As originally conceived and implemented during the Kennedy Administration in the early 1960s, “affirmative action” programs and initiatives sought to promote fairness and equal opportunity in employment and federal contracting.  The goal was to craft systems that allowed all qualified candidates to apply and be considered for vacant or newly created positions.  The assumption was that prior practices emphasized connections and status, perpetuating an “old boy” system within which white, male applicants in particular had distinct advantages and were disproportionately favored. During this same period, many other institutions, including many elite universities, also overhauled their outreach and admissions or hiring practices to broaden opportunity and create selection processes more fully based on merit.

“Outreach” and “fair selection” continue to be hallmarks of affirmative action programs, but the slow pace at which many of these programs increased diversity — and, in particular, black representation — led proponents to argue that more aggressive, targeted actions were needed. Thus, by 1970 many institutions (including many elite colleges and graduate programs) had instituted racial preferences, goals, set-asides, and other systems of essentially insulating “underrepresented” candidates from competition in selection processes. This quickly produced claims of “reverse discrimination,” and, in time, legal challenges. There is an ongoing debate about how often these preferences were “very large” versus a “tip” or “a thumb on the scale.” But there is not much doubt that preferences have become a dominant part of affirmative action programs over the past several decades. 

Institutions have offered three rationales for preferences.   One is “compensatory” – an effort to rectify social inequalities through a sort of social engineering.  A second is “remedial” – an institution attempting to correct for its own past discriminatory acts.  A third – specifically advanced by educational institutions – is to foster a better educational environment by increasing diversity, thus allowing more perspectives and life experiences to enrich campus life.  The Supreme Court, beginning with Bakke v. Regents of the University of California (1978), has consistently held that institutions could not pursue socially compensatory reasons, believing that this was too open-ended and invited the arbitrary use of race.  They could engage in “remedial” actions, but only when there had been a particular finding of prior discrimination by that entity and the remedy was narrowly-tailored to redress those past particular bad acts. The Court would also allow a college, university, or professional school to use “benign” measures – i.e., ones that favored traditionally powerless, disadvantaged minorities – to foster a more diverse campus.  It made it clear, however, that it retained the right to examine with care the means employed to attain that goal.

What Diversity Does

“Diversity” has become central to virtually all discussions of affirmative action.  This can be traced to two sources.  In Bakke, Justice Powell was poised between four Supreme Court Justices who favored the use of race-conscious admissions policies to address general patterns of societal discrimination, and four other Justices who rejected all race-based admissions preferences as illegal and unconstitutional discrimination.  Powell famously seized on the “diversity” rationale as a middle ground:  universities, he held, could not engage in ad hoc discrimination deemed to redress social problems, but they could use race as one of many factors aimed at creating a “diverse” educational environment.  Race-consciousness in university policies was henceforth to be justified in terms of fostering diversity.

A second stream of development came from the corporate world, and is traced in a highly-regarded book by Frank Dobbin:  Inventing Equal Opportunity (2009).  Dobbin demonstrated how large, private companies evolved new personnel policies to respond to civil rights laws and the EEOC, on the one hand, and to legal constraints on their ability to use avowedly race-conscious policies to come into compliance on the other.  Human resource departments developed elaborate vocabularies and procedures around the idea of fostering a diverse workforce, systems that were widely standardized across the corporate world in the 1980s and 1990s.

Various issues are raised regarding “diversity.” There are, of course, continuing legal concerns premised on the assumption that while arguably “benign” or “positive” preferences are nevertheless a form of discrimination that unduly burden those who do not qualify for them. Another concerns the benefits of diversity.  Widely-cited research, such as the studies noted and discussed in Gurin et al., argues that diversity produces positive educational outcomes and instills skills and perspectives that help individuals in their lives and work. There is also credible research disputing these conclusions, as noted in both Volume 2 of the Beckman compilation and by Byrd. In addition, while beyond the current scope of this site, there is research arguing that racially- and gender-diverse companies are more profitable and grow faster, and that diverse committees are more productive and make better decisions than homogeneous ones.  Finally, there are concerns about the size of the preferences used to achieve diversity goals.  See “What Preferences Do” under this tab.

List of Citations

James A. Beckman (Ed.). Controversies in Affirmative Action: Vol. 2, Contemporary Debates. 2014: Praeger.

W. Carson Byrd. Behind the Diversity Numbers: Achieving Racial Equity on Campus. 2021: Harvard Education Press.

Frank Dobbin. Inventing Equal Opportunity. 2009: Princeton University Press.

Patricia Gurin, Jeffrey S. Lehman & Earl Lewis. Defending Diversity: Affirmative Action at the University of Michigan. 2004: University of Michigan Press.

Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

Additional Readings

Books

Girardeau A. Spann. The Law of Affirmative Action: Twenty Five Years of Supreme Court Decisions on Race and Remedies. 2000: New York University Press 2000.

Melvin I. Urofsky. A Conflict of Rights: The Supreme Court and Affirmative Action. 1991: Scribner.

Melvin Urofsky. The Affirmative Action Puzzle: A Living History From Reconstruction to Today. 2020: Pantheon Press.

J. Harvie Wilkinson, III. From Brown to Bakke: The Supreme Court and School Integration: 1954 – 1978. 1976: Oxford University Press.

Articles

Mark R. Killenbeck. “Pushing Things Up to Their First Principles: Reflections on the Values of Affirmative Action.” 1999: California Law Review, Vol. 87, No. 6, pp. 1299-1407.