Order Code RL30470
CRS Report for Congress
Received through the CRS Web
Affirmative Action Revisited:
A Legal History and Prospectus
Updated January 30, 2004
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 remains a focal point of public debate stirred by legal and
political developments at the federal, state, and local levels. In recent years, federal
courts have reviewed minority admissions programs to state universities in Texas,
Georgia, Michigan, and Washington, 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.
Ongoing legal controversy surrounds the Supreme Court’s 1995 ruling in Adarand
Constructors Inc. v. Pena, setting constitutional standards for race-based affirmative
action by the federal government. The case returned to the High Court for a third
appearance, 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 remained a topic of political and legal controversy. Many colleges
and universities established affirmative action policies not only to remedy past
discrimination, but also to achieve a racially and ethnically diverse student body or
faculty. Restoring a degree of clarity to the law, the U.S. Supreme Court concluded
its 2002-03 term with rulings in the University of Michigan cases. In Grutter v.
Bollinger a 5 to 4 majority of the Justices held that the University Law School had
a “compelling” interest in the “educational benefits that flow from a diverse student
body,” which justified its consideration of race in admissions to assemble a “critical
mass” of “underrepresented” minority students. But in a companion decision, Gratz
v. Bollinger, six Justices decided that the University’s policy of awarding “racial
bonus points” to minority applicants was not “narrowly tailored” enough to pass
constitutional scrutiny.
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 past 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
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 . . . . . . . . . . . . . . . . 16
Post-Adarand Judicial Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Post-Adarand Regulatory Developments . . . . . . . . . . . . . . . . . . . . . . . 29
Affirmative Action in Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Judicial Affirmative Action Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Voluntary Affirmative Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Affirmative Action Consent Decrees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Affirmative Recruitment and Outreach Programs . . . . . . . . . . . . . . . . . . . . 41
Affirmative Action and Diversity in Public Education . . . . . . . . . . . . . . . . . . . . 45
College Admissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
The University of Michigan Admissions Policy . . . . . . . . . . . . . . . . . 47
Supreme Court Review of the Michigan Cases . . . . . . . . . . . . . . . . . . 49
The Grutter Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
The Gratz Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Public Elementary and Secondary Schools . . . . . . . . . . . . . . . . . . . . . 52
Faculty Diversity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

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Affirmative Action Revisited: A Legal History
and Prospectus
Affirmative action remains at the center of legal and political debate at the
federal, state, and local levels. In recent years, federal courts have reviewed
minority admissions programs to state universities in Texas, Georgia, Michigan, and
Washington, 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. Controversy persists
regarding the Supreme Court’s 1995 ruling in Adarand Constructors Inc. v. Pena,1
which set constitutional standards for race-based affirmative action by the federal
government. Subsequently, the Tenth Circuit determined that the Department of
Transportation program of financial incentives to promote minority and
“disadvantaged” small business participation on federally-assisted highway projects
challenged in Adarand was unconstitutional. But as revised 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 in 2001, as Adarand
Constructors Inc. v. Mineta,2 but 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,3 the diversity rationale for affirmative action in
public education remained a topic of political and legal controversy. Many colleges
and universities established 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
creation’ so essential to the quality of higher education is widely believed to be
promoted by a diverse student body.” Over the last decade, however, federal courts
began to question the Powell rationale, unsettling expectations about the
constitutionality of diversity-based affirmative action in educational admissions and
faculty hiring.
1 515 U.S. 200 (1995).
2 534 U.S. 103 (2001).
3 438 U.S. 265 (1978).

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CRS-2
The judicial divide over Bakke’s legacy was vividly underscored by a pair of
separate trial court decisions, one upholding for diversity reasons the race-based
undergraduate admissions policy of the University of Michigan,4 the other voiding
a special minority law school admissions program at the same institution.5 Restoring
a degree of clarity to the law, the U.S. Supreme Court concluded its 2002-03 term
with rulings in the Michigan cases. In Grutter v. Bollinger6 a 5 to 4 majority of the
Justices held that the University Law School had a “compelling” interest in the
“educational benefits that flow from a diverse student body,” which justified its
consideration of race in admissions to assemble a “critical mass” of
“underrepresented” minority students. But in a companion decision, Gratz v.
Bollinger,7 six Justices decided that the University’s policy of awarding “racial bonus
points” to minority applicants was not “narrowly tailored” enough to pass
constitutional scrutiny.
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,8 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. Since then, proposals 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.9 Similarly, the elimination of racial,
ethnic, and gender preferences from federal employment, grant and procurement
activity has been the topic of proposed congressional legislation.10 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.
4 Gratz v. Bollinger, 122 F.Supp.2d 811 (E.D.Mich. 2000).
5 Grutter v. Bollinger, 137 F. Supp. 2d 821, 848 ( E.D. Mich. 2001)(concluding that “Bakke
does not stand for the proposition that a university’s desire to assemble a racially diverse
student body is a compelling state interest”).
6 123 S.Ct 2325 (2003).
7 123 S.Ct 2411 (2003).
8 122 F.3d 718 (9th Cir.) cert. denied 522 U.S. 963 (1997).
9 See CRS Report RL30086, Affirmative Action in Washington State: a Discussion and
Analysis of Initiative 200.
10 See CRS Report RL30142, Affirmative Action: Congressional and Presidential Activity,
1995-1998; 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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CRS-3
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
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.11 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 later 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.”12
Following the Court’s lead, Congress and the Executive approved 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.13 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,”14 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,15 including
public or private educational institutions. The Office of Civil Rights of the
11 See 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).
12 Dowell 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.’”).
13 42 U.S.C. §§ 2000e et seq.
14 Id. at § 2000e-5(g).
15 42 U.S.C. 2000d et seq.

