Avoiding Selected Affirmative
The constitutional validity of affirmative action programs was one of the most contentious and important social and political issues of the late twentieth century. In the 1960s and 1970s, Presidents Kennedy, Johnson, and Nixon instituted affirmative action programs at the federal level to further desegregation and promote equality, first for racial and religious minorities and later for women. Other programs ensued, with public and private entities attempting to equalize hiring and admission opportunities for historically disadvantaged groups by taking race and gender into account as positive factors. Today, affirmative action includes a large range of measures, from making job postings or other informa- tion widely accessible to tutorial services to scholarship assistance to granting a preference in admissions or hiring for a minority or female. From the 1970s through 1990s, litigants filed constitutional challenges to affirmative action programs, styled as “reverse discrimination” claims under the Equal Protection Clause. These challenges were grounded in the idea that it is more equitable for the government to make decisions based on individual merit rather than categorically by race or gender about scarce resources like government jobs and contracts or admission to public institutions. Defenders of affirmative action argue that such programs are needed to redress current and past discrimination and thereby ensure fairness and promote diversity.
This disagreement over the constitutionality of affirmative action is central to the legal debate about whether the Constitution should be “color-blind” or “color conscious.”1 Supporters of a color-blind reading say that race-based affirmative action is racist and divisive, stigmatizing minorities and entrenching invidious stereotypes, thereby perpetuating racism. Defenders argue that affirmative action is distinct from racism because it benefits, rather than harms, racial minorities. They assert that