Stephen Cahn on the history of Affirmative Action (1995)

In March l96I, less than two months after assuming office, President John F: Kennedy issued Executive Order 10925, which established the President's Committee on Equal Employment Opportunity. Its mission was to end discrimination in employment by the government and its contractors. The order required every federal contract to include the pledge that "The Contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The Contractor will 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."

Here for the first time in the context Or civil rights the government called for "affirmative action." The term meant taking appropriate steps to eradicate the then widespread practices Or racial, religious, and ethnic discrimination. The goal, as the President stated, was "equal opportunity in employment."

In other words, affirmative action was instituted to insure that applicants for positions would be judged without any consideration of their race, religion, or national origin. These criteria were declared irrelevant. Taking them into account was forbidden.

The Civil Rights Act of 1964 restated and broadened the application of this principle. Title VI declared that "No person in the United States shall, on the ground Or race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance."

But within one year President Lyndon B. Johnson argued that fairness required more than a commitment to impartial treatment. In his 1965 commencement address at Howard University, he said:
You do not take a person who for years has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, "you're free to compete with all the others," and still justly believe that you have been completely fair. Thus it is not enough just to open the gates or opportunity. All our citizens must have the ability to walk through those gates .... We seek not...just equality as a right and a theory but equality as a fact and equality as a result.


And so several months later President Johnson issued Executive Order 11246, which stated that "It is the policy of the Government of the United States to provide equal opportunity in federal employment for all qualified persons, to prohibit discrimination in employment because Or race, creed, color or national origin, and to promote the full realization of equal employment opportunity through a positive, continuing program in each department and agency." Two years later the order was amended to prohibit discrimination on the basis of sex.

While the aim of President Johnson's order was stated in language similar to that fr President Kennedy's, President Johnson's abolished the Committee on Equal Employment Opportunity, transferred its responsibilities to the Secretary of Labor, and authorized the Secretary to "adopt such rules and regulations and issue such orders as he deems necessary and appropriate to achieve the purposes thereof."

Acting on the basis of this mandate, the Department of Labor in December 1971, during the administration of President Richard M. Nixon, issued Revised Order No. 4, requiring all contractors to develop "an acceptable affirmative action program," including "an analysis of areas w within which the contractor is deficient in the utilization Or minority groups and women, and further, goals and timetables to which the contractor's good faith efforts must be directed to correct the deficiencies." Contractors were instructed to take the term "minority groups" to refer to "Negroes, American Indians, Orientals, and Spanish Surnamed Americans." The concept Or "underutilization" meant "having fewer minorities or women in a particular job classification than would reasonably be expected by their availability." "Goals" were not to be "rigid and inflexible quotas" but "tar gets reasonably attainable by means Or applying every good faith effort to make all aspects of the entire affirmative action program work."

Such preferential treatment required that attention be paid to the same criteria Or race, sex, and ethnicity that had previously been deemed irrelevant. Could such use of' these criteria be morally justified?

That is the key question in a debate that has continued for more than two decades. This collection of scholarly articles presents the major lines or argument within the controversy. The authors agree that injustices have occurred, that their victims deserve compensation, and that strenuous efforts should be made to try to prevent any further wrongdoing while striving to achieve a more enlightened society. The disagreements arise in specifying who has suffered injustice, what is appropriate compensation to them, and which steps should be taken to promote justice and amity. Affirmative action has been a divisive issue in the United States. And with recent attempts by referendum, legislation, and judicial action to change current policies, emotions have intensified. What is most needed now is not increased passion but greater attention to recognizing and analyzing the subject's complexities. That is the aim of the essays that follow.

In his classic work On Liberty, John Stuart Mill wrote that "He who knows only his own side of the case, knows little of that." Readers may not change their minds about affirmative action after studying the materials collected here. They will, however, become more aware of challenging considerations that have been offered by opposing advocates. And that is a crucial step towards the deepened understanding sought through philosophical inquiry.