The Origins of Affirmative Action: Civil Rights and the Regulatory State

Affirmative action policy developed during the 1960s and 1970s in two phases that embodied conflicting traditions of government regulation. The first phase, culminating in the Civil Rights Act of 1964 and the Voting Rights Act of 1965, was shaped by the presidency and Congress and emphasized nondiscrimination under a “race-blind Constitution,†The second phase, shaped primarily by federal agencies and courts, witnessed a shift toward minority preferences during the Nixon administration. The development of two new agencies created to enforce the Civil Rights Act, the Equal Employment Opportunity Commission under Title VII and the Office of Federal Contract Compliance under Title VI, demonstrates the tensions between the two regulatory traditions and the evolution of federal policy from nondiscrimination to minority preferences under the rubric of affirmative action. The result has strengthened the economic and political base of the civil rights coalition while weakening its moral claims in public opinion.