Affirmative Law Evolution: Change Or Stay The Same?

Affirmative action is a set of procedures designed to eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future. The concept has existed in America since the 19th century, but it first appeared in its current form in President Kennedy's Executive Order 10925 in 1961. Since then, affirmative action has woven its way into the fabric of US society through nondiscrimination policies and initiatives aimed at establishing equal opportunity for women, people of color, and other minorities across schools and workplaces. However, affirmative action has also been a highly controversial topic, with critics arguing that it is unfair to give preferential treatment based on race or ethnicity. Despite the Supreme Court's recent ban on the use of race-based affirmative action in college admissions, the work to ensure educational opportunities for people of color and other marginalized groups continues. So, can affirmative law be changed?

Affirmative action in college admissions

Over the years, affirmative action in college admissions has been a controversial issue, with supporters and opponents presenting different perspectives. Supporters argue that it is necessary to counteract bias and prejudice against women and minorities, ensuring equal opportunities for all. They point to examples of conscious and unconscious biases, such as the finding that job-seekers with African American-sounding names may receive fewer callbacks, as evidence of the continued need for affirmative action. On the other hand, opponents of affirmative action argue that it can lead to reverse discrimination and the use of racial quotas, which was ruled unconstitutional in Regents of the University of California v. Bakke (1978).

In 2023, the United States Supreme Court made a significant ruling on affirmative action in college admissions. In the case of Students for Fair Admissions v. Harvard, the Court explicitly rejected race-based affirmative action in college admissions, stating that such programs lack focused and measurable objectives and involve racial stereotyping. This ruling has had a substantial impact on higher education institutions, particularly those with highly selective admissions processes, as they now need to implement race-neutral policies to achieve their diversity goals.

While the Supreme Court's decision outlawed affirmative action based on race, it did not eliminate the concept entirely. Colleges and universities can still promote diversity through alternative means. Some institutions have expanded their outreach methods and increased scholarships for students from low-income backgrounds. Additionally, a "holistic" application review process considers factors beyond academic ability, such as extracurricular activities and lived experiences. These changes aim to increase diversity while complying with the Court's ruling.

Despite the Supreme Court's ruling, the debate around affirmative action in college admissions continues. Some universities, such as Yale, Princeton, and Duke, have been accused of ignoring the ruling and continuing to use race as a factor in their admissions processes. These accusations have sparked further discussions and potential litigation to ensure compliance with the law. While the future of affirmative action remains uncertain, it is clear that educational institutions are navigating a complex landscape as they strive to create diverse and inclusive environments.

Affirmative action in employment

Since 1965, government contractors have been required to document their affirmative action programmes through compliance reports, which include information on practices, policies, programmes, and employment statistics. The Civil Rights Act of 1964, and specifically Title VII, also address equal employment opportunities. Executive Order 11246, issued by President Lyndon Johnson, requires government employers to hire without regard to race, religion, and national origin. This order has been amended over the years to include gender (1967), people with disabilities (subsequent years), and sexual orientation and gender identity (2014).

In 2023, the Supreme Court issued a landmark ruling banning race-based admissions policies at colleges and universities. This ruling does not change the landscape for private employers, where the use of affirmative action is already extremely limited. However, employers should anticipate increased scrutiny and challenges to their workplace affirmative action plans and diversity initiatives.

To comply with Title VII, employers should ensure that their affirmative action plans are remedial and narrowly tailored to cure documented instances of discrimination. Race or gender should not be used as a "plus factor" to improve workplace diversity. Instead, employers should focus on expanding opportunities for underrepresented groups without negatively impacting the hiring and advancement opportunities for other groups.

Affirmative action in lending and housing

Affirmative action has been a part of American society for over half a century, aiming to establish equal opportunities for women, people of colour, and other minorities. While affirmative action has been used in educational institutions and employment, it has also been applied in lending and housing.

In lending, affirmative action has been implemented to encourage financial institutions to target their lending to minority communities. The Consumer Financial Protection Bureau (CFPB) has penalised lenders who do not explicitly consider race in their marketing and lending decisions. For example, the CFPB alleged that Townstone Financial "made no effort to market directly to African-Americans" and did not target any marketing toward African-Americans. As a result, the CFPB and the Department of Justice (DOJ) imposed race-based action, requiring lenders to fund loan subsidies or discounts offered exclusively to consumers based on race or ethnicity.

