Guest Essayist: Gennie Westbrook

The 1950s and 1960s saw significant gains for civil rights of African Americans. In the 1950s, the U.S. Supreme Court ordered public schools desegregated and the non-violent civil rights movement led by Dr. Martin Luther King, Jr. kept the continuing disadvantages faced by African Americans in the public eye. In the 1960s, federal laws protecting civil rights, voting rights, and housing rights began to chip away at the injustices resulting from racial prejudice and discrimination. In the 1970s the movement continued, focusing on additional perplexing questions related to the constitutional principle of equality in employment and college admissions.

Griggs v. Duke Power Co. (1971)

Prior to the 1964 Civil Rights Act, Duke Power Company in Draper, North Carolina, had long maintained segregated hiring policies for whites and blacks. Blacks were hired for menial jobs and paid much less than whites. Job promotion was available only within the segregated divisions.  Title VII of the 1964 Civil Rights Act, which prohibited racial discrimination in hiring, took effect on July 2, 1965, and on that date, Duke Power implemented a new policy for hiring, promotion, and transfers. Applicants for jobs in all but the lowest level classifications were required to have high school diplomas and to make acceptable scores on two different aptitude tests.

Willie Griggs, and fourteen other African American employees of Duke Power Company, applied for promotions within the company. Griggs had not graduated from high school and did not pass the tests for promotion. The company offered him the opportunity to complete his high school work or to retake the tests, but he believed the company’s policy violated Title VII of the Civil Rights Act of 1964 because it discriminated against blacks. In 1960s North Carolina it was unlikely that blacks would have completed high school. Further, the Court reviewed evidence that employees who had neither taken the tests nor completed high school demonstrated satisfactory work performance.

The Supreme Court ruled against Duke Power, holding that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” The Court focused not only on discriminatory intent, but also on disparate impact of the law’s effect. The Court unanimously held that when an employment practice has the effect of excluding African-Americans or other racial minorities, the employer must show that the practice fulfills a genuine business need and is a valid measure of an applicant’s aptitude for the job. Duke Power could not meet this standard. The 1991 Civil Rights Act codified the “disparate impact” rule first implemented in Griggs.

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

Administrative agencies enforcing Title VII and related executive orders developed policies that gave preferential treatment in hiring and college admissions to members of racial minorities. Rather than applying the traditional liberal principle that people are entitled to have government protect their rights equally without regard to race, these affirmative action programs sought to remedy past discrimination by achieving a given racial balance. Allan Bakke, who sought admission to the University of California Medical School at Davis, charged that the university’s affirmative action program discriminated against whites. The medical school used a “set-aside” program in which sixteen of 100 positions in the incoming class were designated for African American, Asian, Latino, and Native American students. Admission standards were lower for students seeking entry in this special program, and Bakke had higher scores on the entry criteria than any of the sixteen students admitted under the special program.

In Regents of the University of California v. Bakke (1978), the question for the Court was whether UC-Davis’s special admissions program violated Title VI of the Civil Rights Act of 1964, which forbade racial or ethnic preferences in programs supported by federal funds, as well as whether the program violated equal protection of the law under the Fourteenth Amendment.

The Court ruled in a 5-4 decision that a university may consider race among many other factors in admissions decisions, but a racial quota such as that used by UC-Davis was unconstitutional. Justice Lewis Powell wrote the majority’s decision that the university’s interest in promoting a diverse student body would permit the consideration of race, but four justices asserted that any racial considerations violated the 1964 Civil Rights Act. The opinions did not offer much guidance for universities in crafting their affirmative action plans, other than the ruling that quotas would not pass constitutional muster. The same objection, that affirmative action plans violated equal protection, was the foundation of related cases involving the University of Michigan in 2003: Grutter v. Bollinger, and Gratz v. Bollinger. In those cases the Court once again gave a stamp of limited approval to affirmative action in university admissions, as long as the plan is narrowly tailored and does not rely on a mathematical formula.

United Steelworkers of America v. Weber (1979)

In USWA v. Weber, the high Court considered for the first time the use of affirmative action in employment. In an effort to make job opportunities more equitable, Kaiser Aluminum Company and United Steelworkers of America entered into a collective bargaining agreement in 1974 to implement an affirmative action plan. Prior to that year, the labor union had denied blacks training opportunities to enter the skilled trades. In the new agreement, Kaiser and the union drew up a new plan for two seniority lists of applicants for training and advancement, one for blacks and one for whites. Fifty percent of new trainees would be selected from each list. This pattern would be in place in each of Kaiser’s plants until the proportion of African Americans in skilled jobs approximated the racial composition of the local community.

Brian Weber, a white unskilled Kaiser employee in Gramercy, Louisiana, was passed over for admission to the training program in favor of several African Americans who had less seniority than he did. He charged that the selection system violated Title VII of the Civil Rights Act of 1964, which reads in part, “It shall be an unlawful employment practice for any employer … to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.”

In a 5-2 decision, the Court decided in favor of the affirmative action plan. Opinions in this case deftly summarize the controversy surrounding affirmative action. Justice William Brennan wrote for the majority, explaining that it was important to look beyond the explicit plain language of the law and consider its intent, which was, according to their review of the legislative history, to guarantee rights to minorities. The Kaiser/labor union plan was a voluntary agreement among private parties to implement a temporary process for eliminating a persistent racial imbalance. Congress “did not intend to prohibit the private sector from taking effective steps” to achieve the goals of Title VII.

Justice William Rehnquist wrote a sharp dissent, in which Chief Justice Warren Burger joined. He wrote, “Taken in its normal meaning, and as understood by all Members of Congress who spoke to the issue during the legislative debates … [Title VII] prohibits a covered employer from considering race when making an employment decision, whether the race be black or white… Congress outlawed all racial discrimination, recognizing that no discrimination based on race is benign, that no action disadvantaging a person because of his color is affirmative.”

