Affirmative action in Colorado

in Colorado

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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 Colorado

General information

Public four-year schools: 13

Number considering race: 3

State affirmative action law: C.R.S. 24-50-101

State agency: •Colorado Civil Rights Division •State Personnel Board •Department of Labor and Employment

Affirmative action in other states

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Affirmative action • Gratz v. Bollinger • Grutter v. Bollinger • Fisher v. University of Texas

Affirmative action in Colorado refers to the steps taken by employers and universities in Colorado 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.^[1]

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.

As of March 2015, 109 out of 577 public four-year universities across the country reported that they considered race in admissions. 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.^[2][3]

The following information details the use of affirmative action in universities and employment in Colorado, as well as notable court cases originating in the state.

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[edit]

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.^[2][4][5][6]

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.^{[2][4][6][7][8]}

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.^[4][5][9]

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.^[10][11]

Key terms[edit]

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.^[12][13]
• 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.^[14][15][16]
• 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.^[17][18]
• 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.^[19][20]
• 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.^[21][22][23]
• 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.^[24][25]
• 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.^[26]
• 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.^[27][28][29]

University admissions[edit]

See also: Higher education in Colorado

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.^[2][4][30]

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.^{[2][31][32][33]}

Eight states have enacted laws banning the consideration of race in university admissions. As of March 2015, Colorado was not one of these states. Of 13 public four-year universities in Colorado, three reported considering race in admissions, as indicated in the chart below.

Consideration of race at public four-year universities in Colorado
School	Race/Ethnicity is...				School selectivity*
	Very important	Important	Considered	Not considered
Adams State University					Somewhat selective
Colorado Mesa University†					Less selective
Colorado School of Mines					Very selective
Colorado State University					Less selective
Colorado State University: Pueblo					Less selective
Fort Lewis College					Less selective
Metropolitan State University of Denver					Somewhat selective
United States Air Force Academy					Most selective
University of Colorado Boulder					Less selective
University of Colorado Colorado Springs†					Less selective
University of Colorado Denver					Somewhat selective
University of Northern Colorado					Somewhat selective
Western State Colorado University					Less selective
Sources: The College Board, "Big Future," accessed March 30, 2015. Reproduced with permission. 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. †Note: Ballotpedia found conflicting reports on Colorado Mesa University and University of Colorado Colorado Springs. According to College Board, neither of these universities consider race in admissions; however, College Data reported that they both do consider race in their admissions decisions.

Employment[edit]

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:^[34][19]

• 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, Colorado had passed its own state law that requires the State Personnel Board to develop and implement an affirmative action plan for state employment. The department must annually document methods of increasing the employment of underrepresented classes of individuals. The Colorado Department of Labor and Employment also collects and distributes demographic information on the labor market for the reference of employers developing affirmative action plans.^[35]

See law: C.R.S. 24-50-101

In addition, Colorado has a nondiscrimination law, which identifies the following as protected traits in addition to those protected by federal law:^[36]

The state's nondiscrimination law applies to all employers with at least one employee and is enforced by the Colorado Civil Rights Division.^[36]

Federal requirements[edit]

Federal contractors and agencies in Colorado that receive funding from the United States government are subject to federal law that requires them to adopt affirmative action plans.^[35]

Additionally, the following federal laws may apply to any company that meets certain conditions:^[36]

• 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 Colorado are enforced by the Equal Employment Opportunity Commission.^[36]

Court cases[edit]

Concrete Works of Colorado, Inc. v. City and County of Denver[edit]

Skyline of Denver, Colorado

The city of Denver, Colorado, first began a system of racial preferences in its contracting in 1977. The city reassessed the program in 1989 after the United States Supreme Court ruling in Richmond v. J.A. Croson Company, which struck down quotas in city and state contracting. In 1990, the assessment was concluded and racial preferences continued to be used. At that time, the city's policy was to set a general goal for utilizing a certain percentage of businesses owned by women and minorities in the city's construction and design contracts. The city further set specific women and minority participation goals for individual projects, which contractors and subcontractors had to meet or be disqualified.^[38]

Concrete Works of Colorado filed a lawsuit against the city in 1992, claiming it had lost three contracts with the city for failure to comply with the city's affirmative action policy. The company alleged that such a policy was a violation of the Equal Protection Clause of the Fourteenth Amendment. The United States District Court for the District of Colorado granted a summary judgment (a decision without a trial) in favor of the city, and Concrete Works appealed. The Tenth Circuit Court of Appeals reversed the decision, "concluding that genuine issues of material fact existed," and ordered the district court to conduct a trial.^[38]

This time, the district court found in favor of Concrete Works, ruling that the city's policy violated the Fourteenth Amendment. The court prohibited the city from enforcing the policy. Denver appealed, and the Tenth Circuit Court once again reversed the decision of the lower court, finding that the policy was not a violation of the Fourteenth Amendment. The court ruled that the city had "demonstrated a compelling interest" in ending continued discrimination in the local construction industry and that its policy had been sufficiently "narrowly tailored" to meet that purpose. The case was appealed to the Supreme Court, which declined to hear the case. Justice Antonin Scalia and former Chief Justice William Rehnquist dissented from that decision, stating the evidence "patently does not measure up to the standards set forth in Richmond v. J. A. Croson Co."^[38][39]

Public opinion[edit]

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.^[40][41]

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.^[42]

Support[edit]

Common reasons stated for supporting affirmative action include the following:^[4][43]

• 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[edit]

Common arguments stated against affirmative action include the following:^[43]

• 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[edit]

The U.S. 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."^[44] These federal laws typically apply to workplaces with 15 or more employees. The EEOC operates field offices in 15 districts. Colorado is served primarily by the Phoenix District Office. See the table below for further information about EEOC field offices serving Colorado.^[45]

In addition, separate agencies, designated by the EEOC as Fair Employment Practices Agencies, are responsible for enforcing state laws.^[46] In Colorado, the Colorado Civil Rights Division in the Department of Regulatory Agencies is a designated Fair Employment Practices Agency. See the table below for further information about this office.^[47]

Affirmative action and anti-discrimination legislation[edit]

The following is a list of recent affirmative action and anti-discrimination bills that have been introduced in or passed by the Colorado 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[edit]

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

External links[edit]

• Colorado State Personnel Board
• Colorado Department of Labor and Employment
• Colorado Civil Rights Division
• Equal Employment Opportunity Commission

Footnotes[edit]

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