Affirmative Action

Affirmative action programs are an outgrowth of civil rights laws. Civil rights legislation was created to eliminate the differences in opportunities caused by racial divisions and lines. Although slavery was a prevalent practice in the South in 1787, the authors of the original Constitution chose not to deal with the issue, even though it clearly went against the notion of a free society that was the cornerstone of the country's founding. It would take the ratification of the Thirteenth Amendment in 1865 to outlaw slavery. Three years later, the Fourteenth Amendment guaranteed that the states could not make or enforce any law that would "abridge the privileges or immunities of citizens" or "deprive any person of life, liberty, or property, without the due process of law." It also provided that a state could not deny any citizen "the equal protection of the laws." The Fifteenth Amendment, ratified in 1870, stated that a citizen's right to vote could not be denied or abridged "on account of race, color, or previous condition of servitude."

Following the Civil War Congress passed numerous civil rights laws to ensure the rights of former slaves. The Civil Rights Act of 1875 guaranteed that everyone, regardless of race or color, should be able to enjoy "inns, public conveyances on land or water, theaters, and other places of public amusement." This piece of legislation would effectively be overturned, however in an 8-1 decision in 1883 by the Supreme Court. In the Civil Rights Cases, the Court ruled that the Thirteenth and Fourteenth Amendments applied only to states and that the federal government did not have the authority to outlaw discrimination by private individuals. In his dissenting opinion, Justice John Marshall Harlan I stated that he believed that Congress did have such a right. However, in response to the Court's majority opinion, Southern states began passing laws, commonly called Jim Crow laws, that required separate accommodations for blacks and whites in most public places.

In 1896 the concept of "separate but equal" was upheld by the Supreme Court in Plessy v. Ferguson. Mr. Plessy challenged a Louisiana law that required racially separate seating accommodation on trains, after he was arrested for violating this law by trying to sit in a whites-only section. Although the Louisiana law appeared to be in violation of the Fourteenth Amendment's Equal Protection Clause, the Court ruled otherwise, thus allowing for continued segregation of the two races in the South. However, Justice Harlan was once again the sole dissenting voice and wrote that he believed that the Constitution should be "color blind." It would take over 50 years for Justice Harlan's vision of a "color-blind" Constitution to be affirmed. In Brown v. Board of Education, the Supreme Court unanimously ruled in 1954 that "separate" public schools were not "equal" for black students. This landmark case would have longlasting repercussions as school districts across the country have spent decades trying to determine the best way to integrate schools.