The concept of affirmative action


According to (Aguirre, 2003) the concept of affirmative action was introduced in America in the 1960s basically to help reduce incidences of racial discrimination. With a growing population the American society was confronted with the challenge of addressing the issue of diversity and incorporating the same into the public institutions. (Aguirre, 2003, p. 69)

The term “affirmative action” has a long history in American society. As observed by (Aguirre, 2003) the term is traced to “President John F Kennedy 1961 Executive Order” that established the committee on equal employment.  Similarly, it could also be deciphered in the Civil War Amendments that saw the abolishment of slavery and introduced equal rights for all men. (Aguirre, 2003, p. 69)

Therefore, affirmative action can be broadly defined as the measures, policies, regulations or any decisions that seeks to abolish discrimination by allowing the use of race, sex, nationality, ethnicity in giving opportunity to class of qualified individuals. (Aguirre and Martinez, 2003, p. 9) The proponents of affirmative action are categorical that there is no way the society can compensate for the historical disadvantage other than giving preferential treatment to those races that have been historically marginalized. (Engerman, S., & Jones, 1992)

However, in the recent past there has been growing resentment and agitation by the white majority that affirmative action is proving to be unfair, untenable, and the law should apply equally to all. The argument is based on social research that shows affirmative action has not worked (Hughey, M. 2014).

The Supreme Court Decision In Support Of Affirmative Action

The case of Regents of the University of California v Bakke (1978) is one of the leading cases in affirmative action in America. The court in this case stated that there was nothing unconstitutional for the schools to use race as basis for affirmative action. However, the court went further to fault the use of “quota system.”

In the same way the court in the case of Farmer v. Ramsay (2002) held the same view.  The plaintiff had sued the University of Maryland School of medicine for rejecting his application and argued that it was unfair since the institution had set lower qualifications for applicants from other races. The court held that the institution had the right to use affirmative action and held that the applicant was denied the opportunity due to his low qualifications.

Equally, in the case of Gratz v. Bollinger (2003) the  Supreme Court decision upheld the policies that allowed the Michigan school of law to use race as an important factor in determining the entrance of applicants. Sandra Day was categorical that “US constitution does not prohibit the school to set guidelines to ensure that the students from other racial minority communities are admitted.”

Finally on this issue, there has been a recent decision in the case of Fisher v. University of Texas (2016. In this case the petitioners challenged the affirmative action stating it was unfair and favoring students from less privileged racial backgrounds that are not deserving and overlooking other students from other races who are very good.

During the trial the issue of mismatching was brought by the late Justice Scalia, stating that there are those who argue that it does not benefit the African American if the students are admitted on the basis of race and the courses become too difficult for them. However, Justice Kennedy in the majority decision rejected Miss. Fisher petition by stating that diversity goals are constitutional, promotes racial understating and also adequately prepares students for a diverse workforce.

The Court against the Concepts of Affirmative Action

There have been a number of court decisions that seem not to support the doctrine of affirmative action. However, there is little jurisprudence in this regard. The first case that is available is the case of Parents v. Seattle and Meredith v. Jefferson (2007) in this case the court observed that the public school cannot promote inclusivity by enforcing measure’s that considers the applicants race. C.J Roberts observed that, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,”

Similarly, the case of Ricci v. DeStefano (2009) adopted the same approach. In this case the plaintiffs were white and Hispanics students who sued the administration after their results were canceled on the basis that other students from minority races had not passed. The court stated that the rights of the petitioners were violated under the 11th Amendment

Further,  in the case of Schuette v. Coalition to Defend Affirmative Action (2014) The question before the Supreme court was whether the State of Michigan had violated the equal protection clause of the 14th Amendment by enacting a ban with regard to the race and sex discrimination at the public institutions and colleges.  The court stated that the citizens of Michigan have the constitutional rights to “ban race conscious admissions” at the state universities, colleges and other governmental institutions.

