Academic journal article Southern Law Journal

Affirmative Action: A Schizophrenic History

Academic journal article Southern Law Journal

Affirmative Action: A Schizophrenic History

Article excerpt

I. The Background of Affirmative Action

Affirmative Action is usually, but incorrectly, traced to Executive Order 11246 signed into law by President Lyndon Johnson on September 24, 1965.1 As originally phrased, Executive Order 11246 forbade employment decisions on the basis of race, color, religion and national origin and empowered the Secretary of Labor to issues rules and regulations necessary and appropriate to achieve its purpose. The order also imposed penalties for noncompliance and established an enforcement agency in the Department of Labor, the Office of Federal Contract Compliance Programs. On October 13, 1967, Executive Order 11246 was amended to include gender by way of Executive Order 11375. In 1969, Executive Order 11246 was again amended and broadened, this time by President Nixon's Executive Order 11478.2

However, prior to Executive Order 11246 there was Executive Order 10925, issued by President Kennedy in 1961. Among other statements, Executive Order 10925 included the following: SEC. 203. The policy expressed in Executive Order No. 10590 of January 18, 1955 (20F.R. 409) with respect to the exclusion and prohibition of discrimination against any employee or applicant for employment in the Federal Government because of race, color, religion, or national origin is hereby reaffirmed. More importantly, and what may be the first reference to "affirmative action," is found in the following:

SECTION 301. Except in contracts exempted in accordance with section 303 of this order, all government contracting agencies shall include in every government contract hereafter entered into the following provisions:

In connection with the performance of work under this contract, the contractor agrees as follows: (1) The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will 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. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.3

Executive Order 11246 even refers to the prior Executive Orders and states, "Sec. 403. (a) Executive Orders Nos. 10590 (January 19, 1955), 10722 (August 5, 1957), 10925 (March 6, 1961), 11114 (June 22, 1963), and 11162 (July 28, 1964), are hereby superseded and the President's Committee on Equal Employment Opportunity established by Executive Order No. 10925 is hereby abolished. All records and property in the custody of the Committee shall be transferred to the Civil Service Commission and the Secretary of Labor, as appropriate."4

The phrase "affirmative action," as used in Executive Order No. 10925, is not used in the same sense as the current phrase and simply addresses the subject of discrimination.5 Even before President Kennedy, executive orders addressed the issue of discrimination. President Kennedy's executive order was preceded by President Eisenhower's Executive Order 10479, signed in 1953, and that created the Committee on Government Contracts. President Eisenhower's executive order required businesses covered by its provisions to maintain documentation and provide such documentation upon request.6

In July 1948, President Harry S. Truman ordered the desegregation of the Armed Forces by Executive Order 9981.7 The order required that there be "equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin. …

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