husband and his wife’s relations by blood, or
between the wife and the husband’s relations
by blood. Secondary affinity is between a spouse
and the other spouse’s relatives by marriage.
Collateral affinity exists between a spouse and the
relatives of the other spouse’s relatives. The
determination of affinity is important in various
legal matters, such as deciding whether to
PROSECUTE a person fo r INCEST or whether to
disqualify a juror for bias.
AFFIRM
To ratify, establish, or reassert. To make a solemn
and formal declaration, as a substitute for an oath,
that the statements contained in an affidavit are true
or that a witness will tell the truth. In the practice of
appellate courts, to declare a judgment, decree, or
order valid and to concur in its correctness so that it
must stand as rendered in the lower court. As a
matter of pleading, to allege or aver a matter of fact.
A judgment, decree, or order that is not
affirmed is either remanded (sent back to the
lower court with instructions to correct the
irregularities noted in the appellate opinion) or
reversed (changed by the appellate court so that
the decision of the lower court is overturned).
AFFIRMANCE
A declaration by an appellate court that a
judgment, order, or decree of a lower court that
has been brought before it for review is valid and will
be upheld.
AFFIRMATION

APARTOFCENGAGE
LEARNING.
Percentage Distribution of Students Enrolled in Degree-Granting Institutions
a
, by Race/Ethnicity
Race/ethnicity
Percentage of total enrolled students
0
10
20
30
40
50
60
70
80
90
100
a
Accounts for both two- and four-year institutions.
SOURCE: U.S. Department of Education, National Center for Education Statistics, Digest of Education Statistics, 2007.
84.3
White
67.4
9.6
13.3
Black
3.6
Hispanic
11.4

voluntary programs intended to affirm the civil
rights of designated classes of individuals by
taking positive action to protect them from, in
the words of Justice William J. Brennan Jr., “the
lingering effects of pervasive discrimination”
(Local 28 of the Sheet Metal Workers’ International
Association v. EEOC, 478 U.S. 421, 106 S. Ct.
3019, 92 L. Ed. 2d 344 [1986]). A law school, for
example, might voluntarily take affirmative
action to find and admit qualified students of
color. An employer might recruit qualified
women where only men have worked before,
such as businesses that operate heavy equipment.
Affirmative action developed during the four
decades following the decision in Brown v. Board
of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L.
Ed. 873 (1954). In Brown, the Supreme Court
held that public school
SEGREGATION of children
by race denied minority children equal educa-
tional opportunities, rejecting the doctrine of
“separate but equal” in the public education
context. During the 1960s and early 1970s, the
CIVIL RIGHTS MOVEMENT as well as the VIETNAM WAR
inspired members of minorities and women to
advocate collectively for increased equality and
opportunity within U.S. society. These groups
appealed for equal rights under the Fourteenth
Amendment, and they sought opportunity in the
public arenas of education and employment. In

The Court held that by setting aside a specific
number, or quota, of places by race, the school
had violated Bakke’s civil rights. By denying the
“set-aside” practice of an affirmative action plan,
the decision seemed to threaten the principle
underlying affirmative action as well.
The following year, however, the Court
found in United Steelworkers v. Weber, 443 U.S.
193, 99 S. Ct. 2721, 61 L. Ed. 2d 480 (1979), that
the voluntary plan of Kaiser Aluminum Com-
pany to promote some of its black workers into
a special training program ahead of more senior
white workers did not violate the latter’scivil
rights when it did not involve quotas. The Court
also found in Local 28 of Sheet Metal Workers’
International Association v. EEOC, 478 U.S. 421,
106 S. Ct. 3019, 92 L. Ed. 2d 344 (1986), that
rights were not being violated by a court-
ordered me mbership goal of 29.23 percent
minorities. Writing for the
PLURALITY, Justice
Brennan said Title VII of the Civil Rights Act of
1964 does not prohibi t courts from ordering
“affirmative race-conscious relief as a remedy
for past discrimination” in appropriate circum-
stances. Such circumstances might include
“where an employer or
LABOR UNION has engaged
in persistent or egregious
DISCRIMINATION,or