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CRS-4
Department of Education interpreted Title VI to require schools and colleges to take
affirmative action to overcome the effects of past discrimination16 and to encourage
“voluntary affirmative action to attain a diverse student body.”17 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.18
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
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.19
Federal contract “set-asides” and minority subcontracting goals evolved from
Small Business Administration programs to foster participation by “socially and
economically disadvantaged” entrepreneurs in the federal procurement process.20
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
16 34 C.F.R. § 100.3(b)(vii)(6)(1999).
17 44 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.”).
18 59 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).
19 42 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).
20 15 U.S.C.§ 637 (a), (d).

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CRS-5
activities over much of the last two decades.21 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.22 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.23
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,24 or
for entrenched patterns of “egregious and longstanding” discrimination by the
employer, if imposed by judicial decree.25 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.26 Affirmative action preferences,
however, had to be sufficiently flexible, temporary in duration, and “narrowly
tailored” to avoid becoming rigid “quotas.”
The Bakke ruling in 1978 launched the contemporary constitutional debate over
state-sponsored affirmative action.27 A “notable lack of unanimity” was evident from
the six separate opinions filed in that case. One four-Justice plurality in Bakke voted
21 See “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).
22 15 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).
23 P.L. 103-355, 108 Stat. 3374, § 7106 (1994).
24 United Steelworkers v. Weber, 443 U.S. 193 (1979).
25 Local 28 Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986).
26 United States v. Paradise, 480 U.S. 149 (1987); Johnson v. Transportation Agency, 480
U.S. 616 (1987).
27 Regents of the University of California v. Bakke, 438 U.S. 265 (1975).

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CRS-6
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
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.”28 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.”29 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,30 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. In another series of decisions, the Court approved of congressionally
mandated racial preferences to allocate the benefits of contracts on federally
sponsored public works projects, Fullilove v. Klutznick, 31 and in the design of certain
broadcast licensing schemes, Metro Broadcasting, Inc. v. FCC, 32 while condemning
similar actions taken by local governmental entities to promote public contracting
opportunities for minority entrepreneurs, City of Richmond v. J.A. Croson Co.33
However, in each of these cases, the Justices failed to achieve a consensus on most
28 Id. at 311-12.
29 Id. at 317.
30 476 U.S. 267 (1986).
31 448 U.S. 448 (1980).
32 497 U.S. 547 (1990).
33 488 U.S. 469 (1989).

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CRS-7
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.
Croson34 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,35 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,36 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.
34 Supra n. 33.
35 Supra n. 32.
36 515 U.S. 200 (1995).

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CRS-8
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.37 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.38 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
37 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).
38 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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CRS-9
“subcontracts” the performance of these contracts to small business concerns owned
and controlled by “socially and economically disadvantaged” individuals, Indian
Tribes or Hawaiian Native Organizations.39
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.”40 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.41 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.42 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.43 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”44 who are
able to satisfy specified regulatory criteria.45 It also excludes businesses owned or
controlled by persons who, regardless of race, are “not truly socially and/or
economically disadvantaged.”46
39 15 U.S.C. § 637(a).
40 15 U.S.C. § 637(a)(5).
41 13 CFR § 124.105(b).
42 Id. at 124.103(c).
43 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.
44 15 U.S.C. § 637(a)(5).
45 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).
46 See 49 CFR Pt. 23, Subpt. D, App. C.

