Order Code RL30470
Report for Congress
Received through the CRS Web
Affirmative Action Revisited:
A Legal History and Prospectus
Updated September 30, 2002
Charles V. Dale
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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Affirmative Action Revisited: A Legal History and
Prospectus
Summary
Affirmative action has again moved to the forefront of public debate as a
consequence of legal and political developments at the federal, state, and local levels.
In recent years, federal courts have voided the preferential admissions of minority
students to the University of Texas and elsewhere, questioning in general the
constitutional status of racial and ethnic diversity in education; invalidated minority
preferences in public and private employment as a violation of constitutional and
federal statutory rights; defeated a Federal Communications Commission policy
requiring radio licensees to adopt affirmative minority recruitment and outreach
measures; and nullified state and local efforts to increase minority group participation
as contractors and subcontractors on publicly-financed construction projects. The
U.S. Supreme Court agreed this Term to review the now-famous Adarand case for
a third time. The Tenth Circuit Court of Appeals, on remand from the Court’s
divided 1995 ruling in Adarand Constructors Inc. v. Pena, held that an earlier
program of financial incentives to promote minority and “disadvantaged” small
business participation on federally-assisted highway projects was unconstitutional.
As revised and amended in 1997, the program was deemed narrowly tailored to a
compelling governmental interest and passed constitutional muster. To the chagrin
of many observers, however, the Court on November 27, 2001 sidestepped the
constitutional issues posed by Adarand and dismissed the appeal as “improvidently
granted.”
Bills to eliminate affirmative action preferences have reportedly been introduced
in at least two dozen legislatures, and an initiative to curb affirmative action
programs in the State of Washington was passed by the electorate in the 1998. Like
Proposition 209 in California, Washington’s Initiative 200 bans “preferences” based
on race or sex in state contracting, hiring, and admission to public colleges and
universities. Similarly, the elimination of racial, ethnic, and gender preferences from
federal employment, grant and procurement activity has been a topic of proposed
legislation in recent Congresses. Meanwhile, the former Clinton Administration
responded with its own set of regulatory reforms designed to “mend” rather than
“end” affirmative action by the federal government.

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Contents
Legal History of Federal Affirmative Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Minority and Small Disadvantaged Business Programs . . . . . . . . . . . . . . . . . . . . 8
Statutory History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Adarand Decision and Its Progeny . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Background and History of Adarand . . . . . . . . . . . . . . . . . . . . . . . . . . 11
The Supreme Court Declines to Decide the Case . . . . . . . . . . . . . . . . 17
Post-Adarand Judicial Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Post-Adarand Regulatory Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Affirmative Action in Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Judicial Affirmative Action Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Voluntary Affirmative Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Judicial Developments Since Croson and Adarand . . . . . . . . . . . . . . . . . . . . . . . 35
Affirmative Action Consent Decrees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Affirmative Recruitment and Outreach Programs . . . . . . . . . . . . . . . . . . . . 38
Affirmative Action and Diversity in Public Education . . . . . . . . . . . . . . . . . . . . 43
College Admissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Public Elementary and Secondary Schools . . . . . . . . . . . . . . . . . . . . . . . . . 53
Faculty Diversity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

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Affirmative Action Revisited: A Legal History
and Prospectus
Affirmative action has again moved to the forefront of public debate as a
consequence of legal and political developments at the federal, state, and local levels.
In recent years, federal courts have voided the preferential admissions of minority
students to the University of Texas and elsewhere, questioning in general the
constitutional status of racial and ethnic diversity policies in public education;
invalidated minority preferences in public and private employment as a violation of
constitutional and federal statutory rights; defeated a Federal Communications
Commission policy requiring radio licensees to adopt affirmative minority
recruitment and outreach measures; and nullified state and local efforts to increase
minority group participation as contractors and subcontractors on publicly-financed
construction projects. Without comment, the Supreme Court in 1997 refused to
block implementation of California Proposition 209, a ballot initiative designed to
eliminate race, ethnicity, or gender as a basis for state governmental action. In
Coalition for Economic Equity v. Wilson, civil rights groups argued that California’s
anti-affirmative action measure was unconstitutional because it imposed “special
burdens” on women and racial minorities in their quest for equality in public
contracting, employment, and education. The Ninth Circuit appeals court determined,
however, that the measure “addresses in neutral fashion race-related and gender-
related matters” and did not violate federal law or the Constitution.
Ongoing legal controversy has surrounded the Supreme Court’s 1995 ruling in
Adarand Constructors Inc. v. Pena, concerning the constitutionality of race-based
affirmative action by the federal government. On remand, the Tenth Circuit
ultimately determined that the original program of financial incentives to promote
minority and “disadvantaged” small business participation on federally-assisted
highway projects challenged in Adarand was unconstitutional. But as subsequently
reformed by federal officials in 1997 to meet constitutional objections, the program
was found to be sufficiently “tailored” to “compelling” governmental interests to
withstand strict judicial scrutiny. The case returned to the High Court for a third
appearance this Term, as Adarand Constructors Inc. v. Mineta, but on November 27,
2001 the Justices sidestepped the constitutional issues posed and dismissed the
appeal as “improvidently granted.”
Nearly a quarter century after the Supreme Court ruling in Regents of the
University of California v. Bakke, the diversity rationale for affirmative action in
public education remains a topic of political and legal controversy. Many colleges
and universities have implemented affirmative action policies not only to remedy past
discrimination, but also to achieve a racially and ethnically diverse student body or
faculty. Justice Powell, in his opinion for the Bakke Court, stated that the attainment
of a diverse student body is “a constitutionally permissible goal for an institution of
higher education,” noting that “[t]he atmosphere of ‘speculation, experiment, and

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creation’ so essential to the quality of higher education is widely believed to be
promoted by a diverse student body.” Recently, however, federal courts have begun
to question the Powell rationale, unsettling expectations about the constitutionality
of diversity-based affirmative action in educational admissions and faculty hiring.
In striking down the admissions process at the University of Texas School of
Law, the Fifth Circuit in Hopwood v. Texas concluded that any use of race in the
admissions process was forbidden by the Constitution. Siding with Hopwood is the
Eleventh Circuit, in Johnson v. Board of Regents, which last year voided a numerical
“racial bonus” awarded to minority applicants for freshman admission at the
University of Georgia. A circuit court conflict was created, however, when the Ninth
Circuit relied on Bakke to uphold an affirmative action admissions policy to the
University of Washington Law School that made extensive use of race-based factors.
The judicial divide over Bakke’s legacy was perhaps best illustrated by a pair of
separate trial court decisions, one upholding for diversity reasons the race-based
undergraduate admissions policy of University of Michigan, the other voiding a
special minority law school admissions program at the same institution. On May 14,
2002, the Sixth Circuit in Grutter v. Bollinger reversed the latter decision, finding
that the Law School’s interest in achieving the educational benefits of a diverse
student body is compelling, and that its admissions policy is “narrowly tailored” to
that goal. Appeal is pending with the same court in the undergraduate admissions
case. But presently the federal appeals courts to address the question are evenly
divided over the constitutional significance of Bakke in the realm of higher
educational admissions.
Bills to eliminate affirmative action preferences have reportedly been introduced
in at least two dozen legislatures, and an initiative to curb affirmative action
programs in the State of Washington was passed by the electorate in the 1998. Like
Proposition 209, Washington’s Initiative 200 bans “preferences” based on race or sex
in state contracting, hiring, and admission to public colleges and universities.1
Similarly, the elimination of racial, ethnic, and gender preferences from federal
employment, grant and procurement activity has been a recent topic of proposed
congressional legislation.2 Meanwhile, the former Clinton Administration responded
with its own set of regulatory reforms designed to “mend” rather than “end”
affirmative action by the federal government.
Legal History of Federal Affirmative Action
The origins of affirmative action law may be traced to the early 1960's as first,
the Warren, and then the Burger Court, grappled with the seemingly intractable
problem of racial segregation in the nation’s public schools. Judicial rulings from
1See CRS Report RL30086, Affirmative Action in Washington State: a discussion and
analysis of Initiative 200. 7p. (1999).
2See Affirmative Action: congressional and presidential activity, 1995-1998. CRS Report
RL30142. 12p. (1999); American Law Division, General Distribution Memorandum,
“Legal Effect of H.R. 1909 and S. 950, the Civil Rights Act of 1997, on Affirmative Action
by the Federal Government” (Dale)(7-22-97).

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this period recognized an “affirmative duty,” cast upon local school boards by the
Equal Protection Clause, to desegregate formerly “dual school” systems and to
eliminate “root and branch” the last “vestiges” of state-enforced segregation.3 These
holdings ushered in a two decade era of “massive” desegregation – first in the South,
and later the urban North – marked by federal desegregation orders frequently
requiring drastic reconfiguration of school attendance patterns along racial lines and
extensive student transportation schemes. School districts across the nation operating
under these decrees have since sought to be declared in compliance with
constitutional requirements in order to gain release from federal intervention. The
Supreme Court eventually responded by holding that judicial control of a school
system previously found guilty of intentional segregation should be relinquished if,
looking to all aspects of school operations, it appears that the district has complied
with desegregation requirements in “good faith” for a “reasonable period of time”
and has eliminated “vestiges” of past discrimination “to the extent practicable.”4
Congress and the Executive Branch soon followed by adopting a panoply of
laws and regulations authorizing, either directly or by judicial or administrative
interpretation, “race-conscious” strategies to promote minority opportunity in jobs,
education, and governmental contracting. The basic statutory framework for
affirmative action in employment and education derives from the Civil Rights Act
of 1964. Public and private employers with 15 or more employees are subject to a
comprehensive code of equal employment opportunity regulations under Title VII of
the 1964 Act.5 The Title VII remedial scheme rests largely on judicial power to
order monetary damages and injunctive relief, including “such affirmative action as
may be appropriate,”6 to make discrimination victims whole. Except as may be
imposed by court order or consent decree to remedy past discrimination, however,
there is no general statutory obligation on employers to adopt affirmative action
remedies. Official approval of “affirmative action” remedies was further codified by
federal regulations construing the 1964 Act’s Title VI, which prohibits racial or
ethnic discrimination in all federally assisted “programs” and activities,7 including
public or private educational institutions. The Office of Civil Rights of the
Department of Education interpreted Title VI to require schools and colleges to take
affirmative action to overcome the effects of past discrimination8 and to encourage
3See e.g. Green v. County Board, 391 U.S. 430 (1968); Swann v. Board of Education, 402
U.S. 1 (1971); Keyes v. Denver School District, 413 U.S. 189 (1973).
4Dowell v. Board of Education, 498 U.S. 237 (1991). See also Freeman v. Pitts, 503 U.S.
467 (1993)(allowing incremental dissolution of judicial control) and Missouri v. Jenkins,
515 U.S. 70 (1995)(directing district court on remand to “bear in mind that its end purpose
is not only ‘to remedy the violation’ to the extent practicable, but also ‘to restore state and
local authorities to the control of a school system that is operating in compliance with the
Constitution.’”).
542 U.S.C. §§ 2000e et seq.
6Id. at § 2000e-5(g).
742 U.S.C. 2000d et seq.
834 C.F.R. § 100.3(b)(vii)(6)(1999).

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“voluntary affirmative action to attain a diverse student body.”9 Another Title VI
regulation permits a college or university to take racial or national origin into account
when awarding financial aid if the aid is necessary to overcome effects of past
institutional discrimination.10
By the mid-1980's, the Supreme Court had approved the temporary remedial use
of race- or gender-conscious selection criteria by private employers under Title VII.
These measures were deemed a proper remedy for “manifest racial imbalance” in
“traditionally segregated” job categories, if voluntarily adopted by the employer,11 or
for entrenched patterns of “egregious and longstanding” discrimination by the
employer, if imposed by judicial decree.12 In either circumstance, however, the Court
required proof of remedial justification rooted in the employer’s own past
discrimination and its persistent workplace effects. Thus, a “firm basis” in evidence,
as revealed by a “manifest imbalance” – or “historic,” “persistent,” and “egregious”
underrepresentation – of minorities or women in affected job categories was deemed
an essential predicate to preferential affirmative action. Of equal importance, all
racial preferences in employment were to be judged in terms of their adverse impact
on “identifiable” non-minority group members. Remedies that protected minorities
from layoff, for example, were most suspect and unlikely to pass legal or
constitutional muster if they displaced more senior white workers. But the
consideration of race or gender as a “plus” factor in employment decisions, when it
did not unduly hinder or “trammel” the “legitimate expectations” of non-minority
employees, won ready judicial acceptance.13 Affirmative action preferences,
however, had to be sufficiently flexible, temporary in duration, and “narrowly
tailored” to avoid becoming rigid “quotas.”
The historical model for federal laws and regulations establishing minority
participation “goals” may be found in Executive Orders which since the early 1960's
have imposed affirmative minority hiring and employment requirements on federally
financed construction projects and in connection with other large federal contracts.
Executive Order 11246, as presently administered by the Office of Federal Contract
Compliance Programs, requires that all employers with 50 or more employees, and
federal contracts in excess of $50,000.00, file written affirmative action plans with
the government. These must include minority and female hiring goals and timetables
to which the contractor must commit its “good faith” efforts. Race and gender
944 Fed. Reg. 58,509 (Oct. 10, 1979). See also 34 C.F.R. § 100.3(b)(vii)(6)(ii)(“Even in the
absence of past discrimination, a recipient in administering a program may take affirmative
action to overcome the effects of conditions which resulted in limiting participation by
persons of a particular race, color, or national origin.”).
1059 Fed. Reg. 8756 (Feb. 23, 1994). See also Letter from Judith A. Winston, General
Counsel, United States Department of Education, to College and University Counsel, July
30, 1996 (reaffirming that it is permissible in appropriate circumstances for colleges and
universities to consider race in admissions decisions and granting financial aid).
11United Steelworkers v. Weber, 443 U.S. 193 (1979).
12Local 28 Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986).
13United States v. Paradise, 480 U.S. 149 (1987); Johnson v. Transportation Agency, 480
U.S. 616 (1987).

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considerations – which may include numerical goals – are also a fundamental aspect
of affirmative action planning by federal departments and agencies to eliminate
minority and female “underrepresentation” at various levels of agency employment.14
Federal contract “set-asides” and minority subcontracting goals later evolved
from Small Business Administration programs to foster participation by “socially and
economically disadvantaged” entrepreneurs in the federal procurement process.15
Minority group members and women are presumed to be socially and economically
disadvantaged under the Small Business Act, while non-minority contractors must
present evidence to prove their eligibility. “Goals” or “set-asides” for minority
groups, women, and other “disadvantaged” individuals have also been routinely
included in federal funding measures for education, defense, transportation and other
activities over much of the last two decades.16 Currently, each federal department
and agency must contribute to achieving a government-wide, annual procurement
goal of at least 5% with its own goal-oriented effort to create “maximum practicable
opportunity” for minority and female contractors.17 Federal Acquisition Act
amendments in 1994 amended the 5 % minority procurement goal and the minority
subcontracting requirements in § 8(d) to specifically include women-owned
businesses in addition to socially and economically disadvantaged individuals.18
The Bakke ruling in 1978 launched the contemporary constitutional debate over
state-sponsored affirmative action.19 A “notable lack of unanimity” was evident from
the six separate opinions filed in that case. One four-Justice plurality in Bakke voted
to strike down as a violation of Title VI a special admissions program of the
University of California at Davis medical school which set-aside sixteen of one
hundred positions in each incoming class for minority students, where the institution
itself was not shown to have discriminated in the past. Another bloc of four Justices
argued that racial classifications designed to further remedial purposes were
foreclosed neither by the Constitution nor the Civil Rights Act and would have
1442 U.S.C. § 2000e-16(b)(1); 5 U.S.C. § 7201. The EEOC and the Office of Personnel
Management have issued rules to guide implementation and monitoring of minority
recruitment programs by individual federal agencies. Among various other specified
requirements, each agency plan “must include specific determinations of
underrepresentation for each group and must be accompanied by quantifiable indices by
which progress toward eliminating underrepresentation can be measured.” 5 C.F.R. §
720.205(b).
1515 U.S.C.§ 637 (a), (d).
16See “Compilation and Overview of Federal Laws and Regulations Establishing
Affirmative Action Goals or Other Preference Based on Race, Gender, or Ethnicity,” CRS
Memorandum, February 17, 1975 (Dale), reprinted at 141 Cong. Rec. S. 3929 (daily ed. 3-
15-95).
1715 U.S.C. § 644(g)(1). A law passed in 1994 permits federal agency heads to adopt
restricted competition and a 10% “price evaluation preference” in favor of “socially and
economically disadvantaged individuals” to achieve the government-wide and agency
contracting goal requirements. P.L. 103-355, 108 Stat. 3242, § 7104 (1994).
18P.L. 103-355, 108 Stat. 3374, § 7106 (1994).
19Regents of the University of California v. Bakke, 438 U.S. 265 (1975).

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upheld the minority admissions quota. Justice Powell added a fifth vote to each
camp by condemning the Davis program on equal protection grounds while
endorsing the nonexclusive consideration of race as an admissions criteria to foster
student diversity.
In Justice Powell’s view, neither the state’s asserted interest in remedying
“societal discrimination,” nor of providing “role models” for minority students was
sufficiently “compelling” to warrant the use of a “suspect” racial classification in the
admission process. But the attainment of a “diverse student body” was, for Justice
Powell, “clearly a permissible goal for an institution of higher education” since
diversity of minority viewpoints furthered “academic freedom,” a “special concern
of the First Amendment.”20 Accordingly, race could be considered by a university
as a “plus” or “one element of a range of factors”– even if it “tipped the scale” among
qualified applicants – as long as it “did not insulate the individual from comparison
with all the other candidates for the available seats.”21 The “quota” in Bakke was
infirm, however, since it defined diversity only in racial terms and absolutely
excluded non-minorities from a given number of seats. By two 5-to-4 votes,
therefore, the Supreme Court affirmed the lower court order admitting Bakke but
reversed the judicial ban on consideration of race in admissions.
Bakke was followed by Wygant v. Jackson Board of Education,22 where a
divided Court ruled unconstitutional the provision of a collective bargaining
agreement that protected minority public school teachers from layoff at the expense
of more senior white faculty members. While holding the specific layoff preference
for minority teachers unconstitutional, seven Wygant Justices seemed to agree in
principle that a governmental employer is not prohibited by the Equal Protection
Clause from all race-conscious affirmative action to remedy its own past
discrimination. Another series of decisions approved of congressionally mandated
racial preferences to allocate the benefits of contracts on federally sponsored public
works projects,23 and in the design of certain broadcast licensing schemes,24 while
condemning similar actions taken by local governmental entities to promote public
contracting opportunities for minority entrepreneurs.25 However, in each of these
cases, the Justices failed to achieve a consensus on most issues, with bare majorities,
pluralities, or–as in Bakke–a single Justice, determining the “law” of the case.
Not until 1989 did a majority of the Justices resolve the proper constitutional
standard for review of governmental classifications by race enacted for a remedial or
other “benign” legislative purpose. Disputes prior to City of Richmond v. J.A.
20Id. at 311-12.
21Id. at 317.
22476 U.S. 267 (1986).
23Fullilove v. Klutznick, 448 U.S. 448 (1980).
24Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990).
25City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).

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Croson26 yielded divergent views as to whether state affirmative action measures for
the benefit of racial minorities were subject to the same “strict scrutiny”as applied to
“invidious” racial discrimination under the Equal Protection Clause, an
“intermediate” standard resembling the test for gender-based classifications, or
simple rationality. In Croson, a 5 to 4 majority settled on strict scrutiny to invalidate
a 30% set-aside of city contracts for minority-owned businesses because the program
was not “narrowly tailored” to a “compelling” governmental interest. While “race-
conscious” remedies could be legislated in response to proven past discrimination by
the affected governmental entities, “racial balancing” untailored to “specific” and
“identified” evidence of minority exclusion was impermissible. Croson suggested,
however, that because of its unique equal protection enforcement authority, a
constitutional standard more tolerant of racial line-drawing may apply to Congress.
This conclusion was reinforced a year later when, in Metro Broadcasting, Inc. v.
FCC,27 the Court upheld certain preferences for minorities in broadcast licensing
proceedings, approved by Congress not as a remedy for past discrimination but to
promote the “important” governmental interest in “broadcast diversity.”
The two-tiered approach to equal protection analysis of governmental
affirmative action was short-lived. In Adarand Constructors, Inc. v. Pena,28 the
Court applied “strict scrutiny” to a federal transportation program of financial
incentives for prime contractors who subcontracted to firms owned by “socially and
economically disadvantaged individuals,” defined so as to prefer members of
designated racial minorities. Although the Court refrained from deciding the
constitutional merits of the particular program before it, and remanded for further
proceedings below, it determined that all “racial classifications” by government at
any level must be justified by a “compelling governmental interest” and “narrowly
tailored” to that end. But the majority opinion, by Justice O’Connor, sought to
“dispel the notion” that “strict scrutiny is ‘strict in theory, but fatal in fact,’” by
acknowledging a role for Congress as architect of remedies for discrimination
nationwide. “The unhappy persistence of both the practices and lingering effects of
racial discrimination against minorities in this country is an unfortunate reality, and
the government is not disqualified from acting in response to it.” No further
guidance is provided, however, as to the scope of remedial power remaining in
congressional hands, or of the conditions required for its exercise. Bottom line,
Adarand suggests that racial preferences in federal law or policy are a remedy of last
resort and, as discussed infra, must be adequately justified and narrowly drawn to
pass constitutional muster.
26488 U.S. 469 (1989).
27497 U.S. 547 (1990).
28515 U.S. 200 (1995).

