Affirmative action in Florida

---

On June 29, 2023, the Supreme Court reversed lower court decisions in Students for Fair Admissions, Inc. v. President & Fellows of Harvard and Students for Fair Admissions, Inc. v. University of North Carolina, effectively ending the use of affirmative action in college admissions. This article does not receive scheduled updates. If you have any questions or comments, contact us.

---

Affirmative action in Florida refers to the steps taken by employers and universities in Florida to increase the proportions of historically disadvantaged minority groups at those institutions. Historically, affirmative action nationwide has taken many different forms, such as strict quotas, extra outreach efforts, and racial and gender preferences. However, racial quotas in university admissions were banned in a 1978 United States Supreme Court case, Regents of the University of California v. Bakke.

On June 29, 2023, the Supreme Court reversed lower court decisions in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, effectively ending the use of affirmative action in college admissions.

Many universities across the country consider race in admissions; however, this practice has been banned in eight states. Meanwhile, 28 states require affirmative action plans in either public employment or apprenticeships. Affirmative action programs that grant racial preferences have come under scrutiny in the courts for potentially violating the Equal Protection Clause of the Fourteenth Amendment and Title VII of the Civil Rights Act.

HIGHLIGHTS

In Florida, the consideration of race is banned in admissions at public universities and in state employment. However, Florida has also enacted a law requiring the development of affirmative action plans by state agencies.

The effects of affirmative action policies are contested. Proponents argue that affirmative action diversifies selective institutions and provides more opportunities to minorities. Opponents argue that implementing policies that favor some groups requires discrimination against others and that these policiesmay harm individuals they are meant to help.

Background

The first reference to affirmative action was made by President John F. Kennedy (D) in 1961 in an executive order directing 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." While there had previously been efforts by the federal government to end racial discrimination, the order marked the first instance of an active approach to promoting equal opportunity.

Lyndon Johnson signing the Civil Rights Act, July 2, 1964

As the Civil Rights Movement grew, the federal government took on an increasing role in preventing discrimination and bolstering minority numbers in workplaces and universities. President Lyndon Johnson (D) signed the Civil Rights Act of 1964, a landmark piece of legislation that prohibited discrimination against any individual based on race, color, religion, sex, or national origin. However, some still felt that preventing discrimination was not enough, so President Johnson issued an executive order that created the means to enforce affirmative action policies for the first time. Of their own initiative, many colleges and universities nationwide also adopted affirmative action policies to increase minority enrollment.

The use of affirmative action programs was initially intended to be temporary. However, over time the goals of affirmative action policies shifted from equality of opportunity to the achievement of equal representation and outcomes for minorities at all levels of society, a more ambiguous target. Furthermore, lawsuits have been brought against institutions utilizing affirmative action policies, citing violations of the Equal Protection Clause of the Fourteenth Amendment and Titles VI and VII of the Civil Rights Act. In Regents of the University of California v. Bakke, the Supreme Court ruled that promoting diversity, rather than compensating for historical injustices, is the constitutional goal of affirmative action. In its 2013 ruling on affirmative action in Fisher v. University of Texas, the court also placed the burden on universities to prove that no viable race-neutral alternatives exist when they use racial preferences in admissions to increase diversity.

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, the Supreme Court effectively ended race-based considerations in college admissions in a June 29, 2023, decision. The ruling explicitly allowed national service academies to continue considering race as a factor in admissions for reasons of national security.

"One Florida" initiative

On November 9, 1999, former Governor Jeb Bush (R) issued Executive Order 99-281, otherwise known as the "One Florida" initiative. The order prohibited "racial or gender set-asides, preferences or quotas" in state hiring, contracting and public university admissions. Race-based university admissions were replaced with the Talented Twenty program, which grants automatic admission into one of Florida's public universities to students who graduate from high school in the top 20 percent of their class. The Florida One initiative also made other reforms, such as increasing need-based postsecondary financial aid.