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The “Minority Small Business Subcontracting Program” authorized by § 8(d)
of the Small Business Act codified the presumption of disadvantaged status for
minority group members that applied by SBA regulation under the § 8(a) program.47
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 1988,48 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.49 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.”50
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),51 the Surface Transportation
and Uniform Relocation Assistance Act of 1987 (STURAA),52 the Intermodal
Surface Transportation Efficiency Act of 1991 (ISTEA),53 and the Transportation
47 15 U.S.C. § 637(d). See also 13 CFR § 124.106.
48 P.L. 100-656, § 502, 102 Stat. 3887, codified at 15 U.S.C. § 644(g)(1).
49 See, e.g. 49 CFR §§ 23.64(e), 23.65 (setting forth waiver criteria for the Department of
Transportation).
50 P.L. 103-355, 108 Stat. 3243, 3374, § 7106 (1994).
51 P.L. 97-424, § 105(f), 96 Stat. 2097 (1982)
52 P.L. 100-17, § 106(c), 101 Stat. 132 (1987).
53 P.L. 102-240, § 1003, 105 Stat. 1914 (1992).

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Equity Act for the 21st Century (TEA-21)54 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.55 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.56
The Adarand Decision and Its Progeny
Background and History of Adarand. Litigation surrounding racial
preferences in federal contracting has followed a convoluted course since 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).57 By the
time it returned to the High Court six years later, 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 reconsider the controversy, dismissed the appeal as “improvidently granted.” The
object of the Court’s latest action – or inaction – was the Tenth Circuit’s two-part
ruling in Adarand Constructors v. Slater (Adarand III).58 The federal appeals court
there invalidated a federal highway program of financial incentives to promote
minority and “disadvantaged” small business utilization in force 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.
There have been three distinct phases to the Adarand litigation. The case
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
54 P.L. 105-178, § 1101, 112 Stat. 107 (1998).
55 For additional Information, see CRS Report RL30059, Disadvantaged Business: a Review
of Federal Assistance” (Fauntroy); “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).
56 P.L. 103-355, 108 Stat. 3242, § 7104 (1994),
57 515 U.S. 200 (1995).
58 228 F.3d 1147 (10th Cir. 2000).

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percentage of subcontract awards for DBEs or require a commitment 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. “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.”59 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
some circumstances.60 No further guidance was provided, however, as to the scope
59 515 U.S. at 217.
60 In 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
(continued...)

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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 61 decided 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, as national legislature, Congress was empowered to enact
broad discrimination remedies based on nationwide findings derived from
congressional hearings and statements of individual federal lawmakers. “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 DOT incentive program failed
the “narrow tailoring” test, however, because it linked a race-based presumption to
the award of financial “bonus[es]” to prime contractors whose choice of a
subcontractor was based “only on race.” The racial presumption 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. Alhough “more flexible”
than the “rigid racial quota” in Croson, or the 10% set-aside approved by Fullilove,
the SCC program was tainted by the government-wide 5% goals and transportation
set-asides which it implemented.62
60 (...continued)
discrimination inspired by malicious prejudice. In each instance, it is racial discrimination,
plain and simple.”
61 Adarand Constructors Inc. v. Pena, 965 F. Supp. 1556 (D.Colo. 1997).
62 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.

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On September 25, 2000, the Tenth Circuit issued its decision on the merits of
the controversy.63 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
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
63 Adarand Constructors Inc. v. Slater (Adarand III), supra n. 58. 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
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
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.64
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.65
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.66 The court of
64 Specifically, 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.
65 49 C.F.R. § 26.51(a),(b)(2000).
66 Participation in the § 8(a) program is limited by statute and regulation to ten and one-half
(continued...)

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appeals also found that the revised DOT program 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.67 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.”68 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.
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 the Croson requirement of an “inquiry into whether or
not the particular MBE seeking a racial preference has suffered from the effects of
past discrimination.”69
The Supreme Court Declines to Decide the Case. The U.S. Supreme
Court granted certiorari in an appeal from the Circuit Court’s latest decision,
marking the third High Court appearance by the Adarand case. 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
66 (...continued)
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.
67 49 C.F.R. § 2615 (2000)(allowing recipients to seek waivers and exemptions, despite the
already non-mandatory nature of the program).
68 The 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.
69 The 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).

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CRS-17
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
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.
Left unanswered, therefore, were two major questions 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.70 The ramifications of this principle for § 5
70 E.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
(continued...)

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CRS-18
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
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.71 Similarly, in Lutheran
Church-Missouri Synod v. FCC72, 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
70 (...continued)
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.).
71 Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir.1997), reh’g en banc denied,
138 F.3d 1270 (9th Cir. 1998).
72 141 F.3d 344 (D.C.Cir. 1998).