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Minority and Small Disadvantaged Business
Programs
Statutory History
It has long been the policy of the Federal Government to assist minority and
other “socially and economically disadvantaged” small businesses become fully
competitive and viable business concerns. The objective has largely been pursued
through the federal procurement process by allocating federal assistance and
contracts to foster disadvantaged business development. Federal assistance has taken
a variety of forms, including targeting procurement contracts and subcontracts for
disadvantaged or minority firms, management and technical assistance grants,
educational and training support, and surety bonding assistance.
Present day set-aside programs authorizing preferential treatment in the award
of government contracts to “socially and economically disadvantaged” small
businesses (DBEs) originated in § 8(a) of the Small Business Act of 1958. Initially,
the Small Business Administration (SBA) utilized its § 8(a) authority to obtain
contracts from federal agencies and subcontract them on a noncompetitive basis to
firms agreeing to locate in or near ghetto areas and provide jobs for the unemployed
and underemployed. The § 8(a) contracts awarded under this program were not
restricted to minority-owned firms and were offered to all small firms willing to hire
and train the unemployed and underemployed in five metropolitan areas, as long as
the firms met the program’s other criteria.29 As the result of a series of executive
orders by President Nixon, the focus of the § 8 (a) program shifted from job-creation
in low-income areas to minority small business development through increased
federal contracting with firms owned and controlled by socially and economically
disadvantaged persons.30 With these executive orders, the executive branch was
directed to promote minority business enterprise and many agencies looked to SBA’s
§ 8(a) authority to accomplish this purpose.
The administrative decision to convert § 8(a) into a minority business
development program acquired a statutory basis in 1978 with the passage of P.L. 95-
507, which broadened the range of assistance that the government – SBA, in
particular – could provide to minority businesses. Section 8 (a), or the “Minority
Small Business and Capital Ownership Development” program, authorizes SBA to
enter into all kinds of construction, supply, and service contracts with other federal
departments and agencies. The SBA acts as a prime contractor and then
“subcontracts” the performance of these contracts to small business concerns owned
29 Minority Contracting: Joint Hearing Before the Senate Comm. on Small Business and the
House Subcomm. on Minority Enterprise and General Oversight of the Comm. on Small
Business, 95th Cong., 2d Sess. 37 (1978).
30 E.O. 11652, 3 C.F.R. § 616 (1971), reprinted in 15 U.S.C. § 631 authorized the Office of
Minority Business Enterprise created by preceding order, E.O. 11458, to provide financial
assistance to public or private organizations that provided management or technical
assistance to MBEs. It also empowered the Secretary of Commerce to coordinate and
review all federal activities to assist in minority business development.

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and controlled by “socially and economically disadvantaged” individuals, Indian
Tribes or Hawaiian Native Organizations.31
Applicants for § 8(a) certification must demonstrate “socially disadvantaged”
status or that they “have been subjected to racial or ethnic prejudice or cultural bias
because of their identities as members of groups without regard to their individual
qualities.”32 The Small Business Administration “presumes,” absent contrary
evidence, that small businesses owned and operated by members of certain groups
– including Blacks, Hispanics, Native Americans, and Asian Pacific Americans – are
socially disadvantaged.33 Any individual not a member of one of these groups must
“establish individual social disadvantage by a preponderance of the evidence” in
order to qualify for § 8(a) certification.34 The § 8(a) applicant must, in addition,
show that “economic disadvantage” has diminished its capital and credit
opportunities, thereby limiting its ability to compete with other firms in the open
market.35 Accordingly, while disadvantaged status under the SBA includes a racial
component, in terms of presumptive eligibility, it is not restricted to racial minorities,
but also includes persons subjected to “ethnic prejudice or cultural bias”36 who are
able to satisfy specified regulatory criteria.37 It also excludes businesses owned or
controlled by persons who, regardless of race, are “not truly socially and/or
economically disadvantaged.”38
The “Minority Small Business Subcontracting Program” authorized by § 8(d)
of the Small Business Act codified the presumption of disadvantaged status for
3115 U.S.C. § 637(a).
3215 U.S.C. § 637(a)(5).
3313 CFR § 124.105(b).
34Id. at 124.103(c).
35 The statute, 15 U.S.C. § 637(a)(6)(A), defines economic disadvantage in terms of:
socially disadvantaged individuals whose ability to compete in the
free enterprise system has been impaired due to diminished capital
and credit opportunities as compared to others who are not socially
disadvantaged, and such diminished opportunities have precluded or
are likely to preclude such individuals from successfully competing
in the open market.
3615 U.S.C. § 637(a)(5).
37 15 U.S.C. § 637(d). Criteria set forth in the regulations requires non-minority individuals
to prove by “a preponderance of the evidence,” that they have personally experienced
“substantial and chronic social disadvantage in American society” as the result of “[a]t least
one objective distinguishing feature,” including “long term residence in an environment
isolated from the mainstream of American society,” with a “negative impact “on his or her
“entry into the business world.” “In every case . . . SBA will consider education,
employment and business history, where applicable, to see if the totality of circumstances
shows disadvantage in entering into or advancing in the business world.” 13 C.F.R. §
124.105(c).
38See 49 CFR Pt. 23, Subpt. D, App. C.

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minority group members that applied by SBA regulation under the § 8(a) program.39
Prime contractors on major federal contracts are obliged by § 8(d) to maximize
minority participation and to negotiate a “subcontracting plan” with the procuring
agency which includes “percentage goals” for utilization of small socially and
economically disadvantaged firms. To implement this policy, a clause required for
inclusion in each such prime contract states that “[t]he contractors shall presume that
socially and economically disadvantaged individuals include Black Americans,
Hispanic Americans, Native Americans, Asian Pacific Americans, and other
minorities, or any other individual found to be disadvantaged by the Administration
pursuant to § 8(a). . .” All federal agencies with procurement powers were required
by P.L. 95-507 to establish annual percentage goals for the award of procurement
contracts and subcontracts to small disadvantaged businesses.

A decade later, Congress enacted the Business Opportunity Development
Reform Act of 1988,40 directing the President to set annual, government-wide
procurement goals of at least 20% for small businesses and 5% for disadvantaged
businesses, as defined by the SBA. Simultaneously, federal agencies were required
to continue to adopt their own goals, compatible with the government-wide goals, in
an effort to create “maximum practicable opportunity” for small disadvantaged
businesses to sell their goods and services to the government. The goals may be
waived where not practicable due to unavailability of DBEs in the relevant area and
other factors.41 Federal Acquisition Act amendments adopted in 1994 amended the
5% minority procurement goal, and the minority subcontracting requirements in §
8(d), to specifically include “small business concerns owned and controlled by
women” in addition to “socially and economically disadvantaged individuals.”42
Additionally, statutory “set-asides” and other forms of preference for “socially
and economically disadvantaged” firms and individuals, following the Small
Business Act or other minority group definition, have frequently been added to
specific grant or contract authorization programs. For example, Congress early on
established goals for participation of small disadvantaged businesses in procurement
for the Department of Defense, NASA, and the Coast Guard. It also enacted the
Surface Transportation Assistance Act of 1982 (STAA),43 the Surface Transportation
and Uniform Relocation Assistance Act of 1987 (STURAA),44 the Intermodal
Surface Transportation Efficiency Act of 1991 (ISTEA),45 and the Transportation
3915 U.S.C. § 637(d). See also 13 CFR § 124.106.
40P.L. 100-656, § 502, 102 Stat. 3887, codified at 15 U.S.C. § 644(g)(1).
41See, e.g. 49 CFR §§ 23.64(e), 23.65 (setting forth waiver criteria for the Department of
Transportation).
42P.L. 103-355, 108 Stat. 3243, 3374, § 7106 (1994).
43P.L. 97-424, § 105(f), 96 Stat. 2097 (1982)
44P.L. 100-17, § 106(c), 101 Stat. 132 (1987).
45P.L. 102-240, § 1003, 105 Stat. 1914 (1992).

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Equity Act for the 21st Century (TEA-21)46 each of which contained a 10% minority
or disadvantaged business participation goal. Similar provisions were included in the
Airport and Airway Improvement Act of 1982 in regard to procurements for airport
development and concessions.47 The Small Business Act definition of DBE,
including the racial presumption, applies to contracts, like that in the Adarand case,
financed by STURAA, ISTEA and related transportation funding legislation. Finally,
in 1994, Congress enacted the Federal Acquisition Streamlining Act, permitting
federal agency heads to adopt restricted competition and a 10% “price evaluation
preference” in favor of “socially and economically disadvantaged individuals” to
achieve government-wide and agency contracting goal requirements.48
The Adarand Decision and Its Progeny
Background and History of Adarand. Litigation surrounding racial
preferences in federal contracting followed a convoluted course after 1995, when the
Supreme Court settled the constitutional parameters of the issue but avoided a
decision of the merits in Adarand Constructors Inc. v. Pena (Adarand I).49
Preceding its return to the High Court for a third appearance this Term, as Adarand
Constructors Inc. v. Mineta, the legal and factual framework of the case was
considerably altered by multiple lower court decisions and appeals, and by changes
in the plaintiff’s legal standing, the details of the challenged federal program, and
regulatory reforms to “amend, not end” federal affirmative action by the former
Clinton Administration. To the chagrin of many legal observers, the Court on
November 27, 2001 once again sidestepped the constitutional issues posed by the
Adarand case and, after agreeing to review the controversy, dismissed the appeal as
“improvidently granted.” Spawning the Court’s latest action – or inaction – was the
Tenth Circuit’s bifurcated ruling in Adarand Constructors v. Slater (Adarand III).50
The federal appeals court there invalidated a federal highway program of financial
incentives to promote minority and “disadvantaged” small business utilization as
implemented at the time of Adarand I. But as revised and amended in 1997, the
program was found to be narrowly tailored to a compelling governmental interest and
passed constitutional muster.
The Adarand case has evolved through three distinct phases since 1995. The
litigation originated with a now-discontinued “race-conscious subcontracting
compensation clause (SCC)” program conducted by the Federal Highway Lands
Program of the Federal Highway Administration. The SCC did not allocate or set-
aside a specific percentage of subcontract awards for DBEs or require a commitment
46P.L. 105-178, § 1101, 112 Stat. 107 (1998).
47 For additional Information, see CRS Report RL30059, “Small Disadvantaged Business
Programs of the Federal Government,” (Eddy); “Compilation and Overview of Federal Laws
and Regulations Establishing Affirmative Action Goals or Other Preference Based on Race,
Gender, or Ethnicity,” CRS Memorandum, February 17, 1995 (Dale), reprinted at 141
Cong. Rec. S 3929 (daily ed. 3-15-95).
48P.L. 103-355, 108 Stat. 3242, § 7104 (1994),
49515 U.S. 200 (1995).
50228 F.3d 1147 (10th Cir. 2000).

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CRS-12
on the part of prime contractors to subcontract with minority firms. Rather,
“incentive payments” varying from 1.5% to 2% of the contract amount were paid to
prime contractors whose subcontracts with one or more qualified DBEs exceeded
10% of total contract value. The program incorporated the racial presumption from
the Small Business Act and regulations (supra), in effect relieving minority group
subcontractors of the burden of demonstrating disadvantaged status imposed upon
nonminorities.
Suit was brought by Adarand Constructors, Inc., a white-owned construction
firm whose low bid on a subcontract for highway guard rails was rejected in favor of
a higher bidding DBE. Both the federal trial court and the Tenth Circuit initially
upheld the program by applying “lenient” judicial review – “resembling intermediate
scrutiny”– rather than strict scrutiny under Croson, and requiring far less remedial
justification by the government. Because the program was not limited to racial
minorities, and non-disadvantaged minority group members were ineligible to
participate, the appeals court concluded, the program was “narrowly tailored.”
Justice O’Connor authored the majority opinion in Adarand I, and was joined by the
Chief Justice and Justices Scalia, Thomas and Kennedy in reversing this first round
of decisions.
The majority Justices in Adarand I rejected the equal protection approach that
applied “intermediate scrutiny” or some other relaxed standard of review to racial
line-drawing by the Congress.51 “ Because the “race-based rebuttable presumption”
in the DOT program was an “explicit” racial classification, Justice O’Connor
determined, “it must be analyzed by a reviewing court under strict scrutiny,” and to
survive, must be “narrowly tailored” to serve a “compelling governmental interest.”
Adarand I undermined prior judicial holdings, which had afforded substantially
greater latitude to Congress than to the states or localities when crafting affirmative
action measures for racial or ethnic minorities. Metro Broadcasting was expressly
overruled, and Fullilove adjudged “no longer controlling,” insofar as those decisions
exhibited greater tolerance for race-conscious lawmaking by Congress. To “dispel
the notion,” however, that “strict scrutiny is ‘strict in theory, but fatal in fact,’”
Justice O’Connor appeared to reserve a role for the national legislature as architect
of remedies for past societal discrimination. “The unhappy persistence of both the
practice and lingering effects of racial discrimination against minorities in this
country is an unfortunate reality, and the government is not disqualified from acting
in response to it.”52 Thus, a majority of the Justices – all but Justices Scalia and
Thomas – appeared to accept some forms of racial preference by Congress in at least
51 According to the majority, “strict scrutiny” of all governmental classifications by race was
required to determine whether benign or invidious motives inspired the legislative action
and because the guarantee of equal protection secured by the 5th and 14th Amendments is
a “personal” right extending to the “individual” and “not groups.” Strict scrutiny of federal
race conscious affirmative action was dictated by “three general propositions” that the
majority deduced from the constitutional precedents culminating in Croson: judicial
“skepticism” regarding all disparate governmental treatment based on race or ethnicity;
“consistency,” without regard to the race of those “burdened or benefitted” by the
classification; and “congruence” between equal protection and due process analysis.
52515 U.S. at 217.

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CRS-13
some circumstances.53 No further guidance was provided, however, as to the scope
of remedial authority remaining in congressional hands, or of the conditions for its
exercise. Indeed, the Court refrained even from deciding the merits of the
constitutional claim before it in Adarand I, instead remanding the case to the lower
courts to determine the outcome.
On remand, the district court in Adarand II 54decided that the “congruence”
required by Justice O’Connor did not mean that federal affirmative action must be
supported by the same “particularized” showing of past discrimination as state and
local programs. Rather, “Congress’ constitutionally imposed role as. . .guardian
against racial discrimination” under § 5 of the Fourteenth Amendment more broadly
empowered the national legislature to enact remedies for discrimination nationwide.
Consequently, findings of nationwide discrimination derived from congressional
hearings and statements of individual federal lawmakers were entitled to greater
weight than the “conclusory statements” of state or local legislators rejected by
Croson. “Congress,” in other words, “may recognize a nationwide evil and act
accordingly, provided the chosen remedy is narrowly tailored so as to preclude the
application of a race-conscious measure where it is not warranted.”
The “narrow tailoring” aspect of the Judge Kane’s decision entailed a fairly
technical analysis of the operational details of the SCC program. By linking the race-
based presumptions mandated by the SBA programs statutes and regulations with
financial “bonus” incentives of the SCC, the program was found to cause prime
contractors to discriminate against lower-bidding non-DBE subcontractors. Because
the government failed to show any increased costs to prime contractors for hiring
DBE’s, the incentive payments were not “compensation” at all, but amounted instead
to a “bonus” to prime contractors whose choice of a subcontractor was based “only
on race.” Second, although revised since, the application forms used by the state to
grant DBE certification at the time required minimal information from the applicant
as to financial condition and property ownership, instead centering “almost
exclusively” on minority status. “Indeed,” observed the district judge, “under these
standards, the Sultan of Brunei would qualify.” Thus, the racial presumption
governing the SCC program was found to be both “overinclusive” – in that its
benefits were available to all named minority group members – and “underinclusive”
– because it excluded members of other minority groups or caucasians who may
share similar disadvantages. Finally, although “more flexible” than the “rigid racial
quota” in Croson, or the 10% set-aside approved by Fullilove, the SCC program was
found by Judge Kane to be tainted by the government-wide 5% goals and
53In their separate concurrence, Justices Scalia and Thomas, espoused a far more restrictive
view that would foreclose all governmental classifications by race or ethnicity. Justice
Scalia declared that “government can never have a ‘compelling interest’ in discriminating
on the basis of race in order to ‘make up’ for past racial discrimination in the opposite
direction.” Justice Thomas was of the view that the “racial paternalism” of affirmative
action was more injurious than beneficial to minorities. “In my mind, government-
sponsored racial discrimination based on benign prejudice is just as noxious as
discrimination inspired by malicious prejudice. In each instance, it is racial discrimination,
plain and simple.”
54Adarand Constructors Inc. v. Pena, 965 F. Supp. 1556 (D.Colo. 1997).

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CRS-14
transportation set-asides which it implemented.55 As such, the program was not
“narrowly tailored” and failed strict scrutiny; summary judgment was granted for
Adarand Constructors, Inc. and against the federal government.
Two aspects of the district court’s analysis of the “narrow tailoring” requirement
were especially unsettling for federal small disadvantaged business programs. First,
the “optional” or voluntary nature of the SCC program was not enough to save it,
notwithstanding the fact that prime contractors were free to accept bid proposals from
any subcontractor, regardless of race or ethnicity. The government’s failure to
prevail on this issue cast a long shadow over other federal minority contracting
efforts – e.g. the § 8(a) set-aside, bid or evaluation preferences, and the like – which,
under Judge Kane’s reasoning, may be viewed as imposing a “choice based only on
race” at least as “mandatory” and “absolute” as the incentive payment to prime
contractors in Adarand, if not more so. Similarly, the fact that the SCC program did
not expressly incorporate any “goals, quotas, or set-asides” was not sufficient to
divorce it, in the district court’s view, from the percentage goal requirements
imposed by statutes the program was designed to implement. Those statutory
provisions – the 5% minimum disadvantaged small business goal in § 8(d) of the
SBA and the parallel 10% requirement in STURAA and ISTEA – were deemed
invalid for lack of narrow tailoring. In effect, the district court ruling questioned
much of the federal government’s statutory infrastructure for advancing minority
small business participation in the procurement process by race-conscious means.
On September 25, 2000, the Tenth Circuit issued its decision on the merits of
the controversy.56 The appellate panel in Adarand III reversed the district court
injunction against future implementation of DOT’s disadvantaged business enterprise
(DBE) program in Colorado. In so doing the court of appeals considered the
55In this regard, the district court observed:
Thus, although the SCC’s contain no quotas, they are used as one of the methods
to attain the percentage goals in the SBA, STURAA and ISTEA, and are thus
inextricably linked with these goals. Insofar as the percentage goals are a
foundation for the use of the SCCs, rooted in the same race-based presumptions
contained in the SCCs, I find the statutory sections containing those goals
insufficiently narrowly tailored for the same reasons as I stated in making that
determination regarding the SCCs themselves.

56 Adarand Constructors Inc. v. Slater (Adarand III), supra n. 50. This latest decision of the
court of appeals was preceded by an intervening appellate ruling and Supreme Court review
confined to procedural questions of standing and mootness occasioned by the plaintiff’s
change in circumstances. After the district decision in Adarand II, the State of Colorado did
away with the racial presumption and certified the nonminority owner of Adarand
Constructors Inc. as disadvantaged. As a result, the Tenth Circuit dismissed the case as
moot and the vacated the judgment against the government. Adarand v. Slater, 169 F.3d
1292 (10th Cir. 1999). The district court decision was reinstated on January 20, 2000,
however, when the Supreme Court rejected the mootness finding because there was nothing
to prevent the government from reviving the abandoned policy, and returned the case to the
circuit court for further proceedings. Adarand Constructors v. Slater, 528 U.S. 216 (2000).