Key terms

The following terms are helpful in understanding affirmative action policy:

• Discrimination refers to the unequal treatment of some individuals or groups based on federally-protected traits, such as age, race/ethnicity and gender.
• Preferential treatment occurs when an applicant is more likely to be selected than another applicant with similar or better qualifications due to other factors, such as race and ethnicity.
• Reverse discrimination is, according to Dictionary.com, unequal treatment or discrimination based on protected traits of "members of majority groups resulting from preferential policies" favoring historically disadvantaged groups, with the intent of remedying past societal discrimination.
• Equal employment opportunity is a commitment employers make to refrain from employment practices that are discriminatory, either directly (disparate treatment) or indirectly (disparate impact). According to Study.com, an equal employment opportunity policy is intended to ensure that "certain classes of people who have been discriminated against in the past are not subjected to adverse treatment" based on protected traits.
• Diversity means the representation of individuals of a variety of backgrounds in terms of characteristics such as national origin, race and ethnicity, gender and socioeconomic status.
• The mismatch effect refers to the theory that when an elite school extends a large preference to a student due to his race, athletic ability or connection to alumni, that student is less prepared for the rigor of the classes and suffers academically, though that student would perhaps thrive at a somewhat less elite school.
• Racial quotas are hiring or admissions policies requiring that a specified number or percentage of minority group members be hired or admitted. In 1978, the United States Supreme Court outlawed the use of strict racial quotas.
• Ratchet effect/cascade effect refers to a phenomenon in which actors do not have an incentive to improve a situation even if they easily could.

University admissions

See also: Higher education in Florida

Affirmative action in university admissions is a separate matter from affirmative action in employment that operates under different rules and regulations. Federal law requires government contractors and other departments and agencies receiving federal funding to develop and implement affirmative action plans for the hiring process. Public colleges and universities are considered federal contractors and must utilize affirmative action in their employment practices. However, many private colleges and universities across the country have also implemented similar measures in their admissions processes. These actions are typically voluntary, although a handful of states have adopted rules that require state universities to take affirmative action in admissions.

Affirmative action admissions programs were undertaken by public and private universities alike, beginning in the late 1960s and 1970s. Some universities initially established quotas in order to achieve a demographically diverse student body; these quotas were outlawed by the United States Supreme Court in Regents of the University of California v. Bakke in 1978. Today, a common form of affirmative action in college admissions is that of racial preferences. A preference occurs when a group of applicants is more likely to be admitted than other applicants with similar or better qualifications due to other factors, such as race or ethnicity. Preferences are also sometimes extended towards women, athletes, and children of alumni. The use of racial preferences may be related to college selectivity: scholars such as law professor Richard Sander have found that preferences are strongest at elite institutions.

Eight states, including Florida, have enacted laws banning the consideration of race in university admissions. Florida is the only one of these states that enacted such a ban by executive order. Due to the ban, none of Florida's 13 public four-year universities reported considering race in admissions, as indicated in the chart below.

Consideration of race at public four-year universities in Florida
School	Race/Ethnicity is...				School selectivity*
	Very important	Important	Considered	Not considered
Florida Agricultural and Mechanical University					Very selective
Florida Atlantic University					Somewhat selective
Florida Gulf Coast University					Somewhat selective
Florida International University					Very selective
Florida State University					Very selective
New College of Florida					Somewhat selective
University of Central Florida					Very selective
University of Florida					Very selective
University of North Florida					Somewhat selective
University of South Florida					Very selective
University of South Florida: Sarasota-Manatee					Very selective
University of South Florida: St. Petersburg					Very selective
University of West Florida					Very selective
Sources: The College Board, "Big Future," accessed March 30, 2015 CollegeData, "College 411," accessed March 30, 2015 *Note: This scale of college selectivity comes from The College Board and is measured as follows: Most selective, less than 25 percent admitted; Very selective, 25 percent to 50 percent admitted; Somewhat selective, 50 percent to 75 percent admitted; Less selective, more than 75 percent admitted; Open admission, all or most admitted.

