The History Behind the Supreme Court’s Affirmative Action Decision

For contemporary observers, it might come as a surprise to learn that the origins of the term “affirmative action”—a phrase loaded with meaning in today’s political landscape—are somewhat of a mystery.

Broadly speaking, affirmative action refers to policies and practices designed to increase opportunities for historically underrepresented groups. This week, the phrase is in the news following a Supreme Court decision that could transform the future of college admissions. On June 29, the nation’s highest court ruled that private and public colleges and universities can no longer consider race as a factor in admissions, overturning 45 years of legal precedent.

The ruling will likely lead to a sharp drop in enrollment by Black and Latino students, the New York Times reports. According to an amicus brief filed by a group of private institutions, including Amherst College, Oberlin College and Vassar College, research suggests “the percentage of Black students matriculating would drop from roughly 7.1 percent of the student body to 2.1 percent.”

The Supreme Court’s stance on affirmative action

Students for Fair Admissions (SFFA), an anti-affirmative action group, brought the two cases to the Supreme Court last January. The cases oppose policies at Harvard University and the University of North Carolina at Chapel Hill (UNC). Justices voted along party lines, delivering a 6 to 3 ruling on the UNC case and a 6 to 2 ruling on the Harvard one. (Justice Ketanji Brown Jackson recused herself from the Harvard case due to her position on the Harvard Board of Overseers at an earlier point in the litigation.)

From Justice Jackson's dissent: "No one benefits from ignorance. Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better." https://t.co/xzOhKdDPus pic.twitter.com/8PKpDGyWE4

— adam harris (@AdamHSays) June 29, 2023

In the majority opinion, Chief Justice John G. Roberts Jr. noted that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise.” He added, however, that “universities may not simply establish through application essays or other means the regime we hold unlawful today.”

Sonia Sotomayor, one of the court’s three liberal-leaning justices, criticized the decision in a dissenting opinion, arguing that the move “rolls back decades of precedent and momentous progress.” Separately, Jackson wrote, “No one benefits from ignorance. Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better.”

The court last upheld affirmative action in admission decisions in 2016, in Fisher v. University of Texas (also known as Fisher II). That case began when Abigail Fisher, a white high school student, sued the University of Texas at Austin (UT) after being denied admission, arguing that the school’s affirmative action policy violated her 14th Amendment rights under the Equal Protection Clause. In Texas, students who rank in the top 10 percent of their public high schools are guaranteed a spot at UT Austin. Fisher, who was in the top 12 percent of her class, missed the mark. The rest of the student population goes through a regular admissions process that considers race and ethnicity as factors.

In the Fisher case, the Supreme Court upheld the constitutionality of UT’s affirmative action program in a 4-3 decision, writing, “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” The majority opinion, written by Justice Anthony Kennedy, left open the possibility of future changes, stating, “It is the university’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies.”

The origins of affirmative action

Though education is largely the focus of today’s affirmative action debate, the origins of the term are rooted in employment law legalese, says Shirley J. Wilcher, executive director of the American Association for Access, Equity and Diversity. In the early 20th century, to take “affirmative action” was to literally act affirmatively—not allowing events to run their course but rather having the government (or employers) take an active role in treating employees fairly.

Most prominent among the early sightings of the phrase “affirmative action” is its presence in the National Labor Relations Act of 1935. Better known as the Wagner Act, the legislation established the National Labor Relations Board (NLRB) and collective bargaining. It also decreed that employers using discriminatory labor practices would be required “to take such affirmative action including reinstatement of employees with or without back pay.” The race-based affiliation of the phrase hadn’t yet been codified.

Employers reacted with hostility to the new law and called the NLRB biased toward laborers. “Employers almost universally did not welcome the act,” NLRB Chairman J. Warren Madden said at the time. The Supreme Court ruled the Wagner Act constitutional in 1937.

Four years later, on the cusp of U.S. involvement in World War II, civil rights activist A. Philip Randolph led a nationwide effort protesting segregation in the armed forces and related industries. His March on Washington movement planned a demonstration at the U.S. Capitol on July 1, 1941. As many as 100,000 people were expected to show up, notes BlackPast.org.

On June 25, 1941, just days before the planned march, President Franklin D. Roosevelt issued Executive Order 8802, which created the first Fair Employment Practices Committee (FEPC) and forced defense contractors “to provide for the full and equitable participation of all workers in defense industries, without discrimination.” While the document didn’t use the term “affirmative action,” it was the first presidential order to lay the groundwork for later implementations of this public policy.