Fullilove v. Klutznick (1980)

In the Public Works Employment Act of 1977, Congress provided four billion dollars in federal grants for local public works projects, along with a stipulation that at least ten percent of the federal money be used to purchase goods or services from Minority Business Enterprises (MBEs). The law defined MBEs as businesses which are “owned and controlled by one or more persons who have been deprived of the opportunity to develop and maintain a competitive position in the economy because of social or economic disadvantage.” H. Earl Fullilove led a group of contractors, the New York Building and Construction Industry Board of Urban Affairs, who filed suit against the Secretary of Commerce, Philip M. Klutznick to challenge this law. The contractors believed that the MBE “set aside” provision in the law violated the Equal Protection Clause of the Fourteenth Amendment.

Six justices voted to uphold the law, though their reasoning differed widely, and the case resulted in five different written opinions. Three of the justices agreed with Chief Justice Warren Burger’s opinion that “Congress need not act in a wholly colorblind fashion…[the set-aside provision] was a reasonably necessary means of furthering the compelling governmental interest in redressing the discrimination that affects minority contractors.” It was not an inflexible quota as had been rejected by the majority in the Bakke decision, and, if Congress had desired to do so, it could have used its power under the Commerce Clause (Article 1, Section 8, Clause 3) to regulate the way the federal funds were spent. One result of the Court’s decision was that similar affirmative action laws were enacted at all levels of government, though some were later struck down.

In the Fullilove decision, Justice Potter Stewart dissented, and Justice William Rehnquist joined him in reasoning that the MBE set-asides represented an unconstitutional return to a rule of preference like that of Plessy v. Ferguson, “based on lineage…a government of privileges based on birth.” Government endorsement through law of privilege based on race, regardless of its good intentions, merely perpetuated a harmful focus on race. Any law that gives preference to some citizens on the basis of color or ancestry is inconsistent with the Constitution’s standard of strict race neutrality.

The legality of set-aside plans, like most aspects of affirmative action, continued to be controversial. In a series of cases including Adarand Constructors v. Pena (1995), the Court curtailed the set-aside programs, ruling that such policies are subject to strict scrutiny. This means that for any law challenged as disadvantaging a suspect classification (pinpointing a specific race, national origin, or religion) the government must pass a three-point test. The law must further a compelling government interest, must be narrowly tailored to meet that interest, and must use the least restrictive means to carry out that interest.

Into the twenty-first century, the Supreme Court continues to adjudicate the highly controversial questions related to affirmative action. On one hand, proponents argue that it is still necessary to provide a remedy for historic discrimination because African Americans still do not have equal opportunity. On the other hand, opponents argue that achieving the goal of a color-blind society and system of law is contradicted by remedying discrimination through additional racial discrimination.  The Supreme Court has tried to thread a fine line between those opposing beliefs.

Griggs v. Duke Power Co. (1971) Supreme Court decision:

California v. Bakke (1978) Supreme Court decision:

USWA v. Weber (1979) Supreme Court decision:

Fullilove v. Klutznick (1980) Supreme Court decision:

Gennie Westbrook, formerly a classroom teacher, is a Madison Fellow (2000 TX), and senior advisor for education at The Bill of Rights Institute.

Sources Consulted

Herman Belz. “Affirmative Action,” The Oxford Companion to the Supreme Court, Kermit Hall, ed. 1992

Fullilove v. Klutznick (1980)

Fullilove v. Kreps (1977)

Griggs v. Duke Power Co. (1971)

Griggs v. Duke Power Co. (1971) North Carolina History Project

Griggs v. Duke Power Co. (1971)

Herbert Hill. Griggs v. Duke Power Co. (1971) The Oxford Companion to the Supreme Court, Kermit Hall, ed. 1992

James E. Jones, Jr. “United Steelworkers of America v. Weber” (1979) The Oxford Companion to the Supreme Court, Kermit Hall, ed. 1992

Earl M. Maltz. “Race and Racism,” The Oxford Companion to the Supreme Court, Kermit Hall, ed. 1992

Robert J. Rabin. “Employment Discrimination,” The Oxford Companion to the Supreme Court, Kermit Hall, ed. 1992

Harold J. Spaeth. “Strict Scrutiny,” The Oxford Companion to the Supreme Court, Kermit Hall, ed. 1992

Backgrounder on the court judgment of the Regents of the University of California v. Bakke Case

Regents of the University of California v. Bakke (1978) Toni Konkoly. Supreme Court History; Law, Power, and Personality: Famous Dissents U.S. Steel Workers of America v. Weber (1979)

The Adarand Case: Affirmative Action and Equal Protection

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Extremely interesting article.

    I am sympathetic to arguments that affirmative steps must be taken to reverse past discrimination and give those discriminated against a chance to participate. Yet my sympathies are just that, sentimental; not logical or just.

    At my job as a Purchasing Director I’ve been asked whether we have a program designed to support or direct buying to minority own companies. My answer is always, no. We do not ascertain whether the supplier is minority owned. what kind of minority, etc. We want our sourcing decisions to be based solely on who can give us the best total value comprised of price, quality, security of supply, reliability, health, safety, and environmental stewardship, etc. The result is we buy from large and small companies; US and foreign, own or managed by women and even some white men. :0

    In truth, I fear that having knowledge of minority status would result in accidental discrimination, where our buyers exercise personal biases and prejudices that are subconscious.

    Discrimination is wrong. However, social tinkering and experimentation [as an College educated engineer I reject applying my profession to unproven grope and hope ideologies] has not produced the results the conjurors envisioned. Star Parker makes a good case that they produced the opposite. Instead of lifting people up it has dragged our society and more specifically the groups it was suppose to help down.



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