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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.
The Court may soon revisit issues left unsettled by Adarand if it agrees to
review the recent Eight Circuit’s consolidated ruling in Sherbrooke Turf, Inc. v.
Minnesota Department of Transportation and Gross Seed Company v. Nebraska
Department of Roads.73 The Sherbrooke court joined the Tenth Circuit in upholding
the DBE program under current DOT regulations and, beyond that, approved specific
state plans to implement that program. Pursuant to TEA-21, and the DOT revised
regulations, state highway departments in Minnesota and Nebraska established
specific goals for the award of federally-funded contracts to DBEs. In both states,
white-owned contractors had submitted the low bid on DOT funded subcontracts,
but were passed over in favor of a presumptively disadvantaged minority competitor.
Petitioners challenged DBE contract awards, alleging unconstitutional race
discrimination and that continued enforcement of the programs would deny them the
right to compete on an equal basis for future contracts. Federal district courts in both
states upheld the program.
The government conceded that the federal highway DBE program, on its face
and as applied, is subject to strict scrutiny because it uses a race-based rebuttable
presumption to define its beneficiaries and employs race conscious remedial
measures. Such governmental consideration of race is constitutional only if
narrowly-tailored to further a compelling governmental interest. Neither Sherbrook
nor Gross Seed disputed that the government has “a compelling interest in not
perpetuating the effects of racial discrimination in its own distribution of federal
funds and in remediating the effects of past discrimination in the government
contracting markets created by its disbursements.” Rather, petitioners argued that
Congress and DOT have no “hard evidence” of widespread intentional discrimination
in the contracting industry, relying instead on a Justice Department summary of over
50 documents and 30 congressional hearings on minority-owned businesses prepared
in response to the Adarand decision.74 Though perhaps susceptible to “multiple
interpretations,” the Eight Circuit nonetheless agreed with the Tenth Circuit analysis
in Adarand that “Congress has spent decades compiling evidence of race
discrimination in federal highway contracting,” and petitioners failed to meet the
burden of showing that no remedial action was necessary.
73 345 F.3d 964 (8th Cir. 2003), pet. for cert. docketed No. 03-968 (1-07-04).
74 See Appendix – The Compelling Interest for Affirmative Action in Federal Procurement:
A Preliminary Survey, 61 Fed. Reg. 26050 (May 23, 1996).

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Nor were the Minnesota DOT and Nebraska road department required to
independently satisfy the compelling government interest aspect of strict scrutiny
review. To be narrowly tailored, however, a national program must be limited to
those parts of the country where its race-based measures are demonstrably needed.
“To the extent the federal government delegates this tailoring function, a State’s
implementation becomes critically relevant to a reviewing court’s strict scrutiny.”
Under the current DOT program, the opinion notes, race-conscious methods cannot
be used unless race-neutral means are projected to fall short of achieving the overall
goal, and racial preferences or set-asides are limited to those instances “when no
other method could be reasonably expected to redress egregious instances of
discrimination.” In addition, because the goals for DBE participation are tied to the
relevant labor markets, have built in durational limits, and are subject “good faith”
waiver and exemptions, the programs were deemed narrowly tailored on their face.
Finally, the court reviewed Minnesota’s and Nebraska’s implementation, including
each states’ reliance on findings by independent consultants in setting goals for
minority-owned business participation, and concluded that the DBE program was
narrowly tailored as applied at the state level,
The ruling of another post-Adarand appellate tribunal, however, appears to
impose a heavier burden on the federal government for demonstrating a “strong basis
in evidence” to support minority contracting preferences. In Rothe Development
Corporation v. U.S. Department of Defense,75 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.76 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
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
75 262 F.3d 1306 (Fed.Cir. 2001).
76 10 U.S.C. § 2323.

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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.
A federal claims court decision, Christian v. United States,77 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
77 46 Fed. Cl. 793 (2000).

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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,78 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
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
78 191 F.Supp.2d 95 (D.D.C. 2002).

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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.”79
While upholding the constitutionality of the § 8 (a) program on its face, the
district court in Cortez III Service Corporation v. NASA80 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.81
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 since the Supreme Court’s ruling in City of Richmond
v. J.A. Croson.82 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
80 950 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, 211
F. Supp.2d 1296 (D.Kan. 2002)(plaintiff lacked standing to challenge race- or gender-
based presumption of social disadvantage in DOT program because personal net worth and
size requirements provided independent grounds for disqualifying unsuccessful white
bidder).
81 See 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).
82 Supra n. 34.

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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 per cent “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
several race-conscious programs survived – at least initially – 83 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. After the Court’s 1995 Adarand decision, such studies were
generally 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.84 Other major faults have been failure to
83 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 (9th Cir.
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).
84 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
(continued...)

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“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;85 the failure to properly limit the
84 (...continued)
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
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 1354 (N.D.
Ga. 1999), aff’d 218 F.3d 1267 (11th Cir. 2000)(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”).
85 E.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).