employer had acted properly in using a “moder-
ate, flexible, case-by-case approach to effecting a
gradual improvement in the representation of
minorities and women.”
At issue in affirmative action cases is
whether the Equal Protection Clause of the
Fourteenth Amendment can be employed to
advance the welfare of one class of individuals
How Much Affirmative Action Is
Enough Affirmative Action?
I
n the combustive debate over affirma-
tive action, fairness is the hottest issue
of all. Most people agree that employers
should hire and promote people fairly.
Does affirmative action make this happen?
Americans disagree sharply: A July 1995
Associated Press poll found that
39 percent think it does, but 48 percent
said giving preference to women and
minorities produces even greater unfair-
ness. These numbers barely scratch the
surface of the antagonismsina debate now
more than 30 years old. Proponents argue
that the benefits of affirmative action
policies are
TANGIBLE, deserved, and neces-
sary. Opponents reply that these benefits
hide the real harm done by affirmative
action: rewarding the wrong people, deva-

game has gone too far.” Polls indicate
that both Johnson and Dole spoke for
a majority of citizens of their time.
Johnson captured the essence of a nation
willing to move beyond the legacy of
JIM
CROW LAWS
. Dole summoned the resent-
ment of white males who had seen the
affirmative action net expand to hold not
only minorities but also women and
immigrants. But white men are hardly
the only complainers: According to a
March 1995 Washington Post-ABC News
poll, 79 percent of middle-class white
women oppose preferences for women.
For affirmative action’s strongest
supporters, explaining the new harshness
in the policy’s politics is a matter of going
back to the beginning. They point out
that affirmative action was never sup-
posed to be painless. Making room for
groups that have historically suffered
DISCRIMINATION means that the very group
that did not suffer—white males—now
has to do so. This can be characterized as
the sins-of-the-fathers argument, illus-
trated in a 1995 briefing paper from the
AMERICAN CIVIL LIBERTIES UNION (AC LU):
“[W]hile it’struethatwhitemalesinany

protect civil rights; or required by law to qualify
for federal contracts. Plans required to qualify
for federal contracts are enforced by the Office
of Federal Contract Compliance Programs
(OFCCP), an agency of the U.S.
LABOR DEPART-
MENT
. The OFCCP defines its mission with its
critics in mind: “Affirmative action is not
preferential treatment. Nor does it mean that
unqualified persons should be hired or promot-
ed over other people. What affirmative action
does mean is that positive steps must be taken
to provide equal employment opportunity”
(EEOC, U.S. Labor Department, Pub.
No. 2850, Making EEO and Affirmative Action
Work 8 [1993]). One ranking OFCCP adminis-
trator defended the program even more sharply
by saying, “Affirmative action is not about goals
and has nothing to do with preferences. It is
about inclusion versus exclusion: people who
have been excluded from participation in the
process for years are now to be included.”
Because equality still eludes the
beneficiaries of affirmative action, sup-
porters dismiss attacks on the policies as
part of a backlash. Three decades of
advances for affirmative action’s bene-
ficiaries have meant diminished domi-
nance for white men, a group whose

nounce it as “reverse discrimination.” They
either reject outright the idea that historical
wrongs can be redressed through contem-
porary means, or believe that the cost to
those who must pay for such redress is too
high. Conservative think tanks such as the
Institute for Justice and the
HERITAGE
FOUNDATION
regularly lead this prong of
the attack. Clint Bolick, the Institute for
Justice’s vice president, told Congressional
Quarterly, “If you add up the number of
people who have encountered reverse
discriminationin college admissions, scho-
larships, public school magnet programs,
government contracts and jobs in the
private and public sectors, you have a
pretty sizable population.” The charge
strikes the strongest advocates of affirma-
tive action as insupportable. According to
the research of law professor Alfred
Blumrosen, of Rutgers University, only a
few dozen such cases reached the federal
courts in the early 1990s, and in most, the
PLAINTIFF failed. Other advocates see the
reverse discrimination argument as sour
grapes; the ACLU goes so far as to call it a
smoke screen “for retention of white male
privilege.”

