A look at the history of affirmative action with Mary Frances Berry

The Geraldine R. Segal Professor of American Social Thought and professor of history emerita shares the origins of the term, discusses the practice’s early champions and highlights the ensuing controversies.

resident Lyndon B. Johnson reaches to shake hands with Dr. Martin Luther King Jr.
On July 2, 1964, President Lyndon B. Johnson reaches to shake hands with Dr. Martin Luther King Jr. after presenting the civil rights leader with one of the 72 pens used to sign the Civil Rights Act in Washington. Surrounding the president, from left: Rep. Roland Libonati, D-Ill., Rep. Peter Rodino, D-N.J., Rev. King, Emanuel Celler, D-N.Y., and behind Celler is Whitney Young, executive director of the National Urban League. (Image: AP Photo)

The United States Supreme Court heard arguments in the fall over the use of affirmative action in admissions at Harvard and the University of North Carolina and is expected to release decisions in the cases in the coming months. In the second of a series exploring affirmative action, Penn Today talks to Mary Frances Berry, the Geraldine R. Segal Professor of American Social Thought and professor of history emerita, about the history of affirmative action in America. A historian, author, lawyer, and international civil rights activist, Berry served as assistant secretary for education in the U.S. Department of Health, Education, and Welfare during the Carter administration and as a member and chair of the U.S. Commission on Civil Rights.

From Berry’s work in the Nixon administration developing goals and timetables for affirmative action on hiring contractors of color to then-President Bill Clinton appointing her as the first chairwoman of the U.S. Commission on Civil Rights in 1993, “the history of affirmative action is a history in which I was very much involved,” she says.

Mary Frances Berry
Mary Frances Berry, Geraldine R. Segal Professor of American Social Thought and a professor of history and Africana studies. (Image: Jim Abbott)

What are the origins of the term ‘affirmative action’ and what were some of the original intentions of the practice?

The words affirmative action were used first in the National Labor Relations Act during the New Deal and at that time it had nothing to do with race. It was about employers and employees, and the Act was giving workers the right to organize after long struggles. Somewhere in the legislation there is wording that the parties have to take ‘affirmative action’ to meet the goals. It uses that phrase, which is also a term in the law that has nothing to do with race or gender. Often when a first party is ordered to do something to remedy a problem, a court might say that party should take ‘affirmative action’ to do what is required. The term had nothing in particular to do with the kinds of civil rights issues that are now associated with it.

When did the phrase take its more modern turn to mean promoting racial equality?

The use of the term in the civil rights arena comes about because the leaders of the modern civil rights movement thought that the federal government ought to do something about the race issue in this country, to remedy discrimination. They were mainly talking about the federal government because the problems they wanted to address were with state laws. The lawyers in the movement knew that this was language that you used when you were having these types of discussions.

Who were early champions of affirmative action, and what were the circumstances that led to this change from workplace focus to education?

Almost everybody whose name you could mention, from Martin Luther King Jr. on down in the civil rights movement was championing it. When we talked about changes that ought to be made at that time, there was at first a lot of discussion about employment and the workplace, and then came discussions about higher education. That’s because the HBCUs had been the place principally where Blacks in professional categories like medicine and law got their degrees, and we knew the whole history of people having to go out of state to go to law school because they weren’t permitted to attend in their home state. That whole history of discrimination in education made people believe that one of the remedies in the Civil Rights Act of 1964, when it talks about employment, was that affirmative measures should be taken by any entity that got federal money to try to remedy the discrimination that existed in the past. 

Even before that, John F. Kennedy was the first one pressed by the civil rights movement to issue some kind of affirmative action executive order. King and others in the movement asked Kennedy to do that, and he did as a general order. His order doesn’t have a lot of specifics about what the federal government ought to do but says that the federal government has a responsibility to engage in affirmative measures.

After that the pressure was put on other presidents, and it was Lyndon Johnson who issued the executive order that gave the federal government the ability to take action on racial discrimination, and later on he amended it to add sex discrimination. 

After the death of Dr. King, major universities made an effort to commit to enrolling more students of color. 

What’s the most important thing for people to understand about the history of affirmative action?

The most important thing to understand is that it was seen by civil rights activists and our country’s leaders during the movement as a remedy for discrimination that would create more opportunity for Blacks. That’s how it started, and it was controverted from the beginning. Opponents made all kinds of arguments. They saw it as reparations and said we shouldn’t talk about or have reparations. Well, then what are the alternative remedies if we don’t have good affirmative action and good diversity programs?

The alternative remedies have to be quality education for everyone, which we don’t have. Everybody who knows anything about K-12 schooling knows we don’t have it. So how are we going to fulfill the promise of opportunity in our country if we don’t have remedies for discrimination that have some validity? While affirmative action hasn’t done everything that some people hoped it would, it did a heck of a lot more than was being done before, and that is true of diversity also.