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program in scope and duration;86 the absence of a “waiver” provision;87 or neglecting
first to consider race-neutral alternatives, such as bonding and credit assistance
programs, to ameliorate minority underutilization.88
Another issue that has divided the federal courts since Croson is whether post-
enactment evidence of discrimination is sufficient to justify minority set-asides and
preferences. The Second, third, Ninth, Tenth, and Eleventh Circuits have held that
courts may properly consider such evidence, while the Sixth, Seventh, and Federal
Circuits reached the opposite conclusion. In 1996, the Supreme Court in Shaw v.
Hunt89 ruled that, in the context of racial gerrymandering, a legislature must have
sufficient evidence to support a racial distinction “before it embarks on an affirmative
action program.” Shaw demanded a “strong basis in evidence” for race-based
governmental action, which has been interpreted by the Federal Circuit to mean that
“the quantum of evidence that is ultimately necessary to uphold racial classifications
must have actually been before the legislature at the time of enactment.”90 In this
view, proof that the legislature had a constitutionally permissible intent requires
strong pre-enactment evidence. But the Tenth Circuit decision in Adarand III
allowed consideration of post-enactment evidence in addition to congressional
findings because the defendants had gathered it in response to the Supreme Court’s
86 E.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).
87 Associated General Contractors of Ohio, supra n. 83 (rejecting waiver provision which
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”).
88 See e.g. Contractors Association of Eastern Pennsylvania, supra n. 82 (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. 83 (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.”).
89 517 U.S. 899 (1996).
90 Rothe Development Corp. v. United States, supra. n. 75, 262 F.3d at 1327.

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application of strict scrutiny to the statutes in question.91 The Supreme Court
recently chose not to address this and other issues when it declined an appeal from
Tenth Circuit ruling in Concrete Works of Colorado, Inc. v. City and County of
Denver.92
In Concrete Works, the federal circuit court examined a city ordinance
establishing goals for participation in the construction industry by minority- and
female-owned businesses. In 1990, the Denver City Council passed Ordinance 513
to promote participation by minority-owned business enterprises (MBEs) and
women-owned business enterprises (WBEs) in public work projects “to an extent
approximating [their] availability and capacity.” The city determined availability
and capacity by conducting periodic studies of minority participation in each contract
area. The Ordinance also directed the Office of Contract Compliance (OCC) to
establish MBE and WBE participation goals on each individual city contract. The
statutory goals for total annual expenditures were 16% for MBEs and 12% for
WBEs. According to the ordinance, if the OCC established an individual project
goal, all bidders had to either meet the goals or demonstrate their good faith efforts
to do so. The city revised the program in 1996 and 1998, reducing the annual goals
for MBEs and WBEs in construction contracts to 10% and prohibiting M/WBEs
from counting self-performed work towards the goals.
Concrete Works of Colorado, a construction firm owned by a white male, sued
the city in 1992, alleging that it had been denied three contracts for failure to meet
the goals or to make good faith efforts, and sought injunctive relief and money
damages. The city relied on three categories of evidence to demonstrate a compelling
remedial purpose for the ordinance. First, major studies – in 1990, 1995, and 1997
– revealed large disparities between M/WBE availability and utilization on city
projects without goals. Census data revealed like patterns of minority and female
underutilization as contractors and subcontractors in state-wide construction, public
and private. At trial, M/WBEs also testified to discrimination they confronted in
qualifying and bidding on private sector jobs, in obtaining capital and credit, in
dealing with suppliers, and of harassment suffered at work sites, including physical
assaults.
The principal issue presented by Concrete Works was whether the government’s
statistics and other evidence established a remedial justification for racial and gender
preferences in public contracting. The circuit court adopted an expansive approach,
finding that “irrefutable or definitive” proof of the city’s own “guilty” actions was
unnecessary where the city’s “passive” participation in marketplace discrimination
by its spending practices was shown.
Denver’s only burden was to introduce evidence which raised the inference of
discriminatory exclusion in the local construction industry and link its spending
to that discrimination. . . . Denver was under no burden to identify any specific
practice or policy that resulted in discrimination. Neither was Denver required
to demonstrate that the purpose of any such practice or policy was to
91 Adarand Constructors Inc. v. Slater, supra n. 58.
92 321 F.3d 950 (10th Cir. 2003).

