protection Clause provides the legal basis for these initiatives, allowing for scrutiny and justification of affirmative action policies.
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Equal Protection Clause
The Equal Protection Clause of the Fourteenth Amendment is the part of the US Constitution that is most closely associated with affirmative action. This clause states that:
> "No State shall... deny to any person within its jurisdiction the equal protection of the laws."
The Fourteenth Amendment was ratified in 1868, just a few years after the Emancipation Proclamation, as part of the Reconstruction Amendments following the Civil War. The Equal Protection Clause has been interpreted to mean that the government cannot discriminate against any group of people and that all individuals must be treated equally under the law.
Affirmative action policies aim to address historical discrimination and provide equal opportunities for marginalized groups, particularly racial minorities and women. These policies often involve measures like hiring quotas or special admissions programs to increase representation in educational institutions and the workforce. The Supreme Court has used the Equal Protection Clause in landmark cases such as Brown v. Board of Education (1954) and Regents of the University of California v. Bakke (1978) to provide legal grounding for affirmative action and to address inequalities.
While affirmative action remains a contested topic, its implementation relies heavily on the principles established by the Equal Protection Clause. Supporters argue that it promotes equality and representation for groups that have faced historical discrimination or oppression, counteracting continuing bias and prejudice against minorities and women. Opponents, however, argue that these policies constitute racism and discrimination against other racial and ethnic groups, favoring one group over another based on racial preference rather than achievement.
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Affirmative action in college admissions
Affirmative action refers to policies that promote diversity by offering opportunities to people from historically disadvantaged groups. In the context of college admissions, affirmative action has been a contentious issue in the United States for decades. The use of affirmative action in college admissions has been the subject of litigation and political debate, with supporters and opponents offering different perspectives on its effectiveness and legality.
Historically, many 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, with some justices arguing that it did not violate the Constitution. For example, in the 1987 case of United States v. Paradise, the Supreme Court upheld the constitutionality of a court-ordered affirmative action plan for the hiring and promotion of Black police officers in Alabama, finding that it was narrowly tailored to remedy past discrimination.
However, in recent years, there has been a shift towards race-neutral alternatives in college admissions. In 2019, the United States District Court for the District of Massachusetts ruled in favour of Harvard in a lawsuit alleging discrimination in admission against Asian Americans, finding that their admissions process was constitutional. This decision was appealed, and the case made its way to the Supreme Court, which heard arguments in the 2022-2023 term. In 2023, the Supreme Court ruled in Students for Fair Admissions v. Harvard that race-based affirmative action in college admissions violated the Equal Protection Clause of the Fourteenth Amendment. The Court held that affirmative action programs lacked focused and measurable objectives and involved racial stereotyping.
The Supreme Court's decision in the Harvard case effectively ended the use of race-conscious admissions policies in colleges and universities. While the court did not entirely prohibit universities from considering race in admissions, the decision significantly narrowed the circumstances under which it could be considered. The ruling also highlighted the tension between promoting diversity in higher education and ensuring equal protection under the law, without considering race.
Despite the controversy surrounding affirmative action in college admissions, it is important to note that public support for affirmative action has grown in recent years. Polls show that while a majority of Americans believe that race should not be considered in college admissions, there is also support for programs that boost racial diversity on campuses. Additionally, in places where affirmative action has been eliminated, there has been a significant drop in minority admissions, particularly for African American students. As a result, institutions of higher education remain committed to maintaining a diverse student body and are exploring alternative avenues to promote diversity beyond race-conscious admissions.
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Affirmative action in employment
In the United States, the concept of affirmative action was incorporated into Executive Order 10925 by President Kennedy in 1961. This order imposed a general obligation on contractors to take positive steps to overcome obstacles to equal employment opportunities, addressing factors such as hiring, promotion, recruitment, and compensation.
Subsequently, in 1965, President Lyndon B. Johnson signed Executive Order 11246, which mandated that contractors must not discriminate against employees or qualified applicants based on race, colour, religion, sex, or national origin. This order also gave the Secretary of Labor responsibility for enforcing these non-discrimination provisions.
It is important to note that affirmative action in employment involving racial or gender preferences to achieve diversity has never been permissible. Under Title VII, race- or gender-conscious affirmative action by private employers is generally unlawful without a remedial purpose. Employers must ensure that their diversity initiatives do not consider race, gender, or ethnicity at any point in the selection process beyond sourcing and recruiting a diverse pool of candidates.
To comply with legal requirements, employers can consider implementing voluntary or unapproved affirmative action plans without admitting to a Title VII violation. These plans should be designed to achieve the purposes of Title VII, breaking down old patterns of segregation and hierarchy and overcoming the effects of past or present practices that create barriers to equal employment opportunities.
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Affirmative action in public contracting
Affirmative action is a set of policies that promote diversity by offering opportunities to people from historically disadvantaged groups. In the context of public contracting, affirmative action requires contractors to take proactive steps to ensure equal opportunity in employment and promote diversity in the workforce, without considering any protected characteristics such as race, colour, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran.
The Office of Federal Contract Compliance Programs (OFCCP) enforces these nondiscrimination and affirmative action obligations for federal contractors. Covered contractors, including those with 50 or more employees and contracts valued at $50,000 or more, are required to develop and maintain written affirmative action programs (AAPs). These programs must address both nondiscrimination and affirmative action obligations, ensuring that applicants are employed and employees are treated during employment without regard to their protected characteristics.
The OFCCP's regulations expressly forbid the use of quotas or set-asides based on protected characteristics. Contractors are prohibited from favouring any particular group and must ensure that their hiring, employment, and personnel decisions are based on merit. However, contractors can provide notice to applicants and employees that they are equal opportunity employers by using taglines in job advertisements and posting relevant notices.
While affirmative action in the context of public contracting aims to increase diversity and equal opportunity, it is distinct from affirmative action in higher education admissions processes. The Supreme Court's recent decision banning affirmative action in college admissions does not affect government contractors' obligations. Contractors must continue to comply with regulatory requirements under Executive Order (EO) 11246, the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA), and Section 503 of the Rehabilitation Act.
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Frequently asked questions
The Equal Protection Clause of the Fourteenth Amendment is the part of the US Constitution that correlates most directly with affirmative action.
The clause states that no state shall "deny to any person within its jurisdiction the equal protection of the laws". This means that the government cannot discriminate against any group of people and that all individuals must be treated equally under the law.
Affirmative action policies aim to address historical discrimination against certain groups, such as racial minorities and women, by providing them with opportunities that they may have been denied in the past. These policies are designed to promote equal opportunity and help overcome the effects of past discrimination, which is in line with the Equal Protection Clause.