About the data

Information on which colleges consider race in admissions came from individual college profiles provided by two websites that aim to assist students in choosing a college: The College Board and CollegeData. Such information was reported to The College Board by the colleges themselves. Note that schools may have updated their policies since reporting them. To see the data: College Board: Click the link to the college's profile provided in the table below. Click "Applying" on the side menu and scroll down. Listed will be several criteria of admission into the college, separated by importance. If Race/Ethnicity is not listed, it was not reported as considered by the college's admissions officers. CollegeData: Click the link to the college's profile provided in the table below. Scroll down to the section titled "Selection of Students" to see a chart of admission criteria ranked from "Very Important" to "Not Considered." Click for links to school profiles School School profiles School School profiles College Board College Data College Board College Data Florida Agricultural and Mechanical University Link Link Florida Atlantic University Link Link Florida Gulf Coast University Link Link Florida International University Link Link Florida State University Link Link New College of Florida Link Link University of Central Florida Link Link University of Florida Link Link University of North Florida Link Link University of South Florida Link Link University of South Florida: Sarasota-Manatee Link Link University of South Florida: St. Petersburg Link Link University of West Florida Link Link

Employment

According to Business and Legal Resources, 28 states have passed their own laws requiring the development of affirmative action plans by state employers or apprenticeship programs. Affirmative action plans are management tools that outline efforts made to increase the proportions of minorities at a company or institution. Such plans typically contain the following:

• numerical analysis of the percentage of minorities employed versus the percentage in the labor pool,
• identification of areas where there is "underutilization" of minorities, or a discrepancy between the above percentages, and
• "specific practical steps" the employer will take to correct this discrepancy.

As of March 2015, Florida had enacted its own state law regarding affirmative action requirements or plans for public employers. While the One Florida initiative banned gender or racial preferences in hiring, the Public Employment Affirmative Action law requires state agencies and attorneys to develop affirmative action plans. The plans must outline goals for the hiring of women and minorities; agencies should strive to reflect the "full diversity of Florida's population" in their workforce. Each agency must appoint an affirmative action/equal employment opportunity officer to work on developing the agency's plan. State agencies are also encouraged to actively recruit minority-owned businesses for contracting purposes. Affirmative action and equal employment opportunity programs are overseen by the Department of Management Services.

See executive order: Executive Order 99-281, One Florida

See law: Public Employment Affirmative Action Law

Florida also has a state nondiscrimination law, which in addition to federal law, identifies the following as protected traits:

“

Race Color National origin Religion Sex Disability: "Handicap" Age Marital status AIDS/HIV Sickle cell trait

”

The state's nondiscrimination law applies to employers with at least 15 employees and is enforced by the Commission on Human Relations.

Federal requirements

Federal contractors and agencies in Florida that receive funding from the United States government are subject to federal law that requires them to adopt affirmative action plans.

Additionally, the following federal laws may apply to any company that meets certain conditions:

• Employers with at least four employees must adhere to the Immigration Reform and Control Act.
• Employers with at least 15 employees must adhere to Title VII of the Civil Rights Act, the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.
• Employers with at least 20 employees must adhere to the Age Discrimination in Employment Act.
• Employers with any number of employees must adhere to the Equal Pay Act.

Federal nondiscrimination and affirmative action laws in Florida are enforced by the Equal Employment Opportunity Commission.

Court cases

Northeastern Florida Chapter, Associated General Contractors v. City of Jacksonville

In the mid-1980s, the city of Jacksonville, Florida maintained a policy of reserving 10 percent of contracting funds for businesses owned by minorities. The Northeastern Florida Chapter of the Associated General Contractors of America, alleging that the ordinance prevented its members from bidding on the reserved contracts, filed suit against the city in United States District Court for the Middle District of Florida. The contractors argued that the policy violated the Equal Protection Clause of the Fourteenth Amendment. The district court found in favor of the contractors, but on appeal, the Eleventh Circuit Court of Appeals reversed the decision, ruling that the contractors did not have standing to sue "because it did not demonstrate that one or more of its members would have received a reserved city contract but for the ordinance."