Victory in hand, the movement canceled its march. Still, despite progress, industrial intolerance remained deep-rooted by 1945. Malcolm Ross, committee chairman of the FEPC, wrote a letter to the New York Times criticizing the executive order as simply a plug to fix a leak:

American minority groups have made gains in the war industry and in government service during the last four years. Old prejudices have been gradually broken down and old customs swept aside, but the roots of the problem of industrial intolerance go deep, and we have still a long way to go.

Affirmative action and executive orders

President Dwight D. Eisenhower built on Roosevelt’s work with the 1953 Executive Order 10479, which created the anti-discrimination Government Contract Committee. But John F. Kennedy was the first president to marry the term “affirmative action” with its modern-day connotation of a policy seeking to ensure racial equality. On March 6, 1961, in Executive Order 10925, he called on government contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin.” The order didn’t specify what such actions would entail.

Kennedy’s Committee on Equal Employment Opportunity instituted the Plans for Progress program that later paved the way for affirmative action, says Wilcher. Plans for Progress was a voluntary association of more than 400 of the nation’s largest industrial employers, all of which offered equal opportunity programs, writes Anthony S. Chen in The Fifth Freedom: Jobs, Politics and Civil Rights in the United States, 1941-1972.

During President Lyndon B. Johnson’s administration, the phrase “affirmative action” found its legs. According to Google Books’ Ngram Viewer, which tracks word usage in books over time, the term spiked in the American lexicon after Johnson signed Executive Order 11246 on September 24, 1965.

The order, which superseded Kennedy’s Executive Order 10925, placed the secretary of labor in charge of administering affirmative action provisions. To support these efforts, Johnson in 1965 established the Office of Federal Contract Compliance in the U.S. Department of Labor.

Johnson’s work on affirmative action was furthered by President Richard Nixon, whose Executive Order 11478, passed on August 8, 1969, called for unilateral affirmative action in all government employment.

Affirmative action in education

The next chapter of affirmative action expanded toward education, starting with the Supreme Court’s Green v. County School Board of New Kent County ruling in 1968. The decision mandated that all school boards provide a plan to end segregated systems in their district to come into compliance with Brown v. Board of Education (1954).

The order became a rallying point for conservatives and liberals alike. As the Virginia Historical Society explains:

Because of white flight to private academies and to the suburbs, racial balance could not be achieved in many city schools without extensive busing of students citywide or across city-county boundaries. This set the stage for a sharp white backlash against social engineering by the judiciary and a strengthening of conservative political opinion.

This pushback came to the attention of the Supreme Court in 1978, with Regents of the University of California v. Bakke. The lawsuit was filed by Allan Bakke, a white applicant who was denied admission to the University of California, Davis School of Medicine two times despite having a higher GPA and MCAT score than some admitted candidates. The medical school at that time reserved 16 out of 100 spots for minority students. In a 5-4 decision, the Supreme Court ruled that while quotas violated the 14th Amendment’s Equal Protection Clause, race could be used as a factor in applications to promote diversity in education.

Prior to Fisher, the court had upheld affirmative action in Grutter v. Bollinger. The 2003 case centered around Barbara Grutter, a white applicant to the University of Michigan Law School. The school’s admission process didn’t have quotas but looked favorably upon minority applicants. In another 5-4 decision, the court ruled that the university’s case-by-case consideration of applicants, which included race as one narrow factor in its decision-making, made its admissions process legal.

Following the June 29 ruling, the future of using race as a factor in college admissions, among other areas of American society, is precarious. Assessments of the practice’s purpose and effectiveness vary across the ideological spectrum. The conservative viewpoint was perhaps best epitomized by the now-famous phrasing used by Chief Justice Roberts in the plurality opinion striking down a Seattle plan to integrate students in 2007: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Wilcher sees affirmative action as a pillar of civil rights legislation. “Affirmative action has taken on negative connotations through the media and those that would like to do away with it or oppose the concept, but the impetus is on action, not nondiscrimination,” she says. “You have got to show that you tried, and that’s what affirmative action under the Johnson order means. That’s what it meant in 1965, and that’s what it means today.”

Editor’s Note, June 29, 2023: This story was updated to reflect the Supreme Court decision on affirmative action.

Jackie Mansky | | READ MORE

Jacqueline Mansky is a freelance writer and editor living in Los Angeles. She was previously the assistant web editor, humanities, for Smithsonian magazine.