Leadership Conference on Civil Rights
1629 K Street, NW
10 th Floor
Washington, D.C. 20006
Phone: 202-466-3311
Fax: 202-466-3435
www.civilrights.org
Policy Brief: Creating an Agenda to Provide for Equal Opportunity in the States
Affirmative Action: Statement of Issue
President Kennedy issued Executive Order 10925 in 1961, becoming among the first to use the term
“affirmative action.” President Nixon was the first executive to adopt affirmative action goals as part of federal
contracting policy. These actions came out of the recognition that women and minorities were not being given
equal opportunities in employment and contracting. Affirmative action is an important tool that remedies past
discrimination, fights present-day discrimination, and promotes diversity in our society. Affirmative action
programs focus on recruitment, outreach, and training in higher education, employment, and contracting. These
initiatives provide equal access to educational and professional opportunities to those qualified individuals who
would not have had access despite their strong qualifications.
Since 1968, the U.S. Supreme Court has been instrumental in determining the scope and meaning of affirmative
action policies in institutions of higher education, federal agencies, and government contracting. In Adarand
Constructors, Inc. v. Pena (1994), the Supreme Court ruled that a federal affirmative action program remains
constitutional when narrowly tailored to accomplish a compelling government interest such as remedying
discrimination. Further, the Court—most recently through its decisions in the University of Michigan
affirmative action cases (Grutter v. Bollinger and Gratz v. Bollinger)—has defined affirmative action and
influenced how policies are drafted and implemented so that they are fair and equitable,
On June 23, 2003, the Supreme Court validated affirmative action policies and initiatives in its decision in
Grutter v. Bollinger, clearly stating that diversity is a compelling state interest and that race could be one of
many factors in higher education admissions. In Gratz v. Bollinger, the Court upheld the value of student body
diversity but determined that the use of race in the University of Michigan undergraduate school’s affirmative
action program was not narrowly tailored to achieve the university’s asserted interest in diversity. 1 Reinforcing
the goals of affirmative action, the Supreme Court stated, “Effective participation by members of all racial and
ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”
The Court’s decision in Grutter sets an important precedent, not only in acknowledging the importance of
diversity on campus, but also in employment and in contracting. The Court’s opinion recognized the interests of
such Fortune 500 companies as General Electric, Microsoft, and Procter & Gamble, which had clearly stated
that ending affirmative action and equal opportunity programs would negatively impact their ability to compete
in a global market and build a diverse workforce that can be prepared for the constantly changing global
economy of the 21st Century. Justice Sandra Day O’Connor clearly acknowledged that important connection in
her majority opinion: “[M]ajor American businesses have made clear that the skills needed in today's
increasingly global marketplace can only be developed through exposure to widely diverse people, cultures,
ideas and viewpoints. (Brief for 3M. et al.)”2 As reflected in both the Grutter and Gratz decisions, the Court was
especially influenced by what amounted to be the highest number of amici briefs ever filed, particularly those
filed by the military and corporations.3
1
LCCREF/AFC Fact Sheet on Affirmative Action Legal Cases:
http://fairchance.civilrights.org/research_center/details.cfm?id=18116
2
LCCREF/AFC Fact Sheet on Supreme Court Opinions in Grutter and Gratz:
http://fairchance.civilrights.org/research_center/details.cfm?id=18073
3
Military and Corporations Amici Briefs:
http://fairchance.civilrights.org/the%5Ffacts/legal%5Fbriefs/details.cfm?id=12866
http://fairchance.civilrights.org/the%5Ffacts/legal%5Fbriefs/details.cfm?id=12883
Despite longstanding support for the policy, however, threats to affirmative action in education, employment,
and contracting continue. In order to provide a more complete understanding of the threat to affirmative action
in the states, this paper provides context addressing how these state attacks are related to attacks on the national
landscape, the true consequences of these threats, and how these initiatives are put forth in the first place.
Threats to Affirmative Action
Following the Supreme Court rulings on the Michigan cases, long-time opponents of affirmative action,
including the Center for Equal Opportunity (CEO), the Center for Individual Rights (CIR), and the National
Association of Scholars (NAS), have both publicly and discreetly opposed affirmative action and continued to
take action against institutions of higher education that utilize affirmative action policies. In addition, in what is
an increasingly hostile climate for affirmative action policies at the federal level, opponents have sought help
from the Bush administration and federal agencies such as the Department of Education and the Department of
Justice (DOJ),4 to support their efforts.
