What is affirmative action?
Affirmative action is a set of policies that take account of race, sex, ethnicity or similar characteristics to remedy past and present discrimination and to widen access to jobs, government contracts and education. The idea is that treating everyone the same from today forward does not by itself close gaps created by long histories of exclusion. Outside the United States similar policies are often called positive action or temporary special measures.
The phrase first appeared in Executive Order 10925, signed by President John F. Kennedy in 1961, which told federal contractors to take "affirmative action" to ensure applicants were treated without regard to race, creed, color or national origin. In 1965 President Lyndon B. Johnson's Executive Order 11246 required federal contractors to adopt affirmative action plans, later extended to women. Laws such as the Americans with Disabilities Act take a related approach by requiring reasonable accommodation rather than identical treatment.
- Term first used
- Executive Order 10925 (1961)
- Key cases
- Bakke, Grutter, SFFA
- Test for race
- Strict scrutiny
- Korean counterpart
- 적극적 조치
Treating people the same is not always treating them fairly. The central question in every affirmative action case is how far a government may go in taking race or sex into account to fix that gap.
The Supreme Court cases
- Regents of the University of California v. Bakke (1978): The Court struck down a medical school's set-aside of 16 seats for minority applicants, but Justice Powell's controlling opinion allowed race to be considered as one factor among many to achieve diversity.
- Grutter v. Bollinger (2003): The Court upheld the University of Michigan Law School's individualized, holistic review that considered race, while Gratz v. Bollinger the same day struck down an undergraduate system that awarded fixed points for race.
- Adarand Constructors v. Peña (1995): The Court held that all racial classifications by federal, state and local governments are subject to strict scrutiny.
- Students for Fair Admissions v. Harvard (2023): The Court held that the race-conscious admissions programs at Harvard and the University of North Carolina violated the Equal Protection Clause of the Fourteenth Amendment, effectively ending the use of race as a factor in college admissions.
Korea's version of these debates centers on sex and disability rather than race. For the ten key terms of gender equality law and the framework running from the Constitution to the equal employment act, see 남녀평등과 법의 핵심 용어와 법령 체계: 양성평등·성차별·적극적 조치·성희롱, 헌법·여성차별철폐협약·남녀고용평등법. For why remedies under Korea's disability discrimination act are seen as weak, see 장애인차별금지법의 구조와 실효성 문제: 차별 유형, 교통·편의시설·정보접근 차별 사례, 시정명령과 악의적 차별 처벌, and for discrimination faced by migrant workers and marriage migrants, see 이주노동자·결혼이주자·난민의 인권 문제와 대안: 고용허가제 사업장 변경 제한, 난민 인정률, 국가인권위원회법의 인권 정의.
| United States | Korea | |
|---|---|---|
| Main focus | Race and sex | Sex and disability |
| Key sources | Executive Order 11246 (revoked 2025), Civil Rights Act | Framework Act on Gender Equality, Equal Employment Act |
| College admissions | Race-conscious admissions struck down (2023) | Regional and socioeconomic opportunity tracks |
| Review standard | Strict scrutiny for race | Strict proportionality or arbitrariness review, case by case |
Recent changes
After SFFA, colleges dropped race as an admissions factor, and several states, beginning with California's Proposition 209 in 1996, had already banned public affirmative action. On January 21, 2025, President Donald Trump signed Executive Order 14173, which revoked Executive Order 11246 and directed the Labor Department's Office of Federal Contract Compliance Programs to stop enforcing affirmative action requirements for federal contractors. Federal laws against discrimination, such as Title VII of the Civil Rights Act of 1964, still apply, and debates continue over which diversity programs remain lawful.
Affirmative action in Korea
Korea's Framework Act on Gender Equality allows the state and local governments to take positive measures in fields where women's or men's participation is markedly low, a rule that began in the 1995 Framework Act on Women's Development. The Equal Employment Act treats temporary preferences to remedy existing sex discrimination in employment as non-discriminatory and requires public bodies and larger firms to review women's employment. Civil service exams use a gender equality hiring target that also benefits men, employers above a certain size must hire a minimum share of disabled workers, and the election law requires parties to nominate women for at least half of proportional representation seats, in odd-numbered list positions. Article 4(1) of the UN Convention on the Elimination of All Forms of Discrimination against Women likewise says temporary special measures are not discrimination.
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Criticism and debate
Supporters argue that affirmative action reduces structural discrimination and brings diversity to schools and workplaces. Critics argue that it judges people by group membership rather than individual merit and amounts to reverse discrimination. In Korea, the Constitutional Court in 1999 struck down extra points for military veterans in civil service exams because they sharply limited opportunities for women and disabled people, showing that preferences for one group are tested by how much they burden others. In both countries, the strength of the preference, its fit with its goal and whether it is temporary are central to whether it survives review.
When you evaluate a preference program, start with what it is trying to fix. Its goal, the strength of the means and how long it lasts usually decide whether it is seen as fair remedy or reverse discrimination.
- Is affirmative action illegal in the United States now?
- Race-conscious college admissions were effectively ended by the 2023 SFFA decision, and the executive order requiring affirmative action by federal contractors was revoked in 2025. Anti-discrimination laws still apply, and the legality of other diversity programs is still being argued.
- What is the difference between affirmative action and a quota?
- A quota reserves a fixed number of places for a group. Affirmative action is broader and can include outreach, goals and individualized consideration; the Supreme Court rejected racial quotas in Bakke.
- Does Korea have affirmative action?
- Yes, mainly for sex and disability, through positive measures under the Framework Act on Gender Equality, the Equal Employment Act, hiring targets in the civil service and mandatory employment of disabled workers.
References
- Students for Fair Admissions v. President and Fellows of Harvard College, 600 U.S. 181 (2023). Supreme Court of the United States
- Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity (2025). Federal Register
- 양성평등기본법 (Framework Act on Gender Equality). Korea Law Information Center