For a term as loaded with political meaning as “affirmative action,” it might come as a surprise to learn that its origins on the political landscape still remain somewhat of a mystery. Merriam-Webster places its first known use in 1965, but the historical record shows it being used years before.
This week, the term is in the news because the Supreme Court may reverse course on an almost 40-year-old ruling that declared race-based affirmative action constitutional in Regents of the University of California v. Bakke (1978).
Court watchers are predicting that the suit challenging the use of racial preference as a factor in the college admissions process, Fisher v. University of Texas II, will end in a 4-3 dissent against affirmative action (Elena Kagan has recused herself from the case after working on it as U.S. solicitor general).
Justice Anthony Kennedy, the expected swing vote, “does not like affirmative action and has never voted to affirm it,” as Garrett Epps put it for The Atlantic in December 2015, when the court heard oral arguments in the case, which is actually a re-hearing of a case originally brought before the Court in 2008. (Hence the Roman numeral.)
The Court last upheld affirmative action in admission decisions in 2003 in Grutter v. Bollinger. The case in question today began when Abigail Fisher, a white high school student, sued the University of Texas at Austin after being denied admission to the school, arguing that the school's affirmative action policy violates her 14th Amendment rights under the equal protection clause. In Texas, students that rank in the top 10 percent of their public high schools are guaranteed a spot at UT-Austin. Fisher, who came 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.
Depending on how broadly the court rules, Fisher II could reverse Bakke in what would be a “disastrous blow to proponents of race-based affirmative action,” Elton Lossner writes for the Harvard Political Review.
Though education is largely the focus of today’s affirmative action debate, the origin of the term is rooted with legalese in employment law, explains Shirley J. Wilcher, the executive director for the American Association for Access, Equity and Diversity. To take an "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 and collective bargaining, as well as decreeing that employers found practicing discriminatory labor laws would be required “...to take such affirmative action including reinstatement of employees with or without backpay...”. The race-based affiliation of this phrase hadn’t been codified yet.
Employers reacted with hostility to the new law and called the NLRB biased toward laborers. “Employers almost universally did not welcome the Act”, said NLRB chairman J. Warren Madden at the time. The Supreme Court ruled that the Wagner Act was constitutional in 1937.
Four years later, on the cusp of U.S. involvement in World War II, civil rights activist A. Philip Randolph led the nationwide effort protesting African-Americans contributing to the war effort while still being subject to Jim Crow segregation laws at home. This March on Washington Movement planned a demonstration on the U.S. Capitol grounds for for July 1, 1941. As many as 100,000 people were expected to show up, writes BlackPast.org.
On June 25, 1941, days before the planned march, President Franklin 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 EO 8802 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 cancelled its march. But by 1945, despite progress, industrial intolerance remained deep-rooted. Chester Bowles, the committee chairman of the FEPC wrote a letter to The New York Times, criticizing the executive order as just a plug to fix the 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.
President Dwight D. Eisenhower would build on FDR's work with the 1953 Executive Order 10479, which created the anti-discrimination Committee on Government Contracts. But President John F. Kennedy would become the first president to marry the term “affirmative action” with its modern-day connotation of a policy seeking to ensure racial equality. On May, 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." However, the order did not specify what such actions would entail.
It would be Kennedy’s Committee on Equal Employment Opportunity, which instituted the Plans for Progress (PfP) program that paved the way for Affirmative Action, says Wilcher. The PfP was made up of a voluntary association of more than 400 of the nation's largest industrial employers who practiced equal opportunity programs, as Anthony S. Chen writes in his book, The Fifth Freedom: Jobs, Politics, and Civil Rights in the United States 1941-1972.
During President Lyndon Johnson’s administration, the phrase “affirmative action” found its legs. As Google’s Ngram viewer illustrates, the words would spike in the American lexicon after Johnson issued Executive Order 11246 on September 28, 1965.
The order demanded that contractors "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin." And, in order to ensure this, in 1966, Johnson then established the Office of Federal Contract Compliance Programs in the U.S. Department of Labor.
Johnson’s work on affirmative action would be furthered by President Richard Nixon whose Executive Order 11478 passed in August 8, 1969, and called for unilateral affirmative action in all government employment.
Meanwhile, the next chapter of affirmative action would expand toward education, starting with the Supreme Court’s Green v. County School Board of New Kent County ruling in 1968, which mandated that all school boards had to provide a plan to end segregated systems in their district, in order to be in compliance with Brown v. Board of Education (1954).
The order would become a rallying point for conservatives and liberals, alike. As the Virginia Historical Society writes:
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 would come to the attention of the Supreme Court in 1978 with Bakke. The lawsuit was filed by Allan Bakke, a white applicant to University of California, Davis’ medical school, who had been denied admission to the school two times despite having MCAT scores and a GPA higher than candidates who had been admitted to the program. The medical school at that time reserved 16 out of 100 spots for minorities. 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.
Bollinger, which came to the Supreme Court’s docket in 2003, relied on Bakke. The case centered around Barbara Grutter, a white applicant attention to the University of Michigan’s law school. The school’s admission process did not have quotas, but did look favorably upon minority applicants. In another 5-4 decision, the court ruled that the university’s case-by-case consideration of applicants that included race as one narrow factor in its decision-making, made its admissions process legal.
As the court readies to rule on Fisher II, it’s uncertain where affirmative action will stand in higher education after this week. Perspectives range across the ideological spectrum on its purpose and effectiveness. The conservative viewpoint was best epitomized by the now-famous phrasing used by Chief Justice John Roberts wrote in the plurality opinion striking down a Seattle plan to integrate students by assigning them to schools Parents Involved in Community Schools v. Seattle School District in 2007, “The way to stop discrimination on the basis of race, is to stop discriminating on the basis of race.”
For Wilcher, she 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,” says Wilcher. “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.”
However the court rules, the term’s origins in the presidential executive order continue on. Today, protected classes for federal contractors under Johnson’s Executive Order 11246 now include race, color, religion, sex, national origin, as well as sexual orientation or gender, after President Barack Obama signed an Executive Order adding those classes to the list in 2014.