Employment at will

The employment at will is a legal doctrine that exists in the U.S today and is still in use in many states except Montana. The Doctrine in essence, provides that the wage earning employee services may be terminated for a just cause or good cause. This doctrine gives the employer the power and the right to dismiss an employee. (Van, 2003, p. 184)

As rightly observed in the case of Payne v. Western (1884). “Men must be left without interference… to discharge or retain employees at will for good cause or for no cause, or even for bad cause without thereby being guilty of an unlawful act per se.”  (Summers, 2000, p.65). The court was affirming the doctrine of “employment at will” giving the employer the power and the right to terminate the services of the employees at will. The doctrine has been an underlying decision in most US labor laws. (Summers, 2000)

Therefore, a person will be regarded as “an employee at will” if there is no definite term of employment. Under this type of contractual relations the employment can be terminated by either side without any notice, without any reason so long as it is not for an illegal reason. That is, if it’s against public policy or against the constitution.

The Court Decision in Support Of employment at will

In the case of  Skagerberg v. Blandin Paper Co (Minn. 1936). The company sought to employ an engineer who had been offered a professorship opportunity with the university. They promised him that if he took up the position and declined the other offer he would be given a permanent position with the company. Relying on Said undertakings, the professor agreed, took up the opportunity and relocated but he was discharged after two years. He sued and the company and the court held that it was a “contract was at will.” (Summers, 2000)

Equally, in the case of East Line & Red River Railroad Company v. Scott (1888) the doctrine of employment at will was canvassed. The plaintiff had agreed with the defendant to settle a personal injury claim in exchange for a job for the length that the plaintiff might desire to have the job. However, Texas court recognized the agreement but held in the circumstances that the plaintiff failed to fix any period he had forfeited the chance and the employment at will was applicable. (Summers, 2000)

Further, in the case of Main v. Skaggs Community Hospital (1991), the terms of the contract provided that in the event that the employer will terminate the services of the employee, a written notice of 60 will be issued. The Company terminated in default of the terms of agreement; the court held that it was not a must since it was employment at will. (Summers, 2000).

The Court Decision against Employment at Will

The employment at will has been a controversial doctrine due to the harshness and sometimes it is perceived to be unfair to the employees. Also, it has been regarded as giving the employer a lot of power and sometimes exposing the employees to arbitrariness and unfair dismissal. The decisions against the employment at will are found under the exceptions to the rule. The public policy is also used to circumvent, where there is an express constitutional or statutory provision that prohibits firing the employee the court will not hesitate to interfere.

The first is that an employee has the right to bring a suit under the wrongful termination for discrimination. The relevant acts are, Equal Pay Act, Civil Rights Act, Americans with Disabilities Act of 1990 and others. In the case of Ross v. Vanguard, the plaintiff successfully sued the employer for dismissing him on racial grounds.

Finally,  another exception is under the “implied covenant of good faith and fair dealing.”  In the case of Monge v. Beebe Rubber Co, the court was clear that, “termination by an employer of a contract of employment at will which is motivated by bad faith or malice…constitutes a breach of the employment contract.”


Affirmative action has existed in the American legal system and there is enough jurisprudence on the matter. There are various court precedents’ that act as guiding principles although now they seem to be conflicting decisions and it’s uncertain how this matter should be handled. As Dworkin observes there has been growing discomfort with the continued use of it as basis for admission and other important considerations as observed in the recent cases and many suits are being filed challenging it. (Dworkin, 2000)

Did you like this sample?
  1. Aguirre, A. (2003). Racial and Ethnic Diversity in America: A Reference Handbook (Contemporary world issues).
  2. Clyde W. Summers, Employment at Will in the United States: The Divine Right of Employers, 3 J. Bus. L. 65 (2000).
  3. Engerman, S., & Jones, A. (1992). Journal of Policy Analysis and Management.
  4. Dworkin, R. (2000). Affirmative Action: Is It Fair? The Journal of Blacks in Higher Education.
  5. Van, H. C. (2003). Work in America: : an encyclopedia of history, policy, and society. Santa Barbara, Calif.
  6. Hughey, M. (2014). Contemporary Sociology, 43(3), 405-407.
  7. Monge v. Beebe Rubber Co., 316 A.2d 549 (N.H. 1974).
  8. Ross v. Vanguard US: Equal Employment Opportunity Commission. “Vanguard Group to Pay $500,000 for Retaliation”.
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