The United States Supreme Court heard the case in 1993. At question was the issue of standing, or whether the contractors had any legally protected interest that entitled them to file suit, rather than whether the city's policy violated the constitution. The court reversed the decision of the court of appeals, ruling that "the inability to compete on an equal footing in the bidding process" was enough for the contractors to declare injury from the policy. They did not have to prove that they would have actually won the contract, as had been ruled by the court of appeals. The Supreme Court sent the case back to the lower court for review.

Public opinion

National public opinion polls on affirmative action have yielded mixed results over the past few years. Results found by researchers seem to depend largely on how the question is worded. In particular, support drops considerably when the word "preferences" is included in the question. Supporters of affirmative action are more likely to do so to increase diversity rather than compensate for past injustice.

Opinions also change when the question refers to college admissions specifically, and support and opposition are somewhat divided on racial lines, with black Americans being far more likely to favor affirmative action. In general, support for affirmative action has dropped since its peak in the early 1990s, when a poll by NBC News/Wall Street Journal found that 61 percent of Americans thought that affirmative action policies were still needed, compared to 45 percent in June 2013.

Support

Common reasons stated for supporting affirmative action include the following:

• Diversity is valuable for any workplace or college campus.
• Minority enrollment in college would fall dramatically without affirmative action.
• Affirmative action provides the extra push to disadvantaged students that is needed to succeed.
• By providing minorities with new opportunities, affirmative action may introduce them to other interests they would not have discovered otherwise.
• Affirmative action is necessary to break stereotypes.
• Affirmative action compensates for past injustices.

Opposition

Common arguments stated against affirmative action include the following:

• Affirmative action policies have caused "reverse discrimination" against whites.
• According to the Equal Protection Clause of the Fourteenth Amendment, affirmative action is unconstitutional.
• Since standards are lowered by preferential treatment, minorities only aim for those lower standards.
• Affirmative action causes a "mismatch effect" of underqualified students, leading to their failure at elite schools.
• Affirmative action is demeaning and condescending to minority achievement.
• It is too difficult to end affirmative action policies after they have been enacted, even when discrimination is no longer an issue.

Agencies

The Equal Employment Opportunity Commission (EEOC) is "responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information." These federal laws typically apply to workplaces with 15 or more employees. The EEOC operates field offices in 15 districts. Florida is served primarily by the Miami District Office. See the table below for further information about EEOC field offices serving Florida.

EEOC field offices serving Florida
Office	Location	Website
Miami District Office	Miami, Florida	Link
Tampa Field Office	Tampa, Florida	Link
San Juan Local Office	San Juan, Puerto Rico	Link

In addition, states and localities may have their own anti-discrimination laws. Separate agencies, designated by the EEOC as Fair Employment Practices Agencies, are responsible for enforcing these laws. In Florida, the Florida Commission on Human Relations is a designated Fair Employment Practices Agency. See the table below for further information about this office.

Fair Employment Practices Agencies in Florida
Office	Location	Phone number	Website
Florida Commission on Human Relations	Tallahassee, Florida	(850) 488-7082	Link

Affirmative action and anti-discrimination legislation

The following is a list of recent affirmative action and anti-discrimination bills that have been introduced in or passed by the Florida state legislature. To learn more about each of these bills, click the bill title. This information is provided by BillTrack50 and LegiScan.

Note: Due to the nature of the sorting process used to generate this list, some results may not be relevant to the topic. If no bills are displayed below, no legislation pertaining to this topic has been introduced in the legislature recently.

See also

• Affirmative action
• Affirmative action on the ballot
• Higher education in Florida
• Fourteenth Amendment
• Civil Liberties Policy

External links

• Department of Management Services
• Florida Commission on Human Relations
• Equal Employment Opportunity Commission