Laws Applying to Affirmative Action in Educational Institutions

Affirmative action programs are governed by a number of overlapping laws. A common principle is that whether for admissions or employment, affirmative action programs such as targeted recruitment and goals are encouraged to remedy past effects of discrimination; quotas are disfavored.

Fourteenth Amendment of the United States Constitution
The "equal protection clause" of the Fourteenth Amendment, which applies only to public institutions, prohibits discrimination based on race or sex. According to recent U.S. Supreme Court cases decided under this provision, such as City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), public employers' affirmative action programs must be justified by and narrowly tailored to remedy specific evidence of past discrimination.

Title Vl of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and regulations at 45 C.F.R. §§ 80.1 et seq.
Title Vl prohibits race discrimination in any program receiving federal funds. This law applies to both admissions and employees. Violations can result in withdrawal of federal funds or suits by private individuals.
Cases brought under Title Vl, such as University of California Board of Regents v. Bakke, 438 U.S. 265 (1978), establish that in an affirmative action context, race can be one of several factors used in admissions decisions.

Title Vll of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e et seq., and regu rations at 29 C.F.R. §§ 1604-1606, 1608.1 et seq.
Title Vll prohibits employment discrimination based on race, color, religion, sex, or national origin by any employer with 15 or more employees; as amended in 1972 it applies to public and private educational institutions. Cases decided under Title Vl l authorize affirmative action programs that are "narrowly tailored" to remedy past discrimination based on race, sex, etc.

Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., and regulations at 34 C.F.R. §§ 106.1 et seq., 45 C.F.R. §§ 86.1 et seq.
Title IX prohibits sex discrimination in all educational institutions that receive federal funding. Title IX's affirmative action provisions apply to both employment and admission of students. Violations can result in withdrawal of federal funds or suits by private individuals. Regulations promulgated under Title IX, 34 C.F.R. § 106.3, authorize affirmative or remedial action in instances in which members of one sex must be treated differently to overcome the specific effects of past discrimination.

Executive Order 11246, Sept. 24, 1965, as amended by Executive Order 11375, Oct. 13, 1967, 41 C.F.R. §§ 60-1 et seq.
Executive Order 11246 requires federal contractors to adopt and implement "affirmative action programs" to promote attainment of equal employment objectives. It authorizes use of goals but prohibits quotas, and applies to race, religion, color, national origin, and sex.

State Laws
Many states have laws that are similar to Title Vll or Title IX. In some instances, state laws provide broader remedies or more expansive coverage to protected groups.

List Prepared by NOW Legal Defense and Education Fund.

Carl Gutierrez-Jones,
Department of English
University of California
Santa Barbara, CA 93106
E-mail: carlgj@humanitas.ucsb.edu