Emma Weiss is a staff writer for Brief Policy Perspectives and a first-year MPP student.

Where did “affirmative action” come from?

Coined by President John Kennedy in 1961, affirmative action refers to policies aiming to eliminate unlawful discrimination among applicants and remedy prior discrimination on the basis of race, ethnicity, religion, or nationalilty. While Kennedy first used the term in relation to federal government contractors, discussions of affirmative action today often refer to the admissions practices colleges and universities have adopted towards applicants from disadvantaged backgrounds, who have historically been denied admission because of their race. 

The term “affirmative action” first appeared in Kennedy’s Executive Order 10925, which directed federal 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 Civil Rights Act of 1964 later solidified affirmative action as a practice academic institutions could use to remedy past discrimination. The Act stipulated that programs receiving funding from the Department of Education could no longer discriminate against applicants on the basis of race, color, or national origin and that programs could use affirmative action to “overcome the effects of prior discrimination.” In 1965, President Lyndon Johnson signed Executive Order 11246, establishing the Office of Federal Contract Compliance Programs in the Department of Labor to review, monitor, and enforce affirmative action among federal government contractors. Since then, E.O. 11246 has been amended three times and has expanded the basis of discrimination to cover people of a certain age, religion, gender identity, sexual orientation, and those with disabilities. 

The Supreme Court has further defined the parameters of affirmative action policies for colleges and universities. In Regents of the University of California v. Bakke (1977), the Court ruled that racial quotas systems are unconstitutional, but held that race could be one of the criterion in admissions. In the numerous cases that have followed, the Court has upheld the Bakke decision, ensuring that an affirmative action program will be constitutional as long as race is not the only factor in an admissions decision. 

State bans on affirmative action in college admissions 

In their admissions practices, schools generally must adhere to the rulings of the Supreme Court, unless the school’s state intervenes by banning affirmative action programs. In 2006, Michigan passed an amendement to the state constitution, prohibiting the use of race- and sex-based prefernces in public education, employment, and contracting. The amendment faced a legal challenge from supporters of affirmative action. In its ruling on the case, Schuette v. Coalition to Defend Affirmative Action (2013), the Supreme Court allowed the amendment to hold, giving voters the ability to prohibit affirmative action policies in public universities. 

Though 63% of Americans support affirmative action in college admissions, eight states have bans in place. Since the bans were enacted in these states, research shows that there has been a long-term decline in the admission and enrollment of Black, Lantix, and Native American students in their public universities. Moreover, additional research has shown that, in states that bar affirmative action, there are fewer chances for interactions among students of different racial groups, and greater potential for students to struggle to find proper assistance during difficult times. Research has also found that alternatives to race-based affirmative action were limited in their ability to increase the share of Black, Latinx, and Native American students on college campuses compared to their share among high school graduates (the underrepresentation gap). A 2020 study found that at UC Berkeley, which initiated tuition coverage for students whose family income is less than $80,000, showed that the underrepresentation gap increased by 19.5 percentage-points in the 20 years after California banned affirmative action.  

What is next for affirmative action?

The Supreme Court recently agreed to hear two new challenges to affirmative action on college campuses, one centered on Harvard University and the other on the University of North Carolina. Although the Court has repeatedly upheld the Bakke decision in the past, the ideological balance on the bench has shifted to the right since the last challenge in 2016, leaving many affirmative action supporters concerned that race-conscious admissions might be deemed unconstitutional. A decision is not expected until 2023. 
The impending decisions could further restrict or eliminate entirely the use of race as a consideration in admissions decisions for schools that receive federal funding. If the Court strikes down the Bakke precedent, states and/or institutions could give preference to underrepresented applicants on a different basis, for example, prioritizing applicants who have experienced poverty or come from a community where few went to college. If schools change the basis on which they give admissions preference, states could respond by further restricting the criterion used for public university admissions through legislation.