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CRS-15
constitutionality of the program, both as structured at the time of the district court
decision and of later revisions to DBE regulations adopted in 1997. First, it
generally agreed with the district court that the SCC system of financial incentives,
in effect at time of Adarand I, had not been narrowly enough tailored to satisfy the
constitutional requirements of strict scrutiny. But after lengthy congressional
hearings, the financial incentives were eliminated, and other reforms were adopted
to DBE requirements imposed by DOT regulation on state and local highway aid
recipients. As a result, the appeals court ultimately concluded that the DOT
disadvantaged business enterprise program as currently structured – though not the
former, discarded program of financial incentives – passed constitutional muster.
Initially, the appellate tribunal aligned itself with the district court’s finding that
the federal government had a “compelling interest” in preventing and remedying the
effects of past discrimination in government contracting. And the scope of
Congress’ authority to act was not limited geographically or to specific instances of
discrimination – as in the case of the states and localities under Croson – but
extended “‘society-wide’ and therefore nationwide.” The range of admissible
evidence to support racial line-drawing by Congress was both direct and
circumstantial, including post-enactment evidence and legislative history,
demonstrating public and private discrimination in the construction industry. The
court was largely dismissive of individual statements by members or from committee
reports as “insufficient in themselves to support a finding of compelling interest.”
Congressional hearings over nearly a two-decade period, however, depicted the
social and economic obstacles – e.g. “old boy networks,” racism in construction
trade unions, and denial of access to bonding, credit, and capital – faced by small
and disadvantaged entrepreneurs, mainly minorities, in business formation and in
competition for government contracts. Moreover, “disparity studies” conducted after
Croson in most of the nation’s major cities compared minority-owned business
utilization with availability and “raise[d] an inference that the various discriminatory
factors the government cites have created that disparity.” This record satisfied the
Tenth Circuit panel that Congress had a “strong basis in evidence” for concluding
that passive federal complicity with private discrimination in the construction
industry contributed to discriminatory barriers in federal contracting, a situation the
government had a “compelling” interest in remedying.
The appellate tribunal adopted a two-stage review of the “narrowly tailored”
requirement, focusing on the DBE program both as in effect prior to1997 and later
as revised to comply with Adarand I. Basically, it determined that many of the
constitutional flaws that defeated the program in Judge Kane’s opinion – an outcome
with which the appellate panel largely agreed – had been eliminated by the
government’s regulatory reforms. In effect, the latest decision lays the old program
to rest while reversing Judge Kane’s order insofar as it would bar implementation of
the revised version. The appeals court also clarified the scope of the DBE program
under review. It disagreed with, and specifically reversed, elements of the district
court judgment raising issues beyond the specific DBE program as applied by
Colorado officials to federally funded highway procurements within that state.
Because the 5% and 10% goals in the SBA and underlying transportation
authorization measures “are merely aspirational and not mandatory,” they were not
the reason that “Adarand lost or will lose” contracts, and any challenge to those
provisions were outside the scope of the remand in Adarand I. Thus, any broader

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CRS-16
potential implications of the district court ruling for § 8 (a) set-asides or government-
wide goals for DBE participation under the Small Business Act were largely blunted
by the appellate panel.57
The constitutional virtues of the revised program over the pre-1996 SCC
program at issue in Adarand I were several. First, race-neutral measures dating back
to the 1958 enactment of the SBA had preceded Congressional adoption of
“aspirational goals” and other affirmative action measures for minority groups in
government-wide contracting. DOT had not considered such alternatives before
adopting race-conscious subsidies for prime contractors who select minority
subcontractors. However, this defect was cured by the revised regulations, which
specifically directed recipients to exhaust race-neutral alternatives – bonding,
financing, and technical assistance, etc – before taking race into account.58
Secondly, the revised regulations incorporated the time limits and graduation
requirements for participation of disadvantaged businesses in the §§ 8(a) and 8(d)
programs, thereby ensuring the later program’s limited duration.59 The court of
appeals also found that the SCC program of financial incentives was more flexible
than the mandatory set-asides in Fullilove and Croson because they were voluntary
on the part of the prime contractors and because the post-1996 revisions adopted an
express waiver.60 Any use of “aspirational goals” by recipients of federal highway
funds had to make “reference to the relative availability of DBEs in the market” and
was restrained in other ways by the new regulations so that “there is little danger of
arbitrariness in the setting of such goals, as . . .in Croson.61 The burden of the revised
program on third parties was mitigated by placing monetary caps on subsidies to
prime contractors – limiting the incentive to hire further DBEs – and by adopting
“preponderance of the evidence” for proof of “social disadvantage” by members of
“non-presumed” groups in lieu of the former “clear and convincing” standard.
57Specifically, the Tenth Circuit opinion states:
Subsection 8(a) does not involve the use of SCCs, nor has Adarand made any
showing that it has been injured by non-inclusion in the § 8(a) . . . . This case
does not involve, nor has Adarand ever demonstrated standing to bring, a
generalized challenge to the policy of maximizing contracting opportunities for
small disadvantaged businesses set forth in 15 U.S.C. §§ 637 and 644(g), or to
the various goals for fostering the participation of small minority-owned
businesses promulgated pursuant to 15 U.S.C. § 644(g). Nor are we presented
with any indication that Adarand has standing to challenge . . .§ 637d. 228 F.3d
at 1152.
5849 C.F.R. § 26.51(a),(b)(2000).
59Participation in the § 8(a) program is limited by statute and regulation to ten and one-half
years, and each DBE is re-evaluated, and may be graduated from the program, based on the
submission of financial and other information required annually.
6049 C.F.R. § 2615 (2000)(allowing recipients to seek waivers and exemptions, despite the
already non-mandatory nature of the program).
61The court of appeals found that the SCC had been based in part on “an ill-defined 12-15%
goal apparently adopted by the Federal Highway Administration, for which “it could find
no explanation in the record.” This alone would have warranted summary judgment for
Adarand, it concluded.

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CRS-17
Finally, the revised program avoided the constitutional vice of over- and under-
inclusiveness by “disaggregating the race-based presumption that encompassed both
“social” and “economic” disadvantage” in the former regulation. Thus, an
individualized showing of economic disadvantage is now required of all applicants
to the program, minority and non-minority alike. This change, the appeal court
believed, effectively satisfied that Croson requirement of an “inquiry into whether or
not the particular MBE seeking a racial preference has suffered from the effects of
past discrimination.”62
The Supreme Court Declines to Decide the Case. The U.S. Supreme
Court on March 26, 2001 granted certiorari in an appeal from the Circuit Court’s
latest decision, marking the third High Court appearance by the Adarand case.63
Arguments in the case were heard on October 31, 2001, during which the Justices
appeared more concerned with procedural irregularities in the case, as outlined by the
Justice Department, than with the substance of the constitutional claims. In essence,
the government argued that Adarand’s legal challenge was limited to the DOT
program and regulations applicable to direct procurement of highway construction
on federal lands, like the contract denied, not to the separate regulatory scheme
governing federal highway assistance to states. Petitioner Adarand Constructors Inc.
made a parallel argument – but for a different reason – that the court of appeals
misconceived the scope of the appeal. In particular, petitioner’s brief contended, the
Tenth Circuit’s analysis considered revisions to DOT regulations applicable to
federally assisted state and local highway projects, which are irrelevant to the
separate set of rules governing direct federal procurement, thereby undermining the
court’s conclusion that the SDB program was narrowly tailored. Because the race
conscious aspects of the original financial incentive program had been suspended in
Colorado and several other states as the result of administration reforms to
affirmative action rules after Adarand I, counsel for the company had difficulty
arguing that its client “is still unable to compete on an equal footing” or had “lost a
single contract under the provisions they are now challenging.” Further
complicating Adarand’s position, the Tenth Circuit had rejected its earlier
“blunderbuss” attack upon the entire statutory framework for federal small
disadvantaged business programs, a ruling not appealed to the Supreme Court. The
government, therefore, contended that Adarand’s lawsuit had “outlived the program
that provoked it,” and in oral arguments to the Justices, the Solicitor General urged
the Court to dismiss the petition for certiorari as improvidently granted.
It came as no great surprise, therefore, that the Justices complied with the
government’s request and dismissed the case on November 27, 2001. In a per curiam
opinion, the Court emphasized technical flaws with the present appeal, as framed
during oral arguments. First, Adarand was challenging a by now defunct aspect of
62The current regulations impose additional requirements on applicants with regard to
individualized showing: they must submit a narrative statement describing the circumstances
of that purported economic disadvantage. 13 C.F.R. § 124.104(b)(1)(2000). See also, 49
C.F.R. § 26.67(b)(1)(2000)(providing a net worth limit for DBEs under transportation
programs); id. § 26.65(b)(stating that businesses exceeding a certain amount of gross
receipts are ineligible for the DBE program).
63Adarand Constructors, Inc. v. Mineta, cert. gr. 121 S.Ct 1401 (mem.) (3-26-2001).

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CRS-18
the program that the Tenth Circuit had not ruled upon, asking “whether the various
race-based programs applicable to direct federal contracting could satisfy strict
scrutiny.” Nor had the company sought review of those aspects of the DOT statute
and regulations respecting the state and local procurement program on whose
constitutionality the appeals court had spoken. Consequently, the Supreme Court
declined to reach the merits of a controversy regarding which neither the parties nor
the courts below appeared to be reading from the same page.
Had the Court opted to address the merits, however, two major questions were
presented by the petition for certiorari. First was “whether the court of appeals
misapplied the strict scrutiny standard in determining if Congress had a compelling
interest to enact legislation designed to remedy the effects of past discrimination.”
The Tenth Circuit found that Congress had a “solid basis in evidence” for concluding
race-conscious action necessary based on its dissection of hearing testimony,
legislative reports, and state and local disparity studies. Generally, its approach
conformed to Fullilove and other cases, which have stressed deference to
congressional fact-finding under § 5 of the Fourteenth Amendment. Croson also
suggests that as the national legislature, Congress may not be constrained by the same
requirements of specificity in regard to regional scope and classes of individuals
benefitted by race conscious programs. But recent Court rulings parsing the scope
of congressional § 5 power to override state sovereign immunity under a variety of
federal civil rights laws, have emphasized the need for “congruence and
proportionality” of the remedy to any problem perceived by the Congress.64 The
ramifications of this principle for § 5 race discrimination legislation is undetermined,
and questions remain. Conversely, some would argue, the affirmative grant of
congressional authority to legislate remedies for equal protection violations by states
conferred by § 5 is even broader than its power to place similar conditions on direct
spending for federal procurements, which is limited by 5th Amendment due process.
The second aspect of strict scrutiny analysis would have required the Court to
determine whether the means chosen by DOT to promote minority group
participation in the federal procurement process is “narrowly tailored.” In this
regard, the Tenth Circuit found that after eliminating financial bonus or subsidy, the
adoption of “aspirational goals” for utilization of disadvantaged firms based on
“good faith efforts,” as required by current regulations, was a more flexible and
64E.g. Kimel v. Florida Board of Regents, 528 U.S. 62 (2000)(Applying “congruence and
proportionality” standard, the Court determined that the Age Discrimination in Employment
Act was not “appropriate legislation”under § 5); United States v. Morrison, 529 U.S. 598
(2000)(Court invalidated provision of Violence Against Women Act, providing victims of
gender-motivated violence with a civil damages remedy, since even as a “prophylactic
measure,” it was “overbroad” and applied uniformly throughout the nation, rather than
merely in states with congressionally documented records of this type gender
discrimination.); Board of Trustees of the University of Alabama, 121 S.Ct. 955
(2001)(Congress could not abrogate state sovereign immunity to suit for compensatory
damages under Title I of the Americans with Disability Act since historical record “fails to
show that Congress did in fact identify a pattern of irrational state discrimination in
employment against the disabled,” and the rights and remedies provided against the state
“raise the same sort of concerns as to congruence and proportionality” as found in previous
cases.).

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CRS-19
narrowly tailored alternative. That conclusion, however, has been questioned by
other courts, which have found that governmentally required goal-setting, coupled
with enforcement sanctions – in Adarand’s case, liquidated damages under § 8 (d)
– is inherently coercive and encourages racial quotas. The Ninth Circuit, for
example, has invalidated a California affirmative action statute that required bidders
on state contracts to subcontract a percentage of their work to female- and minority-
owned firms or document a “good faith” effort to do so.65 Similarly, in Lutheran
Church-Missouri Synod v. FCC66, the D.C. Circuit blurred the distinction between
so-called “inclusive” and exclusive “affirmative” action. FCC regulations required
broadcast license holders 1) to engage in “critical self-analysis” of minority and
female underrepresentation, and 2) to undertake affirmative outreach by using
minority and female-specific recruiting sources. Strict scrutiny was held to be
appropriate and the regulations were unlawful since beyond simple outreach, their
effect was to influence ultimate hiring decisions; that is, the threat of government
enforcement “coerced” stations to maintain a workforce that mirrors racial
breakdown of the labor area.
The Court’s disposition of the latest Adarand appeal means that a definitive
review of federally-mandated affirmative action must be postponed to another day.
That day, however, may not be too far distant. Percolating in the lower federal courts
are cases that pose similar questions regarding the power of Congress to enact racial
preferences in federal contracting as were bypassed by the Court’s inconclusive
determination in Adarand.
Post-Adarand Judicial Decisions.
Federal Affirmative Action Programs. Besides Adarand, a handful of
other lower federal courts have addressed the issue of congressional authority to
fashion affirmative action remedies. These courts have generally been persuaded by
the record of committee hearings and other documentary evidence before Congress
that the government had a compelling interest for the program in question. However,
in applying the constitutional demand for a “narrowly tailored” remedy, the outcome
has largely turned on each court’s view of the program in actual operation.
Just two weeks after oral argument in Adarand, a Minnesota federal district
court approved DBE provisions of the TEA-21 and DOT’s implementing regulations.
Sherbrooke Turf, Inc. v. Minnesota Department of Transportation 67 relied heavily
on the Tenth Circuit’s “painstaking” review of congressional findings related to the
passage of TEA-21 to find a “compelling”congressional interest in remedying
persistent “racism and discrimination in highway subcontracting” by a race
conscious procurement program. Prior congressional consideration of race-neutral
alternative means and the program’s limited duration (it expires in 2004)
demonstrated that TEA-21 and its regulations were narrowly tailored. Earlier, the
65Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir.1997), reh’g en banc denied,
138 F.3d 1270 (9th Cir. 1998).
66141 F.3d 344 (D.C.Cir. 1998).
672001 WL 1502841 (D. Minn. 2001)

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same court had taken constitutional exception with another DOT program authorized
by ISTEA because it operated as an inflexible “quota,” which impermissibly
burdened non-minority contractors.68 That predecessor program also was found to
lack narrow tailoring since it had been adopted without adequate consideration of
race-neutral alternative measures. Similarly, while upholding the constitutionality
of the § 8 (a) program on its face, the district court in Cortez III Service Corporation
v. NASA69 required federal officials “to decide whether there has been a history of
discrimination in the particular industry at issue” before applying a race-based set-
aside. Other courts, however, have denied firms or individuals standing to challenge
the racial presumption in the SBA statute and regulations on the rationale that they
were disqualified from contract consideration because of inability to demonstrate
“social and economic disadvantage,” and not race.70
One other federal appellate court has considered the implications of strict
scrutiny analysis for a government contract preference program since the Supreme
Court’s 1995 Adarand decision. In Rothe Development Corporation v. U.S.
Department of Defense,71 the trial judge had upheld on motion for summary
judgment § 1207 of the National Defense Authorization Act of 1987, which
incorporates the SBA definition of small disadvantaged business, including the racial
presumption, and establishes a five percent participation goal for such entities in
Department of Defense contracts.72 The § 1207 program authorizes DOD to apply
a price evaluation adjustment of ten percent in order to attain the five percent goal.
In effect, this means that DOD may raise the bids of non-DBEs by 10% in order to
give disadvantaged entrepreneurs a preference. The statutory goal-setting provision
in §1207 was reauthorized in 1989 and again in 1992, because DOD efforts in the
initial years fell short of meeting the 5% goal. A non-minority bidder in Rothe sued
DOD and the Department of the Air Force for violating its equal protection rights in
awarding a contract to a higher bidder, International Computer and
Telecommunications, Inc., because of the race of its owner, who was of Korean
descent.
The trial court aligned itself with Adarand II in finding that the governmental
interest in remedying national patterns of discrimination against minority contractors
was compelling, and was amply supported by the evidence presented to Congress and
its legislative findings. Nor was the national legislature limited – as were its state
68In re Sherbrooke Sodding Co., 17 F. Supp.2d 1026 (D.Minn. 1998)
69950 F. Supp. 357 (D.D.C. 1996). See also Northern Contracting Inc. v. State of Illinois,
2001 WL 987730 (N.D.Ill.)(federal defendants’ motion for summary judgment on
government’s showing of “compelling interest” for TEA-21 contracting goals denied,
although the court conceded that plaintiff “may face uphill battle” in gathering adequate
rebuttal evidence); Klaver Construction Co. v. Kansas Department of Transportation, 2001
WL 1000679 (D.Kan.)(Motion to stay proceedings pending disposition of Adarand by U.S.
Supreme Court denied).
70See Interstate Traffic Control v. Beverage, 101 F. Supp. 2d 445 (S.D. W.Va. 2000);
Ellsworth Associates v. United States, 926 F.Supp. 207 (D.D.C. 1996).
71262 F.3d 1306 (Fed.Cir. 2001).
7210 U.S.C. § 2323.

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or local counterparts under Croson – to a local or regional response, but in enacting
§ 1207, could “assess the condition of the nation as a whole,” and act accordingly.
Because Congress represented a “national electorate,” the district court concluded,
it could legislate in “broader brush” fashion than states or localities, and was entitled
to some degree of deference. The U.S. Court of Appeals for the Federal Circuit
rejected this “deferential standard of review” and vacated the judgment. In
remanding for further proceedings, the appeals court confirmed that when it comes
to race-based federal programs, there is only “one kind of strict scrutiny.”
The appellate court advanced a different conception of both the constitutional
basis for Congress’ enactment of §1207 and the degree of scrutiny demanded. As
national legislature, it said, Congress could enact race-based programs as a condition
to the exercise of its Article I spending powers or pursuant to § 5 of the Fourteenth
Amendment as a remedy for lingering discrimination by state and local governments.
Whatever deference may be owed to congressional remedies for state equal
protection violations under § 5, when legislating racial preferences in federal
spending programs, Congress is restricted by the 5th Amendment, which incorporates
its own equal protection component. “Strict scrutiny is a single standard and [it]
must be followed here,” said the appeals court. The proper judicial inquiry was
whether a “strong basis in evidence” supported Congress’ conclusion that
discrimination existed and remedial action was warranted. A “mere listing” of
evidence before Congress when it enacted the original statute in 1987 was
insufficient, the Federal Circuit warned. Rather, detailed statistical information
regarding the existence of discrimination in 1992 was necessary to find the
reauthorized § 1207 constitutional. Moreover, the government must produce
evidence of pre-enactment discrimination; reports generated after the statute was
enacted showing discrimination against specific groups cannot be used to prove the
constitutionality of the program when enacted. The “strong basis in evidence” must
have existed at the time the law was enacted if it is to survive strict scrutiny.
The Federal Circuit opinion outlined elements for the lower court’s review on
remand. In determining whether a “compelling Government interest” justified the
SDB program, the lower court must decide if the § 1207 program is “truly remedial.”
This requires a determination whether the program targets present discrimination or
the “lingering effects” of past discrimination. If the latter, the opinion notes, the
probative currency of the evidence must be determined, as must the existence of
specific evidence of discrimination against Asian Americans in the particular
industry involved in this case. As to whether the § 1207 program is narrowly
tailored, the Federal Circuit highlighted three areas for remand consideration. First,
the trial court should conduct “a probing analysis of the efficacy of race-neutral
alternatives” to the § 1207 program. Second, the court must review evidence
demonstrating whether the 5% goal of SDB participation was relevant to the number
of qualified, willing, and able SDBs in the industry. Finally, the lower court had to
determine whether the § 1207 program was over-inclusive by “presuming” that the
five groups identified in the statute were victims of discrimination.

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A federal claims court decision, Christian v. United States,73 also invalidated
efforts by the federal government to promote minority group opportunities through
race-conscious means. Involved there was a U.S. Army policy establishing retention
goals for minority and female officers twice considered but passed over for
promotion who would otherwise have been subject to mandatory early retirement.
The percentage of minorities and women to be retired was set by a special Army
memorandum, which established different evaluation standards for minorities and
women than officers in general, ostensibly due to possible past personal or
institutional discrimination.
The claims court found that whether the Army program was viewed as a “goal,”
“quota,” or otherwise, the special procedures “pressure[d]” review board members
“into making racially tainted decisions,” thus amounting to “a racial classification
subject to strict scrutiny.” It also found that the purposes put forward by the
government in defense of the policy fell short of “compelling” for several reasons.
First, the Army’s desire to project a “perception” of equal opportunity and to address
the problem of “possible past discrimination” in previous training and assignments
was not equivalent to “finding that a particular minority officer was in fact
discriminated against.” Further undermining any remedial justification for the policy
was its focus on issues of “past personal discrimination” – in promotions,
assignments, and military school attendance – affecting minority members of the
Army, in general, rather than previous biased acts of the retirement board, the entity
responsible for implementing the minority retention program. In this respect, the
court likened the policy to remedies for “societal discrimination,” which Croson and
Adarand rejected as a “compelling” governmental interest. The Army’s plan was
found to address mere “statistical disparities” in minority retention rates, whatever
the cause, rather than proven “present effects of past discrimination,” the only
constitutional justification for racial affirmative action.
The Army procedure failed the additional constitutional requirement that
affirmative action measures be “narrowly tailored.” The minority retention goal was
not the “least intrusive means” to remedy discrimination by the Army in promotions.
Promotion or recruitment goals would accomplish the same purpose by “more exact
connection” to identified institutional discrimination with less burden on affected
nonminority officers. Moreover, the policy was of indefinite duration, with no built-
in time limitation, and no race-neutral alternatives were attempted by the government
before implementing its affirmative action plan. One alternative suggested by the
court was to increase educational and training opportunities for all officers from
underprivileged backgrounds, whatever their race. This, it was contended, would
expand the pool of minorities eligible for promotion and address the Army’s concern
for societal discrimination without employing a suspect classification.
Similarly, in a legal action by a white officer who was twice denied promotion
to full colonel in 1996 and 1997, Saunders v. White,74 a federal district court has
ruled the Army’s equal opportunity promotion process in use at the time
unconstitutional. The Army’s written instruction to promotion boards required that
7346 Fed. Cl. 793 (2000).
742002 WL 338744 (D.D.C. 2002).

