Striving for Equal Opportunity: Why the ACLU Supports Affirmative Action

Document Date: March 21, 2008

More than forty years ago, President Lyndon B. Johnson described affirmative action as a vital tool in the struggle to provide all Americans with equal opportunity. “This is the next and more profound stage of the battle for civil rights,” Johnson asserted. “We seek… not just equality as a right and a theory, but equality as a fact and as a result.” Recognizing that years of segregation and state-sponsored second-class citizenship had barred women and people of color from many of the opportunities others took for granted, Johnson, Dr. Martin Luther King, Jr., and other civil rights leaders of the time knew it was the government’s responsibility to act affirmatively to correct these mistakes. Their vision and the programs that sprang from it opened the doors to opportunity for countless minorities and women who had theretofore been excluded, allowing them a fair chance to compete and ultimately to succeed.

We have come a long way since the Civil Rights Movement, and many Americans feel that the time for affirmative action is over. Opportunities for women and people of color have expanded, and many believe that the unequal conditions that once justified affirmative action no longer exist. Sadly, this is just not true. Millions of Americans continue to experience race and gender barriers in education, contracting and employment. Existing laws help to prevent outright discrimination on the basis of race and gender, but they alone are not enough to create equal opportunities for every American.

Affirmative action programs – including targeted outreach and recruitment efforts, the use of non-traditional criteria for hiring and admissions, after-school and mentorship programs, and training and apprenticeship opportunities – are tailored to fit specific instances where race and gender must be taken into account in order to provide fair and equal access to minorities and women. These programs recognize and strive to correct the barriers that continue to block the paths of many individual Americans, including women, Native Americans, Arab Americans, Latinos, Asian Americans, and African Americans. Affirmative action helps ensure equal access to opportunities and brings our nation closer to the ideal of giving everyone a fair chance. We support affirmative action and other race- and gender-conscious policies as vital tools in the struggle to provide all Americans with equal opportunity, to promote diversity in academic and professional settings, and to give each and every one of us a fair chance to compete.

> Position paper on affirmative action.
> Legal challenge to Michigan’s anti-affirmative action amendment.
> Amicus Brief in Grutter v. Bollinger (2003), the Supreme Court’s most recent affirmation of the importance of affirmative action.
> Amicus Brief in Regents of the University of California v. Bakke (1977), a seminal case establishing the constitutionality of affirmative action.

When the Supreme Court of the United States first considered the constitutionality of affirmative action program in University of California Regents v. Bakke (1976), the ACLU wrote in its amicus brief:

The root concept of the principle of non-discrimination is that individuals should be treated individually, in accordance with their personal merits, achievements and potential, and not on the basis of the supposed attributes of any class or caste with which they may be identified. However, when discrimination… has been long and widely practiced against a particular class, it cannot be satisfactorily eliminated merely by the prospective adoption of neutral, ‘colorblind’ standards for selection among the applicants… Affirmative action is required to overcome the handicaps imposed… Read the full amicus brief >>

Unfortunately, the problems of unequal access the Court identified in Bakke are ongoing, and the ACLU continues to support affirmative action as an important and necessary part of the struggle to equalize access to opportunities. In a brief submitted to the Court in Grutter v. Bollinger (2003), the ACLU wrote:

Race remains the critical dividing line in American society. More than 300 years of calculated and profound racial persecution by public and private actors have produced an entrenched racial hierarchy that pervades every facet of life in this country. Twenty-five years after the Court ruled in Bakke… some… have made significant progress as a result of opportunities that were once denied. Nevertheless, widespread racial inequality remains a fundamental fact of American life, including for the current generation of college, graduate, and professional school applicants who have grown up in a deeply racially fragmented society. Until race ceases to be the barometer of economic, social, and political opportunity, it will continue to be an essential factor in higher education admissions.” Read the full amicus brief >>

Affirmative action is important not only as part of the ongoing struggle for civil rights, but as a means of promoting democracy itself. As Justice O’Connor stated in her opinion upholding affirmative action in Grutter, “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” The ACLU is committed to the achievement of equal opportunity as a key element of democracy, and supports affirmative action as part of this commitment. As explained in the ACLU Position Paper on affirmative action, “Avenues of opportunity for those previously excluded remain far too narrow. We need affirmative action now more than ever.”