Federal Affirmative Action Law:
A Brief History
Jody Feder
Legislative Attorney
October 22, 2012
Congressional Research Service
7-5700
www.crs.gov
RS22256
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Federal Affirmative Action Law: A Brief History
Summary
Affirmative action remains a subject of public debate as the result of legal and political
developments at the federal, state, and local levels. In recent years, federal courts have reviewed
minority admissions programs to state universities; scrutinized the constitutional status of racial
diversity policies in public elementary and secondary schools; ruled on minority preferences in
public and private employment as a remedy for violation of civil and constitutional rights; and
considered federal, state, and local efforts to increase minority participation as contractors and
subcontractors on publicly financed construction projects. This report provides a brief history of
federal affirmative action law.
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Federal Affirmative Action Law: A Brief History
he origins of affirmative action law may be traced to the early 1960s as first the Warren,
and then the Burger, Court grappled with the seemingly intractable problem of racial
T segregation in the nation’s public schools. Judicial rulings from this period recognized an
“affirmative duty,” cast upon local school boards by the Equal Protection Clause, to desegregate
formerly “dual school” systems and to eliminate “root and branch” the last “vestiges” of state-
enforced segregation.1 These holdings ushered in a two-decade era of “massive” desegregation—
first in the South, and later the urban North—marked by federal desegregation orders frequently
requiring drastic reconfiguration of school attendance patterns along racial lines and extensive
student transportation schemes. School districts across the nation operating under these decrees
later sought to be declared in compliance with constitutional requirements in order to gain release
from federal intervention. The Supreme Court eventually responded by holding that judicial
control of a school system previously found guilty of intentional segregation should be
relinquished if, looking to all aspects of school operations, it appears that the district has
complied with desegregation requirements in “good faith” for a “reasonable period of time” and
has eliminated “vestiges” of past discrimination “to the extent practicable.”2
Following the Court’s lead, Congress and the executive approved a panoply of laws and
regulations authorizing, either directly or by judicial or administrative interpretation, “race-
conscious” strategies to promote minority opportunity in jobs, education, and governmental
contracting. The basic statutory framework for affirmative action in employment and education
derives from the Civil Rights Act of 1964. Public and private employers with 15 or more
employees are subject to a comprehensive code of equal employment opportunity regulations
under Title VII of the 1964 act.3 The Title VII remedial scheme rests largely on judicial power to
order monetary damages and injunctive relief, including “such affirmative action as may be
appropriate,” to make discrimination victims whole. Except as may be imposed by court order or
consent decree to remedy past discrimination, however, there is no general statutory obligation on
employers to adopt affirmative action remedies. Official approval of “affirmative action”
remedies was further codified by federal regulations construing the 1964 act’s Title VI, which
prohibits racial or ethnic discrimination in all federally assisted programs and activities,4
including public or private educational institutions. The Office of Civil Rights of the Department
of Education interpreted Title VI to require schools and colleges to take affirmative action to
overcome the effects of past discrimination and to encourage affirmative action “[e]ven in the
absence of past discrimination ... to overcome the effects of conditions which resulted in limiting
participation by persons of a particular race, color, or national origin.”5
Since the early 1960s, minority participation “goals” have also been integral to executive branch
enforcement of minority hiring and employment standards on federally financed construction
projects and in connection with other large federal contracts. Executive Order 11246, as presently
administered by the Office of Federal Contract Compliance Programs, requires that all employers
with 50 or more employees and federal contracts in excess of $50,000 file written affirmative
action plans with the government. These must include minority and female hiring goals and
1 See, e.g., Green v. County Bd., 391 U.S. 430 (1968); Swann v. Bd. of Educ., 402 U.S. 1 (1971); Keyes v. Denver Sch.
Dist., 413 U.S. 189 (1973).
2 Dowell v. Bd. of Educ., 498 U.S. 237 (1991). See also Freeman v. Pitts, 503 U.S. 467 (1993); Missouri v. Jenkins,
515 U.S. 70 (1995).
3 42 U.S.C. §§2000e et seq.
4 Id. at 2000d et seq.
5 34 C.F.R. §100.3(b)(vii)(6).