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the possibility of personal or institutional discrimination be taken into account when
evaluating the promotion files of women and minority officers – both in initial
evaluation and any review or revote – and urged that the percentages promoted from
these groups match their proportion in the applicant pool. Because Army promotion
selection statistics for more than two decades demonstrated that minorities and
women were promoted at virtually the same rate as whites – if not slightly higher –
Judge Lambert found that there was no demonstrable record of discrimination to
justify the Army’s consideration of race or gender in its promotion policy. The fatal
defect in the Army policy was summed up by the district court: “Nowhere in the
Memorandum are selection board officers obliged to consider the possibility of past
discrimination for non-Nurse Corps males, whites, or any other group for which there
is not an equal opportunity selection goal. Thus, the Memorandum instructs selection
board members to, for example, account for an Hispanic applicant’s ‘past personal
or institutional discrimination,’ but not to account for a white applicant’s past
discrimination. This undeniably establishes a preference in favor of one race or
gender over another, and therefore is unconstitutional.”75
Minority Contracting By State and Local Government. With
increasing frequency, state and local affirmative action programs have met with
constitutional objection from courts applying strict judicial scrutiny. Ten federal
circuit courts have addressed the legality of racial preferences in employment and
public contracting programs, applying various interpretations of the Croson ruling.
Croson emphasized the obligation of state and local governments to anchor their
affirmative action efforts by identifying with specificity the effects of past
discrimination. This meant that the governmental entity has to have a “strong basis
in evidence”– just short, perhaps, of that required to establish a “prima facie” case
in a court of law – for its conclusion that minorities have been discriminatorily
excluded from public contracts in the past. In Croson, the 30% set-aside for minority
subcontractors adopted by the City of Richmond failed this constitutional test. First,
the program was premised on a comparison of minority contractor participation in
city contracts with general minority population statistics rather than the percentage
of qualified minority business enterprises in the relevant geographic market. There
was, moreover, no evidence of discrimination in any aspect of city contracting as to
certain groups – i.e. Orientals, Indians, Eskimos, and Aleuts – who nonetheless were
granted a preference under the plan. As regards “narrow tailoring,” the 30 % “quota”
was “too inflexible”and had been implemented by the city without any prior
consideration of “race-neutral” alternatives. Finally, the “waiver” built into the
Richmond plan was too “rigid” because it focused solely on minority contractor
“availability” with “no inquiry into whether or not the particular MBE seeking a
racial preference has suffered from the effects of past discrimination by the city or
prime contractors.”
The heightened standards of proof articulated by Croson, and further developed
by Adarand, led many states, counties and municipalities to reevaluate existing
minority business enterprise programs. Judicial challenges followed, and while

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several race-conscious programs survived – at least initially – 76 the majority were
less successful, either because they lacked a compelling remedial justification or
were not sufficiently “narrowly tailored” to withstand strict judicial scrutiny. As to
the former, local jurisdictions primarily sought to establish a “strong basis in
evidence” with “disparity” studies depicting the extent of minority exclusion from
public contracting activity within the jurisdiction, coupled with any available
“anecdotal” evidence. Such studies have generally been poorly received in the
courts. Almost universally cited as the basis for judicial rejection of such statistical
proof is over-reliance by the governmental unit on general or undifferentiated
population data that failed to adequately reflect minority contractor availability or to
account for contractor size and other factors relevant to contractor qualifications.77
76 See, e.g. Associated General Contractors of California v. Coalition, 950 F.2d 1401, 1416-
18 (9th Cir. 1991), cert. denied , 503 U.S. 585 (1992)(use of a bid preference rather than a
quota, the definition of beneficiaries on the basis of experience of prior bid discrimination,
the ability of nonminority contractors to participate via joint venture option, and the limited
geographical scope of the preference assured that the program was narrowly tailored);
Indianapolis Minority Contractors Ass’n v. Wiley, 187 F.3d 743 (7th Cir. 1999)(sustaining
10% set-aside of federal highway funds for socially and economically disadvantaged small
business concerns); Coral Construction Company v. King County, 941 F.2d 910 1991), cert.
denied, 502 U.S. 1033 (1992)(minority business set-aside program sustained as applied to
preferences for women since less restrictive, intermediate scrutiny standard allows program
without proof of active or passive discrimination by government; racial preferences invalid
absent record of past discrimination within industry at least passively supported by
governmental infusion of tax dollars).
77 Associated General Contractors of Ohio, Inc. v. Drabik, 214 F.3d 730 (6th Cir. 2000), cert.
denied, 121 S. Ct. 1089 (2001)(Ohio Business Enterprise Act invalid as overly inclusive and
not narrowly tailored, extending to ethnic groups that had not suffered discrimination;
although there was statistical disparity in proportion of contracts awarded to particular
group, statistics failed to take into account how many minority-owned businesses were
qualified, willing, and able to perform state construction contracts); W.H. Scott Construction
Co., Inc. v. City of Jackson, 199 F.3d 206 (5th Cir. 1999)(disparity study rejected because
“it did not include an analysis of the availability and utilization of qualified minority
subcontractors, the relevant statistical pool, in the City’s construction projects”);
Engineering Contractors Ass’n v. Metro. Dade County, 122 F.3d 895 (11th Cir. 1997), cert.
denied, 523 U.S. 1004 (1998)(disparities found by studies relied on by Dade County to
support separate contracting preferences for blacks, hispanics, and women in construction
were not significant, in part, because of “complete failure to take firm size into account;”
however, gender preferences required only intermediate scrutiny and could be based on
societal discrimination in the relevant economic sector); Concrete Works of Colorado, Inc.
v. City and County of Denver, 36 F.3d 196 (10th Cir. 1994), cert. denied 514 U.S. 1004
(1995)(disparity index based on “absolute” number of MBEs in the local market without
regard to their size may overstate their underutilization as city contractors); O’Donnell
Construction Co. v. District of Columbia, 963 F.2d 420 (D.C.Cir. 1992) (D.C. set-aside of
35% of construction contracts for local MBEs disapproved because many
nondiscriminatory reasons could explain disparity between percentages of MBEs
participating in public construction contracts and overall percentages of MBEs).
See also federal district court decisions in Builders’ Ass’n of Greater Chicago v.
County of Cook, 123 F. Supp. 2d 1087 (N.D. Ill. 2000)(no “compelling” governmental
interest for minority and female subcontracting set-aide absent proof of systematic lack of
(continued...)

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Other major faults have been failure to “narrowly tailor” the remedy – whether a
minority participation goal, preference, set-aside, or other “sheltered” bidding
arrangement – to any disparities revealed by statistics and anecdotal proof of
discrimination;78 the failure to properly limit the program in scope and duration;79 the
absence of a “waiver” provision;80 or neglecting first to consider race-neutral
77(...continued)
opportunity to bid on private contracts or pattern of refusal to hire minority contractors in
adjoining six-county area); Webster v. Fulton County, Georgia, 51 F. Supp.2d (N.D. Ga.
1999)(disparity study rejected for failure to take into account factors such as firm size and
ability to obtain financing and bonding that may affect MBE availability and utilization);
Phillips & Jordan, Inc. v. Watts, 13 F.Supp.2d 1308 (N.D.Fla. 1998)(court “unconvinced”
by disparity study that “assume[d]” all minority firms included were willing or able to bid
on road maintenance contract); (Arrow Office Supply Co v. City of Detroit, 826 F. Supp.
1072 (E.D. Mich. 1993)(neither “statistical” study comparing estimates of minority
contractors with blacks in population, nor testimony revealing difficulties most MBEs face
“as a result of their size” rather than “direct intentional invidious discrimination” would
justify the city’s sheltered market program); Concrete General v. Washington Suburban
Sanitary Commission, 779 F. Supp. 370 (D. Md. 1991)(MBE participation goal of 25%
improper because it focused on general population figures and substantially exceeded the
percentage of available qualified MBEs); Houston Contractors Ass’n v. Metropolitan
Transit Authority of Harris County, 993 F. Supp. 545 (S.D. Tex. 1997)(Houston Metro
Authority 21% small disadvantaged business subcontracting goal rejected since “it assumes
that participation should equal population” and “Study” used to justify preference was based
on “familiar aggregate figures on income disparity between groups” but did not “connect
the city’s contracting policies to minority impoverishment”).
78E.g. Contractors Ass’n of Eastern Pennsylvania, Inc. v. City of Philadelphia, 91 F.3d 586
(3d Cir. 1996), cert. denied, 519 U.S. 1113 (1997)(minority set-aside of 15% was arbitrary
and not narrowly tailored were evidence of record as to percentage of black subcontractors
in market indicated percentage of 0.7%, and city made no effort to identify barriers to entry
to market by black contractors); Associated Utility Contractors of Maryland, Inc. v. Mayor
and City Council of Baltimore, 2000 WL 201606 (D.Md. 2-16-2000)(rejecting city’s
reliance on disparity study then in progress for annual minority and female set-asides where
there was no record of “what evidence the City considered prior to promulgating the set-
aside goals for 1999"); Main Line Paving Co. v. Board of Education, 725 F. Supp. 1349
(E.D. Pa. 1989)(evidentiary basis for the program was too general, since it related to race-
neutral practices, and the remedy overbroad in that it did not provide for an individualized
determination that those benefitting from the plan were victims of past discrimination).
79E.g. Associated General Contractors of Ohio v. Drabik, 214 F.3d 730 (6th Cir. 2000)(state
minority preference plan not narrowly tailored where it had been in effect for 20 years with
no set expiration); Kornhass Construction, Inc. v. State of Oklahoma, 140 F. Supp. 2d 1232
(W.D.Okla, 2001)(duration of state 10% minority contracting goal “not tied in any way to
the eradication of past or present racial discrimination” and “legal authority to bypass a
certified minority bidder” has never been exercised); Webster v. Fulton County, Ga. supra
n. 77 (“random inclusion” of racial or ethnic groups who may never have suffered from
discrimination undermined narrowly tailored remedy); Associated General Contractors v.
New Haven, 791 F. Supp. 941, 948 (D. Conn. 1992)(failure to document discrimination
against any “disadvantaged” business other than disadvantage based on race made program
overinclusive as to other groups and thus not appropriately tailored to its asserted remedial
purpose).
80Associated General Contractors of Ohio, supra n. 77 (rejecting waiver provision which
(continued...)

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alternatives, such as bonding and credit assistance programs, to ameliorate minority
underutilization.81
Post-Adarand Regulatory Developments
Regulatory reforms put forward by the former Clinton Administration sought
to “narrowly tailor” federal minority and disadvantaged small business programs in
line with Adarand. An initial focus of the Administration’s post-Adarand review
was a DOD program, known as the “rule of two,” developed as a means to attain the
5% goal for disadvantaged firms in 10 U.S.C. § 2323. Section 2323 authority –
permitting “less than full and open competit[ion]” in DOD procurements provided
that the cost of using set-asides and affirmative action measures is not more than 10%
above fair market price – was extended to all agencies of the federal government by
the Federal Acquisition Streamlining Act of 1994 (FASA).82 Under the rule of two,
whenever a DOD contract officer could identify two or more qualified disadvantaged
firms to bid on a project within that cost range, the officer was required to set the
contract aside for bidding exclusively by such entities. Due to Adarand, use of the
rule of two was suspended, and FASA rulemaking delayed.
On May 23, 1996, the Justice Department proposed a structure for reform of
affirmative action in federal procurement, setting stricter certification and eligibility
requirements for minority contractors claiming “socially and economically
disadvantaged” status under § 8(a) and § 8(d) of the Small Business Act.83 The plan
suspended for two years set-aside programs in which only minority firms could bid
on contracts. Statistical “benchmarks” developed by the Commerce Department, and
80(...continued)
focused solely on MBE availability without regard to “whether the particular MBE seeking
a racial preference has suffered from the effects of past discrimination by the state or prime
contractors”).
81See e.g. Contractors Association of Eastern Pennsylvania, supra n. 78 (minority
subcontracting program not narrowly tailored where city failed to consider race-neutral
alternatives designed to encourage investment and/or credit extension to small contractors);
Associated General Contractors of Ohio, supra n. 77 (Ohio’s MBE Act “doom[ed]” by
state’s failure to consider race-neutral alternatives recommended by the Attorney General
before adopting 15% minority set-aside for purchase of nonconstruction-related goods and
services.); Concrete Works of Colorado v. City and County of Denver, 86 F. Supp 2d 1042
(D.Colo. 2000)(“The City pursued a mandatory goals program as a first, rather than as a last
resort.”).
82P.L. 103-355, § 7102, 108 Stat. 3243 (1994). FASA states that in order to achieve goals
for disadvantaged business participation in procurements negotiated with the SBA, an
“agency may enter into contracts using – (A) less than full and open competition by
restricting the competition for such awards to small business concerns owned and controlled
by socially and economically disadvantaged individuals described in subsection (d)(3)(c)
of section 8 of the Small Business Act (15 U.S.C. § 637); and (B) a price evaluation
preference not in excess of 10 percent when evaluating an offer received from such a small
business concern as the result of an unrestricted solicitation.”
8361 Fed. Reg. 26042, Notices, Department of Justice, Proposed Reforms to Affirmative
Action in Federal Procurement.

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adjusted every five years, were made the basis for estimating expected disadvantaged
business participation as federal contractors, in the absence of discrimination, for
nearly 80 different industries. Where minority participation in an industry falls
below the benchmark, bid and evaluation credits or incentives are authorized for
economically disadvantaged firms and prime contractors who commit to subcontract
with such firms. Conversely, when such participation exceeds an industry
benchmark, the credit would be lowered or suspended in that industry for the
following year. The new system is monitored by the Commerce Department, using
data collected to evaluate the percentage of federal contracting dollars awarded to
minority-owned businesses, and relies more heavily on “outreach and technical
assistance” to avoid potential constitutional pitfalls.
The Justice Department’s response to comments on its proposal, together with
proposed amendments to the Federal Acquisition Regulation (FAR) to implement it,
were published on May 8, 1997.84 Three procurement mechanisms interact with
benchmark limits pursuant to the FAR regulation jointly proposed for the
Departments of Defense, General Services Administration, and National Aeronautics
and Space Administration. A “price evaluation adjustment” not to exceed fair market
value by more than 10%, as authorized by current law, is available to disadvantaged
firms bidding on competitive procurement. Second, an “evaluation” credit applies
to bids by nonminority prime contractors participating in joint ventures, teaming
arrangements, or subcontracts with such firms. Finally, contracting officers may
employ “monetary incentives” to increase subcontracting opportunities for
disadvantaged firms in negotiated procurements. “Benchmarking” by the Commerce
Department is the key feature of the new program, designed to narrowly tailor the
government’s use of race-conscious subcontracting in line with Adarand. The
Commerce recommendation will “rely primarily on census data to determine the
capacity and availability of minority-owned firms.” As explained by DOJ:
[A] statistical calculation representing the effect discrimination has had on
suppressing minority business development and capacity would be made, and
that calculation would be factored into benchmarks . . . The purpose of
comparing utilization of minority-owned firms to the benchmark is to ascertain
when the effects of discrimination have been overcome and minority-owned
firms can compete equally without the use of race-conscious programs. Full
utilization of minority-owned firms in [an] SIC code may well depend on
continued use of race-conscious programs like price or evaluation credits. Where
utilization exceeds the benchmark, the Office of Federal Procurement Policy may
authorize the reduction or elimination of the level of price or evaluation credits,
but only after analysis has projected the effect of such action.85
An interim rule incorporating proposed DOJ revisions to the FAR regulation became
effective October 1, 1998.86
84See Response to Comments to Department of Justice Proposed Reforms to Affirmative
Action in Federal Procurement, 62 Fed. Reg. 25649 (1997).
85Id. at 25650-52.
86Federal Acquisition Regulation; Reform of Affirmative Action in Federal Procurement;
(continued...)

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Final regulations implementing Justice Department recommendations with
respect to the § 8(a) business development and small disadvantaged business
program were issued by the SBA on June 30, 1998.87 The reforms include a new
process for certifying firms as small disadvantaged businesses and in place of set-
asides, a price evaluation adjustment program administratively tied to the Commerce
benchmarks. In the past, the government relied on self-certification for purposes of
“disadvantaged” eligibility, which allowed firms to identify themselves as meeting
certification requirements. Under the new procedure, SBA, or where SBA deems
appropriate, SBA-approved state agencies, or private certifiers make a threshold
determination as to whether a firm is actually owned or controlled by specified
individuals claiming to be disadvantaged. After ownership or control is established,
the application is reviewed by SBA for purposes of a determination of disadvantaged
status. A second key reform is the establishment of an SBA price evaluation
adjustment program, pursuant to authority in the 1994 Federal Acquisition
Streamlining Act.88 Under this new program, which is separate from § 8(a) business
development, disadvantaged firms submitting bids on competitively awarded federal
contracts may qualify for a price evaluation credit of up to 10%. Credits are available
only to businesses that have been certified as socially and economically
disadvantaged by the SBA. Only if price credits, over a sustained period, fail to
achieve full benchmark utilization of disadvantaged entrepreneurs may agencies
consider the use of set-asides in awarding contracts.
The definition of social and economic disadvantage remains largely intact under
the SBA regulation. Members of designated minority groups participating in
disadvantaged small business programs continue to enjoy a statutory presumption of
social disadvantage. They are required, however, to state their group identification
and meet certification criteria for economic disadvantage and are subject to third-
party challenge under current administrative mechanisms. Individuals who are not
within the statutory presumption may qualify by proving that they are socially and
economically disadvantaged under SBA standards. Under prior SBA § 8(a)
certification standards, however, persons not members of presumed disadvantaged
groups had to prove their status by “clear and convincing evidence. The revised SBA
regulations ease this burden on non-minority applicants by adopting a
“preponderance of evidence” rule.
Affirmative Action in Employment
The origins of federal law and policy regarding affirmative action in
employment are traceable to a series of executive orders dating to the 1960's, which
prohibit discrimination and require affirmative action by contractors with the federal
government. The Office of Federal Contract Compliance Programs, an arm of the
U.S. Department of Labor, currently enforces E.O. 11246, as amended, by means of
86(...continued)
Interim rule with request for comment, 63 Fed. Reg. 52426 (1998).
8763 Fed. Reg. 35726, 35767 (1998).
88Supra n. 65.

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a regulatory program requiring larger federal contractors – those with procurement
or construction contracts in excess of $50,000 – to formulate written affirmative
action plans, and to make a “good faith effort” to achieve “goals and timetables” to
remedy underutilization of minorities and women. Smaller contractors are bound
by the nondiscrimination requirements of the Executive Order, but are not required
to maintain formal written programs.89 Judicial decisions early on had upheld the
executive order program as a constitutionally valid governmental response to racial
segregation in the construction trades and affected industries.
Public and private employers with 15 or more employees are also subject to a
comprehensive code of equal employment opportunity regulation under Title VII of
the 1964 Civil Rights Act.90 Except as may be imposed by order of a court to
remedy “egregious” violations of law, however, or by consent decree to settle
pending claims, there is no general statutory obligation on employers to adopt
affirmative action plans. But the EEOC has issued guidelines to protect employers
and unions from charges of “reverse discrimination” when they voluntarily take
actions to eliminate the effects of past discrimination. In addition, federal
departments and agencies are required to periodically formulate affirmative action
plans for their employees91 and a “minority recruitment program” to correct minority
“underrepresentation” in specific federal job categories.92
A major aspect of the legal debate over affirmative action has centered on the
proper role of the remedy in employment discrimination litigation. One legal theory
emphasizes compensation for actual victims of discrimination, while another focuses
more upon the elimination of barriers to equal opportunity for all members of a
previously excluded class of individuals. In a series of cases during the 1980s, the
Justice Department argued, largely without success, that victim compensation was
the only proper remedial objective and that class-based affirmative action remedies,
which benefit women and minorities who are not themselves actual victims of an
89See 41 C.F.R. §§ 60-1 to 999.
9042 U.S.C. 2000e et seq.
91Section 717 of the 1972 Amendments to Title VII of the 1964 Civil Rights Act empowers
the EEOC to enforce nondiscrimination policy in federal employment by “necessary and
appropriate” rules, regulations, and orders and through “appropriate remedies, including
reinstatement or hiring of employees, with or without backpay.” 42 U.S.C. § 2000e-16(b).
Each federal department and agency, in turn, is required to prepare annually a “national and
regional equal employment opportunity plan” for submission to the EEOC as part of “an
affirmative program of equal employment opportunity for all . . . employees and applicants
for employment.” 42 U.S.C. § 2000e-16(b)(1).
92Section 717 was reinforced in 1978 when Congress enacted major federal civil service
reforms, including a mandate for immediate development of a “minority recruitment
program” designed to eliminate “underrepresentation” of minority groups in federal agency
employment. 5 U.S.C. § 7201. The EEOC and Office of Personnel Management have issued
rules to guide implementation and monitoring of minority recruitment programs by
individual federal agencies. Among various other specified requirements, each agency plan
“must include annual specific determinations of underrepresentation for each group and
must be accompanied by quantifiable indices by which progress toward eliminating
underrepresentation can be measured.” 5 C.F.R. § 720.205(b).

