MIAMI UNIVERSITY The Graduate School Certificate for Approving the Dissertation We hereby approve the Dissertation of Jewerl Maxwell Candidate for the Degree: Doctor of Philosophy __________________________________________ Director Dr. Ryan Barilleaux __________________________________________ Reader Dr. Augustus Jones __________________________________________ Reader Dr. John Rothgeb __________________________________________ Graduate School Representative Dr. Allan Winkler Abstract In his 2001 text With a Stroke of a Pen, Kenneth Mayer contended, “Affirmative action – or the practice of granting preferences in employment, contracting, or education on the basis of race and gender – is largely a creature of executive action” (202). In spite of the substantial role played by America’s chief executives in enactment of such policies, with the exception of Mayer’s brief analysis in his chapter on civil rights, explanations regarding how and why presidents have enacted such policies have eluded presidency scholars. Thus, the primary objective of this study is to identify and explain the answer to the following questions: 1) To what extent have modern presidents used executive orders to establish federal affirmative action policy in the realm of equal employment opportunity for underrepresented groups in American society, prior to actions taken by other governmental institutions? 2) What factors explain presidential decision-making regarding executive orders pertaining to equal employment opportunity for underrepresented groups? To accomplish this, I examine the decision-making process regarding Lyndon Johnson’s issuance of Executive Order 11246 in the aftermath of the passage of the Civil Rights Act of 1964; the decision-making process regarding President Nixon’s issuance Executive Order 11478, which in affect brought about the institutionalization of federal affirmative action policy; the decision-making process regarding Ronald Reagan’s decision not to issue an executive order drafted by his attorney general that would have eliminated all federal affirmative action programs; and the decision-making process regarding Bill Clinton’s issuance of Executive Order 13087, which extended federal equal employment opportunity programs to homosexuals. PRESIDENTIAL AFFIRMATIVE ACTION: THE ROLE OF PRESIDENTIAL EXECUTIVE ORDERS IN THE ESTABLISHMENT, INSTITUTIONALIZATION, & EXPANSION OF FEDERAL EQUAL EMPLOYMENT OPPORTUNITY POLICIES A DISSERTATION Submitted to the Faculty of Miami University in partial fulfillment of the requirements for the degree of Doctor of Philosophy Department of Political Science by Jewerl Thomas Maxwell Miami University Oxford, Ohio 2008 Dissertation Director: Dr. Ryan J. Barilleaux Table of Contents Chapter 1: Introduction 1 Chapter 2: Scholarship 10 Chapter 3: The Presidency and Civil Rights, 1933-1963: The Birth of Equal Employment Opportunity Policy 27 Chapter 4: The Establishment of Federal Affirmative Action, 1964-1968 63 Chapter 5: The Institutionalization of Federal Affirmative Action, 1969-1980 86 Chapter 6: The Sustainability of Federal Affirmative Action, 1981-1992 125 Chapter 7: The Expansion of Federal Affirmative Action, 1993-2000 169 Chapter 8: Conclusion 203 Bibliography 215 ii To my wife and best friend Julie, who supported me throughout graduate school and continually challenges me to pursue all of my dreams. iii Acknowledgements I owe a special thanks to all who have contributed to my intellectual development in general, and to this project, in particular. First, this dissertation would not have been possible without almighty God, who blessed me with the talents and abilities necessary to complete this project. More importantly, He blessed me with the gift of salvation through His son Jesus Christ. Second, this dissertation would not be possible without my loving family. I am especially indebted to my wife and best friend, Julie, along with my parents, Gary and Sharon Maxwell, who sacrificed so much, so that I could receive a great education and a Christian upbringing. Third, this dissertation is a result of a variety of friends who provided me with support while I attended Miami. I am particularly grateful to the wonderful people at Lindenwald Baptist Church, along with my fellow classmates at Miami. Fourth, this dissertation would not be possible without the superb faculty and staff at Muskingum College and Miami University. Dr. Huber and Dr. King at Muskingum gave me the necessary undergraduate preparation, which allowed me to excel at Miami. Once at Miami, I learned so much from all of my professors. I am especially thankful for the continued leadership Dr. Rothgeb provides for the graduate program, the guidance and support I received from Dr. Barilleaux, the kindness extended to me