Advocates are highly suspicious of
the merit argument. In the first place,
they deny that creating opportunities
ignores the value of personal merit.
Voluntary affirmative action merely gives
people who traditionally have been
excluded a leg up, they assert; and when
it is court ordered to redress a pattern of
workplace discrimination, the question
of merit misses the point. More crucially,
supporters think the merit line is super-
ficial. Political commentator Michael E.
Kinsley quipped that critics “seem to
imagine that everyone in America can be
ranked with scientific precision, from
No. 1 to No. 260,000,000, in terms of his
or her qualification for any desirable
career opportunity.” He and other
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
AFFIRMATIVE ACTION 161
Affirmation action plans are subject to
mandatory compliance procedures, which may
include monitoring by review, conciliation of
disputes, exclusion from federal contract work,
or even suit by the
DEPARTMENT OF JUSTICE.
Criticism of affirmative action has been
constant since the Supreme Court first articu-
lated its views. By the 1990s, opponents began
to press the Court to reverse its precedents both

ACLU’s national legislative office: “Affir-
mative action didn’t come along to taint a
process that never existed.”
Proposals for reforming affirmative
action became increasingly popular in the
mid-1990s. At one extreme, politicians
have called for dumping it altogether. This
idea has been urged in Congress chiefly by
ultraconservative Republicans such as
Senators Phil Gramm (R-Tex.) and
JESSE
HELMS
(R-N.C.). Although no action
has been taken on the congressional
level, similar proposals in the states of
California and Florida have gained
ground. California reformers scored two
victories in the mid-1990’s: First, in 1995,
regents of the University of California,
Regents of Univ. of Cal. v. Bakke, 438 U.S.
265, 98 S. Ct. 2733, 57 L. Ed. 2d 750
(1980) dropped gender- and race-based
admissions, hiring, and contracting.
Then, reformers succeeded in passing an
anti-affirmative action referendum—the
California Civil Rights Initiative, a mea-
sure that would outlaw gender- and
race-based preferences in government
programs—in 1996. A similar
REFERENDUM

The journey of affirmative action
from its heyday to the present reflects
great changes in the United States.
Between the administration of President
Johnson and the Republican-controlled
Congress elected in 1994 lies a thirty-year
experience with
GREAT SOCIETY initiatives
that has left many citizens soured on the
idea of government assistance. Radical
changes in the nation’s economy and
workforce have surely not made the
journey any easier. Bridging this gap
seems unlikely, given the vastly different
history of white males on the one hand,
and women and people of color on the
other. From these two poles of experi-
ence, two opposing ideas of necessity
emerge. Critics say the time is ripe to
overhaul affirmative action, a well-inten-
tioned policy gone bad. Supporters,
perceiving a playing field that is still far
from level, maintain that the real work of
affirmative action has scarcely begun.
In the early 2000s, the battlefield
for a ffir mative action has s hifted from
How Much Affirmative Action Is Enough
Affirmative Action?
(Continued)
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION

and the concept of racial diversity as a
the workplace to education. Higher
education—the arena that gave birth to
Bakke, the first significant Supreme Court
decision endorsing affirmative action—has
more recently produced a mishmash of
court decisions a nd l aws t hat have called
into question the f uture of a ffirmative
action. There were arguments not just how
Bakke should be a pplied, but whether it
should be applied at all.
Higher education has been a partic-
ularly contentious area on affirmative
action for many reasons. Because many
higher education institutions are public,
there is an issue of whether taxpayer
money should be going to institutions
supporting affirmative action. The public
status of colleges and universities also
ensures that affirmative action debates
will be conducted out in the open. Also,
the quality and prestige of a college or
university is often seen as determining
where someone will end up on the
socioeconomic scale after graduation,
making the affirmative action stakes at
such institutions high.
In a reversal of the way they tolerated
discrimination through most of the twen-
tieth century, many colleges and universi-

higher in 2001 than it was in the year
before Hopwood . Several other states,
including California and Florida, have
adopted versions of Texas’“10 percent”
solution. Critics have charged that these
programs are inadequate, failing to
ensure that minorities are represented
at the most prestigious institutions even
when they do boost enrollment in state
university systems overall.
The affirmative action focus in
higher education has shifted over to the
University of Michigan. White applicants
to both the undergraduate school and the
law school at the University of Michigan
sued on reverse discrimination grounds.
One U.S. district judge in Michigan
upheld the undergraduate program, and
another struck down the law school
program. A divided Sixth Circuit Court
of Appeals ruled in favor of the program
in Grutter v. Bollinger, 288 F.3d 732, 6th
Cir. (Mich. 2002) and the U.S Supreme
Court agreed to hear the appeal of that
decision. The Court upheld its decision
in 2003.
The administration of
GEORGE W. BUSH
filed a brief opposing Michigan’s affir-
mative action program. “The method