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disadvantage women or minorities. To impose such a burden on a municipality
would be tantamount to requiring proof of discrimination and would eviscerate
any reliance the municipality could place on statistical studies and anecdotal
evidence.93
Croson’s admonition against relying on “mere societal discrimination” did not
apply, the opinion states, where evidence of discrimination in the industry targeted
by the program is shown – whether motivated by an attitude “shared by society” or
“unique to the industry” is constitutionally irrelevant. The trial court was wrong to
require Denver to “show the existence of specific discriminatory policies and that
those policies were more than a reflection of societal discrimination.”
The trial court also faulted the city’s disparity studies, in part, for failure to
control for firm size, area of specialization, and whether the firm had actually bid on
city contracts. Such factors were thought important because, due to their generally
smaller size, M/WBE’s might lack the requisite experience and qualifications,
diminishing their availability and capacity to perform on city construction projects.
The Tenth Circuit accepted the studies nonetheless, reasoning that small firms can
expand and contract to meet their bidding opportunities, and because size and
experience are not race or gender-neutral variables. “M/WBE construction firms are
generally smaller and less experienced because of discrimination.” The disparities,
moreover, were not shown to disappear when such variables were controlled for, or
held constant, and taking the number of city bidders into account might distort the
picture by including unqualified firms. Likewise, “lending discrimination” and
“business formation” studies were properly relied on by the city for the “strong link”
they demonstrated between disbursement of public funds and the “channeling” of
those funds due to private discrimination. Private barriers precluded entry of
M/WBE’s into the market “at the outset” and made impossible “fair competition”
for public contracts by minority firms that did submit bids.
An appeal from the Tenth Circuit ruling, filed by petitioner Concrete Works of
Colorado, Inc., was denied by the Supreme Court on November 17, 2003.94 In an
unusual move, Justice Scalia was joined by the Chief Justice in filing a written
dissent from the Court’s refusal to grant certiorari. The dissenters argued that
Denver’s policy violated the standards of proof required by the Court’s 1989 decision
in Croson and “invites speculation that case has effectively been overruled.”
According to their view, there must be some evidence that discrimination was so
pervasive that any minority business would have suffered. “Absent such evidence
of pervasive discrimination, Denver’s seeming limitation of the set-asides to victims
of racial discrimination is a sham, and the only function of the preferences is to
channel a fixed percentage of city contracting dollars to firms identified by race.” In
declining review, Justice Scalia opined that his fellow Justices had “abandoned” their
former insistence on a “strong basis in evidence,” relying instead on the “good faith”
93 Id. at 973.
94 Concrete Works of Colorado v. City and County of Denver, No. 02-1673 (cert. denied 11-
17-03).

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of local governments to act responsibly when using racial preferences, an echo of the
argument he advanced in the Grutter case a few months earlier.95
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).96 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.97 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
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.
95 See pages 49-50 (infra).
96 P.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.”
97 61 Fed. Reg. 26042, Notices, Department of Justice, Proposed Reforms to Affirmative
Action in Federal Procurement.

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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, 1997.98 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.99
An interim rule incorporating proposed DOJ revisions to the FAR regulation became
effective October 1, 1998.100
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, 1998.101 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
98 See Response to Comments to Department of Justice Proposed Reforms to Affirmative
Action in Federal Procurement, 62 Fed. Reg. 25649 (1997).
99 Id. at 25650-52.
100 Federal Acquisition Regulation; Reform of Affirmative Action in Federal Procurement;
Interim rule with request for comment, 63 Fed. Reg. 52426 (1998).
101 63 Fed. Reg. 35726, 35767 (1998).

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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.102 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
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.103 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
102 Supra n. 65.
103 See 41 C.F.R. §§ 60-1 to 999.

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the 1964 Civil Rights Act.104 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 employees105 and a “minority recruitment program” to correct minority
“underrepresentation” in specific federal job categories.106
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
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
104 42 U.S.C. 2000e et seq.
105 Section 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).
106 Section 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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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. EEOC107 and United States v.
Paradise.108 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
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
107 478 U.S. 421 (1986)
108 480 U.S. 149 (1987).

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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
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.109 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
109 476 U.S. 267 (1986).

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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
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,110 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
110 443 U.S. 193 (1979).

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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
craft workers in the . . . plant approximates the percentage of blacks in the local
labor force.111
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 Agency112 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
111 443 U.S. at 208-09.
112 480 U.S. 792 (1973).

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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
such as economic conditions or the number of available qualified minority applicants
. . .”113
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
113 Id. at 636 (citing Sheet Metal Workers v. EEOC, 478 U.S. 421, 495 (O’Connor, J.,
concurring in part and dissenting in part).

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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.”
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.114
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.115 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.116 Judicial rulings in Boston last year forced abandonment
114 E.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
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).
115 See “Backdraft, Courts are Lifting Decades-Old Consent Decrees Requiring Affirmative
Action, “ 86 A.B.A.J. 48 (April 2000).
116 In re Birmingham Reverse Discrimination Employment Litigation. 20 F.3d 1525 (11th
(continued...)

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of a 1980 consent decree, which established a race-based policy for promoting
sergeants.117 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,118 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
measures in other cases.”119 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,120 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
116 (...continued)
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).
117 See Cotter v. City of Boston, 73 F. Supp. 2d 62 (D.Mass. 1999), vacated and remanded,
219 F.3d 31 (lst Cir. 2000).
118 150 F.3d 438 (5th Cir. 1998), cert. denied, 526 U.S. 1046 (1999).
119 Id. at 440.
120 31 F.3d 1548 (11th Cir. 1994).

