Constitution Daily

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Affirmative action: Timeline of 10 major cases and orders

June 24, 2013 by NCC Staff


The current affirmative action case in front of the Supreme Court could change how students are chosen to be admitted to public universities across the country. Here’s a brief timeline of major court cases and government actions that may lead to another potential landmark decision.


1. Executive Order 8802 (1941)


Demonstration during a 2003 court decision.


On June 25, 1941, President Franklin D. Roosevelt outlawed discrimination based on race, color, creed, and national origin in the federal government and defense industries as the nation prepares for World War II.


2. Executive Order 10925 (1961)


The action taken by President John F. Kennedy required that government contractors “take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin.”


3. Executive Order 11246 (1965)


President Lyndon B. Johnson prohibited employment discrimination based on race, color, religion, and national origin by organizations receiving federal contracts and subcontracts. Provisions that ban employment discrimination based on gender were added shortly after.


4. The Philadelphia Order (1969)


The revised Philadelphia Plan was an initiative from President Richard M. Nixon under the powers established by Johnson’s Executive Order 11246. Assistant Labor Secretary Arthur Fletcher acted to “require that bidders on any federal or federally assisted construction contracts for projects in a five-county area around Philadelphia …  submit an acceptable affirmative action program which includes specific goals for the utilization of minority manpower in six skilled crafts.”


The plan was extended to other cities, and the Supreme Court decided to not hear an appeals case to overturn the plan.


5. Regents of the University of California v. Bakke (1978)


One of the true landmark cases in Supreme Court history, the Bakke decision found a way to uphold some parts of affirmative action while rejecting other parts. Allan Bakke, a white man, had twice applied for admission to the University of California Medical School at Davis. He was rejected both times, despite having the required academic achievements, while minority applicants were given preference.


The court decided the University of California had to admit Bakke, arguing the rigid use of racial quotas at the school violated the Equal Protection Clause of the 14th Amendment. But the court also found that race as part of admissions decisions was constitutional, as long as it was one of several admission criteria.


6.  Proposition 209 enacted in California (1997)


Voters agreed to amend the California Constitution to bar public institutions from discriminating on the basis of race, sex, or ethnicity. Proposition 209 has survived various legal challenges, and Michigan enacted a similar law in 2006.


7. Grutter v. Bollinger (2003)


In a 5-4 opinion delivered by Justice Sandra Day O'Connor, the court said that the Equal Protection Clause of the 14th Amendment didn’t prohibit the University of Michigan’s Law School from using race in admissions decisions. The court said that the law school’s detailed review of each applicant ensured that all factors were considered along with race and that the program didn’t harm non-minority applicants.


8. Parents v. Seattle and Meredith v. Jefferson (2007)


The court decided by a 5-4 margin that public school systems can’t seek to maintain integration through measures that take into account a student’s race, on constitutional grounds. The opinion from Chief Justice John Roberts invalidated moves in Seattle and Louisville that ensured racial diversity. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts said. Justice Anthony Kennedy didn’t join with Roberts and three other justices in parts of the opinion. “Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue,” Kennedy said.


9. Ricci v. DeStefano (2009)


White and Hispanic candidates for promotion in the New Haven, Connecticut, fire department sued after their examinations were discarded because not enough candidates from other racial groups passed their tests. The court ruled 5-4 in favor of the firefighters, and Justice Kennedy wrote the majority opinion. The court decided that plaintiffs had their rights violated under Title VII of the Civil Rights Act of 1964 and the 14th Amendment.


10. Fisher v. University of Texas (2013)


The court rules in a 7-1 vote against a lower court’s decision about the University of Texas’ affirmative action policy. With Justice Elena Kagan recused, the court sent the case back to a federal appeals court for review. The Obama administration had argued in favor of the University of Texas’ system. By sending the case of Fisher v. University of Texas back to a lower court, the Supreme Court didn’t make a sweeping ruling on the constitutionality of affirmative action.


Recent Stories On Affirmative Action


Constitution Check: Is “affirmative action” in constitutional trouble?


The long wait is over: The Supreme Court decides Fisher


Town Hall: McConnell and Rosen on Affirmative Action


Town Hall: Chemerinsky and Clegg on Affirmative Action


Updated: Our Supreme Court scorecard


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