Affirmative Action History: From FDR to SFFA and the 2025 Revocation

The history of affirmative action in the United States spans more than eighty years, beginning with a 1941 wartime executive order against discrimination in defense hiring and ending, at the federal level, with a 2025 presidential directive that revoked the contractor framework built up since the 1960s. Between those points, presidents expanded the policy, the Supreme Court narrowed it, and state voters in several places rejected it outright.

Wartime Origins Under Franklin Roosevelt

Federal involvement began in June 1941, when President Franklin Roosevelt signed Executive Order 8802. The order banned discriminatory employment practices by federal agencies and by companies engaged in war-related work, prohibiting discrimination based on race, creed, color, or national origin. It also created the Committee on Fair Employment Practice to receive and investigate complaints.¹

The committee could investigate and recommend, but it had no authority to cancel contracts or impose penalties, and historians generally regard it as ineffective at changing employer behavior during the war. Its importance was precedential. For the first time, a president used federal spending to attach a social obligation to private hiring.

Kennedy Coins the Term and Congress Passes the Civil Rights Act

President John F. Kennedy’s Executive Order 10925, signed in March 1961, put the phrase “affirmative action” into federal policy for the first time. It required 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 wording moved federal policy past a simple ban on discrimination; contractors now had to take positive steps in recruitment, hiring, promotion, and training.

Three years later, Congress passed the Civil Rights Act of 1964. Title VII made employment discrimination illegal for private and public employers with fifteen or more workers, covering race, color, religion, sex, and national origin.³ The act also created the Equal Employment Opportunity Commission to investigate complaints and enforce compliance.⁴ The EEOC could initially only investigate and try to mediate; it did not gain authority to file lawsuits on behalf of employees until Congress amended the statute in 1972.

Johnson’s Contractor Order and Numerical Goals

President Lyndon Johnson raised the stakes in 1965 with Executive Order 11246, which required federal contractors and subcontractors to take affirmative action in employment without regard to race, creed, color, or national origin.⁵ The basic requirements applied to any business holding a federal contract or subcontract exceeding $10,000.⁶ Larger contractors faced more detailed obligations, including written affirmative action plans with workforce analyses and hiring goals. In 1967, Executive Order 11375 amended the order to add sex as a protected category.⁷

The Office of Federal Contract Compliance Programs within the Department of Labor enforced the rules through audits and demographic reporting. The federal government was no longer just telling employers to stop discriminating; it was requiring them to document what they were doing to open doors.

The most aggressive early application came through the Philadelphia Plan, which targeted the construction trades in the late 1960s. Bidders on federal construction projects had to submit affirmative action programs with specific numerical goals and timetables for minority hiring. A revised version of the plan survived a congressional challenge in December 1969. The plan set the pattern: measurable targets rather than general aspirations. It also opened the debate over whether such goals functioned as quotas, a question that would dominate court battles for the next fifty years.

Bakke and the Quota Line

The Supreme Court drew its first major boundary in 1978 in Regents of the University of California v. Bakke. Allan Bakke, a white applicant, challenged the UC Davis medical school after his application was rejected despite scores well above the average admitted student. The school had reserved 16 of its 100 seats for minority applicants, and white candidates could compete only for the remaining 84.⁸

Justice Lewis Powell’s controlling opinion held that a rigid quota reserving seats by race violated the Equal Protection Clause. At the same time, Powell wrote that a diverse student body was a compelling interest and that race could serve as one factor among many in a holistic admissions review.⁸ Admissions offices could consider race. They could not assign seats by it. That distinction between forbidden quotas and permissible “plus factors” governed admissions law for decades.

State Bans and Adarand in the 1990s

While courts refined what was permissible, voters in several states decided they wanted none of it. California’s Proposition 209, approved in 1996, amended the state constitution to prohibit preferential treatment based on race, sex, color, ethnicity, or national origin in public employment, education, and contracting. The measure effectively ended affirmative action at California public universities and state agencies. By 2020, roughly nine states had enacted similar bans through ballot initiatives, legislation, or executive orders.

On the federal side, the Supreme Court tightened the constitutional standard in 1995 in Adarand Constructors, Inc. v. Peña. The case challenged a federal highway contract provision that gave prime contractors a financial incentive to hire subcontractors certified as small disadvantaged businesses. The Court held that all racial classifications by any government actor, whether federal, state, or local, must survive strict scrutiny. The government has to show a compelling interest and prove the classification is narrowly tailored to serve it.⁹ Before Adarand, federal racial classifications had faced a more lenient standard than state ones. That asymmetry ended.

