Racial and Gender Diversity in State DOTs and Transit Agencies (2007)

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30 1961 President John F. Kennedy signs Executive Order (E.O.) 10925, which instructs federal contractors to take “affirma- tive action” when it comes to assigning contracts. The order results in the creation of the Committee on Equal Employ- ment Opportunity. 1964 The Civil Rights Act of 1964 was signed into law. This was landmark legislation prohibiting employment discrimination by large employers (with more than 15 employees), whether or not they have government contracts. Established the Equal Employment Opportunity Commission (EEOC). 1965 President Lyndon B. Johnson issued E.O. 11246, requiring all government contractors and subcontractors to take affir- mative action to expand job opportunities for minorities. Established Office of Federal Contract Compliance (OFCC) in the Department of Labor to administer the order. 1967 President Johnson amended E.O. 11246 to include affir- mative action for women. Federal contractors now required to make good-faith efforts to expand employment opportu- nities for women and minorities. 1970 The Labor Department, under President Richard M. Nixon, issued Order No. 4, authorizing flexible goals and timetables to correct “underutilization” of minorities by fed- eral contractors. 1971 Order No. 4 was revised to include women. President Nixon issued E.O. 11625, directing federal agencies to develop comprehensive plans and specific program goals for a national minority Business Enterprise (MBE) contracting program. 1973 The Nixon administration issued “Memorandum- Permissible Goals and Timetables in State and Local Govern- ment employment Practices,” distinguishing between proper goals and timetables and impermissible quotas. 1978 The U.S. Supreme Court in Regents of the University of California v. Bakke, 438 U.S. 912 (1978) upheld the use of race as one factor in choosing among qualified applicants for admission. At the same time, it also ruled unlawful the University Medical School’s practice of reserving 18 seats in each entering class of 100 for disadvantaged minority students. 1979 President Jimmy Carter issued E.O. 12138, creating a National Women’s Business Enterprise Policy and requiring each agency to take affirmative action to support women’s business enterprises. The Supreme Court ruled in United Steel Workers of America, AFL-CIO v. Weber, 444 U.S. 889 (1979) that race- conscious affirmative-action efforts designed to eliminate a conspicuous racial imbalance in an employer’s workforce resulting from past discrimination are permissible if they are temporary and do not violate the rights of white employees. A P P E N D I X A Affirmative Action Timeline

1983 President Ronald Reagan issued E.O. 12432, which directed each federal agency with substantial procurement or grant-making authority to develop a Minority Business Enterprise (MBE) development plan. 1985 Efforts by some in the Reagan administration to repeal Executive Order 11246 were thwarted by defenders of affir- mative action, including other Reagan administration offi- cials, members of Congress from both parties, civil-rights organizations, and corporate leaders. 1986 The Supreme Court in Local 128 of the Sheet Metal Workers’ International Association v. EEOC, 478 U.S. 421 (1986) upheld a judicially ordered 29 percent minority “membership admis- sion goal” for a union that had intentionally discriminated against minorities, confirming that courts may order race- conscious relief to correct and prevent future discrimination. 1987 The Supreme Court ruled in Johnson v. Transportation Agency, Santa Clara County, Calif., 480 U.S. 616 (1987) that a severe underrepresentation of women and minorities justi- fied the use of race or sex as “one factor” in choosing among qualified candidates. 1989 The Supreme Court in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) struck down Richmond’s minority con- tracting program as unconstitutional, requiring that a state or local affirmative-action program be supported by a “com- pelling interest” and be narrowly tailored to ensure that the program furthers that interest. 1994 In Adarand Constructors, Inc. v. Pena, 513 U.S. 1012 (1994) the Supreme Court held that a state or local affirmative- action program remains constitutional when narrowly tai- lored to accomplish a compelling government interest such as remedying discrimination. 1995 President Clinton reviewed all affirmative-action guidelines by federal agencies and declared his support for 31 affirmative-action programs by announcing the administra- tion’s policy of “mend it, don’t end it.” Senator Robert Dole and Rep. Charles Canady introduced the so-called Equal Opportunity Act in Congress. The act would prohibit race or gender based affirmative action in all federal programs. The Regents of the University of California voted to end affirmative action programs at all University of California campuses. Beginning in 1997 for graduate schools and 1998 for undergraduate admissions, officials at the University were no longer allowed to use race, gender, ethnicity or national origin as a factor in admissions decisions. The bipartisan Glass Ceiling Commission released a report on the endurance or barriers that deny women and minori- ties access to decision-making positions and issued a recom- mendation “that corporate America use affirmative action as a tool ensuring that all qualified individuals have equal access and opportunity to compete based on ability and merit.” 1996 California’s Proposition 209 passed by a narrow margin in the November election. Prop. 209 abolished all public-sector affirmative action programs in the state in employment, education and contracting. Clause (C) of Prop. 209 permits gender discrimination that is “reasonably necessary” to the “normal operation” of public education, employment and contracting. In Texas v. Hopwood, 518 U.S. 1033 (1996) the U.S. Court of Appeals for the Fifth Circuit ruled against the University of Texas, deciding that its law school’s policy of considering race in the admissions process was a violation of the Constitu- tion’s equal-protection guarantee. The U.S. Supreme Court declined to hear an appeal of the ruling because the program at issue was no longer in use. 1997 Voters in Houston supported affirmative action programs in city contracting and hiring by rejecting an initiative that would banish such efforts. Houston proved that the wording on an initiative is a critical factor in influencing the voters’ response. Instead of deceptively focusing attention on “pref- erential treatment,” voters were asked directly if they wanted to “end affirmative action programs.” They said no. The U.S. Supreme Court refused to hear a challenge to California’s Prop. 209. By declining to review the case, the court did not decide the case on its merits but allowed Prop. 209 to go into effect. The U.S. House Judiciary Committee voted 17-9, on a bipartisan basis, to defeat legislation aimed at discriminating federal affirmative action programs for women and minorities.