cultivation of “a set of leaders with legitimacy in
the eyes of the citizenry.” In that case, the Court
held that promoting racial diversity on campuses
not only serves a compelling government inter-
est,butalsothatthelawschool’s admissions
program was narrowly tailored and focused on
each applicant as an individual as opposed to
being a member of a particular racial group.
However, the victory for affirmative action was
conditional, as the Court emphasized that racial
preferences should be a temporary, rather than
permanent, fixture in American society, and
called for “periodic reviews” and “sunset provi-
sions” for race-conscious admissions.
In the 5–4 decision, written by Justice
Sandra Day O’Connor and joined by joined by
Justices
JOHN PAUL STEVENS, DAVID SOUTER , RUTH
BADER GINSBURG
, and STEPHEN BREYER, the Court
ruled that attaining a diverse student body is at
the heart of a law school’s proper institutional
mission, and that
GOOD FAITH on the part of a
university in pursuing diversity should be
presumed absent a showing to the contrary.
The Supreme Court emphasized that the law
school sought to enroll a “critical mass” of
minority students, not simply to ensure that its
student body had some specified percentage of a

KENNEDY
, and CLARENCE THOMAS.
This point-system ruling is expected to force
state schools that use similar numerical meth-
ods to revise them, and it could cause compa-
nies to rethink their reliance on quantitative
evaluations of job applicants and employees.
Although Michigan is a public university, the
decision is considered likely to apply to selective
private universities as well, becaus e they receive
government funding. It also will affect admis-
sions practices at selective public high schools
where affirmative action has also been eliminat-
ed or curtailed.
Distaste for affirmative action also led
opponents to attack the policy at the state level
through ballot initiatives and referendums. In
November 1998 the California electorate passed
Proposition 209 (54 to 46 percent), which
banned many of the affirmative action programs
in California. The
REFERENDUM was promoted by
the nonprofit Center for Individual Rights, which
was also instrumental in building opposition to
the University of Texas admissions policy that
was struck down in Hopwood. The proposition
has remained a controversial topic, with supp or-
ters arguing that state and local officials have
avoided dismantling affirmative action. These
same supporters continue to call on state officials

particular public school. In both cases, the
school districts used race as the primary factor
in determining which school the students would
attend in order to maintain some level of racial
integration in the school districts. Chief Justice
JOHN ROBERTS, writing for the majority, argued
that racial integration does not justify assigning
students to a school based on the racial category
under which they fall. He further stated that “the
way to stop discrimination on the basis of race is
to stop discriminating on the basis of race.”
The fate of affirmative action in this country
is unclear. In November 2008 two states,
Nebraska and Colorado, had ballot measures
proposing to ban affirmative action preferences
by public entities. The ban passed in Nebraska
with more than 50 percent of the vote, whereas
Colorado voters rejected the ban.
FURTHER READINGS
“Affirmative Action.” 1995. CQ Researcher. April 28.
American Civil Liberties Union. 1995. Affirmative Action.
Briefing paper no. 17, March 22.
American Civil Liberties Union. 1995. The Case for
Affirmative Action. July 1.
Clinton, President Bill. 1995. Speech at the National
Archives, July 31.
Coyle, Marcia. 2003. “The Fallout Begins: In Its Final Week
of the Term, the Supreme Court Hands Down
Landmark Rulings That Give Legal Backing to Two
Kinds of Diversity; Affirmative Action and Gay Rights.”