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employer’s past discrimination, are illegal. The employment cases to date have yet
to fully embrace this position. In Croson, however, Justice O’Connor implied that
individual victimization may be the benchmark for any finely-tuned “waiver”
procedure necessary for salvaging Richmond’s minority set-aside program. This
aspect of the decision, as reinforced by Adarand I, may warrant further examination
when the Court next reviews an affirmative action case.
Judicial precedents on affirmative action in employment have developed along
two concurrent but not necessarily coterminous lines. One line of authority
delineates the permissible scope of affirmative action imposed by judicial decree to
remedy proven violations of Title VII or the Constitution. The other involves the
validity of voluntary affirmative action plans by public and private employers.
Several basic principles emerge from caselaw developments to date. A fundamental
prerequisite to the adoption of minority goals or preferences is a remedial
justification rooted in the employer’s own past discrimination and its persistent
workplace effects. Stricter probative standards mandated by the Constitution may
bind public employers in this regard than apply to private employers under Title VII..
However, a “firm basis” in evidence – as revealed by a “manifest imbalance,” or
“persistent” and “egregious” disparities in the employment of minorities or women
in affected job categories – has been viewed by the courts as an essential predicate
for affirmative action preferences. Secondly, beyond a record of past discrimination
by the employer, all affirmative action plans are judged in terms of the burden they
place on identifiable non-minorities. Thus, those remedies, like the minority layoff
provisions in Wygant, which immediately result in the displacement of more senior
non-minority employees, are most suspect and least likely to pass legal or
constitutional muster. At the other end of the spectrum, hiring or promotional goals
or preferences that do not “unnecessarily trammel” the “legitimate expectations” for
advancement of non-minority candidates are more likely to win judicial acceptance.
Finally, all “race-conscious” affirmative action remedies must be sufficiently
flexible, temporary in duration, and “narrowly tailored” so as to avoid becoming
rigid “quotas.”
Judicial Affirmative Action Remedies
Even before the Supreme Court had spoken, every federal circuit court of
appeals, in cases dating back to the very inception of the 1964 Civil Rights Act, had
approved use of race or gender preferences to remedy “historic,” “egregious,” or
“longstanding” discrimination. This line of judicial authority was ratified by the
Court’s rulings in Local 28, Sheetmetal Workers v. EEOC93 and United States v.
Paradise.94 The former involved contempt proceedings against a union with an
established history of racial and ethnic discrimination for its willful violation of a
judicially imposed 29% minority membership goal. To remedy years of union
evasion, amounting to contempt of court, the Second Circuit had approved an order
reinstating the minority membership goal and requiring that job referrals be made on
93478 U.S. 421 (1986)
94480 U.S. 149 (1987).

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the basis of one apprentice for every four journeyman. The Supreme Court affirmed,
five to four.
Justice Brennan wrote for a plurality of four Justices that Title VII does not
preclude race-conscious affirmative action as a “last resort” for cases of “persistent
or egregious” discrimination, or to dissipate the “lingering effects of pervasive
discrimination,” but that, in most cases, only “make whole” relief for individual
victims is required. The plurality also felt that by twice adjusting the union’s
deadline, and because of the district court’s “otherwise flexible application of the
membership goal,” the remedy had been enforced as a “benchmark” of the union’s
compliance “rather than as a strict racial quota.” Rounding out the five-Justice
majority for affirmance was Justice Powell, who emphasized the history of
“contemptuous racial discrimination” revealed by the record, and the temporary and
flexible nature of the remedy. In separate dissents, Justices White and O’Connor
found the referral quota excessive because economic conditions in the construction
industry made compliance impracticable, while Chief Justice Burger and Rehnquist
read Title VII to bar all judicially-ordered race-conscious relief for the benefit of
nonvictims.
A parallel situation was presented by Paradise. In 1972, to remedy nearly four
decades of systematic exclusion of blacks from the ranks of the Alabama State
troopers, the district court ordered a hiring quota and enjoined the state from
discriminating in regard to promotions. Seven years later, a series of consent decrees
calling for new nondiscriminatory promotion procedures was approve to rectify the
total dearth of back troopers in the upper ranks. In the interim, however, the court
ordered a one-to-one racial quota for the rank of corporal and above, provided
sufficient qualified blacks were available, until 25% of each rank was black. Only
one round of promotions for corporal was made before the quota for that and the
sergeant rank was suspended. The Supreme Court granted review of the order under
the Equal Protection Clause.
Justice Brennan, whose plurality opinion was again joined by Justices Marshall,
Blackmun, and Powell, considered several factors in determining whether the plan
violated the equal protection rights of white troopers: the necessity of the relief and
the efficacy of alternative remedies, the plan’s flexibility and duration, the
relationship between the plan’s numerical goals and the relevant labor market, and
the plan’s impact on the rights of third parties. Significant was the fact that the order
did not require the promotion of anyone and could be waived in the absence of
qualified minority candidates, as it already had been with respect to lieutenant and
captain positions. It was also tied to the percentage of minorities in the area
workforce, 25%. Finally, because it did not bar white advancement, but merely
postponed it, the plan did not impose unacceptable burdens on innocent third parties.
Justice Brennan therefore concluded that the promotion quota was “narrowly
tailored” and justified by the government’s “compelling” interest in eradicating the
state’s “pervasive, systematic, and obstinate exclusion” of blacks and its history of
resistance to the court’s orders. Justice Stevens, who provided the fifth vote for the
Court’s judgment, stated in a separate opinion that the district court did not exceed
the bounds of “reasonableness” in devising a remedy. Justice O’Connor, joined in
dissent by Justice Scalia and the Chief Justice, found the plan “cannot survive

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judicial scrutiny” because the one-to-one promotion quota is not sufficiently tied to
the percentage of blacks eligible for promotion. Finally, Justice White, in a two
sentence dissent, stated simply that the district court “exceeded its equitable powers.”
Voluntary Affirmative Action
The remedial justification for voluntary affirmative action in employment was
explored by the Court’s constitutional analysis in Wygant v. Jackson Board of
Education.95 A collective bargaining agreement between the school board and the
teacher’s union in that case provided a hiring preference for minority teachers
coupled with layoff protection until the minority composition of the faculty mirrored
that of the student body district-wide. Seniority was to govern layoff except that in
no event were overall minority faculty percentages to be reduced. In the face of a
constitutional challenge by ten laid-off white teachers, the Court voided the minority
layoff provision, but no particular rationale commanded majority support.
Seven members of the Wygant Court agreed that some forms of voluntary
affirmative action may be constitutionally justifiable on the part of a governmental
entity itself guilty of past discrimination. The plurality opinion of Justice Powell
applied his strict scrutiny test from Bakke: the “limited use of racial classification”
must be justified by the “compelling” purpose of remedying “prior discrimination by
the governmental unit involved,” and “narrowly tailored” to that goal. Neither the
board’s asserted interest in the presence of minority teachers as critical “role models”
or to ameliorate “societal discrimination” was sufficient, however, in the absence of
“convincing” evidence of the board’s own past discrimination. Moreover, while
innocent non-minorities could be made to share some of the burden, the remedy
could not intrude too severely upon their rights. Because the minority layoff
protection in Wygant “impose[d] the entire burden of achieving racial equality on
particular individuals,” Justice Powell concluded that innocent third parties were
impacted too heavily. In this respect, the layoff provision was distinguishable from
preferential hiring decisions, which “diffuse” the burden more generally. Reserving
judgment on the hiring issue, Justice White concurred that the layoff remedy went too
far because it displaced more senior white employees in favor of minorities who were
not actual discrimination victims. In a separate concurrence, Justice O’Connor
aligned herself with the Powell view that societal discrimination will not justify
voluntary affirmative action remedies, and that the layoff plan was infirm because
overbroad and not “narrowly tailored” to the board’s past discrimination.
The Justices sparred over the nature of the evidence that might support an
informal conclusion that past discrimination exists. The plurality opinion suggested
“sufficient,” “convincing,” and “strong” evidence as benchmarks, while Justice
O’Connor considered a “firm basis” acceptable. None of the Justices seemed to view
“formal findings” of past governmental discrimination a constitutional prerequisite
to voluntary affirmative action. Justice O’Connor and three of the dissenters
(Marshall J., joined by Brennan and Blackmun, JJ) noted that such a requirement
would chill voluntary efforts to end racial discrimination and purge its effects. Only
Justice Stevens, in a separate dissent, would have abandoned any requirement for
95476 U.S. 267 (1986).

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showing past discrimination in favor of the educational interest in “an integrated
faculty.”
Significantly, Wygant was a constitutional case decided on Fourteenth
Amendment equal protection principles. Less remedial justification may be required,
however, for voluntary affirmative action plans adopted by private employers to
comply with Title VII of the 1964 Civil Rights Act. The first such case to reach the
High Court, United Steelworkers v. Weber,96 upheld a voluntary affirmative action
plan by a private employer, including a minority quota for a craft training program,
to rectify “manifest racial imbalance in traditionally segregated job categories.” The
Court required no specific finding of past discrimination by the employer, deciding
the case instead on the basis of the historically well established record of nationwide
bias in trade union membership.
In 1974, the employer and union in Weber negotiated an affirmative action plan
to increase the percentage of blacks in skilled craft positions from 2% to the level of
their overall participation in the area workforce, or 39%. By reserving half of the
company’s craft training program slots for minorities, several white employees were
passed over in favor of less senior blacks. There was no evidence that the under-
representation of minorities in craft jobs was attributable to past discrimination by
the employer. Nonetheless, relying on general judicial and research findings relative
to nationwide patterns of minority exclusion from trade union membership, the
Supreme Court ruled five to two that “racial preferences” in the program were a
lawful means to combat “manifest racial imbalance” in craft positions resulting from
“old patterns of racial segregation and hierarchy.”
Conceding that Title VII could literally be read to bar all race-conscious
employment practices, the Court decided that the purpose of the Act, rather than its
literal meaning, controlled. The legislative history and context from which the Act
arose, Justice Brennan wrote, compelled the conclusion that the primary purpose of
Title VII was to “open employment opportunities for Negroes in occupations which
have traditionally been closed to them.” Accordingly, “[i]t would be ironic indeed”
to read the statute to preclude “all voluntary, private, race-conscious efforts” to
abolish workplace segregation. Moreover, the specific plan in question, mandating
a one to one racial ratio until a specific minority participation rate is achieved, was
permissible affirmative action because it did “not unnecessarily trammel the interest
of white employees.” In this regard the Court emphasized:
The plan does not require the discharge of white workers and their replacement
with new black hires. Nor does the plan create an absolute bar to advancement
of white employees; half of those trained in the program will be white.
Moreover, the plan is a temporary measure; it is not intended to maintain racial
balance, but simply to eliminate manifest racial imbalance. Preferential selection
of craft trainees at the . . .plant will end as soon as the percentage of black skilled
96443 U.S. 193 (1979).

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craft workers in the . . . plant approximates the percentage of blacks in the local
labor force.97
Weber, therefore, permits private employers to implement certain forms of temporary
affirmative action to advance minority employment opportunities, even where such
measures have an incidental adverse impact on white workers.
Johnson v. Transportation Agency98 reviewed a voluntary affirmative action
plan adopted by a public employer, the Transportation Agency of Santa Clara
County, California. That plan authorized the agency to consider the gender of
applicants as one factor for promotion to positions within traditionally segregated job
classifications in which women had been under-represented. Women were
significantly under-represented in the county’s labor force as a whole and in five of
seven job categories, including skilled crafts where all 238 employees were men.
The plan’s long range goal was proportional representation. However, because of the
small number of positions and low turnover, actual implementation was based on
short term goals which were adjusted annually and took account of qualified minority
and female availability. No specific numerical goals or quotas were used.
The petitioner in Johnson was a male employee who had applied for promotion
to the position of road dispatcher, only to be rejected in favor of a female competitor.
Both the petitioner and the woman who won the promotion were deemed well
qualified for the position, although the petitioner had scored slightly in the first round
interview. The appointing official for the agency indicated that in reaching the
decision to promote the female candidate, he had considered the candidates’
qualifications, backgrounds, test scores, and expertise as well as gender
considerations.
The Supreme Court upheld the county’s action, six to three. Justice Brennan
decided for the majority that Title VII was not coextensive with the Constitution and
that, therefore, Weber not Wygant was controlling. The noted disparities in female
workforce participation satisfied the Weber requirement for a “manifest imbalance”
since to require any additional showing could expose the employer to discrimination
lawsuits and operate as a disincentive to voluntary compliance with the statute. The
Court likened the county plan to the treatment of race as a “plus” factor in the
“Harvard Plan” referenced approvingly by Justice Powell in Bakke. Because sex was
but one factor in the decision-making process, no applicant was excluded from
participation on account of sex. In a caveat, however, the Court warned that “[i]f a
plan failed to take distinction in qualification into account in providing for actual
employment decision, it would dictate mere blind hiring by the numbers,” and would
be invalid because “it would hold supervisors to achievement of a particular
percentage of minority employment or membership . . . regardless of circumstances
97443 U.S. at 208-09.
98480 U.S. 792 (1973).

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such as economic conditions or the number of available qualified minority applicants
. . .”99
Justice Stevens concurred that the plan was consistent with Weber and Justice
O’Connor, in a separate concurrence, provided a sixth vote for the judgment. In her
opinion, however, to support a voluntary affirmative action plan, there should be “a
statistical disparity sufficient to support a prima facie claim under Title VII by the
employee beneficiaries of the affirmative action . . . .” Equal Protection standards,
not Title VII, should govern public employee cases, and she was critical of the
majority for providing inadequate guidance as to the statistical imbalance standard.
But because there were no women in skilled craft positions, and gender was only a
plus factor, either standard was satisfied here.
Justice White, dissenting, would have overruled Weber as a “perversion” of
Title VII, as would Justices Scalia and the Chief Justice, joining in a separate dissent.
The dissenters criticized the majority for using Title VII “to overcome the effect not
of the employer’s own discrimination, but of societal attitudes that have limited entry
of certain races, or of a particular sex, into certain jobs.” Noting the district court
finding of no past discrimination by the county agency, they argued in light of
Sheetmetal Workers (supra) that “there is no sensible basis for construing Title VII
to permit employers to engage in race- or sex-conscious employment practices that
courts would be forbidden from ordering them to engage in following a judicial
finding of discrimination.”
Judicial Developments Since Croson and Adarand
Affirmative Action Consent Decrees
State and local programs mandating affirmative action in employment initially
met with greater judicial approval than public contracting preferences for minorities
in the wake of the Croson decision. This may be due, in part, to the fact that
employment preferences are frequently, though not always, linked to settlements of
individual or class action lawsuits. Depending on the stage of proceedings, a formal
record of past discrimination may already have developed when agreement is
reached. At the very least, there is usually some allegation of misconduct by the
public employer. In addition, there may be underlying judicial findings of
discrimination, or district court involvement in fashioning or approving the consent
decree, factors traditionally prompting deference by appellate courts when reviewing
affirmative action efforts.100
99Id. at 636 (citing Sheet Metal Workers v. EEOC, 478 U.S. 421, 495 (O’Connor, J.,
concurring in part and dissenting in part).
100E.g. Majeske v. City of Chicago, 218 F.3d 816 (7th Cir. 2000)(city’s affirmative action
plan lawful because it remedies past discrimination and was narrowly tailored); McNamara
v. City of Chicago, 138 F.3d 1219, 1223-24 (7th Cir. 1998)(stating that raw statistics do not
prove intentional discrimination, but also finding that defendant had presented strong basis
in evidence of need to remedy discrimination, through combination of statistics, anecdotal
(continued...)

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Between 1972 and 1983, the Department of Justice sued 106 public employers;
of those, 93 were settled by consent decree. These court-approved agreements
typically set goals and timetables for increasing minority and female under-
representation in the workforce. Of the cases that the Justice Department still
monitors, many stem from litigation dating back to the 1970's, mainly against police
and fire departments.101 Under the Croson and Adarand, however, these orders and
consent decrees have come under “strict scrutiny.” A major ruling by the Eleventh
Circuit in 1994 invalidated a consent decree involving the Birmingham, Ala. fire
department for being an “entirely arbitrary” fixed quota that unduly restricted
opportunities for whites.102 Judicial rulings in Boston last year forced abandonment
of a 1980 consent decree, which established a race-based policy for promoting
sergeants.103 So far, nearly a dozen cities and states have successfully fought consent
decrees and ended federal monitoring of their minority hiring practices.
The Supreme Court declined to review a Fifth Circuit decision striking down
the Dallas Fire Department’s affirmative action plan. In City of Dallas v. Dallas Fire
Fighters Ass’n,104 the appellate panel held that there was insufficient evidence of past
discrimination in the Dallas Fire Department to justify the department’s policy of
promoting some women and minorities over white males who had achieved scores
within the same “band” on a civil service examination. Evidence of discrimination
in the record consisted of a 1976 consent decree between the City and the Justice
Department finding impermissible racial discrimination by the city under Title VII,
and statistical under-representation of minorities in the ranks to which the challenged
promotions were made. The court recognized that “out-of-rank promotions do not
impose as great a burden on non-minorities as would layoff or discharge.” But it
found that interference by the city with “legitimate expectations” of promotion based
on exam performance was unjustified where alternative remedies were not yet
exhausted, and there was no proof of “a history of egregious and pervasive
discrimination or resistance to affirmative action that has warranted more serious
100(...continued)
evidence, and judicial findings); Boston Police Superior Officers Federation, 147 F.3d 13,
(1st Cir. 1998)(documentary evidence in relation to earlier consent decree supported
preferential promotion of black officer to rank of lieutenant). But cf. Crumpton v.
Bridgeport Education Ass’n, 993 F.2d 1023 (2d Cir. 1993)(refusing to equate parties’
stipulations as to existence of discrimination with judicial determination that such
discrimination existed); Reynolds v. Roberts, 202 F.3d 1303 (11th Cir. 2000)(consent decree
did not establish that state transportation department had discriminated against black
employees).
101See “Backdraft, Courts are Lifting Decades-Old Consent Decrees Requiring Affirmative
Action, “ 86 A.B.A.J. 48 (April 2000).
102In re Birmingham Reverse Discrimination Employment Litigation. 20 F.3d 1525 (11th Cir.
1994). See also Thigpen v. Bibb County Ga., Sheriff’s Department, 223 F.3d 1231 (11th Cir.
2000)(Croson controlled white police officers’ § 1983 action against sheriff’s department,
challenging constitutionality of consent decree, adopted to settle prior race discrimination
action, requiring that 50% of all annual promotions be awarded to black officers).
103See Cotter v. City of Boston, 73 F. Supp. 2d 62 (D.Mass. 1999), vacated and remanded,
219 F.3d 31 (lst Cir. 2000).
104150 F.3d 438 (5th Cir. 1998), cert. denied, 526 U.S. 1046 (1999).

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measures in other cases.”105 Even less evidence of past sex discrimination was found
by the court to justify the city’s gender-based discrimination. Justices Breyer and
Ginsburg dissented from the Supreme Court’s decision to deny review of the Fifth
Circuit’s decision.
In Ensley Branch, NAACP v. Seibels,106 the Eleventh Circuit rejected both long
term and annual goals imposed by consent decree for the hiring of firefighters and
police officers by the City of Birmingham, Alabama. The main fault with the city’s
affirmative action plan was that it had become a permanent alternative to the
development of nondiscriminatory tests and other valid selection procedures. Rather
than ending discrimination, the long-term goals in the plan were “designed to create
parity between the racial composition of the labor pool and the race of the employees
in each job position.” Annual hiring goals had been arbitrarily set at twenty-five to
fifty percent for minorities and had been “mechanically” applied as “rigid quotas,”
in the court’s view, without regard to “relative qualifications” of the candidates. On
remand, the district court was ordered to “re-write the decrees to relate the annual
goals to the proportion of blacks in the relevant, objectively qualified labor pool” and
“to make clear that the annual goals cannot last indefinitely.”107
An affirmative action promotional plan for the Maryland State police, agreed
to by the parties with consent of a federal district court, was subjected to strict
scrutiny review and found wanting by the Fourth Circuit in Maryland Troopers Ass’n
v. Evans.108 Specifically, goals linked to minority representation in the general
population, instead of the qualified labor pool, were found deficient under Croson
analysis, as was the failure to first exhaust all race-neutral alternative means of
increasing minority opportunity. The latter factor has frequently been determinative
of the constitutional question in the judicial mind.109 Croson was also applied by the
105Id. at 440.
10631 F.3d 1548 (11th Cir. 1994).
107Id. at 1577. In addition, the court noted:
Once a valid selection procedure is in place for a particular position, neither
the City or the Board may continue to certify, hire, or promote according to a
race-conscious ‘goal’ absent proof of ongoing racial discrimination, or of
lingering effects of past racial discrimination, with respect to that position. Under
no circumstances may the City hire or promote, or the Board certify, candidates
who are demonstrably less qualified than other candidates, based on the results
of valid, job-related selection procedures, unless the district court finds that such
appointments are necessary to cure employment discrimination by the City or
Board. Id.
108993 F.2d 1072 (4th Cir. 1993).
109E.g. Alexander v. Estepp, 95 F.3d 312, 316 (4th Cir. 1996)(“The program is not narrowly
tailored because means less drastic than outright racial classification were available to
department officials); Middleton v. City of Flint, 92 F.3d 396, 410-11 (6th Cir.
1996)(rejecting race-conscious promotion plan because, inter alia, the City had successfully
used “less drastic, alternative ways” to increase percentage of minority police officers);
(continued...)

