In 1961, President John Kennedy issued executive order 10925, which created the Committee on Equal Employment Opportunity and mandated that federally funded projects take "affirmative action" to insure that hiring and employment practices were free of racial bias. A few months after outlining the concept of affirmative action in a speech delivered at historically black Howard University, President Lyndon Johnson issued executive order 11246 in 1965, and established enforcement guidelines and documentation procedures for federal contractors. In 1967, the order was amended to cover gender discrimination. In 1969, then President Richard Nixon initiated the "Philadelphia Order", the most forceful plan to date to guarantee fair hiring practices in construction jobs, using the city’s craft trades as a test case.
Initially, civil rights laws had sought to right discriminatory wrongs. Equal opportunity was frequently seen as proportionate representation based on census data. Discrimination was not only found in the intentional act of a real estate agent or an employment office, it was also found in housing patterns and wage rates. However, in the decades that followed, affirmative action became synonymous with "reverse discrimination" as whites began to resent opportunities afforded nonwhites. In the late 1970s, the courts began to strike down affirmative action programs that were designed to give minorities an opportunity to compete for federal contracts, by challenging programs that utilized "quotas."
The change in the way affirmative action came to be viewed took a different tone in the courts. In discrimination lawsuits filed in the 1970s, racist intent was almost always denied by defendants. But the courts often relied on statistical patterns as evidence of discrimination. However, the standard for proving discrimination subsequently changed so that intent became the basis for determining discrimination. By the 1980s, the courts had so narrowly defined discrimination that the onus was on the victims of racial bias to prove the intent of employers and institutions that had exhibited racism in their policies and practices. Groups other than African Americans filed discrimination lawsuits on the basis of statistical proportionality: Hispanics, Asian, Native peoples, women, the handicapped. And in each instance, the census provided the basis to determine who was being given equal treatment and opportunity, and who was not.
The 1970 census racial categories included: Chinese, Filipino, Hawaiian, Indian American, Japanese, Negro or Black, other, White, Hispanic origin of any race, and White, not of Hispanic origin. Mexicans were counted as white from 1930 until 1970, when they re-entered the census as Hispanic origin. It was a deliberate effort to count Hispanics without treating them as a race. They were to be considered a cultural/linguistic group. Using this reasoning, Hispanics can have a racial identification separate from their ethnicity. At the time, the census expected Hispanics to also select from the primary racial categories. Historically, the census counted and classified by race and national origin. Now the taxonomy included ethnicity.
In 1972, Equal Employment Opportunity Act was passed, laying the groundwork for affirmative action.
In 1978, the Supreme Court ruled in Bakke v. Univ. of California that the university could not use fixed quotas in making admissions decisions, in the first of what would be many challenges to affirmative action.
In 1980, the Supreme Court ruled in Fullilove v. Klutznick that modest quotas were reasonable, upholding a federal law that 15 percent of public works funds be set-aside for qualified minority contractors.
The 1980 census racial categories included Aleut, Asian Indian, Black or Negro, Chinese, Filipino, Eskimo, Guamanian, Hawaiian, Indian American, Japanese, Korean, other, Samoan, Vietnamese, White, Hispanic origin of any race, and White, not of Hispanic origin. In the 1980 census, being of Hispanic origin was treated in the census as an ethnic, not a racial distinction because Hispanics can be Asian, Black, Native Indian, and White. The census still recognized only four races, not five. But Hispanics seem to suggest otherwise. The census form has had an open-ended "other race" option, and since 1980, a large number of Hispanics—42 percent in 2000—have used that option to declare their race as Hispanic, thereby creating a "brown" category and at least implicitly challenging the government's position that Hispanic was an ethnic not racial descriptor.
The Immigration Reform and Control Act of 1986 was passed in order to stop illegal immigration from Mexico, which was seen as a threat to the U.S. economy.
In 1986, in Wygant v. Jackson Board of Education, the Supreme Court ruled that the school board's policy of protecting minority teachers by laying off non-minority teachers regardless of seniority was unconstitutional, citing the burden imposed on innocent parties.
In 2003, two lawsuits involving the University of Michigan's affirmative action admissions policy reached the U.S. Supreme Court Grutter v. Bollinger and Gratz v. Bollinger. In the first case, the court upheld the law school's admissions policy citing "a compelling interest in obtaining the educational benefits that flow from a diverse student body," while in the second it ruled against the university's undergraduate admissions policy, which relied on a more formulaic point system.