Grutter, Gratz, and Fisher

The Court returned to admissions with a pair of Michigan cases decided the same day in June 2003. In Grutter v. Bollinger, the Court upheld the University of Michigan law school’s policy, which used race as a flexible factor within a holistic review of each applicant and did not define diversity solely in racial terms.¹⁰

Gratz v. Bollinger came out the other way. The undergraduate program automatically awarded 20 of the 100 points needed for guaranteed admission to every applicant from an underrepresented minority group. The Court struck it down. Making race decisive for virtually every minimally qualified underrepresented applicant was not narrowly tailored and did not provide the individualized consideration Bakke required.¹¹ The message was that a university could weigh race but could not hand the weighing off to a point system.

The Court revisited these principles in Fisher v. University of Texas at Austin, ultimately upholding the university’s program in 2016. Race-conscious admissions could survive strict scrutiny only if race-neutral alternatives would not achieve the same educational benefits and if the university periodically reassessed whether the program remained necessary.¹² Universities could not adopt a program and leave it on autopilot; they had to keep proving it was still needed.

SFFA v. Harvard Ends Race-Conscious Admissions

The framework collapsed in June 2023. In Students for Fair Admissions v. President and Fellows of Harvard College, the Supreme Court held that race-conscious admissions programs at Harvard and the University of North Carolina violated the Equal Protection Clause.¹³ The majority found the programs lacked sufficiently focused and measurable objectives, used race as a negative for applicants outside underrepresented groups, and involved racial stereotyping.

The ruling did not bar applicants from writing about how race shaped their personal experiences. What it prohibited was the institutional practice of treating racial identity as a factor in the admissions calculus itself. An applicant can still write about overcoming racial discrimination, but a university cannot use that essay as a proxy for a demographic tally.

The 2025 Revocation of the Federal Contractor Framework

On January 21, 2025, President Trump signed Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which revoked Executive Order 11246 outright.¹⁴ The order gave contractors a 90-day transition period and directed the OFCCP to stop holding contractors responsible for affirmative action, promoting diversity, or encouraging workforce balancing based on race, color, sex, religion, or national origin.

The order also required every new federal contract and grant to include a certification that the recipient does not operate diversity, equity, and inclusion programs that violate federal anti-discrimination laws. Compliance with anti-discrimination law was made material to payment decisions, tying it to the False Claims Act and creating potential liability for contractors who certify falsely.¹⁴

The Department of Labor followed with a proposed rule to formally rescind the implementing regulations under the old executive order, including the affirmative action plan requirements, construction contractor goals, employee testing guidelines, and sex discrimination provisions that had governed federal contractors since the 1960s.⁶ The SBA’s 8(a) business development program, which had provided preferences to businesses owned by socially and economically disadvantaged individuals, was restructured as race-neutral. The agency announced it would no longer approve applications based on racial narratives.

What Still Applies

Executive Order 14173 explicitly exempted preferences for military veterans and persons protected under the Randolph-Sheppard Act.¹⁴ Two statutory programs continue to impose affirmative action obligations on federal contractors. The Vietnam Era Veterans’ Readjustment Assistance Act requires covered contractors to set hiring benchmarks for protected veterans, currently 5.1% of the workforce. Section 503 of the Rehabilitation Act of 1973 requires contractors to set a 7% utilization goal for employees with disabilities, though the Department of Labor has proposed removing that specific target. Both programs are enforced through administrative proceedings the OFCCP retains authority to conduct.⁶

Title VII of the Civil Rights Act of 1964 remains fully in force. Employers with fifteen or more workers are still prohibited from discriminating based on race, color, religion, sex, or national origin, and the EEOC continues to investigate complaints and file enforcement actions.³ What changed is the affirmative obligation. Federal contractors are no longer required to take proactive steps to increase demographic representation. The framework has shifted from mandated inclusion efforts back to a prohibition-only model: employers must not discriminate, but they are no longer told to show they are actively working to diversify.

1
National Archives. Executive Order 8802: Prohibition of Discrimination in the Defense Industry (1941)
2
The American Presidency Project. Executive Order 10925 – Establishing the Presidents Committee on Equal Employment Opportunity
3
U.S. Equal Employment Opportunity Commission. Title VII of the Civil Rights Act of 1964
4
National Archives. Civil Rights Act (1964)
5
U.S. Equal Employment Opportunity Commission. Executive Order No. 11246
6
Federal Register. Rescission of Executive Order 11246 Implementing Regulations
7
The American Presidency Project. Executive Order 11375 – Amending Executive Order No. 11246, Relating to Equal Employment Opportunity
8
Justia. Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978)
9
Justia. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)
10
Justia. Grutter v. Bollinger, 539 U.S. 306 (2003)
11
Justia. Gratz v. Bollinger, 539 U.S. 244 (2003)
12
Justia. Fisher v. University of Texas at Austin, 579 U.S. ___ (2016)
13
Supreme Court of the United States. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College
14
Federal Register. Ending Illegal Discrimination and Restoring Merit-Based Opportunity