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Sixth Circuit to defeat a 50 percent minority goal for the rank of sergeant in the
Detroit Police Department, which had been in effect for nearly two decades, since
“limiting the duration of a race-conscious remedy which clearly impacts adversely
on [nonminorities] is a keystone of a narrowly tailored plan.”110 Failure to satisfy the
court as to the cause of apparent statistical disparities with respect to minority
employment,111 the scope or duration of the remedy,112 the absence of a provision for
waiver where qualified minority candidates were unavailable,113 and the consequent
undue burden placed on nonminorities114 are all factors that have led to judicial
invalidation of state and local affirmative action.
Affirmative Recruitment and Outreach Programs
Adarand did not precisely define “racial classification” for equal protection
purposes, but a plurality of Justices described the concept in terms of burdens or
benefits placed on individuals because of race, or subjecting individuals to unequal
treatment. Race-conscious action by government or private employers that neither
confers a benefit nor imposes a burden on individuals may not be subject to strict
scrutiny or heightened judicial review. Thus, courts have not found data collection
activities concerning the racial or gender makeup of a workforce to violate the
Constitution. “Statistical information as such is a rather neutral entity which only
109(...continued)
Boston Police Superior Officers Fed’n v. City of Boston, 147 F.3d 13, 25 (1st Cir.
1998)(holding that one-time affirmative action promotion was narrowly tailored because
race-neutral measures “would not provide a timely remedy.”
110Detroit Police Officers Ass’n v. Young, 989 F.2d 225, 228 (6th Cir. 1993).
111 Aiken v. City of Memphis, 37 F.3d 1155 (6th Cir. 1994)(promotion goals set by consent
decree were problematic because they were tied to goals for hiring black officers which
were, in turn, based on the minority population of the undifferentiated labor force); (Lalla
v. City of New Orleans, 1999 WL 138900 (E.D.La)(“gross statistical disparities” between
racial composition of fire department and community population did not establish “strong
basis in evidence” for racial hiring preference absent showing that black applicants were
rejected as “much higher” rate than whites); Ashton v. City of Memphis, 49 F. Supp.2d 1051
(W.D.Tenn. 1999)(testimony of expert for city overstated number of blacks in qualified
labor pool because wrong age group was considered, and it disregarded both the level of
minority group interest and relatively higher rates of criminal convictions among blacks,
disqualifying factors for police officers).
112United States v. City of Miami, 115 F.3d 870 (11th Cir. 1997)(Report of city’s expert on
underrepresentation of women and minorities as firefighters lacked probative value where
it was based on general census data rather than proper comparisons between minority
composition of department and relevant labor market); Ashton, supra n. 82 at 1065(district
court “troubled” by city’s long-term operation under consent decrees – some fourteen years).
113E.g. North State Law Enforcement Officers Ass’n v. Charlotte-Mecklenburg Police Dept.,
862 F. Supp. 1445 (W.D.N.C. 1994).
114E.g. Crumpton v. Bridgeport Education Ass’n, 993 F.2d 1023, 1031 (2d Cir.
1993)(finding preferential lay-off policy too burdensome on nonminorities).

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becomes meaningful when it is interpreted.”115 Similarly, strict scrutiny has generally
not been applied by the courts to minority outreach or recruitment efforts that do not
amount to an actual preference in employment decisionmaking. A public university,
for example, may be racially “aware” or “conscious” by amassing statistics on the
racial and ethnic makeup of its faculty and encouraging broader recruiting of racial
or ethnic minorities, without triggering strict scrutiny equal protection review. These
activities do not impose burdens or benefits, it has been held, nor do they subject
individuals to unequal treatment. If that institution, however, then engages in race-
preferential hiring, firing, or promotion, that action is subject to strict scrutiny. This
distinction between “inclusive” forms of affirmative action – such as recruitment,
advertising in minority media, and other outreach to minority communities – and
“exclusive” affirmative action – quotas, set-asides, layoff preferences, etc. – has been
central to several recent decisions.116
One of the first post-Adarand decisions, Shuford v. State Board of Education,117
upheld provisions similar to E.O. 11246 in the face of constitutional challenge. A
consent decree between the State Board of Education and separate classes of white
and black women had addressed issues of hiring and promotion within the Alabama
system. In addition to a standard nondiscrimination clause, the decree required yearly
reports tracking the number of new women hires, procedures for expanding the pool
of female applicants, numerical hiring goals, and parity for women in the personnel
selection process. Specifically prohibited by the decree, however, were set-asides,
quotas, and the selection of less qualified candidates based on race or gender.
Because expanding the pool of qualified minority or female candidates by
“inclusive” recruitment and outreach only added to the competition faced by non-
class members – in this case, white males – and did not result in lost job
opportunities and promotions, the court avoided the traditional Title VII and equal
protection analysis applied to “exclusive” affirmative action techniques. It upheld
the annual statistical report requirement of the decree since “the attempt to ascertain
whether there is a problem and whether progress is being made should be
encouraged.”118 Affirmative recruitment of qualified female candidates was similarly
acceptable so long as the recruitment did not exclude male applicants. Thus, “if the
115Sussman v. Tanoue, 39 F.Supp.2d 13, 24 (D.D.C. 1999)(quotingUnited States v. New
Hampshire, 539 F.2d 277, 280 (1st Cir. 1976).
116See Duffy v. Wolle, 123 F.3d 1026, 1038-39 (8th Cir. 1997)(“An employer’s affirmative
efforts to recruit female and minority applicants does not constitute discrimination.”); Allen
v. Alabama State Board of Education, 164 F.3d 1347, 1352 (11th Cir. 1999)(racially
conscious outreach efforts to broaden applicant pool not subject to strict scrutiny), vacated
216 F.3d 1263 (11th Cir. 2000); Ensley Branch, NAACP, supra n. 86, at p. 1571 (describing
efforts to actively encourage Blacks to apply for jobs, including waivers of application fees,
as “race-neutral”); Billish v. City of Chicago, 962 F.2d 1269, 1290 (7th Cir. 1992)(describing
aggressive recruiting as “race-neutral procedures”) rev’d on other grounds, 989 F.2d 890 (7th
Cir.1993)(en banc).
117897 F. Supp. 1535 (M.D.Ala. 1995).
118Id. at 1552.

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postsecondary system began recruiting at black and women’s colleges and stopped
recruiting at Auburn, this would be an instance of exclusion.”119
Since hiring goals could be applied either inclusively or exclusively, whether
the decree mandated appropriate “diagnostic goals that measure the efficacy of pool
expansion techniques such as affirmative recruitment” was treated as a question of
underlying intent. The Shuford goals did not require preferences for women, the
court found, and would not permit jobs to be set-aside for specific groups. Because
the goals played no role in the selection process, they served only to measure the
effectiveness of the recruitment programs and to “red flag” those positions where
women were underrepresented. As such, the goals were found to be inclusive and
lawful. Shuford has been cited with approval by several federal appellate courts.
Most recently, two separate appellate panels affirmed consent decrees requiring
public employers to devise race-conscious employment examinations so as to
minimize any racially discriminatory impact on minority candidates. “[N]othing in
Adarand requires the application of strict scrutiny to this sort of race
consciousness.”120
Other courts have disagreed, however, and applied strict scrutiny analysis to
facially inclusive affirmative action programs. In Monterey Mechanical Co. v.
Wilson,121 the Ninth Circuit considered a California affirmative action statute that
required bidders on state contracts either to subcontract a percentage of their work
to female- and minority-owned businesses or to document a “good faith effort” to do
so. The acknowledged low bidder in the case had been denied a contract with a state
university for failure to achieve the mandated goal or to document its outreach
efforts. The appeals court found that the statute treated classes unequally because a
minority prime contractor could avoid the necessity of subcontracting or
demonstrating good faith efforts simply by doing a percentage of the work itself, an
option not available to other bidders. In addition, the statute was found to encourage
quotas, even if it did not necessarily require them. Messer v. Meno122 challenged an
affirmative action program involving goals, statistics, and reporting requirements
within the Texas Education Agency. In vacating summary judgment for TEA, the
Fifth Circuit rejected any distinction between inclusive and exclusive affirmative
action, holding that strict scrutiny applies to all governmental racial classifications.
In dicta, the court noted that the “evidence . . . strongly suggests recruitment was not
the sole activity affected by the [affirmative action program], and that once an
applicant met the minimum requirements for a position, TEA employees considered
119Id. at 1553.
120Allen v. Alabama State Board of Education, supra n. 95, at p. 1353 (affirming consent
decree requiring that school board develop teacher certification exam that minimizes racially
discriminatory impact); Hayden v. County of Nassau, 180 F.3d 42, 49(2d Cir. 1999)
(“[A]lthough Nassau County was necessarily conscious of race in designing its entrance
exam [for police officer candidates], it treated all persons equally in the administration of
the exam.”).
121125 F.3d 702 (9th Cir. 1997), reh’g en banc denied, 138 F.3d 1270 (9th Cir. 1998).
122130 F.3d 130 (5th Cir. 1997).

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race or gender in employment decisions.”123 Although not disputing the applicability
of strict scrutiny, Judge Garza warned in a concurring opinion that “the tone of the
majority’s decision . . . will send the message out that affirmative action is, for all
intents and purposes, dead in the Fifth Circuit.”124
Similarly, in Schurr v. Resort Int’l Hotel,125 the Third Circuit disapproved a
casino’s goal-oriented affirmative action plan, which had been applied to deny
employment to a white light-and-sound technician in favor of an equally qualified
black applicant, because it had been implemented “in [t]he absence of any reference
to or showing of past or present discrimination in the casino industry.” The employer
argued that the affirmative action plan, and the Casino Control Commission
regulations on which it was based, did not create racial preferences, but simply
articulated goals aimed at recruiting members of minority groups and women. The
court, however, concluded that the regulations “have the practical effect of
encouraging (if not outright compelling) discriminatory hiring,” particularly because
Resorts International supervisors who made hiring decisions testified to a belief that
they had to take race into account when filling a position, if a particular job category
had a lower percentage of minority employees than the stated percentage goal for that
category. There was no “meaningful distinction,” the court found, between the
casino’s requirements and the minority participation goals for nongovernmental
contractors, which the Ninth Circuit invalidated in Bras v. California Public Utilities
Commission.126 In Bras, the goals had the effect of putting a non-minority contractor
on unequal footing in competing for business from Pacific Bell, which was subject
to minority hiring goals formulated by the California Public Utility Commission
pursuant to state law.
Another federal appellate court has applied strict judicial scrutiny as per
Adarand to defeat equal employment opportunity regulations of the Federal
Communications Commission (FCC) imposing affirmative minority outreach and
recruitment obligations on applicants for radio broadcast licenses. The D.C. Circuit
ruling in Lutheran Church-Missouri Synod v. FCC127 stemmed from a challenge by
the NAACP to the hiring practices of a Lutheran Church organization which holds
FCC licences for two radio stations broadcasting from a seminary in Clayton,
Missouri. Because of the stations’ religious mission, the church has a “Lutheran
hiring preference” requiring job applicants to possess “knowledge of Lutheran
doctrine.” The FCC imposes two basic requirements on radio stations: they must
refrain from discriminating in employment for racial, ethnic, or gender-based
reasons; and they must adopt an affirmative action program of targeted efforts to
recruit, hire, and promote women and minorities. Acting on the NAACP complaint,
the FCC ruled that the church’s Lutheran hiring preference was too broad, and that
while the stations had not discriminated, they violated agency regulation because of
123Id. at 139.
124Id. at 141 (Garza J., concurring).
125196 F.3d 486 (3d Cir. 1999)
12659 F.3d 869 (9th Cir. 1995), cert. denied, 516 U.S. 1984 (1996).
127141 F.3d 344 (D.C.Cir. 1998).

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insufficient minority recruitment. The church was ordered to pay a $25,000 penalty
and to submit reports every six months listing all job applicants and hires, along with
the sex and race of each, as well as a statement of their efforts to recruit minorities.
A three judge appellate panel rejected FCC and Justice Department arguments
that a more lenient standard of review than strict scrutiny should apply since the FCC
regulations “stop[ped] short of establishing preferences, quotas, . . . set-asides” and
did not mandate race-conscious “hiring decisions.” Adarand required “[a]ll
governmental action based on race”– even when “the government’s motivation to aid
minorities can be thought ‘benign’”– to be narrowly tailored to meet a compelling
governmental interest. According to Judge Silberman, by requiring a “formal
analysis” by the employer of minority “underrepresentation” and “availability”
statistics, the FCC regulations “extend beyond outreach efforts and certainly
influence ultimate hiring decisions” because they “pressure stations to maintain a
work force that mirrors the racial breakdown of the ‘metropolitan statistical area.’”
For this reason, it mattered not to the court “whether a government hiring program
imposes hard quotas, soft quotas, or goals” since any such race-conscious technique
“induces an employer to hire with an eye toward meeting a numerical target.”
Rather than a remedy for past discrimination, the justification advanced by the
government for the FCC program was to foster “diverse” programming content, an
interest deemed “important” but not “compelling” by the appellate panel. Indeed, the
diversity-of-programming rationale “makes no sense,” said Judge Silberman, in the
“intrastation” context where the FCC’s “purported goal of making a single station all
things to all people” contradicts “the reality of the radio market, where each station
targets a particular segment: one pop, one country, one news radio, and so on.” Nor
could the FCC regulations be considered “narrowly tailored” because they affected
the hiring of even low-level employees whose impact on programming was
negligible. In conclusion, Judge Silberman observed:
Perhaps this is illustrative as to just how much burden the term diversity has
been asked to bear in the latter part of the 20th century in the United States. It
appears to have been coined both as a permanent justification for policies
seeking racial proportionality in all walks of life (‘affirmative action’ had only
a temporary remedial connotation) and as a synonym for proportional
representation itself. It has, in our view, been used by the Commission in both
ways. We therefore conclude that its EEO regulations are unconstitutional and
cannot serve as a basis for its decision and order in this case.
In a sequel, Broadcasters Assn. v. FCC,128 the appeals court voided a new FCC
rules designed to achieve “broad outreach” in recruiting women and minorities for
broadcasting careers. Broadcasters were given a choice between programs specified
by the FCC and station-initiated outreach programs. If the station designed its own
program, it had to report the race and sex of each applicant or person employed. But
the regulations specified that a company’s record in hiring women and minorities
would not be a factor in the license renewal decision. The alternative approach was
struck down, again because the recordkeeping and reporting of employment statistics
were deemed a coercive and “powerful threat,” almost certain to pressure companies
1282001 WL 32786 (D.C.Cir 1-16-2001).

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to seek proportional representation of women and minorities. Moreover, the entire
rule succumbed to the court’s analysis – the offending portion deemed non-severable
from the whole – perhaps limiting prospects for recasting FCC affirmative action
efforts by the new Bush Administration.
Affirmative Action and Diversity in Public Education
College Admissions
The emphasis of Adarand on past discrimination has prompted an upsurge in
judicial challenges to educational diversity as an independent justification for student
and faculty affirmative action. The notion that diversity could rise to the level of a
compelling interest in the educational setting sprang two decades ago from Justice
Powell’s opinion in the Bakke case. While concluding that a state medical school
could not set-aside a certain number of seats for minority applicants, Justice Powell
opined that a diverse student body may serve educators’ legitimate interest in
promoting the “robust” exchange of ideas. He cautioned, however, that “[t]he
diversity that furthers a compelling state interest encompasses a far broader array of
qualifications and characteristics of which ethnic origin is but a single though
important element.”129 Thus, a public educational institution could properly deem an
applicant’s race to be a “plus” factor, provided that the applicant was not insulated
from comparison with all other applicants, based upon a consideration of combined
qualifications, including personal talents, leadership qualities, maturity, and the like.
In other words, the race of a candidate could not be the “sole” or “determinative”
factor.
Although Justice Powell’s opinion announced the judgment of the Court, no
other Bakke Justices joined him on that point. Justice Powell ruled the “dual
admission program” at issue to be unconstitutional and the white male plaintiff
entitled to admission, while four other Justices reached the same result on statutory
rather than constitutional grounds. Another four Justice plurality concluded that the
challenged policy was lawful, but agreed with Justice Powell that the state court had
erred by holding that an applicant’s race could never be taken into account. Only
Justice Powell, therefore, expressed the view that the attainment of a diverse student
body could be a compelling state interest.
More recently, the U.S. Supreme Court denied review of the Fifth Circuit
decision in Hopwood v. State of Texas (Hopwood II),130 which invalidated a special
minority admissions program of the University of Texas Law School. The procedure
adopted by the state provided for two separate paths of applicant assessment, with
race determining the path taken. One was for blacks and Mexican-Americans, the
other for whites and all other “non-preferred” minorities. Disparate admissions
standards applied to the two groups so that the cutoff scores for black and Mexican-
Americans were lower, overall, than those used to assess other candidates. At no
129Bakke, 438 U.S. at 315.
13095 F.3d 53 (5th Cir.), cert. denied No 95-1773, 116 S. Ct 2581 (1996).

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time were the applications of the preferred group compared to, or combined with,
those in the other group. In short, “race was always an overt part of the review of an
applicant’s file.” Suit was filed by four white applicants who had been rejected for
admission to the law school class of 1992.
A three judge appellate panel held that the desire to admit a diverse student
body never provides a “compelling” justification for the consideration of race in
student admissions, and that despite its early history of racial exclusion, the law
school had failed to demonstrate sufficient continuing effects of its own prior illegal
acts to warrant remedial affirmative action. The Hopwood II court rejected the
diversity rationale proposed by Justice Powell in Bakke as “not binding precedent,”
since his opinion was not formally joined by any other Justice. Race and ethnicity
can never be used for nonremedial purposes as a “proxy for other characteristics”
valued by an educational institution since that would inevitably lead to racial
“stereotyp[ing]” and “stigmatization” forbidden by Croson and Adarand. Instead,
For the admissions scheme to pass constitutional muster, the State of Texas,
through its legislature, would have to find that past segregation has present
effects; it would have to determine the magnitude of those present effects; and
it would need to limit carefully the “plus” given to applicants to remedy that
harm. A broad program that sweeps in all minorities with a remedy that is in no
way related to past harms cannot survive constitutional scrutiny
Hopwood II sharply narrowed the scope of what constitutes past discrimination
sufficient to justify a preferential admissions policy. Past societal discrimination was
deemed an inadequate basis for considering race in the admissions process, since
such an expansive definition would admit of “no viable limiting principle,” and the
spectrum of acceptable proof for past discrimination’s present effects was likewise
limited. Thus, the showing by the University of Texas Law School that
discrimination had occurred within the Texas state school system as a whole,
including the University of Texas undergraduate programs, was insufficient to justify
the law school’s use of race in its admissions process. The Fifth Circuit decision
implies that the only discrimination that would amount to a compelling state interest
for race-based remediation would have to be specific discrimination within the law
school itself. Hopwood II joined an earlier Fourth Circuit ruling, Podberesky v.
Kirwan,131 which invalidated a race-based scholarship program administered by the
University of Maryland for the exclusive benefit of black students.
Subsequently, another Fifth Circuit panel reviewed an appeal from an injunction
order entered by a federal district court on remand from the 1996 Hopwood II
decision. In Hopwood v. State of Texas (Hopwood III),132 the appeals court reviewed
the district court’s determination of three issues remanded by Hopwood II. First, an
award of attorneys’ fees to plaintiffs’ counsel was upheld, as was the trial judge’s
denial of monetary damages and specific relief to the rejected white applicants who
were found to have had “no reasonable chance” of admission to the law school in
1992, even under a “race-blind” system. More to the point, however, the appeals
13138 F.3d 147 (4th Cir. 1994), cert. denied, 115 S. Ct 2001 (1995).
132236 F.3d 256 (5th Cir. 2000).

