"Affirmative Action" - Reverse Discrimination or Distributive Justice? The Role of the US Supreme Court

Abstract

term action3'-first used by the Roosevelt Administration in an executive order in 1941 barring defense contractors from discriminating against minorities-was revived by President John F. Kennedy in civil rights speech in 1961. Subsequently it was included in the language of the Civil Rights Act of 1964, but it was through Lyndon B. Johnson's Executive Order 11246 (1965) concerning nondiscrimination in government employment that it became central political and legal concept: 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.l Initially the term was taken to mean a positive effort to end discriminatory practices in employment situations. Since then the concept has undergone long process of reinterpretation and redefinition, primarily by the Executive Branch and the courts. This article will address the role of the US Supreme Court in this process, analyzing the Court's affirmative action decisions from 1978 to 1990. Four aspects of two main areas-education and employment-will be dealt with: admission, hiring, promotion, and lay-offs.