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goals to the proportion of blacks in the relevant, objectively qualified labor pool” and
“to make clear that the annual goals cannot last indefinitely.”121
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.122 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.123 Croson was also applied by the
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.”124 Failure to satisfy the
court as to the cause of apparent statistical disparities with respect to minority
employment,125 the scope or duration of the remedy,126 the absence of a provision for
121 Id. 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.
122 993 F.2d 1072 (4th Cir. 1993).
123 E.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);
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.”
124 Detroit Police Officers Ass’n v. Young, 989 F.2d 225, 228 (6th Cir. 1993).
125 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
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waiver where qualified minority candidates were unavailable,127 and the consequent
undue burden placed on nonminorities128 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
becomes meaningful when it is interpreted.”129 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.130
125 (...continued)
minority group interest and relatively higher rates of criminal convictions among blacks,
disqualifying factors for police officers).
126 United 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).
127 E.g. North State Law Enforcement Officers Ass’n v. Charlotte-Mecklenburg Police Dept.,
862 F. Supp. 1445 (W.D.N.C. 1994).
128 E.g. Crumpton v. Bridgeport Education Ass’n, 993 F.2d 1023, 1031 (2d Cir.
1993)(finding preferential lay-off policy too burdensome on nonminorities).
129 Sussman 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).
130 See 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
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One of the first post-Adarand decisions, Shuford v. State Board of Education,131
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.”132 Affirmative recruitment of qualified female candidates was similarly
acceptable so long as the recruitment did not exclude male applicants. Thus, “if the
postsecondary system began recruiting at black and women’s colleges and stopped
recruiting at Auburn, this would be an instance of exclusion.”133
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.”134
130 (...continued)
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).
131 897 F. Supp. 1535 (M.D.Ala. 1995).
132 Id. at 1552.
133 Id. at 1553.
134 Allen 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
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Other courts have disagreed, however, and applied strict scrutiny analysis to
facially inclusive affirmative action programs. In Monterey Mechanical Co. v.
Wilson,135 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. Meno136 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
race or gender in employment decisions.”137 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.”138
Similarly, in Schurr v. Resort Int’l Hotel,139 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
134 (...continued)
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.”).
135 125 F.3d 702 (9th Cir. 1997), reh’g en banc denied, 138 F.3d 1270 (9th Cir. 1998).
136 130 F.3d 130 (5th Cir. 1997).
137 Id. at 139.
138 Id. at 141 (Garza J., concurring).
139 196 F.3d 486 (3d Cir. 1999)

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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.140 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. FCC141 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
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
140 59 F.3d 869 (9th Cir. 1995), cert. denied, 516 U.S. 1984 (1996).
141 141 F.3d 344 (D.C.Cir. 1998).

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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,142 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
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 in Adarand on past discrimination 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 a quarter century 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
142 236 F.3d 13 (D.C.Cir. 2001).

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qualifications and characteristics of which ethnic origin is but a single though
important element.”143
Justice Powell split the difference between two four-Justice pluralities in Bakke.
One camp, led by Justice Stevens, struck down the admissions quota on statutory
civil rights grounds. Another led by Justice Brennan would have upheld the medical
school’s policy as a remedy for societal discrimination. Justice Powell held the “dual
admissions” procedure to be unconstitutional, and ordered Bakke’s admission. But,
he concluded, that the state’s interest in educational diversity could warrant
consideration of students’ race in certain circumstances. For Justice Powell, a
diverse student body fostered the “robust” exchange of ideas and academic freedom
deserving of constitutional protection.
Justice Powell’s theory of diversity as a compelling governmental interest did
not turn on race alone. He pointed with approval to the “Harvard Plan,” which
defined diversity in terms of a broad array of factors and characteristics. Thus, an
applicant’s race could be deemed a “plus” factor. It was considered on a par with
personal talents, leadership qualities, family background, or any other factor
contributing to a diverse student body. However, the race of a candidate could not
be the “sole” or “determinative” factor. No other Justice joined in the Powell opinion
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.
For nearly two decades, colleges and universities relied on the Powell opinion
in Bakke to support race-conscious student diversity policies. Consideration of race
in admissions, which took various forms, stood pretty much unchallenged until
Hopwood v. State of Texas.144 A panel of the Fifth Circuit repudiated the Powell
diversity rationale when it voided a special admission program of the University of
Texas law school. Unlike Bakke, the Texas program entailed no explicit racial
quota. But, in other respects, it was a classic dual track system: one standard for
blacks and Hispanics, another for everyone else, and cutoff scores for minorities were
lower. The Powell opinion was not binding precedent, the Hopwood panel ruled,
since it was not joined by any other justice. Thus, race could be considered in
admissions only to remedy past discrimination by the law school itself, which was
not shown in Hopwood.
Two other federal circuit courts, besides the Sixth Circuit Michigan case, have
looked at race-based college admissions since Bakke. Johnson v. Board of
143 Bakke, 438 U.S. at 315.
144 95 F.3d 53 (5th Cir.), cert. denied No. 95-1773, 116 S. Ct. 2581 (1996).

