Since the first mention of “affirmative action” in March 1961 by President John F. Kennedy, the issue of using race in admissions has taken many twists and turns on the road towards the state it is now in.
Yesterday the U.S. Supreme Court added a new road map by ruling in favor of the University’s admissions policies in the Law School yet declaring LSA’s point system unconstitutional, actions which further piece together what is and is not constitutional about the use of race in admissions policies.
But the use of race in admissions policies is not the only consideration in the two court rulings yesterday, for the question of race extends to government employment, military admissions, and hiring policies of businesses and corporations.
When Kennedy issued an executive order to create the Committee on Equal Employment Opportunity, the agency’s purpose was to end discrimination based on race, religion, sex or nationality in employment. His order required that federally funded projects “take affirmative action” to end discrimination and bias in hiring practices.
The use of race in hiring practices or for achieving diversity was not actually enforced until four years later by President Lyndon Johnson. In an executive order in September 1965, a year after he signed the Civil Rights Act that prohibited all types of discrimination, Johnson required government contractors to hire minority workers, an order that was later amended to include hiring workers without discrimination on gender.
After orders by Johnson and Kennedy, President Richard Nixon would make his order to ensure that practices in hiring workers were fair concerning race. In the Philadelphia Order, Nixon singled out unions and the construction industry as the “most egregious offenders against equal opportunity laws” but added that the government would not impose quotas to meet the standards that would be necessary for increasing minority employment.
The question of quotas reentered the debate nine years later in one of the most important cases concerning race in admissions policies –Regents of the University of California v. Bakke. A white applicant to the University of California at Davis medical school, Allan Bakke, sued the college because he believed it discriminated against whites.
In this 5-4 decision that passed through the 9th Circuit, the Supreme Court declared the use of quotas unconstitutional, that is, the specific setting aside of a number of seats for minority students. Not until Bakke did the use of race in college admissions actually enter the arena of the use of race and discrimination after the Civil Rights Act in 1964. In his dissenting opinion of the case, Justice Thurgood Marshall wrote that he agrees with the ruling only as it “permits a university to consider the race of an applicant in making admissions decisions.”
Yet two years later in Fullilove v. Klutznick, the court ruled that not all quotas were unconstitutional and that 15 percent of public works funds be set aside for minority contractors. The court further ruled that this percentage did not violate the rights of non-minority contractors.
Further rulings narrowed and widened the use of race in cases involving admittance of state troopers in Alabama in United States v. Paradise and firing of non-minority teachers despite their seniority in Wygant v. Jackson Board of Education.
Not until 1996 would the issue reach the Supreme Court again in the form of a case concerning race in college admissions policies in Hopwood v. University of Texas Law School, a ruling that came from the U.S. 5th Circuit Court of Appeals, which the Supreme Court allowed to stand.
The lower court’s ruling included the suspension of the university’s admissions program and ruled that the Bakke decision was invalid. Hopwood also stated “educational diversity is not recognized as a compelling state interest,” a direct conflict with the 1978 Bakke ruling.
Similarly, the court decided not to hear other hearings involving race-conscious admissions policies at the University of Washington, in which the 9th Circuit Court of Appeals ruled in favor of using race as a factor in admissions, and the University of Georgia, in which the 11th Circuit Court of Appeals ruled against race-conscious admissions policies. By now several rulings had come down on both sides of the issue, a debate that preceded an ultimate decision intended to solve the issue once and for all.
The Hopwood ruling came down shortly after a memorandum by President Bill Clinton that called for the elimination of any program that “(a) creates a quota; (b) creates preferences for unqualified individuals; (c) creates reverse discrimination; or (d) continues even after its equal opportunity purposes have been achieved.”
Another event that challenged the use of race in admissions was California’s Proposition 209, which outlawed all forms of affirmative action. The proposal was withheld from being put into effect for almost a year and banned discrimination and preferential treatment for any individual or group. Following California’s lead, Washington and Florida banned affirmative action in 1998 and 2000, respectively.
Meanwhile, the admissions policies of the University of Michigan had been challenged in 1997 by the Center for Individual Rights. In December 2000, U.S. District Judge Patrick Duggan ruled that the use of race in admissions was constitutional in the case against LSA, which had already changed its admissions system from the grid system it formerly used to the point system, which was struck down yesterday. But a year later, in the similar case involving the Law School’s admissions policies, another judge ruled against the school’s policies.
To make matters more confusing, the decision was reversed on May 14, 2002, when the case reached the U.S. 6th Circuit Court of Appeals. Thus, the courts had ruled both in favor and not in favor of the use of race in the Law School’s admissions policies.
The Supreme Court decided to hear the arguments of both sides and settle the issue of race in admissions policies, which is part of the intention of yesterday’s rulings.