As was reported on March 23, 2004 in the Chronicle of Higher Education, NAS mailed letters to some of the
most competitive flagship colleges and universities in 20 states requesting all documents that relate to any
statements or discussions of university policies, practices, or procedures about the consideration of race.5 In
November 2005, the DOJ joined CEO in challenging gender and minority-based scholarships and fellowships at
Southern Illinois University- Carbondale (SIU). The SIU challenge is among the first instances in which the
DOJ has challenged a college or university’s program using Title VII, on the grounds that one of the programs
being challenged was a fellowship program that hired students.6 Particularly noteworthy about the SIU case is
that university officials have acknowledged that the school has historically served many of those who would not
be able to attend college, including minority students.7
Threats or rollbacks to affirmative action policies have also increased in employment and contracting. Most
recently, in the aftermath of Hurricane Katrina, the Department of Labor (DOL), through the Office of Federal
Contract Compliance Programs (OFCCP), waived Executive Order 11246’s requirement that federal contractors
prepare affirmative action plans for new federal contracts dealing with Hurricane Katrina relief.8 These
affirmative action requirements ensure that members of minority and underrepresented communities in the
affected areas have the employment opportunities they need to begin rebuilding their lives. On another matter,
OFCCP has also proposed to eliminate the Equal Opportunity Survey, a data collection tool that collects
information on federal contractors’ affirmative action programs, hiring procedures, and compensation, and is
designed to detect discrimination against minorities and women. Finally, in another recent example of a federal
entity challenging affirmative action, the United States Commission on Civil Rights’ (USCCR) published a
report on August 18, 2005 titled “Federal Procurement After Adarand,” which denounces affirmative action
programs in contracting and calls for the elimination of equal opportunity and affirmative action programs.9 The
Commission furthered this agenda when it published its recent report on “Affirmative Action in Law Schools,”
which used a flawed and extensively disputed study to underpin its recommendations to end affirmative action
in law schools and further other broad-based and burdensome recommendations.
Lastly, while direct attacks to affirmative action at the federal legislative level have been basically non-existent
since the late 90's, affirmative action opponents in congress seem to be galvanized by efforts from the federal
agencies mentioned above. In March 2006, Rep. Steve King (R-IA) introduced an amendment, as part of the
Higher Education Reauthorization bill, to end affirmative action programs in higher education, employment, and
contracting at the federal level. The amendment was soundly defeated (83-337) with bipartisan support. In 2007,
Rep. Timothy Walberg (R-MI) introduced an amendment to ban affirmative action in defense contracting as part
Jonathan Glater, “Colleges Open Minority Aid to All Comers,” New York Times, March 14 2006
Peter Schmidt, “Foes of Affirmative Action Push Colleges to Reveal Policies on Race-Conscious Admissions,” Chronicle
of Higher Education, March 23 2004
6
Caleb Hale, “Lawmakers Speak In Support of SIUC,” Southern Illinoisian, November 21 2005
7
Caleb Hale, “Wendler Says SIUC’s Reputation At Stake,” Southern Illinoisian, November 17 2005
8
Editorial: “How Not To Get the Job Done,” New York Times, October 1 2005
9
LCCR and LCCREF/AFC’s critical rebuttal to the USCCR's findings, August 2005:
http://www.civilrights.org/issues/affirmative/AFC_rebuttal_of_USCCR_Report.doc
4
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of the Department of Defense appropriations bill. The amendment was defeated 126-284. Also, this past
summer, Rep. Walberg (R-MI) introduced an amendment, as part of the House version of the Department of
Transportation (DOT) appropriations bill, to end the successful Disadvantaged Business Enterprise (DBE)
program at DOT. While it appears to have been slipped in unnoticed by congressional leaders, we alerted Senate
leaders who ensured it was not considered on the Senate floor and have promised to strip it from the final bill
that comes out of the joint-committee.