Representative George Gekas (R-Pa.), who moved to table the bill, said that the bill was “useless and counterproductive. I fear that forcing the issue at this time could jeopardize the daily progress being made in ensuring equality.” Bill Lann Lee was appointed Acting Assistant Attorney General for Civil Rights after facing opposition to his confir- mation because of his support for affirmative action when he worked for the NAACP Legal Defense and Educational Fund. Lawsuits were filed against the University of Michigan and the University of Washington School of Law regarding their use of affirmative action policies in admissions standards. In response to Hopwood, the Texas legislature passed the Texas Ten Percent Plan, which ensures that the top ten percent of students at all high schools in Texas have guaranteed ad- mission to the University of Texas and Texas A&M system, including the two flagships, UT-Austin and A&M-College Station. 1998 Both the United States House of Representatives and the United States Senate thwarted attempts to eliminate specific affirmative action programs. Both houses rejected amend- ments to abolish the Disadvantaged Business Enterprise pro- gram funded through the Transportation Bill, and the House rejected an attempt to eliminate use of affirmative action in admissions in higher education programs funded through the Higher Education Act. Ban on use of affirmative action in admissions at the University of California went into effect. UC Berkeley had a 61 percent drop in admissions of African American, Latino/a and Native American Students, and UCLA had a 36 percent decline. Voters in Washington passed Initiative 200 banning affirma- tive action in higher education, public contracting, and hiring. 2000 Many circuit courts throughout the country heard cases regarding affirmative action in higher education, including the 5th Circuit in Texas (Hopwood), the 6th Circuit in Michigan (Gutter and Gratz), the 9th Circuit in Washington (Smith), and the 11th Circuit in Georgia (Johnson). The same district court in Michigan made two different rulings regarding affirmative action in Michigan, with one judge deciding that the undergraduate program was constitutional while another judge found the law school program uncon- stitutional. The Florida legislature passed “One Florida” Plan, banning affirmative action. The program also included the Talented 20 Percent Plan that guarantees the top 20 percent admission to the University of Florida system. In an effort to promote equal pay, the US Department of Labor promulgated new affirmative action regulations including an Equal Opportunity Survey, which requires fed- eral contractors to report hiring, termination, promotions, and compensation data by minority status and gender. This is the first time in history that employers have been required to report information regarding compensation by gender and minority status to the federal equal employment agencies. The 10th Circuit issued an opinion in Adarand Construc- tors v. Mineta, 228 F.3d 1147 (10th Cir. 2000) and ruled that the Disadvantaged Business Enterprise as administered by the Department of Transportation was constitutional because it served a compelling government interest and was narrowly tailored to achieve that interest. The court also analyzed the constitutionality of the program in use when Adarand first filed suit in 1989 and determined that the previous program was unconstitutional. Adarand then petitioned the Supreme Court for a writ of certiorari. 2001 In Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (2001) the Supreme Court dismissed the case as “improvi- dently granted,” thereby leaving undisturbed the 10th Circuit’s decision, which upheld the government’s revised federal contracting program. California enacted a new plan allowing the top 12.5 percent of high school student’s admission to the UC system, either for all four years or after two years outside the system, and guaranteeing the top 4 percent of all high school seniors’ admission into the UC system. The Sixth Circuit handed down its decision in Gutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002) on May 14, 2002, and upheld as constitutional the use of race as one of many fac- tors in making admissions decisions at the University of Michigan’s Law School. A decision in the companion case involving the Undergraduate school at the University of Michigan, Gratz v. Bollinger, is imminent. SOURCE: www.detroitnaacp.org/publicpolicy/affirmative.asp 32