Timeline

1961

Executive Order 10925, 26 Fed. Reg. 1977 (1961).  Creates the Committee on Equal Employment Opportunity and requires that projects financed with federal funds “take affirmative action” to ensure that hiring and employment practices are free of racial bias.

1964

Civil Rights Act of 1964, Pub. L. No. 88-352.  Prohibits discrimination based on race, color, religion, or national origin.

1965

President Lyndon Baines Johnson, “To Fulfill These Rights,” Commencement Address at Howard University.  Recasts the debate about affirmative action, focusing on attainment of results rather than simple procedural fairness.

“You do not wipe away the scars of centuries by saying: ‘now, you are free to go where you want, do as you desire, and choose the leaders you please.’ You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, ‘you are free to compete with all the others,’ and still justly believe you have been completely fair . . . This is the next and more profound stage of the battle for civil rights. We seek not just freedom but opportunity—not just legal equity but human ability—not just equality as a right and a theory, but equality as a fact and as a result.”

Executive Order 11246, 30 Fed. Reg. 12,319 (1965).  Mandates that government contractors “take affirmative action” in all aspects of hiring and employment, including specific measures to ensure equality in hiring and documentation of those efforts.

1971

Revised Order No. 4, Affirmative Action Programs, 36 Fed. Reg. 23,152 (1971).  Calls for “good faith efforts” to achieve “equal employment opportunity,” defining an affirmative action program as “a set of specific and result-oriented procedures to which a contractor commits itself to apply every good faith effort.”  

1978

Regents of the University of California v. Bakke, 438 U.S. 265 (1978). Deeply divided Court holds that the interest in admitting a “diverse” class is “compelling” given the educational benefits that follow from such a student body, but holds that the admissions program at issue is an unconstitutional quota system that reserves a specified number of admissions slots for minority applicants.

1980

Fullilove v. Klutznick, 448 U.S. 448 (1980).  Court holds that modest contracting quotas are constitutional, upholding a federal statute that sets aside 15% of funds for public works for qualified minority contractors. Program does not violate the rights of non-minority contractors since there is no “allocation of federal funds according to inflexible percentages solely based on race or ethnicity.”

1986

Wygant v. Jackson Board of Education, 476 U.S. 267 (1986).  Court invalidates a policy protecting minority employees by disregarding seniority rights and laying off non-minority teachers first.

1987

United States v. Paradise, 480 U.S. 149 (1987).  Court sustains a judicially imposed remedy for prior discriminatory hiring practices that includes a one-for-one promotion quota to cure the prior discriminatory practices.

1989

City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).  Court strikes down a city contracting set aside program patterned on the federal programs sustained in Fullilove.  It emphasizes that such state programs must withstand “strict scrutiny,” that is, advance a “compelling” government interest and be “narrowly tailored,” confining such measures to attempts by a jurisdiction to remedy the present effects of its own past discrimination.

1990

Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990).  Court sustains a federal licensing system for issuance of radio station licenses that grants preferences to minority applicants, holding that federal programs need only meet the less demanding requirements of “intermediate” scrutiny, that is, pursue an “important” interest with the means employed being “substantially related” to that interest.

1995

Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995).  Court holds that all programs that discriminate on the basis of race, both federal and state, must survive strict scrutiny, reversing Metro Broadcasting.

1996

Hopwood v. Texas, 78 F.3d 932 (5^th Cir. 1996).  Court of Appeals holds that Justice Powell’s “solitary” opinion in Bakke is not controlling and that the attainment of a “diverse” student body is not constitutional.

1997

California Proposition 209, Cal. Const. art. I, § 31(a)(1996), a voter initiated state ban on all forms of affirmative action, declaring that “[t]he state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

1998

Washington State, Initiative 200, Wash. Code Ann. § 49.60.1 (1999), declaring that “[t]he state shall not discriminate against, or grant preferential treatment to, any individual or group.”

1999

Executive Order 99-281.  Florida governor Jeb Bush signed an executive order banning preferences in college admissions based on race, substituting a program guaranteeing admission to at least one of the ten state universities for high school students who graduate in the top twenty percent of their class.  The order also banned preferences in state contracting. 

2003

Grutter v. Bollinger, 539 U.S. 306 (2003).  Supreme Court holds that University of Michigan Law School’s policy, within which race is simply one of many factors considered in an individualized, “holistic” review of applicants is constitutional, furthering the “compelling interest in obtaining the educational benefits that flow from a diverse student body.”

Gratz v Bollinger, 539 U.S. 244 (2003).  Court rules that a different policy employed by the University of Michigan’s College of Literature, Science and the Arts, which uses a point system that rates students and awards what it deems a disproportionate amount of points for minority status, is unconstitutional.

2006

The Supreme Court’s decision in Grutter, permitting racial preferences under many circumstances, produces a political reaction in Michigan. Jennifer Gratz, the plaintiff in Gratz v. Bollinger, becomes an influential spokesperson for Proposal 2, a voter initiative patterned after California’s Prop 209. Proposal 2, termed the “Michigan Civil Rights Initiative” by its proponents, is adopted in November 2006 by a 58-42 margin, and prohibits racially preferential treatment in state programs.

2007

Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).  Court invalidates use of race-based assignment policies in Seattle, Wa. and Louisville, Ky., holding that the two systems at issue are not narrowly tailored.  The majority emphasizes that only two interests have been deemed compelling for constitutional purposes: diversify in college and university admissions and efforts by an entity to remedy the present effects of its own past discrimination.

2013

Fisher v. University of Texas at Austin, 570 U.S. 297 (2013) (“Fisher I”).  Court does not rule on the constitutionality of an admissions system adopted in the wake of Grutter, recognizing that diversity is a compelling educational interest but holding that the Court of Appeals gave inappropriate deference in its assessment of the Texas system.

2016

Fisher v, University of Texas at Austin, 136 S. Ct. 2198 (2016) (“Fisher II”).  On rehearing after further consideration by the courts below, Supreme Court sustains the Texas system, holding that it is a narrowly tailored admission program that pursues diversity, treating race as a simple plus factor as part of a “holistic admissions review and decision.

2020

By overwhelming majorities, the California State Assembly and State Senate approve ACA-5, a measure that puts on the November 2020 ballot “Proposition 16” which, if passed, would repeal the 1996 measure, Proposition 209, which prohibited state and local governments in California from considering race or gender in employment, contracting, or college admissions decisions. The pro-Prop 16 campaign dramatically outspends the “No on 16” campaign (by a margin of $29 million to $1.9 million), but voters reject Prop 16 by a 57-43 margin. Notably, the Prop 16 vote shows small racial disparities than the Prop 209 vote and a small majority of Hispanic voters oppose the measure.