However, the focus on racial quotas in lending has faced scrutiny, with concerns that it may violate the Equal Protection Clause and be constitutionally problematic. Critics argue that race-conscious lending may not benefit those it intends to help and could lead to delinquent borrowers losing their homes, posing risks to entire communities. The 2008 financial crisis and its widespread mortgage foreclosures disproportionately impacted Black Americans, with approximately 240,000 Black homeowners losing their houses.

In housing, affirmative action has been supported by the Biden administration, with the Federal Housing Finance Agency urging Fannie Mae and Freddie Mac to promote sustainable homeownership and rental housing opportunities for underserved Black and Latino communities. The Federal Reserve governor responsible for bank regulation has stressed that regulated banks must address systemic inequities in access to credit and financial services for minority individuals and communities.

While affirmative action in lending and housing aims to address historical discrimination and promote equal opportunities, it is essential to consider the potential risks and ensure that efforts to increase diversity do not inadvertently lead to unconstitutional racial balancing or quota systems.

Affirmative action in government contracting

Affirmative action is a set of procedures designed to eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future. In 1961, President Kennedy issued an executive order mandating 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, colour, or national origin".

Since 1965, government contractors have been required to document their affirmative action programs through compliance reports, which include information on practices, policies, programs, and employment statistics. The Office of Federal Contract Compliance Programs (OFCCP) regulates nearly all aspects of employment practices for federal contractors and subcontractors. The OFCCP has 48 District or Area offices across the country, under the direction of six Regional offices. The OFCCP also has the authority to publish rules and regulations pertaining to affirmative action and federal contractors, such as the final rule published in 2020 to increase access to care for uniformed personnel under the TRICARE program.

Government contractors and subcontractors must comply with affirmative action laws in their agreements with federal agencies. These laws prohibit discrimination based on colour, race, sexual orientation, sex, national or ethnic origin, religion, disability, age, or status as a disabled or Vietnam Era veteran. Compliance with these laws is challenging, and contractors may require legal assistance to understand and implement affirmative action plans that match their company culture.

Affirmative action in primary and secondary education

Affirmative action is a set of procedures designed to eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future. In the United States, affirmative action consists of government-mandated, government-approved, and voluntary private programs that grant special consideration to groups historically excluded, specifically racial minorities and women. Affirmative action in primary and secondary education has been an important tool to enhance diversity and equal opportunity in schools.

The concept of affirmative action has existed in the United States since the 19th century, but it first appeared in its modern form in President John F. Kennedy's Executive Order 10925 in 1961. This order required government contractors to take affirmative action to ensure that applicants are employed and treated during employment without regard to their race, creed, colour, or national origin. Since then, affirmative action has evolved into a complex system of group preferences that have faced many legal challenges.

In the context of primary and secondary education, affirmative action refers to policies and initiatives aimed at establishing equal opportunities for students from underrepresented backgrounds, including racial minorities, women, and other minority groups. These policies are designed to address historical injustices and ongoing struggles faced by underrepresented groups, such as racial discrimination and socioeconomic disparities. Affirmative action in primary and secondary education can take various forms, including targeted recruitment programs, the use of holistic admissions criteria, and the implementation of anti-discrimination laws.

The Office of Civil Rights enforces several education anti-discrimination laws, including Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, colour, religion, or national origin. The Age Discrimination Act of 1975, which addresses age-based discrimination, and Title IX of the Educational Amendments of 1972, which focuses on gender discrimination, are also enforced by the Office of Civil Rights. These laws apply to both primary and secondary educational institutions, ensuring that students from diverse backgrounds have equal access to educational opportunities.

While affirmative action in primary and secondary education has been a controversial topic, it is important to recognize its impact on enhancing diversity and equal opportunity. The Supreme Court's decision in Allen v. Milligan reaffirmed the importance of diversity in K-12 education and the need for neutral policies that ensure equal opportunities for all races. Despite the complexities and legal challenges surrounding affirmative action, it continues to play a crucial role in addressing discrimination and promoting inclusivity in primary and secondary education.

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