A mere 55 years since Dr. Martin Luther King Jr.’s famous “I Have a Dream” speech, the outlook of equal treatment in schools and the workplace continues to ebb and flow according to societal, cultural and political trends. While great strides have been made since 1963, certain sects of society have yet to realize unfettered, truly equal access to college admissions, promotions, or even a job in the first place.

Affirmative action, considered a dirty word by some, is consistently challenged in federal courts as being affirmatively unfair for those not chosen – all while issues like the gender pay gap and paid parental leave continue to befuddle lawmakers and employers alike. Rest assured that so long as corporations and governments need educated workers and laborers, the strive for equality will continue.

Affirmative action so far

 Affirmative action refers to the notion that not only employers but universities and quasi-governmental entities must embrace and advance certain groups considered historically discriminated against in the selection process – particularly focusing on racial and gender inequality. Prior to this notion, minorities and women were routinely and unabashedly excluded from jobs and admissions for which they would have otherwise been qualified in every other way. Beginning in the 1940’s the federal government began to take note and started issuing executive orders to require greater diversity in the federal employment and contractual landscape.

The Civil Rights Act of 1964 further embraced the notion, initially prohibiting racial discrimination by mid- and large-sized employers. Colleges and universities soon followed suit, ensuring a guaranteed number of spots to minorities, women and traditionally underserved sects of the population. Over the next several decades, the concept continued as a commonplace answer to generations of discrimination against minorities; and seemed to be a workable answer to help level the playing fields of occupation and academics.

Challenges

As the old adage goes, no good deed goes unpunished and this particular pathway to equality is no exception. Quickly becoming a hot-button political issue, affirmative action opponents took issue with the so-called “reverse racism” that was apparently occurring, and lawsuits began to emerge as early as the 1970’s – and continue to this day.

A case known as Regents of the University of California v. Bakke stands out as one of the first challenges to affirmative action and involved a white male applicant to medical school experiencing two simultaneous rejections despite possessing the requisite qualifications. The Supreme Court held that although using race as a deciding factor is, for the time being, a constitutional act — it cannot be the only factor admissions teams consider; and, if it is, it will not pass muster under the Equal Protection Clause.

Other challenges throughout the years have included challenges to the University of Michigan’s use of race in its admissions process (upheld), use of race in assigning students to their school district in order to promote diversity (struck down), and protocol within a local fire department that allowed for the discard of all applicants within a certain racial category if “not enough” applicants sought an employment promotion in that category (confusing, yes; constitutional, no).

Where are we headed?

 While equality in schools and the workplace seems like a common-sense goal, affirmative action continues to face legal challenges – revealing that the answer may not be as simple as it seems. In 2018, a trial wrapped up in a pivotal affirmative action lawsuit against Harvard University filed by several Asian-American students claiming admissions discrimination. While the trial concluded in October, it remains to be seen what the final result will be – and whether the Supreme Court will ultimately review the decision.

Legally speaking, affirmative action and underlying equality issues have been at the forefront for nearly 80 years, and the battle continues to rage on. Emerging issues continue to enlighten courts and lawmakers alike, including equality for LGBTQ groups, differently-abled Americans, and those facing marginalization based on citizenship status. Courts often lag behind in deciding such matters, and state and federal lawmakers are better positioned to make quick changes in response to society’s needs – so long as all can agree on the best pathways to advance equality goals envisioned so long ago.

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