The Supreme Court and Affirmative Action: Historical Notes and the Future from a National Perspective

By Weber, Jerome C.; Pope, Myron L. et al. | College and University, Winter 2005 | Go to article overview

The Supreme Court and Affirmative Action: Historical Notes and the Future from a National Perspective


Weber, Jerome C., Pope, Myron L., Simpson, Michael W., College and University


The United States Supreme Court has had a significant role in the exploration and definition of affirmative action in this country. No more so than in the recent decisions related to the University of Michigan admissions cases. This article will explore the historical role of the U.S. Supreme Court and the decisions that this entity has made in affirmative action-related cases. Additionally, we will provide some recommendations that professionals in higher education should consider in attempting to respect the recent decisions of the Court.

In the more than 2oo-year history of the United States, no issue has been more contentious, more emotional, more divisive, and more resistant to resolution than the issue of race. Indeed, this nation fought a Civil War based on the question of whether persons could be held as property. In the more recent past, we have seen continuing evidence that race continues to occupy a place in the center stage of American life, affecting our politics, our economics, our education, and the emotions of our personal and national lives. Whether the issue is fraternity black-face parties, or the continued use of the Confederate flag, it is obvious to even the most casual observer that American society has not evolved to the point where we are, in any real sense, "color-blind." While there has certainly been progress in this area, in both legal and personal terms, it is the authors' contention that we are still, unfortunately, far from having fully addressed the issues associated with race, much less resolving them.

Beginning with the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments, which respectively eliminated slavery, guaranteed equal protection under the law, and forbade racial discrimination in voting access, the federal government has attempted to take steps designed to address the many legal issues associated with this most intractable of problems. In addition, many other governmental agenciesat state, county, and municipal levels-have acted to address some of the more egregious and obvious inequities of society associated with race. Included in these efforts was the Civil Rights Act of 1964 (Title VI, 1964), which was implemented to eliminate discrimination on the grounds of race, color, or national origin in connection with programs and activities receiving federal financial assistance. Many refer to these efforts as affirmative action. However, as an actual policy, affirmative action originated through President Lyndon Johnson's 1965 Executive Order 11246, which required that federal contractors "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" (as referenced in Sykes, n.d.).

In education, as in other aspects of society, affirmative action was initiated as a policy solution designed to address these aforementioned inequities. Initially seen by many as a potentially effective solution, and with positive emotional resonance in both the majority and minority communities, affirmative action has come to be seen by some as having outlived its mandate, and as having created a sense of entitlement that was never intended in the initiating legislation. To some observers, affirmative action has come to symbolize an unwarranted sense of victimhood that has created continued dependence for those it was originally designed to help. To others, it has become an excuse to explain a lack of achievement by minority persons who have been admitted to the highly-selective institution of their choice. Finally, affirmative action in some eyes has come to cast a shadow over the achievements of minority persons who are seen as having been given an unfair advantage in any of a wide range of competitive circumstances.

Affirmative action in higher education has been emotionally-charged since the U.S. Supreme Court's decision in the Bakke case (Regents of the University of California v. …

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