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timetables to which the contractor must commit its “good faith” efforts. Race and gender
considerations—which may include numerical goals—are also a fundamental aspect of
affirmative action planning by federal departments and agencies to eliminate minority and female
“underrepresentation” at various levels of agency employment.6
Federal contract “set-asides” and minority subcontracting goals evolved from Small Business
Administration programs to foster participation in the federal procurement process by small
disadvantaged businesses (SDBs), or small businesses owned and controlled by “socially and
economically disadvantaged” individuals.7 Minority group members and women are presumed to
be socially and economically disadvantaged under the Small Business Act, while non-minority
contractors must present evidence to prove their eligibility. “Goals” or “set-asides” for minority
groups, women, and other “disadvantaged” individuals have also been routinely included in
federal funding measures for education, defense, transportation, and other activities over much of
the last two decades. Currently, each federal department and agency must contribute to achieving
a government-wide, annual procurement goal of at least 5% with its own goal-oriented effort to
create “maximum practicable opportunity” for minority and female contractors.8 In addition, 10%
of federal highway and surface transportation project funds must be set aside for small
disadvantaged firms.9
By the mid-1980s, the Supreme Court had approved the temporary remedial use of race- or
gender-conscious selection criteria by private employers under Title VII. These measures were
deemed a proper remedy for “manifest racial imbalance” in “traditionally segregated” job
categories, if voluntarily adopted by the employer,10 or for entrenched patterns of “egregious and
longstanding” discrimination by the employer, if imposed by judicial decree.11 In either
circumstance, however, the Court required proof of remedial justification rooted in the
employer’s own past discrimination and its persistent workplace effects. Thus, a “firm basis” in
evidence, as revealed by a “manifest imbalance”—or “historic,” “persistent,” and “egregious”
underrepresentation—of minorities or women in affected job categories was deemed an essential
predicate to preferential affirmative action. Of equal importance, all racial preferences in
employment were to be judged in terms of their adverse impact on “identifiable” non-minority
group members. Remedies that protected minorities from layoff, for example, were most suspect
and unlikely to pass muster if they displaced more senior white workers.12 But the consideration
of race or gender as a “plus” factor in employment decisions, when it did not unduly hinder or
“trammel” the “legitimate expectations” of non-minority employees, won ready judicial
6 42 U.S.C. §2000e-16(b)(1); 5 U.S.C. §7201. The Equal Employment Opportunity Commission and the Office of
Personnel Management have issued rules to guide implementation and monitoring of minority recruitment programs by
individual federal agencies. Among various other specified requirements, each agency plan “must include specific
determinations of underrepresentation for each group and must be accompanied by quantifiable indices by which
progress toward eliminating underrepresentation can be measured.” 5 C.F.R. §720.205(b).
7 15 U.S.C.§637 (a), (d).
8 15 U.S.C. §644(g)(1).
9 Section 1101 of P.L. 109-59, the Safe, Accountable, Flexible, and Efficient Transportation Equity Act of 2005,
carried forward prior longstanding USDOT policy mandating a 10% SDB set-side “[e]xcept to the extent the Secretary
of Transportation determines” otherwise.
10 United Steelworkers v. Weber, 443 U.S. 193 (1979).
11 Local 28 Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986).
12 Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986).
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acceptance. Affirmative action preferences, however, had to be sufficiently flexible, temporary in
duration, and “narrowly tailored” to avoid becoming rigid “quotas.”13
The Regents of the University of California v. Bakke ruling in 1978 launched the contemporary
constitutional debate over state-sponsored affirmative action. A “notable lack of unanimity” was
evident from the six separate opinions filed in that case. One four-Justice plurality in Bakke voted
to strike down as a violation of Title VI a special admissions program of the University of
California at Davis medical school which set aside 16 of 100 positions in each incoming class for
minority students, where the institution itself was not shown to have discriminated in the past.
Another bloc of four Justices argued that racial classifications designed to further remedial
purposes were foreclosed neither by the Constitution nor the Civil Rights Act and would have
upheld the minority admissions quota. Justice Powell added a fifth vote to each camp by
condemning the Davis program on equal protection grounds while endorsing the nonexclusive
consideration of race as an admissions criteria to foster student diversity.14
In Justice Powell’s view, neither the state’s asserted interest in remedying “societal
discrimination,” nor of providing “role models” for minority students was sufficiently
“compelling” to warrant the use of a “suspect” racial classification in the admission process. But
the attainment of a “diverse student body” was, for Justice Powell, “clearly a permissible goal for
an institution of higher education” since diversity of minority viewpoints furthered “academic
freedom,” a “special concern of the First Amendment.”15 Accordingly, race could be considered
by a university as a “plus” or “one element of a range of factors”—even if it “tipped the scale”
among qualified applicants—as long as it “did not insulate the individual from comparison with
all the other candidates for the available seats.”16 The “quota” in Bakke was infirm, however,
since it defined diversity only in racial terms and absolutely excluded non-minorities from a given
number of seats. By two 5-to-4 votes, therefore, the Supreme Court affirmed the lower court
order admitting Bakke but reversed the judicial ban on consideration of race in admissions.
