In its tumultuous 48-year history, affirmative action has been both praised and pilloried as an answer to racial inequality. The term "affirmative action" was first introduced by President Kennedy in 1961 as a method of redressing discrimination that had persisted in spite of civil rights laws and constitutional guarantees. It was developed and enforced for the first time by President Johnson. "This is the next and more profound stage of the battle for civil rights," Johnson asserted. "We seek… not just equality as a right and a theory, but equality as a fact and as a result."
Focusing in particular on education and jobs, affirmative action policies required that active measures be taken to ensure that blacks and other minorities enjoyed the same opportunities for promotions, salary increases, career advancement, school admissions, scholarships, and financial aid that had been the nearly exclusive province of whites. From the outset, affirmative action was envisioned as a temporary remedy that would end once there was a "level playing field" for all Americans.
By the late '70s, however, flaws in the policy began to show up amid its good intentions. Reverse discrimination became an issue, epitomized by the famous Bakke case in 1978. Allan Bakke, a white male, had been rejected two years in a row by a medical school that had accepted less qualified minority applicants-the school had a separate admissions policy for minorities and reserved 16 out of 100 places for minority students. The Supreme Court outlawed inflexible quota systems in affirmative action programs, which in this case had unfairly discriminated against a white applicant. In the same ruling, however, the Court upheld the legality of affirmative action per se.
Fueled by "angry white men," a backlash against affirmative action began to mount. To conservatives, the system was a zero-sum game that opened the door for jobs, promotions, or education to minorities while it shut the door on whites. In a country that prized the values of self-reliance and pulling oneself up by one's bootstraps, conservatives resented the idea that some unqualified minorities were getting a free ride on the American system. "Preferential treatment" and "quotas" became expressions of contempt. Even more contentious was the accusation that some minorities enjoyed playing the role of professional victim. Why could some minorities who had also experienced terrible adversity and racism-Jews and Asians, in particular-manage to make the American way work for them without government handouts?
Liberals countered that "the land of opportunity" was a very different place for the European immigrants who landed on its shores than it was for those who arrived in the chains of slavery. As historian Roger Wilkins pointed out, "blacks have a 375-year history on this continent: 245 involving slavery, 100 involving legalized discrimination, and only 30 involving anything else."
Considering that Jim Crow laws and lynching existed well into the '60s, and that myriad subtler forms of racism in housing, employment, and education persisted well beyond the civil rights movement, conservatives impatient for blacks to "get over" the legacy of slavery needed to realize that slavery was just the beginning of racism in America. Liberals also pointed out that another popular conservative argument-that because of affirmative action, minorities were threatening the jobs of whites-belied the reality that white men were still the undisputed rulers of the roost when it came to salaries, positions, and prestige.
The debate about affirmative action has also grown more murky and difficult as the public has come to appreciate its complexity. Many liberals, for example, can understand the injustice of affirmative action in a case like Wygant (1986): black employees kept their jobs while white employees with seniority were laid off. And many conservatives would be hard pressed to come up with a better alternative to the imposition of a strict quota system in Paradise (1987), in which the defiantly racist Alabama Department of Public Safety refused to promote any black above entry level even after a full 12 years of court orders demanded they did.
The Supreme Court justices have been divided in their opinions in affirmative action cases, partially because of opposing political ideologies but also because the issue is simply so complex. The Court has approached most of the cases in a piecemeal fashion, focusing on narrow aspects of policy rather than grappling with the whole.
Even in Bakke-the closest thing to a landmark affirmative action case-the Court was split 5-4, and the judges' various opinions were far more nuanced than most glosses of the case indicate. Sandra Day O'Connor, often characterized as the pivotal judge in such cases because she straddles conservative and liberal views about affirmative action, has been described by University of Chicago law professor Cass Sunstein as "nervous about rules and abstractions going wrong. She's very alert to the need for the Court to depend on the details of each case."
But in a landmark 2003 case involving the University of Michigan's affirmative action policies-one of the most important rulings on the issue in twenty-five years-the Supreme Court decisively upheld the right of affirmative action in higher education. Two cases, first tried in federal courts in 2000 and 2001, were involved: the University of Michigan's undergraduate program (Gratz v. Bollinger) and its law school (Grutter v. Bollinger). The Supreme Court (5-4) upheld the University of Michigan Law School's policy, ruling that race can be one of many factors considered by colleges when selecting their students because it furthers "a compelling interest in obtaining the educational benefits that flow from a diverse student body." The Supreme Court, however, ruled (6-3) that the more formulaic approach of the University of Michigan's undergraduate admissions program, which uses a point system that rate students and awards additional points to minorities, had to be modified. The undergraduate program, unlike the law school's, did not provide the "individualized consideration" of applicants deemed necessary in previous Supreme Court decisions on affirmative action.
In the Michigan cases, the Supreme Court ruled that although affirmative action was no longer justified as a way of redressing past oppression and injustice, it promoted a "compelling state interest" in diversity at all levels of society. A record number of "friend-of-court" briefs were filed in support of Michigan's affirmative action case by hundreds of organizations representing academia, business, labor unions, and the military, arguing the benefits of broad racial representation. As Sandra Day O'Connor wrote for the majority, "In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity."