This literature review examines the foundations, legal evolution, and ongoing debates surrounding affirmative action in the United States. Drawing on scholarship across law, public administration, education, and economics, the paper explores who has benefited from affirmative action, how class-based and group-based eligibility models differ, and how the shift from civil rights frameworks toward diversity policies has reshaped implementation. Key legal cases — including Dukes v. Wal-Mart and Grutter v. Bollinger — are analyzed alongside procurement policies affecting minority- and women-owned businesses. The review also addresses affirmative action in higher education, including its impact on Black college applicants under California's Proposition 209. The paper concludes by noting that the original policy aim — eliminating discrimination — remains essential even as political and socioeconomic contexts continue to shift.
The paper demonstrates effective thematic literature synthesis. Rather than summarizing sources one by one in isolation, the author groups them around shared debates — class vs. group eligibility, diversity vs. civil rights framing, procurement policy outcomes — and uses each source to develop or complicate the central argument. The critical theory lens introduced early (via Darity et al.) is carried through subsequent sections, showing how structural inequality operates across sectors.
The paper opens with a historical and legislative overview, establishing the Civil Rights Act of 1964 as the anchor. It then moves through successively narrower lenses: national policy outcomes, eligibility models, legal reframing toward diversity, a landmark employment discrimination case, procurement and construction industry data, and finally higher education. The conclusion synthesizes across all sections to reassert the original policy purpose. This funnel-then-broaden structure is well-suited to a literature review at the graduate level.
Through its reference to affirmative action, the Civil Rights Act of 1964 ushered in a remedy for disadvantage and discrimination that was intended to reach into the hallowed halls of higher education, union halls, and corporate meeting rooms. President Johnson extended the Act to federal contractors through an Executive Order, and again the charge was to take affirmative action to ensure discrimination was not occurring. The Act was intended to guide and coerce social change, and it empowered the federal courts to penalize violators. The law was based on the construct that people who have been historically excluded from substantive social institutionalized benefits — culture, education, employment — needed a boost in the form of preferential selection. This means that the same factors that trigger or support exclusion (by law: ethnicity, gender, and race) become the same factors that drive the affirmative actions serving to increase representation of minorities and women in these institutionalized endeavors.
In this review of the literature, the fundamental considerations of affirmative action are explored. A meaningful review of the affirmative action literature must consider both legal considerations and public perspectives. Legal and regulatory bodies in the United States have been deeply engaged in creating, applying, and ensuring the implementation of affirmative action rules. Public debate regarding affirmative action has been equally vigorous, with citizens trending toward polarity. However, over the past several decades, these robust pro and con positions appear to bracket a substantially sized middle ground inhabited by people undecided about the effectiveness of affirmative action rules, the need to continue affirmative action policies, and the impact of increased national diversity on the concept of inclusion and exclusion.
Harris (2009) reviewed the policy implementation of affirmative action in an effort to determine who has benefited from the law, and to what degree those benefits have been achieved. Studies and research reviewed by Harris indicate that when affirmative action is judiciously implemented, the law does in fact bring about the policy aim, which is colloquially referred to as "leveling the playing field." Harris (2009) points to benefits realized for both individuals and organizations. Indeed, some of his findings are surprising: higher stock prices and benefits to white males are associated with firms that practice affirmative action. According to Harris (2009), some experts attribute these benefits to an overall increase in the performance of organizations that embrace affirmative action, which may be related to better compensation for all employee groups in a company, hiring of a diverse workforce that draws from the most talented in the pool, and an increased capacity to deal with challenges in the external environment and competitive market.
Harris (2009) also points to the highly resistant glass ceiling and gendered roles, which are just as evident in the governmental bodies charged with affirmative action regulations as in private enterprise. Implementation of affirmative action policy, Harris (2009) asserted, lacks teeth and "still lags in decreasing the prevalence of discrimination in the workplace that threaten to retard and/or prevent the advancement of these [minorities and women] groups" (p. 368).
The critical theory perspective of Darity et al. (2011) enables construction of a model that considers the ramifications of changes to the inclusion criteria for affirmative action eligibility. The term subaltern is used to refer to those individuals or social groups excluded from the dominant, hegemonic power structure through geographic, political, or social membership. Darity et al. (2011) explored affirmative action eligibility outcomes for subaltern groups in the United States and in rural India. The model developed by Darity et al. (2011) showed the numbers of affirmative action beneficiaries when eligible individuals were identified through class-based markers or group-based markers. Particularly when eligibility for certain positions was based on performance, skill sets, and knowledge, more individuals were identified in the subaltern group-based category than in class-based situations as being eligible for affirmative action (Darity et al., 2011).
The important distinction between these subaltern groups is that means testing of some type is used to identify affirmative action beneficiaries in a class-based model (Darity et al., 2011). A group-based model tends to be less selective in that it may not discriminate among attributes such as level of education, annual household income, and similar factors (Darity et al., 2011). From this, it is apparent that there is a dilution effect that limits access to preferential treatment by under-represented groups when a class-based model is preferred over a group-based model (Darity et al., 2011). Two particularly important findings are demonstrated by the model: as the group-to-population ratio diminishes, and the lower the correlation between group status and class status, the greater the degree of dilution of affirmative action benefit for targeted individuals (Darity et al., 2011).
The issue of diversity versus discrimination is an important one in any discussion of affirmative action. Darity et al. (2011) made this point in their analysis, noting that class-based affirmative action can compound marginalization by failing to select members of a group who are more advantaged within their class. Examples of this phenomenon include individuals who do not experience affirmative action-boosted access to an elite university or a high-status profession because they are already advantaged compared to others in their group (Darity et al., 2011). The danger from this compounded marginalization is that it serves to reinforce stereotypes about the members of a particular group (Darity et al., 2011).
Lipson (2004) is clear that the actions of the courts have paved the way for this shift toward diversity practices and away from civil rights policies. Indeed, the state of Michigan has functioned as a proving ground for this very struggle (Lipson, 2004). Although the United States Supreme Court rejected the so-called colorblind argument in Grutter v. Bollinger (2003) — a case over admissions policies at the University of Michigan Law School — and again in the Proposal 2 referendum on the November 2006 ballot, the tectonic shift in legal arguments and political framing has been clearly heard and observed (Lipson, 2004). For those interested in restoring the civil rights basis of affirmative action, there is interest in limiting benefits to those who have historically been marginalized (Lipson, 2004). This would, de facto, restrict affirmative action from being applied to immigrant populations (Lipson, 2004). The argument undergirding the colorblind side of the discussion is that affirmative action seems to have devolved into "a policy of 'racial blending' that benefits privileged blacks and Hispanics who haven't suffered pervasive disadvantages or subordination at the expense of disadvantaged whites and Asians" (Lipson, 2004, p. 701).
Paiva (2012) also makes the point that the historical origins of discrimination are — and must remain — an important component of the generation of solutions. Paiva's (2012) analysis is based on Brazilian society and, as such, cautions against attempts at a straightforward application of contemporary ideas about human rights to the Brazilian context. Moreover, Paiva (2012) asserted that greater equality in the public sector does not necessarily result in more inclusion for the citizens of a country, citing the United States as a case in point given its foundational roots in equality. Paiva (2012) argued that one "must begin with the structural inequality of its social order…in a public sphere whose original trace is its inequality" (p. 91).
As any critical theorist will attest, structural inequality is not merely the province of developing and underdeveloped countries. The deeply embedded nature of discrimination — and the willingness of a society to take action to correct it — is perhaps no better illustrated than in the case of Wal-Mart Stores, Inc. v. Dukes. The United States Court of Appeals for the Ninth Circuit granted class action certification on February 6, 2007 (Spangler, 2008), in what would become one of the most important employment discrimination cases of the century. At issue was the upholding of the district court's ruling that Wal-Mart had discriminated against a class of women plaintiffs on the basis of their gender in violation of Title VII of the Civil Rights Act of 1964 (Spangler, 2008). The significance of this case stems from three key factors: (1) a class action suit places a substantial amount of the legal burden on the defendant, and this case holds the distinction of being the single largest class action discrimination suit in the history of the federal courts; (2) roughly 1.6 million women were plaintiffs in the case, all of whom were employed in some capacity by Wal-Mart from December 16, 1998, onward; and (3) Wal-Mart is a cultural leader in the retail space as the biggest private employer in the United States (Spangler, 2008).
A key factor in the Dukes case is that the employees believed they were discriminated against as women because Wal-Mart's practice of allowing local managers absolute discretion to determine pay, training opportunities, and promotions established conditions under which rampant discrimination could — and apparently did — occur (Aron, 2011). Women employees testified that they were targets of blatant discrimination that often came in the form of ignorant and discriminatory remarks that alone could trigger individual legal action (Aron, 2011). Notably, Justice Ginsburg observed that individual damage claims would not have an impact on the sizeable, institutionalized gender discrimination practiced by Wal-Mart, citing this data: "Women fill 70% of the hourly jobs in the retailer's stores, but make up only 33% of the management employees… The higher one looks in the organization, the lower the percentage of women" (Aron, 2011).
An important aspect of the Dukes case is that it clearly signals to the retail industry that women specifically, and the public in general, are giving considerable attention to the issue of gender discrimination in the workplace. Private employers can no longer presume to have a buffer against class action legal suits regarding job discrimination (Spangler, 2008). Dukes also provides a clear view of the power social institutions hold over discrimination in the workplace; the influence of a pro-business Supreme Court was unequivocally demonstrated in this case, one in a series of decisions with socially transformative ramifications (Aron, 2011).
Goldstein's admonishment — that the changing tenor of the socioeconomic context is a critical factor in determining how affirmative action policies and practices should be viewed and adjusted — highlights the powerful influence of sociocultural perspective on policy making and policy implementation. In view of the changing political sentiment of the last few decades, policy makers would do well to consider whether the purposes of affirmative action policy can be met within the conventional framework that has carried them into contemporary society. While diversity in business and government are laudable goals, diversity was not the original target of affirmative action. Elimination of discrimination was the policy problem that affirmative action was intended to address. This objective continues to be an essential consideration for the citizenry, and its importance has been heightened by the non-supportive political and social environments that are evident in many parts of the United States.
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