by making statements in the document called the
complaint. These statements must be sufficient
to warrant relief from the court. The
DEFENDANT
responds to the plaintiff’s claims by preparing an
answer in which the defendant may deny the truth
of the plaintiff’s allegations or assert that there are
additional facts that constitute a defense to the
plaintiff’s action. For e xa mple, a plaintiff m ay
demand comp ensation for damage done to his or
her vehicle in an a utomobile accident. Without
denying responsibility for the accident, the defen-
dant may claim to have an affirmative defense,
such as the plaintiff’s contri butory
NEGLIGENCE or
expiration of the
STATUTE OF LIMITATIONS.
An affirmative defense is also allowed under
rules of
CRIMINAL PROCEDURE. For example, a
defendant accused of
ASSAULT may claim to have
been intoxicated or insane, to have struck out in
SELF-DEFENSE, or to have had an alibi for the night
in question. Any one of these affirmative
defenses must be asserted by showing that there
are facts in addition to the ones in the
INDICTMENT or information charging the defen-
dant and that those additional facts are legally
sufficient to excuse the defendant.

the property without describing it in detail
each time it is mentioned; for example, “the
aforesaid premises.”
AFORETHOUGHT
In criminal law, intentional, deliberate, planned,
or premeditated.
MURDER in the first degree, for example,
requires
MALICE AFORETHOUGHT; that is, the murder
must have been planned for a period of time,
regardless how short, before it was committed.
AFTER-ACQUIRED PROPERTY
CLAUSE
A p hrase i n a mortgage (an i nterest i n land t hat
furnishes s ecurity for payment of a debt o r
performance of an obligation) that provides that
any holdings obtained by the borrower subsequent to
the date of the loan and mortgage will automatically
constitute additional security for the loan.
AFTER-ACQUIRED TITLE
A legal doctrine under which, if a gra ntor conveys
what is mistakenly believed to be good title to land that
he or she did not own, and the grantor later acquires
that title, it vests automatically in the grantee.
AFTER-BORN CHILD
A child born after a will has been executed by
either parent or after the time in which a class gift
made according to a trust arrangement expires.
The existence of an after-born child has
significant legal ramifications upon gifts made

Security Agreement with an After-Acquired Property Clause
This Security Agreement is made on this________________________day of _____________________________________ , 20 _______
between _______________________________ , _________________________________ , ___________________________________
[name and address of the debtor] ("Debtor"), and _________________________________ , ___________________________________ ,
____________________________________ [name and address of secured party] ("Secured Party").
1. SECURITY INTEREST. Debtor grants to Secured Party a security interest in all inventory, equipment, appliances, furnishings, and
fixtures placed upon the premises known as ______________________________ , located at __________________________________ ,
______________________________________ (the "Premises") or used in connection therewith and in which Debtor now has or hereafter
acquires any right and the proceeds therefrom. The security interest of Secured Party extends to all collateral of the kind which is the
subject of this agreement which the debtor may acquire at any time during the continuation of this agreement. The Security Interest shall
secure the payment and performance of Debtor's promissory note of even date herewith in the principal amount of ___________________
[amount of payment] Dollars and the payment and performance of all liabilities and obligations of Debtor to Secured Party of every kind and
description, direct or indirect, absolute or contingent, due or to become due now existing or hereafter arising.
[Portions omitted for purposes of illustration]
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
166 AFORESAID
principal unless conceived before the settlor
died. An after-born child born eleven months
after the settlor’s death, therefore, would not
share in the principal, since the class had closed
nine month s after the settlor’s death.
AGE DISCRIMINATION
Prejudicial treatment or denial of rights based
on age.
As the baby boom generation, the largest
demographic group in U.S. history, reached
middle age and looked toward retirement, laws
governing the treatment of older U.S. citizens
took on greater importance than ever before.
Between 1970 and 1991, the number of workers

HUMAN
RIGHTS
commission before pursuing a lawsuit.
The EEOC attempts to resolve the dispute
through voluntary compliance on the part of
the employer, conciliation, or other persuasive
measures. If the EEOC decides to bring an action
against the employer, the employee’s right to sue
is extinguished. However, the employee need not
exhaust his or her admi nistrative remedies—that
is, wait for a final determination from the
EEOC—before filing suit. In fact, on February
27, 2008, the Supreme Court in Federal Express
Corp. v. Holowecki, 552 U.S. ___, 128 S. Ct. 1147,
addressed the issue of whether the intake
questionnaire, or the specific complaint form
that aggrieved employees are required to file with
the EEOC prior to filing a lawsuit against their
Employers may not
require the retirement
of a worker unless
they can demonstrate
that the employee’s
age is relevant to the
operation of the
business.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
AGE DISCRIMINATION 167