At the state level, opponents who have challenged affirmative action programs through legislation have not
generally succeeded. In fact, of the 102 bills and/or resolutions introduced in state legislatures during 19972004, only six were enacted. Thus, while efforts to eliminate affirmative action have continued consistently over
the last several years, legislative threats have decreased.10
On the other hand, the pursuit of ballot initiative campaigns to challenge affirmative action programs at the state
level has met with more success. The leading proponent of these efforts is California businessman Ward
Connerly. Connerly, a former University of California Regent, was the key figure behind enactment of
California’s Proposition 209 (1996), Washington state’s Initiative 200 (1998), and Michigan's Proposal 2
(2006), which eliminated these states’ use of affirmative action in higher education, public contracting, and
hiring. Connerly recently announced his plans for a "Super Tuesday" in 2008, indicating he would pursue antiaffirmative action ballot initiatives in 5 states: Arizona, Colorado, Missouri, Nebraska, and Oklahoma.
However, Connerly has not been able to succeed in qualifying his anti-equal opportunity initiatives for the
ballot. Most recently, on May 4, Connerly failed to submit signatures in his attempt to qualify an antiaffirmative action initiative for the 2008 Missouri state ballot. Additionally, on April 4, Connerly filed to
withdraw his initiative in Oklahoma due to a signature challenge. LCCR continues to work with allies to draw
attention to these victories and support the work of local allies in Colorado, Arizona, and Nebraska in their
efforts to conduct education around on Connerly’s tactics and the consequences of anti-affirmative action
initiatives.
Consequences of Connerly’s Initiatives
Connerly’s anti-affirmative action initiatives have dealt major setbacks to California and Washington state in
their efforts to increase access to higher education, employment, and contracting for women and minorities,
from which the states are still trying to recover. For example:
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After enactment of Proposition 209 and I-200, state and local higher education programs were
prohibited from conducting recruitment and retention activities targeted at women and minorities.
Initiatives designed to encourage the number of women to pursue fields where they have traditionally
been underrepresented, such as math and science studies, were no longer permitted.
Further, pre-college programs that encourage girls or underrepresented minority groups to apply to
college or pursue nontraditional academic courses were likely prohibited if targeted exclusively to
women or minorities.
Immediately following enactment of Proposition 209 and I-200, minority admissions at colleges and
universities declined.
Connerly’s Proposition 209 and I-200 also banned affirmative action programs and policies in state and
local agencies to address the under representation of women and minorities in employment and
contracting. These programs include outreach in areas such as appointment, promotion, transfer,
recruitment, training, and career development.
While we are still gathering data on the impact of Proposal 2 following enactment in the state, we expect that
Michigan programs that aim to increase opportunities for women and minorities, including recruitment, training,
LCCREF/AFC, “Anti-Affirmative Action Threats in the States 1997-2004,” June 2005:
http://fairchance.civilrights.org/the_facts/reports/aa_state_2005.pdf
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and outreach programs in public education, employment, and contracting could face legal challenge, be scaled
back, or cut altogether. This could include such state and local programs as: 11
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apprenticeship programs
training programs
summer job programs
minority business enterprise programs
fair housing and lending programs
gender based programs
minority oriented career programs
support services programs
Proposal 2 also resulted in institutions of higher education in Michigan re-examining their affirmative action
plans.
Background: Ward Connerly
It is believed that Connerly’s success to date with his ballot initiatives may be because the language used on the
petitions and typically put forth on the ballot misrepresents – and therefore disguises – the true intent of the
initiative(s): to ban affirmative action. When voters are faced with the proposal’s actual intent – i.e. to ban
affirmative action – they then tend to oppose the ballot language. For example, in 1998, voters in Houston
rejected a proposed initiative to end the city’s affirmative action programs, because the wording of the initiative
was changed to reflect the true intent of the proposed initiative.
Connerly has created an infrastructure to galvanize and raise money from anti-affirmative action forces. The
creation of the American Civil Rights Institute (ACRI) and its political sister organization, the American Civil
Rights Coalition (ACRC), were the first steps in leveraging California’s 1996 enactment of Proposition 209 into
a nationwide campaign. Through these organizations, Connerly has bankrolled money from donors to support
subsequent campaigns.