The Powell opinion in Bakke may help to explain the conflicting results reached by the Court in
the Michigan Law School and undergraduate admissions cases. In Grutter v. Bollinger,17 a 5 to 4
majority of the Justices, led by Justice O’Connor, held that the University’s Law School had a
“compelling” interest in the “educational benefits that flow from a diverse student body,” which
justified its consideration of race in admissions to assemble a “critical mass” of
“underrepresented” minority students. But in Gratz v. Bollinger,18 six Justices decided that the
University’s undergraduate policy of awarding “racial bonus points” to minority applicants was
not “narrowly tailored” enough to pass constitutional muster. The law school program was
deemed constitutional because it was based on an individualized, holistic review of each
applicant’s file, in contrast to the undergraduate program, which “[did] not provide for a
meaningful individualized review of applicants” but instead “assign[ed] every underrepresented
minority applicant the same, automatic 20-point bonus without consideration of the particular
13 United States v. Paradise, 480 U.S. 149 (1987); Johnson v. Transp. Agency, 480 U.S. 616 (1987). For additional
information, see CRS Report RL30470, Affirmative Action in Employment: A Legal Overview, by Jody Feder.
14 Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1975).
15 Id. at 311-12.
16 Id. at 317.
17 539 U.S. 506 (2003).
18 539 U.S. 244 (2003).
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background, experiences, or qualities of each individual applicant.”19 In effect, Grutter enshrined
in law the Powell diversity rationale—embraced by no other Justice in Bakke—that the state has a
“compelling” interest in promoting racial diversity in higher education.
In another series of decisions, the Court approved of congressionally mandated racial preferences
to allocate the benefits of contracts on federally sponsored public works projects, Fullilove v.
Klutznick,20 while condemning similar actions taken by local governmental entities to promote
public contracting opportunities for minority entrepreneurs, City of Richmond v. J.A. Croson Co.21
Contextual differences in the particular kind of governmental activity being challenged frequently
account for variations in judicial approach to affirmative action in public employment,
government contracting, admission to public institutions of higher education, and election
redistricting.22 Almost uniformly, however, the law has been marked by a failure of consensus on
most issues, with bare majorities, pluralities, or—as in Bakke—a single Justice, determining the
outcome of the case.
Not until 1989 did a majority of the Justices resolve the proper constitutional standard for review
of governmental classifications by race enacted for a remedial or other “benign” legislative
purpose. Disputes prior to the City of Richmond case yielded divergent views as to whether state
affirmative action measures for the benefit of racial minorities were subject to the same “strict
scrutiny” as applied to “invidious” racial discrimination under the Equal Protection Clause, an
“intermediate” standard resembling the test for gender-based classifications, or simple rationality.
In City of Richmond, a 5 to 4 majority settled on strict scrutiny to invalidate a 30% set-aside of
city contracts for minority-owned businesses because the program was not “narrowly tailored” to
a “compelling” governmental interest. While “race-conscious” remedies could be legislated in
response to proven past discrimination by the affected governmental entities, “racial balancing”
untailored to “specific” and “identified” evidence of minority exclusion was impermissible. City
of Richmond suggested, however, that because of its unique equal protection enforcement
authority, a constitutional standard more tolerant of racial line-drawing may apply to Congress.
This conclusion was reinforced a year later when, in Metro Broadcasting, Inc. v. FCC,23 the Court
upheld certain preferences for minorities in broadcast licensing proceedings, approved by
Congress not as a remedy for past discrimination but to promote the “important” governmental
interest in “broadcast diversity.”