by Dr. Jones from my very first visit and throughout my entire time at Miami, the intellectual stimulation required by Dr. Russo, the thought-provoking conversations initiated by Dr. Brown, the lessons in linguistics and writing from Dr. Winkler, and the sincerity of Dr. Marshall. Thank you also to Betsy Burger, who not only does so much for the graduate program, but has also become a dear friend of mine. Lastly, this dissertation would not have been possible without the wonderful people at Emory & Henry College, who provided me with a wonderful opportunity to become a part of their family for the 2007-08 academic year, and continued to remind me of the importance of completing this project. I am particularly grateful to Joe Lane, who mentored me and taught me lessons I will use throughout my entire career. iv CHAPTER 1 – INTRODUCTION Affirmative Action has become the federal government’s chief method to advance civil rights and, as journalist Salim Muwakkil put it, a “symbol of America’s long-denied promise of racial equality.” Dean Kotlowski, Nixon’s Civil Rights (2001: 261) Forty-three years after President Lyndon Johnson signed Executive Order 11246 on September 24, 1965, the executive order known for formally establishing federal affirmative action programs; the issue of equal opportunity for underrepresented groups continues to play a major role in presidential politics. As Kenneth Mayer recently explained, “although most of the fundamental questions of the civil rights era are settled, those that remain – particularly with respect to the divisive question of affirmative action – ultimately revolve around the appropriate exercise of executive branch, and therefore presidential, authority to pursue social goals” (2001: 184). In fact, in the 2004 presidential election, during the third presidential debate, the moderator asked President George W. Bush and Senator John Kerry, “Do you see a need for affirmative action programs, or have we moved far enough along that we no longer need to use race and gender as a factor?” Affirmative action continues to garner considerable attention in presidential politics because throughout history presidents played the pivotal role in establishing such programs. Indeed, in one of the most comprehensive analyses of the presidential power to issue executive orders, Mayer wrote, “Affirmative action – or the practice of granting preferences in employment, contracting, or education on the basis of race and gender – is largely a creature of executive action” (2001: 202). Mayer further argued, “there are few areas in which executive orders have played a more significant role in effecting dramatic and widespread policies” than in the area of civil rights (2001: 184). Likewise, James MacGregor Burns described the presidency as “the most effective single protector of individual liberty in our governmental system” and claimed that presidential protection of civil rights and individual liberties is no longer tied to individual presidents, but has become institutionalized (1965: 281). Given Mayer’s assertions that affirmative action is “largely a creature of executive action,” and that executive orders have played such a substantial role in civil rights policy, in general, and affirmative action policy in particular, this study will examine how presidents used executive orders to shape federal affirmative action policy pertaining to equal employment 1 opportunities for underrepresented groups. In other words, this study addresses the extent to which affirmative action policy over the past forty years has been a by-product of executive action, with specific emphasis on employment. While Mayer’s definition of affirmative action included employment, contracting, and education, an analysis of presidential executive orders from 1964 through 2000 yields only one presidential executive order pertaining to government contracting,1 three regarding education,2 and twenty-five concerning employment.3 In addition, four additional orders sought to combat discrimination in federal assistance programs.4 Consequently, it is quite apparent that since 1964, presidential attempts to combat discrimination concentrated largely on federal employment programs, which is the reason this study focuses on federal affirmative action policy and equal employment opportunity.5 In spite of the substantial role played by America’s chief executives in the enactment of such policies, explanations regarding how and why presidents enacted such policies has eluded presidency scholars. In fact, we have yet to see a comprehensive analysis regarding presidential executive orders and the pursuit of equal employment opportunity for underrepresented groups since President Johnson’s signing of Executive Order 11246. Indeed, prior to