Connerly’s campaign-funding sources and what has amounted to hundreds of thousands of dollars in revenue
and earnings for his organization and himself, were called into question during his most recent campaign to
enact Proposition 54 in California. 12 The Proposition 54 campaign was funded largely through a single
nonprofit organization—Connerly’s ACRC. The campaign disclosed individuals who donated specifically to
the campaign, but not those who gave to ACRC, which poured into the effort $1.5 million and another $350,000
of other staff and non-monetary support.13 In fact, according to records filed with California, more than $1.9
million, or nearly 88 percent of the donations to proponents of Proposition 54, came from funds funneled
through Connerly’s ACRC.14
Nearly one year before voters considered Proposition 54, a complaint was filed with California’s Fair Political
Practices Commission (FPPC) alleging that Connerly failed to disclose nearly $2 million contributed to the
Proposition 54 campaign. This complaint was later taken up by the FPPC in a formal lawsuit, marking the first
time the FPPC had filed suit before an election to require campaign disclosure. 15 In May 2005, a court
settlement was reached where ACRC was forced to acknowledge its failure to comply with election laws, pay a
$95,000 penalty, and disclose its fiscal supporters. It was revealed that the initiative was funded largely through
donations from a handful of wealthy individuals to Connerly’s ACRC. In fact, out of the $1.7 million that
ACRC received for the initiative, $1.3 million came from just six contributors, which included: John Moores,
11
Speakers Manual for Supporters of Civil Rights and Affirmative Action
Connerly led an unsuccessful campaign to enact in California Proposition 54 (defeated 63-37 percent, Oct. 7, 2003). The
ballot initiative sought to ban the collection of racial and ethnic data in most state programs.
13
Jim Sanders, “Prop. 54 foes may sue over donors,” The Sacramento Bee, August 20 2003
14
“News Release: Commission sues to compel Proposition 54 disclosure,” Fair Political Practices Commission, September
3 2003
15
Ibid.
12
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owner of the San Diego Padres major-league baseball team ($400,000); media giant Rupert Murdoch
($300,000); retired brewery mogul Joseph Coors ($250,000 loan); Jerry Hume of San Francisco, president of a
food processing company ($200,000); John Uhlmann, a Kansas City businessman ($190,000 loan); and Harlan
Crow, a Dallas-based investor ($140,000).16
In Michigan, it is estimated that Connerly funded Proposal 2 with mostly out-of-state funds. In addition,
Connerly's controversial practices in attempting to qualify his anti-affirmative action initiatives for the ballot
continue to come under fire. In June 2006, the Michigan Civil Rights Commission (MCRC) released “Report
Regarding the Use of Fraud and Deception in the Collection of Signatures for the Michigan Civil Rights
Initiative Ballot Petition,” finding that petition circulators working on behalf of MCRI used deceptive and
fraudulent practices. The report followed receipt of allegations involving acts of deception and
misrepresentation in the signature gathering process perpetrated by petition circulators working on behalf of
MCRI. The Commission conducted public hearings in Detroit, Flint, Lansing and Grand Rapids where hundreds
of citizens testified, under oath, about allegations of voter fraud resulting in the submission of over five hundred
affidavits during the hearing process.
The findings from the MCRC report detailing fraud and deception in Connerly’s qualification of his antiaffirmative action initiative have also been reported in the states in which he is currently seeking to qualify
initiatives. On April 4, Connerly filed to withdraw his initiative in Oklahoma due to a signature challenge. In
Missouri, the local WeCan coalition ran a successful education campaign exposing Connerly’s deceptive
signature gathering practices, in part based on local reports indicating that residents were misled into signing
petitions. In Colorado, allies with the Colorado Unity coalition held a press conference on April 1, highlighting
Connerly’s deceptive practices used to gather signatures in the state. This preceded an April 23rd legal filing by
the “No on Amendment 46”campaign, challenging nearly 70,000 of the 128,044 signatures Connerly submitted
in his attempt to qualify his so-called Colorado “Civil Rights” Initiative (Amendment 46) for the ballot.
Conclusion
Affirmative action continues to be needed in employment and contracting to address the barriers that still
confront women and minorities. Similarly, affirmative action in higher education is still required as one part of
the remedy for the gross disparities in access to quality K-12 public education that put students from lowincome and minority school districts at a competitive disadvantage when applying for admission.