This two-tiered approach to equal protection analysis of governmental affirmative action was
short-lived, however. In Adarand Constructors, Inc. v. Pena,24 the Court applied “strict scrutiny”
to a federal transportation program of financial incentives for prime contractors who
subcontracted to firms owned by “socially and economically disadvantaged individuals,” defined
so as to prefer members of designated racial minorities. Although the Court refrained from
deciding the constitutional merits of the particular program before it, and remanded for further
proceedings below, it determined that all “racial classifications” by government at any level must
be justified by a “compelling governmental interest” and “narrowly tailored” to that end. But the
19 Id. at 276-77 (O’Connor. J., concurring).
20 448 U.S. 448 (1980).
21 488 U.S. 469 (1989).
22 See, e.g., League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006); Shaw v. Reno, 509 U.S. 630 (1993).
23 497 U.S. 547 (1990).
24 515 U.S. 200 (1995). For more information on Adarand and minority contracting, see CRS Report RL33284,
Minority Contracting and Affirmative Action for Disadvantaged Small Businesses: Legal Issues, by Jody Feder.
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majority opinion, by Justice O’Connor, sought to “dispel the notion” that “strict scrutiny is ‘strict
in theory, but fatal in fact,’” by acknowledging a role for Congress as architect of remedies for
discrimination nationwide. “The unhappy persistence of both the practices and lingering effects
of racial discrimination against minorities in this country is an unfortunate reality, and the
government is not disqualified from acting in response to it.” No further guidance is provided,
however, as to the scope of remedial power remaining in congressional hands, or of the
conditions required for its exercise. Bottom line, Adarand suggests that racial preferences in
federal law are a remedy of last resort, which must be adequately justified and narrowly drawn to
pass constitutional muster. In the post-Adarand era, lower federal courts have at times upheld and
at other times struck down government programs that contain minority contracting preferences.
For example, in a recent and highly significant minority contracting case, the Federal Circuit held
that the Department of Defense’s (DOD’s) Small Disadvantaged Business (SDB) program was
unconstitutional.25
More recently, the Court has considered several new challenges involving racial diversity in
education. For example, the Grutter and Gratz decisions did not address whether diversity is a
permissible goal in the elementary and secondary educational setting. To resolve this question, the
Supreme Court agreed to review two cases that involved the use of race to maintain racially
diverse public schools in Seattle and Louisville. In Parents Involved in Community Schools v.
Seattle School District No. 1, a consolidated 2007 ruling that resolved both cases, the Court, in a
fractured decision, struck down the school plans at issue, holding that they violated the equal
protection guarantee of the Fourteenth Amendment.26 Announcing the judgment of the Court was
Chief Justice Roberts, who led a plurality of four Justices in concluding that the school plans
were unconstitutional because they did not serve a compelling governmental interest. Although
Justice Kennedy concurred in the Court’s judgment striking down the plans, he declined to sign
on to the plurality opinion in full, in part because he disagreed with its implication that diversity
in elementary and secondary education, at least as properly defined, does not serve a compelling
governmental interest. According to Justice Kennedy, “[d]iversity, depending on its meaning and
definition, is a compelling educational goal a school district may pursue,”27 but neither Seattle nor
Louisville had shown that its plans served a compelling interest in promoting diversity or that the
plans were narrowly tailored to achieve that goal. The Court’s ruling appears to indicate that race-
conscious measures to promote racial diversity in public education remain constitutionally
permissible in theory, although in practice it is less clear what types of programs the Court would
consider to be sufficiently narrowly tailored to pass constitutional muster.28
Meanwhile, the Court is poised to revisit the issue of affirmative action in higher education
during the current 2012-2013 term. The case, Fisher v. University of Texas,29 involves an equal
protection challenge to the undergraduate admissions plan at the University of Texas at Austin,
which, in a stated effort to increase diversity, considers race as a factor when evaluating
applicants to the school.
25 Rothe Dev. Corp. v. DOD, 545 F.3d 1023 (Fed. Cir. 2008). For more information on Rothe, see CRS Report R40440,
Rothe Development Corporation v. Department of Defense: The Constitutionality of Federal Contracting Programs for
Minority-Owned and Other Small Businesses, by Jody Feder and Kate M. Manuel.
26 551 U.S. 701 (2007).
27 Id. at 783.
28 For more information, see CRS Report RL30410, Affirmative Action and Diversity in Public Education: Legal
Developments, by Jody Feder.
29 132 S. Ct. 1536 (2012).
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Author Contact Information
Jody Feder
Legislative Attorney
jfeder@crs.loc.gov, 7-8088
Acknowledgments
This report was originally written by Charles V. Dale, Legislative Attorney.
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