Informed Citizens. Accountable Power.

Central Question: 

Is Affirmative Action in line with constitutional values?

Key Terminology: 

Affirmative Action:  Affirmative action policies are those in which an institution or organization actively engages in efforts to improve opportunities for historically excluded groups in American society to counter implicit bias that leads to reduced representation of members of these groups. Such programs are now mainly restricted to institutions of higher education. (Source) (Defined by the Supreme Court in Regents of the University of California v. Bakke 438 U.S. 265 (1978))

Judicial Review: The ability of a court to review, and potentially overturn, legislation or Executive actions that are allegedly in violation of the US Constitution. 

Legislative Power: Power vested in the bicameral Congress, divided between the House, which provides proportional representation that changes every two years and the Senate that is made up of two Senators from each state elected for six years, with elections staggered so that one-third of the seats are up for election every two years.

Executive Order: A rule or order issued by the president to an executive branch of the government and having the force of law. (Source)

Strict Scrutiny: Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. Strict scrutiny is often used by courts when a plaintiff sues the government for discrimination. To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest. Strict scrutiny is the highest standard of review which a court will use to evaluate the constitutionality of governmental discrimination. The other two standards are intermediate scrutiny and rational basis review. (Source)

Some Key Legal Authorities: 

Executive Orders (EOs):

EO No. 10925 (1961): Directed government contractors to 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” and established the President’s Committee on Equal Employment Opportunity, now known as the Equal Employment Opportunity Commission (EEOC).

EO No. 11246 (1965): Required government contractors to use affirmative action policies in their hiring to increase the number of minority employees.

EO No. 11375 (1967): Banned discrimination on the basis of sex in hiring and employment in both the United States federal workforce and on the part of government contractors.

EO No. 11625 (1971): Prescribing additional arrangements for developing and coordinating a national program for minority business enterprise.

EO No. 12138 (1979): Creating a National Women’s Business Enterprise Policy and prescribing arrangements for developing, coordinating and implementing a national program for women’s business enterprise.

Legislative:

• Civil Rights Act (1964)
  • 42 U.S. Code Chp. 21 – CIVIL RIGHTS

Case Law:

• Brown v. Board of Education of Topeka, 347 U.S. 483 (1954
• Brown v. Board of Education of Topeka, 349 U.S. 294 (1955) [Brown II]
• Griggs v. Duke Power Company 401 U.S. 424 (1971)
• Regents of the University of California v. Bakke 438 U.S. 265 (1978)
• Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995)
• Gratz v. Bollinger, 539 U.S. 244 (2003
• Grutter v. Bollinger, 539 U.S. 306 (2003)
• Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007),
• Fisher v. University of Texas, 570 U.S. ___ (2013) [Fisher I]
• Schuette v. Coalition to Defend Affirmative Action, 572 U.S. 291 (2014)
• Fisher v. University of Texas, 579 U.S. ___ (2016) [Fisher II]

Relevant State Laws/Actions (Source)

• Oklahoma – State Question 759 (2012)
• New Hampshire – House Bill 0623 (2011)
• Arizona – Proposition 107 (2010)
• Nebraska – Initiative 424 (2008) 
• Washington – Initiative 200 (1998); 
• California – Proposition 209 (1996) 
• California – “Four Percent Plan” (1999)
• Florida – Executive Order 99-281, “One Florida” (1999) 
• Texas – HB 588, “10 Percent Plan” (1997) 
• California – SP-1 (1995) 
• Michigan – Proposal 2 (2006) 

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