Memorandum: Campaign Against Federal Affirmative Action Programs

Anna Griffith

23, January 2025

In March 1961, President John F. Kennedy Jr. signed Executive Order 10925, establishing the Committee on Equal Employment Opportunity, which would evaluate government employment practices and “recommend additional affirmative steps which should be taken by executive departments and agencies to realize more fully the national policy of nondiscrimination within the executive branch of the Government.”[1] Citing “the plain and positive obligation of the United States Government to promote and ensure equal opportunity for all qualified persons, without regard to race, creed, color, or national origin, employed or seeking employment with the Federal Government and on government contracts,” the Executive Order not only prohibited employment discrimination in the government and government contracts, but also required all future government contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.”[2] The Civil Rights Act of 1964 enshrined the mission and charge of President Kennedy’s executive order, establishing the Equal Employment Opportunity Commission[3] and extending the prohibition on employment discrimination to all employers with more than 15 employees.[4]

 The history of federal antidiscrimination executive orders, and congressional legislation to cement the orders, spans decades and political parties.[5] Legal challenges to these policies arose in the 1980s,[6] though the integrity of the federal programs remained intact. Over the last three years, however, and particularly in the wake of the Supreme Court’s decision in Students for Fair Admissions v. President & Fellows of Harvard College[7] (“SFFA”), federal courts have consistently found that federal affirmative action programs unconstitutionally discriminate on the basis of race. This memorandum serves as a primer on the four most recent of these federal court cases.

For each case, this memorandum will provide: (1) an overview of the court’s ruling and reasoning, (2) evaluation of the court’s legal arguments, and (3) how the ruling changed the administration of the federal program. The legal analysis pays particular attention to the ways in which the federal courts interpret the “compelling interest” prong of strict scrutiny judicial review. The memorandum will conclude with lessons and observations from this analysis and cases to monitor that may be influenced by these rulings.

Continue reading the memo in its entirety below:

Campaign Against Federal Affirmative Action Programs

[1] Exec. Order No. 10925, 26 C.F.R. 1977 (1961).

[2] Id.

[3] 42 USCS § 2000e-4.

[4] 42 USCS § 2000e-2.

[5] See, e.g., Exec. Order No. 11246, 30 C.F.R. 12319 (1965) (“Equal Employment Opportunity; Nondiscrimination in Government Employment, Nondiscrimination in Employment by Government Contractors and Subcontractors; Nondiscrimination Provisions in Federally Assisted Construction Contracts”); Exec. Order No. 11625, 36 C.F.R. 19967 (1971) (“Prescribing Additional Arrangements for Developing and Coordinating a National Program for Minority Business Enterprise”); Exec. Order No. 12432, 48 C.F.R. 32551 (1983) (“Minority Business Enterprise Development”); Civil Rights Act of 1991, P.L. 102-166, 42 U.S.C. § 1981 (“To amend the Civil Rights Act of 1964 to strengthen and improve Federal civil rights laws, to provide for damages in cases of intentional employment discrimination, to clarify provisions regarding disparate impact actions, and for other purposes.”); Minority Business Development Act of 2021, P.L. 117-58, 15 U.S.C. § 9502.

[6] See, e.g., Fullilove v. Klutznick, 448 U.S. 448 (1980); Sheet Metal Workers' International Association v. EEOC, 478 U.S. 421 (1986); Adarand Constructors v. Peña, 515 U.S. 200 (1995).

[7] Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 600 U.S. 181 (2023).