Affirmative Action

Affirmative action is the practice of giving preference in hiring, university admission, or public contracting to members of groups identified as historically disadvantaged. The term entered American law through Executive Order 10925, signed by John F. Kennedy on 6 March 1961, which required federal contractors to take affirmative action to ensure applicants were treated without regard to race. Within a decade the phrase had migrated from a requirement of colour-blind procedure to a mandate for colour-conscious outcomes.¹

Conservatives oppose the practice on the ground that it contradicts the principle it was created to serve. A rule forbidding discrimination cannot be enforced by discriminating. The objection is not that the underlying injuries were imaginary — American slavery, segregation, and the Indian residential schools in Canada were real and documented — but that a remedy assigning benefits and burdens by ancestry entrenches the category it claims to dissolve.

Key Takeaways

• Executive Order 10925 (1961) used the phrase to mean non-discrimination, not preference.
• Regents of the University of California v. Bakke (1978) struck down quotas while permitting race as one factor among several.
• California voters passed Proposition 209 in 1996 by 54.6 to 45.4, banning racial preferences in state institutions, and rejected repeal (Proposition 16) by 57.2 to 42.8 in 2020.
• Students for Fair Admissions v. Harvard (2023) ended race-conscious admissions at American universities.
• India operates the world’s largest reservation system, with quotas rooted in the 1950 Constitution.

History And Context

The American sequence began with procedural anti-discrimination. Kennedy’s 1961 order and Lyndon Johnson’s Executive Order 11246 in September 1965 obliged federal contractors not to discriminate. Johnson’s Howard University address in June 1965 supplied the argument for going further: a man freed after years in chains cannot be brought to the starting line and told to compete on equal terms.¹

The shift to numerical targets came under Richard Nixon. The revised Philadelphia Plan of 1969 required construction contractors in Philadelphia to set goals and timetables for minority hiring — the first federal programme with quantitative racial targets, adopted by a Republican administration in part to divide organised labour from civil rights organisations.

Litigation followed. Griggs v. Duke Power (1971) held that employment practices with disparate racial impact required business justification, which pushed employers toward proportional hiring as a defence. Bakke (1978) produced no majority opinion; Justice Powell’s controlling judgment rejected quotas but allowed race as a factor serving educational diversity — a rationale substituted for the reparative one the universities had argued.²

Grutter v. Bollinger (2003) upheld the Michigan law school’s approach and predicted that preferences would be unnecessary within twenty-five years. Two decades later, Students for Fair Admissions v. Harvard and University of North Carolina (2023) struck down both programmes – the North Carolina scheme under the Equal Protection Clause and Harvard’s under Title VI of the Civil Rights Act – and pointed to evidence that Harvard’s personal-rating scores disadvantaged Asian American applicants.³

Outside the United States the pattern varies. India’s reservations for Scheduled Castes, Scheduled Tribes, and Other Backward Classes reserve close to half of public posts and university places. Malaysia’s bumiputera policies, in force since the New Economic Policy of 1971, favour the ethnic majority rather than a minority. South Africa’s Employment Equity Act 1998 applies to the demographic majority as well.

The Conservative Position

The first conservative objection is to the principle. The Fourteenth Amendment and the Civil Rights Act of 1964 were written in categorical terms: no person shall be denied equal protection, and no employer shall discriminate on the basis of race. Hubert Humphrey promised during the 1964 Senate debate that the Act would not require racial balance. Conservatives argue that a statute cannot be construed to compel what it was enacted to forbid.

The second objection concerns mismatch. Richard Sander and Stuart Taylor’s analysis of law school data argues that students admitted with credentials well below their institution’s median cluster in the bottom of the class, switch out of demanding subjects, and fail the bar at higher rates than comparable students at less selective schools would have.⁴ The claim is contested on methodology, but if it holds, preferences harm the intended beneficiaries.

Third, conservatives point to the stigma the policy generates. Thomas Sowell, Clarence Thomas, and Shelby Steele have each argued that group preferences attach a permanent question mark to the achievements of every member of the preferred group, including those who needed no preference. Thomas has written that his Yale law degree carried a discount he did not earn and could not remove.

Fourth, the beneficiaries are frequently the already advantaged. Studies of American selective universities have found that a large share of Black students admitted are children of immigrants or of professional families rather than descendants of the enslaved population the policy invokes. Class-based preferences, conservatives argue, would reach the intended population more accurately and without a racial classification.

Fifth, conservatives note that temporary programmes become permanent constituencies. The ten-year sunset written into Article 334 of the Indian Constitution covered reserved legislative seats; it has been renewed by amendment every decade since 1950, while the separate quotas in education and public employment were never time-limited at all and have expanded to new categories.

Differing Positions

Defenders answer that formal neutrality entrenches accumulated disadvantage. Wealth gaps compound across generations: American median white household wealth remains several times the Black median, and property exclusion under redlining and the racially restrictive covenants upheld until 1948 is the proximate cause. A rule that treats a family shut out of the housing market for three generations identically to one that was not is neutral in form and unequal in effect.

A second argument holds that the mismatch thesis fails on the evidence. Studies by William Bowen and Derek Bok found that beneficiaries of preferences graduated at high rates and reported higher career satisfaction, and subsequent replications of Sander’s specification have produced weaker results than the original.

A third defence concerns institutional composition rather than individual desert. Medical schools argue that physicians practise disproportionately in communities resembling their own, so that admissions decisions affect health outcomes for underserved populations. On this view the policy serves a public interest that individual merit rankings do not capture.

A fourth position accepts the conservative critique of racial classification but rejects the conclusion, favouring a shift to socioeconomic criteria rather than abandonment of preference altogether.

References

1. Terry H. Anderson, The Pursuit of Fairness: A History of Affirmative Action (Oxford University Press, 2004).
2. Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
3. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023).
4. Richard Sander and Stuart Taylor Jr., Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It (Basic Books, 2012).