Solving these disparities in K-12 education and providing a guarantee of quality public education for all students
must be addressed at the same time the discussion about affirmative action policies and initiatives is advanced.
As the playing field is not level in both higher education and K-12 education, there is a grave need to address
how all prospective students are given access to a quality education through affirmative action and other
policies.
Recommendations
1. State and local government agencies should pursue comprehensive education reform in K-12 to level the
playing field for all students. Education reform in K-12 should include innovative school programs that
address the disparate opportunities some schools face in comparison to schools in affluent,
predominately white suburbs.
a. Standards-based reform efforts should include vertical integration of high school curricula and
standards with state university admissions requirements AND the commitment of state
resources to ensure that all schools and students have the opportunity to meet those standards.
b. Early identification and intervention for students who are at-risk of dropping out before high
school graduation.
2. Community and faith-based organizations should engage in public education efforts focusing on the
adverse impact of these misleading ballot initiatives and the need for affirmative action and other
policies that promote equal opportunity. This includes, but is not limited to, distribution of educational
16
Jim Sanders, “Six aided Connerly’s failed Prop. 54 to bar race-based data,” The Sacramento Bee, May 19 2005
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materials, planning community fora, holding public events and activities, and speaking with opinion
leaders and in local communities.
3. Corporate and philanthropic entities should reinforce the need for affirmative action and find new and
innovative ways to collaborate with diverse multi-sectoral allies in efforts to educate the public as well
as consumers about the need for affirmative action policies. For example, prominent business leaders,
chambers of commerce, and trade associations were engaged in Michigan to educate their constituencies
about these policies.
4. Federal, state, and local agencies, along with elected officials, should publicly state why affirmative
action policies are important. Vehicles such as resolutions of support, town hall meetings, along with
other statements in the public domain are important tools to generate state support for these policies.
5. Legislatures should work with their state university systems to reinforce the use of affirmative action in
efforts to meet the Supreme Court’s guidelines.
6. Universities can affirm their support for student body diversity by implementing and/or maintaining
legally permissible affirmative action, including: a) looking beyond the numbers to holistically evaluate
each applicant; b) developing a diversity policy statement; c) documenting the educational benefits of
diversity and, if applicable, the institution’s prior record of discrimination; d) developing broad diversity
goals and maintaining sound criteria; e) reviewing legacy policies and evaluating the potential disparate
impact on students of color; f) periodically reviewing whether there are workable race-neutral
alternatives to affirmative action; and g) eliminating other artificial barriers to inclusion.
7. States should maintain small business contracting programs that use outreach and flexible goals for the
inclusion of women and minority-owned businesses, as well as race-neutral alternatives like unbundling
large contracts.
8. State and local governments should create robust data systems to collect, maintain, and track
disaggregated data on education, employment, contracting, and civil rights enforcement.
Supporters of affirmative action must remain vigilant in their efforts to educate the public and opinion leaders
about the importance of affirmative action, especially as it appears that many of the states experiencing threats
to equal opportunity/affirmative action policies are also facing economic challenges/distress. Further, efforts
must continue to protect and expand these important programs, so access to education and opportunities in the
workforce can be achieved and guaranteed for all.
The Leadership Conference on Civil Rights (LCCR) is the nation’s oldest, largest, and most diverse civil and human rights
coalition representing nearly 200 national member organizations from a diverse set of communities including women,
faith-based, racial/ethnic, labor, and students. Through the Leadership Conference on Civil Rights Education Fund
(LCCREF), the research and communications arm of the coalition, the Americans for a Fair Chance (AFC) project is
dedicated to educating the public about the importance of affirmative action and other programs aimed at expanding equal
opportunity and preventing discrimination. AFC was founded in partnership with the Asian American Justice Center,
Lawyers’ Committee for Civil Rights Under Law, Mexican American Legal Defense and Educational Fund, NAACP Legal
Defense and Educational Fund, National Partnership for Women and Families, and the National Women’s Law Center.
Please contact Anjali Thakur, LCCR/LCCREF, (thakur@civilrights.org) with any questions.
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