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court applied the “law of the case doctrine” to leave standing those aspects of
Hopwood II that rejected both a remedial and diversity rationale for the Texas law
school’s race-based admissions program. Only when a previous ruling is “clearly
erroneous,” or “dead wrong,” said the court, is it judicially proper to disturb the
ruling of another appellate panel involving the same legal controversy.
Consequently, while there was no direct precedent in Bakke or elsewhere for
Hopwood II’s cramped definition of past discrimination – limited to the law school
itself – as a precondition for the race-based admissions program, it was “not clear
error for a court of appeals to tackle legal questions that the Supreme Court has
declined to answer.” Similarly, the departure from Justice Powell’s diversity
rationale was permissible since not endorsed by any of the other Justice, and “the
Hopwood II panel was free to determine which among the competing rationales
offered by the Justices in Bakke is constitutionally valid.”
Although Justice Powell would surely have disagreed with that holding, we
cannot say that Hopwood II conflicts with any portion of Bakke that is binding
on this court. Some may think it was imprudent for the Hopwood II panel to
venture into uncharted waters by declaring the diversity rationale invalid, but the
panel’s holding clearly does not conflict with controlling Supreme Court
precedent.
Thus, in its latest ruling, the Fifth Circuit read Bakke as neither requiring, nor
foreclosing, the acceptance by lower courts of diversity as a compelling state interest.
The district court, on remand from Hopwood II, had entered an injunction
forbidding any consideration of racial preferences in admission to the law school.
The court of appeals reversed this aspect of the decree for two reasons. First, it had
not been preceded by formal hearings into the necessity for such relief, nor was the
judgment supported by finding of fact and conclusions of law as required by federal
procedural rules. Second, on its face, the injunction was found to conflict with the
“square holding” of Bakke. That is, the injunction
forbids the University from using racial preferences for any reason, despite
Bakke’s holding that racial preferences are constitutionally permissible in some
circumstances. Consistent with that position, Hopwood II does not bar the
University from using race for any and all remedial purposes; rather Hopwood
II bars the University from using race to remedy the effects of previous
discrimination in other components of Texas’s public education system only. By
enjoining any and all use of racial preferences, the district court went beyond the
holding of Hopwood II and, in the process, entered a judgment that conflicts with
Bakke.
The effect of Hopwood III was to lift the district court injunction, at least until
justified by further proceedings below, while leaving in tact the constitutional
rationale and conclusion of the appeals court in Hopwood II.

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The Hopwood trilogy was later joined by a three-judge panel decision of the
Eleventh Circuit in Johnson v. Board of Regents,133 which voided a numerical “racial
bonus” awarded minority applicants for freshman admission to the University of
Georgia (UGA). A three-tiered admissions program at that institution first evaluates
all applicants based strictly on academic credentials, i.e SAT scores and grades.
Those who are neither accepted nor rejected on the basis of predetermined cut-off
scores at this stage are evaluated further, based on a “Total Student Index” (TSI),
taking into account a combination of twelve weighted factors – academic,
extracurricular, and demographic. Minority applicants who are self-identified as such
are awarded a 0.5 point credit out of a maximum possible 8.15 total points for all 12
factors. Pre-set TSI threshold and minimum scores again determine acceptance and
rejection at this stage. Thereafter, all applicants remaining in the pool move forward
to the final phase where each applicant’s file is individually examined and evaluated
by admissions officers. The district court found that explicit consideration of race
in the admissions policy was unlawful because student body diversity is not a
compelling state interest able to withstand strict judicial scrutiny. The appeals panel
affirmed for the different reason that even if diversity were “assumed” a valid
constitutional objective, “[a] policy that mechanically awards an arbitrary ‘diversity’
bonus to each and every non-white applicant at a decisive stage in the admissions
process” was not “narrowly tailored” to that end.
While declining to decide the diversity issue, the appellate opinion left little
doubt as to the circuit judges’ view of the matter. Regarding Justice Powell’s
discussion in Bakke, and his endorsement of the “Harvard Plan” to achieve broad-
based diversity in student admissions, the court noted the lack of consensus among
the Justices. “In the end, the fact is inescapable that no five Justices in Bakke
expressly held that student body diversity is a compelling interest under the Equal
Protection Clause even in the absence of a valid remedial purpose. . . . Simply put,
Justice Powell’s opinion does not establish student body diversity as a compelling
interest for purposes of this case.” But the court treated the constitutional status of
diversity as an “open question” and instead faulted the University’s program for
failing to meet the narrow-tailoring test. The narrow tailoring requirement is meant
to insure that the chosen means “fit” a compelling goal so closely as to eliminate any
possibility that the motive for a governmental classification is racial prejudice or
stereotype. To achieve diversity, of compelling constitutional dimension, required
the university to seek to achieve broad-based diversity, not just racial diversity. Such
diversity, for the court, entailed consideration of the full range of student
possibilities, in terms “of different cultures, outlooks, and experiences,” and “does
not view racial diversity as an end in itself.”
Measured against this definition, UGA’s policy failed because it “mechanically
and inexorably” awarded “bonus” points to minority applicants and arbitrarily limited
the number of nonracial factors that could be considered at the TSI stage, all at the
expense of white applicants. Thus, for example, the court found that opportunities
were diminished for applicants from rural or economically disadvantaged
backgrounds, foreign language speakers, and – in appropriate circumstances – even
white males “whose personal backgrounds or skills, while undeniably promoting
133263 F.3d 1234 (11th Cir. 2001).

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diversity, do not fit neatly into one of the categories predetermined by UGA.” Also
significant was the university’s failure to “meaningfully consider” race-conscious
alternatives – recruitment and outreach strategies, financial incentives for
disadvantaged students, guaranteed admission to the state’s top high school graduates
– that might foster diversity without adverse racial consequences. Ultimately, the
failure to “fully and fairly [consider] applicants as individuals and not merely as
members of groups” led to the policy’s undoing, a defect that could not be justified
by administrative convenience or the difficulty in making individualized
determinations of each applicant’s potential contribution to diversity. Summing up,
the appeals court concluded:
Unlike the Harvard plan described by Justice Powell, UGA’s policy does not
allow admissions officers to consider “all pertinent elements of diversity” or to
decide – in awarding the 0.5 racial bonus – that the “potential contribution to
diversity . . .of an applicant identified as Italian-American” is greater than that
of a non-white applicant. The 0.5 point bonus is awarded mechanically, based
entirely on the applicant’s race. And while it is true that a small number of other
TSI factors may, to a limited extent, capture qualities beyond race and contribute
to student body diversity, they certainly do not come close to capturing the same
degree the qualities or life experiences that would be taken into account if each
applicant – including her potential contribution to diversity – were assessed fully
and fairly as an individual.
Creating a Circuit conflict with the Fifth and Eleventh, the Ninth Circuit in
Smith v. University of Washington Law School134 upheld an affirmative action
admission program to higher education that made extensive use of race-based factors.
Overt use of race in law school admissions continued from 1994 to 1998, ending only
after Washington voters adopted Initiative Measure 2000, a referendum banning all
forms of racial, gender, and ethnic discrimination or preference in state programs.
The Smith court disagreed with Hopwood’s holding that Justice Powell’s diversity
rationale was not binding Supreme Court precedent. Although no other Bakke
Justices joined, or even discussed, diversity as a compelling state interest, the Ninth
Circuit concluded that the four Brennan Justices who approved the racial quota in
Davis medical school admissions “would have embraced [the diversity rationale] if
need be.” It followed, therefore, that Justice Powell’s opinion provided “the
narrowest footing upon which a race-conscious decision making process could stand”
and is, accordingly, the “holding” of Bakke under controlling Supreme Court
authority.135 Even though the doctrinal underpinnings of Bakke were shaken by
Adarand and the congressional redistricting cases, the Supreme Court has not
revisited affirmative action in higher education, and the Ninth Circuit was reluctant
to overturn the earlier precedent.
An appeal of the Smith ruling was taken to the Supreme Court, which denied
certiorari and remanded. In seeking monetary damages, the plaintiffs continue to
press their claim that the University’s policy was a de facto dual admissions system
134233 F.3d 1188 (9th Cir. 2000).
135See Marks v. United States, 430 U.S. 188, 193 (1977)(“When a fragmented Court decides
a case . . . the holding of the Court may be viewed as that position taken by those Members
who concurred in the judgment on the narrowest grounds”).

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that exceeded the limits imposed by Justice Powell in Bakke. They argue, in trial
which began in April 2002, that at various LSAT and GPA score combinations, every
black applicant was accepted while no nonminorities were. Also, it is alleged that
only minority applicants received letters from the Law School seeking information
about their contribution to diversity.
The judicial divide over Bakke’s legacy was perhaps most vividly displayed by
separate rulings of two federal district courts in Gratz v. Bollinger,136 which upheld
for diversity reasons the race-based undergraduate admissions policy of University
of Michigan, and Grutter v. Bollinger,137 where a different federal judge nullified a
special admissions program for minority law students at the same institution. The
latest word on the topic was delivered on May 14, 2002, when the Sixth Circuit en
banc court reversed Grutter, finding that the Law School’s interest in achieving the
educational benefits of a diverse student body is compelling, and that its admissions
policy is “narrowly tailored” to that goal.
Challenged in Grutter were the admission criteria for the University of
Michigan Law School. While the documents put into evidence were circumspect in
their description of the admission process, one conceded goal was to achieve the
entry of some numbers of minority students – African-American, Native-Americans,
Hispanics, and mainland Puerto Ricans – into the law school. Generally setting the
bar for admission was a “grid” system of “index scores” derived from applicants’
composite performance on the Law School Admissions Test (LSAT) and
undergraduate grade point average (UGPA). A 1992 policy statement, however,
departed from strict adherence to index scores to achieve “distinctive perspectives
and experiences” and made an explicit commitment to “racial and ethnic diversity.”
From a welter of documentary and testimonial evidence, the trial judge concluded
that there was indeed a “heavy emphasis” on race in admissions decisions; that the
objective was to achieve a “critical mass” of minorities ranging from 11% to 17%;
and that large numbers of minority students were admitted with index scores the
same as or lower than unsuccessful white applicants. Rejecting the diversity
rationale from Bakke, the federal district judge invalidated the special admissions
program both for lack of a compelling state interest and failure to satisfy the
constitutional requisites of narrow tailoring.
The Sixth Circuit en banc appeals court reversed Judge Friedman’s decision by
a five-to-four vote. In his opinion for the majority, Judge Martin adopted the Powell
position in Bakke to find that the Law school had a compelling interest in achieving
the education benefits that flow from a diverse student body, and that its admission’s
policy was “narrowly tailored” to that end. By considering a range of “soft variables”
– including an applicant’s unique talents, interests, experiences, leadership qualities,
and “underrepresented minority” status, among others – the admissions process was
found to treat each applicant as an individual and to be “virtually indistinguishable”
from the Harvard admissions plan approved by Justice Powell in Bakke. In its pursuit
of a “critical mass,” the policy was designed to ensure that a “meaningful number”
of minority students were able “to contribute to classroom dialogue without feeling
136122 F. Supp. 2d 811(E.D.Mich. 2000).
137288 F.3d 732 (6th Cir. 2001).

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isolated” and “did not set aside or reserve” seats on the basis of race. The court
further emphasized that the admissions program was “flexible,” with no “fixed goal
or target,” did not use “separate tracks” for minority and nonminority candidates, and
did not function as a “quota system.” In answer to the dissenters, who argued for a
lottery system or model of “experiential diversity in a race-neutral manner,” Judge
Martin was persuaded by the Law School’s expert that some consideration of race
and ethnicity was “necessary” to achieve a diverse student body since otherwise
“minority enrollment would drop to ‘token’ levels.” Finally, the majority was willing
to extend “some degree of deference” to the “good faith” judgment of the Law
School in regard to the groups targeted and duration of any program devoted to
academic diversity.
The four dissenting judges, led by Judge Boggs, did not consider themselves
bound by Justice Powell’s solitary opinion in Bakke and concluded that diversity was
not a compelling state interest. Disputing Judge Martin’s argument that the Powell
position was the narrowest ground of decision in Bakke, the dissent viewed the
varying rationales of the concurring Justices to be so “fundamentally different by
degree as to defy comparison.” That is, “[t]hey are completely different rationales,
neither one of which is subsumed within the other.” The Supreme Court’s
affirmative action jurisprudence since Bakke, though not specifically concerned with
race as a factor in educational admissions, clearly demonstrated that “racial
classifications are unconstitutional unless they are intended to remedy carefully
documented effects of past discrimination.”
Even if diversity were a compelling interest, Judge Boggs concluded, the law
school’s admissions program would have failed to pass constitutional muster for lack
of narrow tailoring. First, the standard implicit in a “critical mass” of minority
students was too “ill defined” and “amorphous” to allow for predictable or
quantifiable bounds. Second, there were no time limits provided for the use of race
in the admissions process. Third, the “magnitude” of the racial preference – as
demonstrated statistically – coupled with the consistent rate of minority admissions
over several years amounted to a “two-track system that is functionally equivalent to
a quota” and that “applies one standard for minorities and another for all other
students.” Fourth, the lack of a “principled explanation” for singling out the
particular groups receiving special treatment undermined finding that the program
was narrowly tailored. Finally, there was no evidence that the law school had
investigated alternative race-neutral means for increasing minority enrollment – such
as use of a lottery or seeking experiential diversity based on individualized scrutiny
of every applicant – before implementing the special minority admissions policy.
Presently under review by the Sixth Circuit, the district court in Gratz
determined that student diversity is a compelling governmental interest for using race
as a “plus” factor in higher educational admissions. Judge Duggan approved the
University of Michigan’s current undergraduate admissions system, which awards
a 20-point advantage to black and Hispanic applicants on a 150-point scale, as well
as six points for geographical factors, five points for leadership skills, three points
for an outstanding essay, and so on. But the University’s former policy, in place until
1998, violated equal protection of the laws because it established entirely separate
admission criteria and procedures for white and minority applicants.

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On the diversity issue, the Gratz court disputed Hopwood’s conclusion that
reticence by a majority of the Bakke Justices to embrace the Powell rationale
necessarily implied a rejection of that theory. “It is just as likely that the other
Justices felt no need to address the issue of diversity based upon their determination
that under intermediate scrutiny, the program at issue was justified as a means to
remedy past discrimination.” Moreover, the defendants’ briefs presented “solid
evidence” of the educational benefits of racial and ethnic diversity on student
intellectual development, which – though perhaps “too amorphous and ill-defined in
other contexts”– satisfied the district court that there was a “permanent and ongoing
interest” to justify affirmative action in higher education.
As previously noted, diversity is not a ‘remedy.’ Therefore, unlike the remedial
setting, where the need for remedial action terminates once the effects of past
discrimination have been eradicated, the need for diversity lives on perpetually.
This does not mean, however, that Universities are unrestrained in their use of
race in the admissions process, as any use of race must be narrowly tailored.
Hopefully, there may come a day when Universities are able to achieve the
desired diversity without resort to racial preferences. Such an occurrence,
however, would have no affect (sic) on the compelling nature of the diversity
interest. Rather, such an occurrence would affect the issue of whether a
university’s race-conscious admission program remained narrowly tailored. In
this Court’s opinion, the permanency of such an interest does not remove it from
the realm of “compelling interests,” but rather, only emphasizes the importance
of ensuring that any race-conscious admissions policy that is justified as a means
to achieve diversity is narrowly tailored to such an interest.
Acknowledging the often “thin line” separating the permissible and
impermissible use of race in such cases, the district court cited several considerations
to uphold the current admission program as “narrowly tailored.” First, the award of
twenty points for minority status was not a “quota” or “dual track” system, as in
Bakke, but only a “plus” factor, to be weighed against others in the selection process.
What Plaintiffs really appear to contest is the fact that race is accorded twenty
points while other factors that may more consistently favor non-minority students
are not typically accorded the same weight. However, as Justice Powell
recognized in Bakke, universities may accord an applicant’s race some weight in
the admissions process and, in doing so, universities are not required to accord
the same weight to race as they do to other factors. (citations omitted) As long
as the admissions process does not work to isolate the applicants from review,
it withstands constitutional muster, despite the fact that it may provide
individuals with a ‘plus’ on account of their race.
Similarly, the practice of “flagging” applications of “under-represented” minorities
did not cross the line because it was invoked only to insure that otherwise qualified
applicants were included in the “review pool” and likewise applied to other
candidates possessing desired non-racial qualities. In addition, race-neutral
alternatives to the current policy, including “vigorous minority recruitment,” had
failed to yield a “sufficiently diverse student body,” said the court, therefore
necessitating the “consideration of an applicant’s race during the admissions
process.”

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Prior to 1998, however, the university maintained a “rolling” admission
program, which the court found involved the impermissible use of race because, in
effect, it “reserved” seats for under-represented minorities, among other groups, who
were “protected” from competition with other applicants. This earlier regime was
reinforced by “grids or action codes” that applied different academic standards based
solely on race and permitted, for example, the automatic exclusion of nonminority–
but not minority – applicants without any “individualized” review.138
Although the . . .use of facially different grids/action codes based on an
applicant’s race, in and of itself, may not have been constitutionally
impermissible, combined with other components previously discussed by the
Court, i.e. . . .use of protected seats and the . . .system of automatic rejection, the
Court is convinced that [the] prior programs, when examined in their entirety,
fall within the impermissible under the principles enunciated by Justice Powell
in Bakke.
Appeal is pending with the Sixth Circuit in the Michigan undergraduate admissions
case, and as noted, the federal appeals courts to address the issue are evenly divided
over the constitutional significance of Bakke for affirmative action in higher
educational admissions.
The constitutional standing of Justice Powell’s diversity rationale, and the
judicial controversy it has spawned, raise several important issues that the Supreme
Court may almost inevitably have to revisit. Post-Bakke appeals courts, guided by
Marks v. United States,139 have sliced and diced the various opinions in Bakke to
come up with a controlling rationale. In Marks, the Supreme Court ruled that when
a majority of Justices are unable to agree on a controlling rationale, the holding of the
Court is the position of those Justices concurring in the judgment on the narrowest
grounds. The pro-diversity circuits have concluded that the Powell opinion
approving race as a “plus” factor is narrower than the Brennan rationale, which
would have upheld the race quota in Bakke on a societal discrimination theory. The
opposing circuits have generally reasoned otherwise or concluded that the competing
Bakke opinions defy rational comparison so that absent a majority consensus, the
Powell opinion is without controlling weight. Absent further High Court direction,
no conclusion to this debate appears imminent.
Ultimately, the question may turn on how strictly “strict scrutiny” is applied by
the Supreme Court to collegiate affirmative action policies. Under a highly
formalized competitive bidding process, the Court in Croson and Adarand ruled any
consideration of race in the distribution of government contracts must serve a
compelling state interest and be narrowly tailored. An arguably softer form of strict
138For example, in 1995 and 1996, the University used two grids for in state applicants, one
for “non-minority” applicants and another for “minority” applicants. The non-minority grid
indicated that an applicant with a GPA of 3.2 and ACT test score of 18-20/ SAT of 400-500
would be automatically rejected, whereas a minority applicant with the same grade/score
would most likely have been admitted.
139430 U.S. 188 (1977).

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scrutiny was developed in Shaw v. Reno140 and later cases involving congressional
redistricting along racial lines. The ideal of colorblindness does not require that
redistricting legislatures ignore race. Instead, the Court has recognized that along
with politics, incumbent protection, and a host of other factors, race may play a role
in the creation and configuration of districts. But strict scrutiny is triggered if race
trumps or subordinates all of these other traditional principles in the redistricting
process. Moreover, the state interest in avoiding dilution of minority voting power
and discriminatory effects prohibited by the Voting Rights Act are compelling under
Shaw and its progeny.141 This may more closely correspond to the Powell rationale
that race together with a host of other social, demographic, and personal factors spell
diversity deserving of constitutional protection.
Under the narrow tailoring aspect of strict scrutiny, the weight given race in the
admissions calculus and its impact on affected nonminority candidates may prove
crucial. In Grutter, this boiled down to a battle of statistics. For example, the
majority pointed to long range variability, year to year, in minority admissions and
its marginal impact on the probability of admission by nonminorities to the highly
selective law school. This is called the “causation fallacy.” In a selective
admissions process, the competition is so intense that even without affirmative
action, the overwhelming majority of rejected white applicants still would not be
admitted. Conversely, Judge Boggs pointed to other statistics indicating the decisive
weight of race in the admissions process. Marginally qualified minority candidates
were almost invariably admitted while nonminorities of like qualifications were
rejected. In other words, according to the dissenter’s argument, race was the
“predominant,” rather than a “plus” factor.
A diversity rationale also poses a dilemna underscored by Justice O’Connor in
other affirmative action contexts. In Croson, for example, specific findings of
discrimination were necessary because the concept of societal discrimination was too
amorphous and timeless to deal with. Query whether a university administrator’s
notion of a “critical mass” of minority students for the sake of educational diversity
is any less so. The quest for diversity in admissions not self-limiting. Arguably, it
poses a constantly changing commitment as different racial and ethnic groups vie for
consideration into the future. A permanent regime of race or ethnic preference
“without a logical stopping point” may be the result: a tough sell to a majority of the
current Justices. Conversely, explicit numerical standards, as used in Gratz, may
collide with constitutional demand for flexibility to avoid the “quota” tag.
As a race neutral alternative, both the Eleventh Circuit in the Georgia case, and
the Grutter dissent, urge an “experiential diversity” model. In effect, this boils down
to examining each applicant individually for those factors other than race or ethnicity
– talents, family background, struggles against disadvantage, leadership qualities, and
the like– that would contribute to academic diversity on a broad scale. While this
would level the playing field, its ability to expand opportunities for racial minorities
is questioned by most educators. In addition, such a system may impose a substantial
140509 U.S. 630 (1993).
141Bush v. Vera, 517 U.S. 952 (1996).

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administrative burden in terms of resources devoted to the admissions process by
large state institutions with many thousands of applicants.
Public Elementary and Secondary Schools
The constitutionality of race-conscious admissions to magnet or alternative
schools, designed to promote elementary and secondary school desegregation, has
also begun to reach the courts. A federal court in 1974 found the Boston schools to
be unlawfully segregated and ordered into effect a desegregation plan requiring, inter
alia, a thirty-five percent set-aside for admission of black and Hispanic students to
the city’s three “examination” schools.142 This policy was revised to eliminate the
set-aside after a successful equal protection challenge was brought in 1996 by a white
student who was denied admission to the famed Boston Latin School.143 Under the
new policy, half of the available seats at each school was awarded solely on the basis
of students’ composite scores, derived from grade point averages and entrance
examination scores. The other half was also awarded according to composite score
rankings, but in conjunction with “flexible racial/ethnic guidelines.” The guidelines
required that these seats be allocated by composite rank score in proportion to the
racial and ethnic composition of each school’s remaining qualified applicant pool.
A white student denied admission for the 1997-98 academic year, despite higher
qualifications than several admitted minority students, challenged the guidelines on
equal protection grounds.
In Wessman v. Gittens,144 the First Circuit reversed a judgment in favor of the
Boston School Committee, which had adopted the two-track admissions policy. The
district court had applied strict scrutiny, but nonetheless concluded that the policy
was constitutional based on the school system’s compelling interests in diversity and
in “overcoming the vestiges of past discrimination and avoiding the re-segregation
of the Boston Public Schools.” According to the appeals court, however, the School
Committee had not produced sufficient evidence to demonstrate a compelling interest
in either goal or that the admissions policy was narrowly tailored to those ends.
First, there was no “solid and compelling evidence” that student diversity was “in any
way tied to the vigorous exchange of ideas,” nor that any achievement gap between
minority and non-minority students amounted to “vestiges” of the system’s past
discrimination. The policy also swept “too broadly” by dividing individuals into
“only five groups — blacks, whites, Hispanic, Asians, and Native Americans —
without recognizing that none is monolithic.” Thus, even assuming arguendo that
diversity might, in some circumstances, be sufficiently compelling to justify race-
conscious actions, “the School Committee’s flexible racial/ethnic guidelines appear
to be less a means of attaining diversity in any constitutionally relevant sense and
142See Morgan v. Hennigan, 379 F. Supp. 410 (D. Mass), aff’d sub nom. Morgan v.
Kerrigan, 509 F.2d 580 (lst Cir. 1974).
143See McLaughlin v. Boston School Committee, 938 F. Supp. 1001 (D.Mass. 1996).
144160 F.3d 790 (lst Cir. 1998).

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more a means of racial balancing,” which is neither “a legitimate [n]or necessary
means of advancing the lofty principles credited in the policy.”145
In a pair of recent decisions, the Fourth Circuit invalidated affirmative action
policies for admission of minority students to magnet schools in Arlington County,
Va. and Montgomery County, Md. Because neither policy was found to satisfy the
“narrow tailoring” aspect of strict scrutiny as required by Adarand, however, it was
unnecessary for the court to decide whether educational diversity may be a
“compelling interest” justifying race based admissions in other circumstances. At
issue in the Arlington County case, Tuttle v. Arlington County School Board,146 was
a “sequential, weighted random lottery” system developed in response to prior
litigation which took account of three factors – low-income background, the
applicant’s primary language, and race or ethnicity – in determining admission to
three county magnet schools. The probabilities associated with each applicant’s
lottery number were weighted, so that members of under-represented groups, as
defined by any of those factors, had an increased probability of selection. In the
Montgomery County case, Eisenberg v. Montgomery County Public Schools,147
school officials considered a variety of factors, including a “diversity profile” of
affected schools, when deciding whether to grant applications for transfer from a
student’s assigned school to another county public school. The diversity profile, in
effect, precluded transfer of students of a particular racial or ethnic background –
White, Black, Asian or Hispanic – from any school where the percentage of that
group in the student body had declined over the preceding three years and was under-
represented when compared to the county as a whole. In both cases, the challenged
policy led to white students being denied admission to schools of their choice for
racial reasons tied to student diversity.
While the Arlington County school system, earlier in its history, had been found
to be de jure segregated and was required to desegregate by judicial decree,
Montgomery County had never been subject to court supervised desegregation.
Rather, the Maryland district had dismantled its formerly segregated schools by
voluntary means, one aspect of which included implementation of a magnet school
program. In neither case, however, did the Fourth Circuit attribute a remedial
purpose to the diversity interest asserted by the school board, but found that the
admissions and transfer policies in question were an exercise in “racial balancing.”
In so doing, the appeals court sidestepped deciding whether racial diversity in
education could ever be a “compelling” state interest, proceeding instead to find the
challenged policies failed the narrow tailoring aspect of Adarand analysis. In the
Arlington case, the school board was found to have disregarded “one or more race-
neutral policies” recommended by an advisory committee as alternatives to promote
diversity. The duration of the plan was criticized for being “in perpetuity” and
without “a logical stopping point.” Although the weighted lottery did not “set-aside”
positions for minorities, according to the court, the practical effect was the same
since it “skew[ed] the odds of selection” in their favor to achieve classroom diversity
145160 F.3d at 799.
146189 F.3d 431 (4th Cir. 1999), cert. denied 120 S.Ct 1420 (2000).
147197 F.3d 123 (4th Cir. 1999), cert. denied 120 S.Ct 1420 (2000).

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“in proportions that approximate the distribution of students from [racial] groups in
the district’s overall student population.” Finally, the plan lacked flexibility and
impermissibly burdened “innocent third parties” who are denied admission for racial
or ethnic reasons. Montgomery County’s race-conscious transfer policy was
characterized by the court as “mere racial balancing in a pure form” due to many of
the same failings and because it was not directed at the correction of any past
constitutional wrongs.
The County annually ascertains the percentage of enrolled public school students
by race on a county-wide basis, and then does the same for each school. It then
assigns a numbered category for each race at each school, and administers the
transfer policy so that the race and percentage in each school to which students
are assigned by residence is compared to the percentage of that race in the
countywide system. The transfer policy is administered with an object toward
maintaining this percentage of racial balance in each school. . . . Although the
transfer policy does not necessarily apply ‘hard and fast quotas,’ its goal of
keeping certain percentages of racial/ethnic groups within each school to ensure
diversity is racial balancing.148
Montgomery County officials were directed to eliminate the consideration of race
from student transfer decisions, while in the Arlington case, further proceedings in
the district court were ordered to review alternative admissions policies.
On April 15, 2002, the U.S. Supreme Court denied review of the Fourth Circuit
en banc decision in Belk v. Charlotte Mecklenburg Board of Education.149 The
appeals court there affirmed a finding that “all vestiges of past discrimination” had
been erased from the school system where student busing was first approved by the
Supreme Court as a desegregation remedy. Because of its newly achieved “unitary
status,” the district court had relinquished jurisdiction of the desegregation case and
ordered the school district to stop “assigning children to schools or allocating
educational opportunities and benefits through race-based lotteries, preferences, set-
asides or other means that deny students an equal footing based on race.” The
specific target of Judge Potter’s order was the race-conscious policy for admission
of students to the magnet school program operated by the district for desegregation
purposes. After nearly three decades of court-enforced desegregation, a white parent
sued the school district, charging that his daughter had twice been denied admittance
to a magnet school because she was not black. Six other white parents joined the
case, arguing that the school district had been successfully rid of segregation and with
it any constitutional justification for race-based preferences.
Judge Potter agreed, calling the argument for continuing the desegregation
process a “bizarre posture” and the focus on racial diversity a “social experiment.”
The policy of allocating available magnet school spaces to reflect the racial student
makeup of the district as a whole was condemned by the court as “nothing more than
a means for racial balancing,” which could not be justified by a “litany of
generalizations lauding the benefits of racial diversity.” A majority of the en banc
148Id. at 133.
149269 F.3d 305 (4th Cir. 2001), cert. denied, 70 USLW 3482 (S.Ct. 4-15-2002).

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appellate court affirmed that the school district had eliminated the “last vestiges” of
unconstitutional segregation to the fullest extent “practicable.” Any remaining racial
concentrations, therefore, were a consequence of factors – namely residential
segregation – beyond the power of school authorities or the courts to control. In a
unitary setting, the magnet admissions process could not clear the first hurdle by
showing a compelling governmental interest, and the school district could not make
“any further use of race-based lotteries, preferences, and set-asides in student
assignment.” A slightly different majority ruled that the school board could not be
held liable for its use of race in assigning students to magnet schools since the
program had originated in a then valid desegregate order. But if the same plan were
adopted after the district is declared unitary, it would clearly be unconstitutional
under Tuttle and Eisenberg (supra), these judges opined.
One federal appellate court, the Ninth Circuit, appears ready to part company
with other courts on the diversity issue. The University of California operates a
popular elementary school as a “laboratory” to research urban education and “to
foster a more effective educational system primarily for urban elementary students.”
Beyond basic research, the school develops new techniques for educating students
in multi-cultural urban settings and conducts seminars, workshops, and teacher
training programs throughout the state. The school considers applicants’ race and
ethnicity to obtain adequate cross-samples of the general population and thus to
maintain “the scientific credibility of its educational studies.” The plaintiff in Hunter
v. Regents of the University of California150 challenged the school’s admissions
policy as an equal protection violation. While perhaps not tantamount to a diversity
rationale, the Ninth Circuit nonetheless agreed with the district court judge that the
state’s interest in “operating a research-oriented elementary school dedicated to
improving the quality of education in urban public schools” was compelling even
absent any purpose of remedying past discrimination.
The challenges posed by California’s increasingly diverse population
intensify the state’s interest in improving urban public schools. Cultural and
economic differences in the classroom pose special difficulties for public school
teachers. In his decision, Judge Kenyon noted that defendants presented ‘an
exhaustive list of such issues and challenges [that] includes limited language
proficiency, different learning styles, involvement of parents from diverse
cultures with different expectations and values, and racial and ethnic conflict
among families and children.’ [An expert witness] stated that ‘[t]here is no more
pressing problem, facing California, or indeed the nation, than urban education;
for it is in the urban school system that the majority of California’s future
citizens will be educated (either well or poorly), creating the basic fabric for the
society of the future.’ . . . Given this record, the district court concluded, and we
agree, that ‘the defendants’ interest in operating a research-oriented elementary
school is compelling.’151
Given the demographics of California’s urban population, and the necessity of
creating a multi-cultural laboratory setting, the consideration of race for admission
to the school was deemed “narrowly tailored” since “it would not be possible, nor
1501999 WL 694865 (9th Cir. 9-9-99).
151Id. at pp 2-3.

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would it be reasonable, to require defendants to attempt to obtain an ethnically
diverse representative sample of students without specific racial target and
classifications.”152
Faculty Diversity
Corollary issues concerning faculty diversity have also been before the courts
recently, including the Piscataway case, which was dismissed as moot by the
Supreme Court after the parties reached an out-of-court settlement. The appeal from
Taxman v. Board of Education of Piscataway Township153 had asked the High Court
to consider whether a local school board’s desire to promote faculty diversity could
legally justify its decision to protect a black teacher from layoff, while dismissing an
equally qualified white colleague, in the absence of a showing of past discrimination
or a “manifest” racial imbalance in its workforce. Two teachers, one white, the other
black, were hired on the same day in 1980 and were deemed equally qualified for
their positions in the business education department when a reduction in force
became necessary eight years later. Minority teachers were not underrepresented on
the overall faculty–constituting 9.5 % of the district’s teachers versus 5.8 % of the
relevant county labor pool–and no evidence of past discrimination by the school
district was presented at trial. A “coin toss” had traditionally been used to determine
retention rights among similarly situated employees in the past. But because only
one black teacher was among the business department’s ten-member staff, the school
district relied on its affirmative action policy to retain the minority employee rather
than her white colleague in the interests of promoting racial diversity.
An en banc majority of the Third Circuit determined that however laudable the
school board’s objective might be, laying off a white reacher “solely” on the basis of
race to achieve faculty diversity exceeded the bounds of controlling Supreme Court
precedent. Title VII rulings in Weber and Johnson (supra) permitted employers to
make employment decisions based on race or gender in order to redress a “manifest”
imbalance of minorities and women in “traditionally segregated job categories.” But
judicial teachings generally caution against affirmative action measures that
“unnecessarily trammel” or frustrate the “legitimate and firmly rooted expectation in
continued employment” of affected non-minorities. In its 1986 Wygant decision, the
Court voided race-based layoff protection for minority public school teachers because
of its immediate adverse impact on “identifiable” senior white employees.
Consequently, while applauding the board’s commitment to racial diversity, the
Taxman appellate opinion rejected the non-remedial educational purposes asserted
by the board for its affirmative action plan because “there is no congressional
recognition of diversity as a Title VII objective requiring accommodation.” And
because the entire burden of the board’s plan fell upon the white teacher whose
interests were “unnecessarily trammeled” by the loss of her job, the race-based policy
violated Title VII.
152Id. at 4.
15391 F.3d 1547 (3d Cir. 1996), appeal dismissed sub nom. U.S. v. Board of Education of the
Township of Piscataway, 118 S. Ct. 595 (1998).

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On March 9, 1998, the Supreme Court declined to review the legality of a
“minority bonus policy” in an affirmative action plan established for Nevada’s public
colleges to redress a lack of minority faculty members. In Farmer v. University and
Community College Systems of Nevada,154 the plaintiff had been one of three finalists
for a faculty position in the sociology department which the university awarded to a
black male candidate from Uganda with “comparable” qualifications. The
university’s minority bonus policy, which the Nevada Supreme Court described as
an “unwritten amendment” to its affirmative action plan, allowed a department to
hire an additional faculty member following the initial placement of a minority
candidate. As a consequence, plaintiff was hired by the sociology department a year
later, but at a lesser salary than the earlier-hired black candidate. The differential was
defended by the university as reflecting a pay premium necessary “to prevent[ ] a
bidding war between two prestigious universities slated to interview [the black
candidate].” Farmer challenged both the hiring and pay decisions by the university
as race and sex discrimination prohibited by Title VII and the Equal Pay Act.
The state supreme court reversed a jury verdict for the plaintiff and upheld the
university’s affirmative action hiring policy on both federal constitutional and
statutory grounds. First, according to the court, race was only one factor considered
by the university–along with educational background, publishing, teaching
experience, etc.–in evaluating applicants. In contrast to Piscataway, the university
faculty was a “white enclave” with only 1 % black members, a factor persuading the
court that the university had a “compelling interest in fostering a culturally and
ethnically diverse faculty” under standards laid out by the Bakke and Weber cases.
Here, in addition to considerations of race, the University based its
employment decision on such criteria as educational background, publishing,
teaching experience, and areas of specialization. This satisfies Bakke’s
commands that race must be only one of several factors used in evaluating
applicants. We also view the desirability of a racially diverse faculty as
sufficiently analogous to the constitutionally permissible attainment of a racially
diverse student body countenanced by the Bakke Court.
Thus, severe minority underrepresentation on the university faculty combined with
the employer’s consideration of relative qualifications in addition to race
distinguished Piscataway, the Nevada court felt, and conformed the case to Justice
Powell’s Bakke opinion. In addition, the impact of the initial minority hire was
mitigated by affording the disappointed white applicant a subsequent position created
pursuant to informal practice or custom under the affirmative action policy.
Conclusion
Collectively, the trend of recent judicial decisions marginalizes the
constitutional value of student or faculty diversity as support for racial or ethnic
preferences which are not “narrowly tailored” to correcting the present-day effects
154930 P.2d 730 (Nev. 1997), cert. denied No. 97-1104, 118 S. Ct 1186 (1998).

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of historical discrimination for which the institution itself is responsible. The
Supreme Court refusal to review the Hopwood and Piscataway cases has had an
unsettling impact on academic affirmative action policies nationwide. The reason
for this is twofold. First, recent decisions imperil use of the diversity rationale as
justification for the use of racial classifications in the admissions process. Prior to
Hopwood, for example, university officials could argue that their programs promoted
the state’s compelling interest in the robust exchange of ideas and viewpoints by
ensuring a racially and ethnically diverse student body. As important, however, the
recent cases limit the scope of the remedial justification traditionally recognized by
the courts to justify affirmative action as a constitutional antidote for past
discrimination. In addition to rejecting societal discrimination, Hopwood and
progeny appear to exclude from evidence proof of discrimination originating from
any official source — including the public education establishment at all levels —
unless attributable to conduct by the specific institution taking the challenged
remedial action.
Seeing the writing on the wall, many higher educational institutions have
resorted to what has been termed “alternative action,” or policies designed to promote
racial diversity without relying on racial preferences. Schools in California, for
example, are experimenting with “class-based” affirmative action, taking
socioeconomic status or family educational background of applicants into account.
UCLA targets financial aid programs towards underprivileged neighborhoods as a
means of reaching minority students. Texas law, in response to Hopwood, entitles
the top ten percent of every graduating high school class in the state to public college
or university admission. Other schools consider “diversity” or “hardship” essays in
which applicants describe challenging life experiences such as poverty, English as
a second language, or having a family member in prison. Some reformers advocate
targeting additional resources to underperforming elementary and secondary schools
as a way to address the root causes of minority under-representation in higher
education. Florida has adopted a composite of many of these approaches. The “One
Florida” plan guarantees every Florida student who graduates in the top 20% of his
or her graduating class admission to one of that state’s 10 public colleges. It has
replaced race and ethnicity with other socio-economic and geographical proxies for
diversity; increased the state’s need-based financial aid program; seeks to improve
the state’s lowest performing primary and secondary schools; and provides free SAT
prep courses at those schools.
Whether academic institutions may altogether avoid the constitutional shoals
by adopting such “race-neutral” plans to increase minority admissions remains to be
seen. On one hand, by eschewing the use of explicit racial classifications and dual
track admission policies, these efforts may be far less susceptible to facial challenge
as an equal protection violation. Programs involving the explicit consideration of
race have thus far been the focus of judicial objection. But equally vulnerable may
be policies that employ nonracial factors as a proxy for race if the purpose or intent

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is to benefit minority groups. In Washington v. Davis,155 and related precedent,156 the
Supreme Court determined that a race neutral law with a disparate racial impact on
minority groups is subject to strict scrutiny if it is enacted with a racially
discriminatory purpose. Racial motive was made a constitutional “touchstone” for
equal protection analysis, and whether reflected by a racial classification, or other
evidence of discriminatory purpose, strict scrutiny was triggered by evidence of such
intent. Similarly, alternatives to traditional race-based affirmative action may not
escape strict judicial scrutiny if an objecting non-minority applicant is able to
demonstrate that the motivation for the plan was the policymaker’s purpose or intent
to aid racial or ethnic minorities. Corollary principles may spill over to private
institutions, which are immune from constitutional limitations, under Title VI of the
1964 Civil Rights Act. In Guardians Association v. New York Civil Service
Commission,157 while disagreeing on the appropriate statutory standards, a majority
of the Justices agreed that plaintiffs had a private right of action for intentional race
discrimination under Title VI.
Whatever the outcome of these issues, affirmative action appears destined to
return to the Supreme Court in the not too distant future. A Circuit court conflict
with the Fifth and Eleventh was created when the Ninth Circuit relied on Bakke to
uphold an affirmative action admissions policy to the University of Washington Law
School that made extensive use of race-based factors. The judicial divide over
Bakke’s legacy was perhaps best illustrated by a pair of separate trial court decisions,
one upholding for diversity reasons the race-based undergraduate admissions policy
of University of Michigan, the other voiding a special minority law school
admissions program at the same institution. As noted, the Sixth Circuit in Grutter
v. Bollinger reversed the latter decision, finding that the Law School’s interest in
achieving the educational benefits of a diverse student body is compelling, and that
its admissions policy is “narrowly tailored” to that goal. Appeal is pending with the
same court in the undergraduate admissions case, but presently the federal appeals
court are evenly divided over the constitutional significance of Bakke in the realm of
higher educational admissions.
Included in these cases were allegations of individual liability on the part of
current and former officials of the University for maintaining affirmative action
policies that they knew, or should have known, were unconstitutional. On appeal,
155426 U.S. 229 (1976).
156Cf. Personnel Administrator v. Feeney, 442 U.S. 256 (1979). In Feeney, the Court upheld
a state law giving a preference to veterans for civil service employment, which had a
significant discriminatory effect against female applicants. Notwithstanding the obvious
impact of such a preference, the Court upheld it on the ground that “‘[d]iscriminatory
purpose’ . . . implies more than intent as volition or intent as awareness of consequences.
It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at
least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable
group.” Id. at 279. Although Feeney involved a claim of sex-based discrimination, the test
there announced for determining whether a purpose is “discriminatory” with respect to a
particular trait has been applied to claims of racial discrimination as well. See Hernandez
v. New York, 500 U.S. 352, 360 (1991).
157463 U.S. 582, 593 (1983).

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educators contend that their admissions policies differ substantially from the explicit
dual track plan in Hopwood and conform to the dictates of Bakke, which forbids
quotas but may allow nonexclusive consideration of race in the admissions process.
Any resolution of this issue by the Supreme Court, should it grant review in Grutter
or Gratz, may not be limited to public colleges and universities. Private school
affirmative action policies could be challenged under Title VI of the 1964 Civil
Rights Act, which imposes a comparable ban on discrimination by private schools
as the Equal Protection Clause does in the public sphere. Consequently, since
virtually all higher educational institutions receive some federal funding, both public
and private schools would likely be affected by whatever the Supreme Court
eventually decides regarding affirmative action in education.

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