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Regents145 struck down the award of “racial bonus” points to minority students as
one of 12 factors – academic and nonacademic – considered for freshman
admissions to the University of Georgia. The Eleventh Circuit majority was skeptical
of the Powell opinion but did not take a stand on the diversity issue. Instead, the
program failed the second requirement of strict scrutiny. It was not “narrowly
tailored.” That is, it “mechanically awards an arbitrary ‘diversity’ bonus to each and
every non-white applicant at a decisive stage in the admissions process.” At the same
time, the policy arbitrarily limited the number of nonracial factors that could be
considered, all at the expense of white applicants, even those whose social or
economic background and personal traits would promote “experiential” diversity.
On the other hand, the Ninth Circuit upheld the minority law school admissions
program at the University of Washington on the basis of Bakke. The appeals court
in Smith v. University of Washington Law School146 concluded that the four Brennan
Justices who approved of the racial quota in Bakke “would have embraced [the
diversity rationale] if need be.” Justice Powell’s opinion thus became the “narrowest
footing” for approval of race in admission and was the “holding” of Bakke.
Post-Bakke appeals courts, guided by Marks v. United States,147 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
concluded that the Powell opinion approving race as a “plus” factor was narrower
than the Brennan rationale, which would have upheld the race quota in Bakke on a
societal discrimination theory. The opposing circuits had generally reasoned
otherwise or concluded that the competing Bakke opinions defy rational comparison
so that absent a majority consensus, the Powell opinion was without controlling
weight. In no way bound by Bakke, Supreme Court review of the Michigan cases
augured fundamental reexamination of issues raised by that earlier precedent.
The University of Michigan Admissions Policy.
The judicial divide over the student diversity policies deepened with the
Michigan case. That case is really two cases. One federal district court in Grutter
originally struck down the student diversity policy of the University of Michigan Law
School. Another judge upheld a procedure awarding points to “underrepresented
minority” applicants to the undergraduate school.148 Based on Bakke, the Sixth
Circuit reversed Grutter and permitted the Law School to consider race in
admissions.149 The Supreme Court granted certiorari in Grutter and agreed to review
Gratz prior to judgment by the Sixth Circuit.
145 263 F.3d 1234 (11th Cir. 2001).
146 233 F.3d 1188 (9th Cir. 2000).
147 430 U.S. 188 (1977).
148 Gratz v. Bollinger, 122 F. Supp. 811 (E.D. Mich. 2000).
149 Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002).

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Undergraduate admission to the University of Michigan had been based on a
point system or “student selection index.” A total possible 150 points could be
awarded for factors, academic and otherwise, that made up the selection index.
Academic factors accounted for up to 110 points, including 12 for standardized test
performance. By comparison, 20 points could be awarded for one, but only one, of
the following: membership in an underrepresented minority group, socioeconomic
disadvantage, or athletics. Applicants could receive one to four points for “legacy”
or alumni relationships, three points for personal essay, and five points for
community leadership and service, six points for in-state residency, etc. In practice,
students at the extremes of academic performance were typically admitted or rejected
on that basis alone. But for the middle range of qualified applicants, these other
factors were often determinative. Finally, counselors could “flag” applications for
review by the Admissions Review Committee, where any factor important to the
freshman class composition – race included – was not adequately reflected in the
selection index score.
In upholding this policy, the district court in Gratz found that Bakke and the
University’s own evidence demonstrating the educational benefits of racial and ethnic
diversity established a compelling state interest. And the award of 20 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. Thus, the
constitutional demand for “narrow tailoring” was satisfied. The Gratz district court
also concluded that “vigorous minority recruitment” and other race-neutral
alternatives to the current policy would not yield a “sufficiently diverse student
body.”
Generally setting the bar for admission to the Michigan Law School was a
“selection index” based on applicants’ composite LSAT score and undergraduate
GPA. A 1992 policy statement, however, made an explicit commitment to “racial
and ethnic diversity,” seeking to enroll a “critical mass” of black, Mexican-American,
and Native American students. The objective was to enroll minority students in
sufficient numbers to enable their participation in classroom discussions without
feeling “isolated or like spokesmen for their race.” To foster, “distinctive
perspectives and experiences,” admission officers consider a range of “soft variables”
– e.g. talents, interests, experiences, and “underrepresented minority” status – in
their admissions decisions. In the course of each year’s admissions process, the
record showed, minority admission rates were regularly reported to track “the racial
composition of the developing class.” The 1992 policy replaced an earlier “special
admissions program,” which set a written goal of 10-12% minority enrollment and
lower academic requirements for those groups. The district court in Grutter made
several key findings: there is a “heavy emphasis” on race in the law school
admissions process; that over a period of time (1992- 1998) minorities ranged from
11% to17% of each incoming class; and that large numbers of minority students were
admitted with index scores the same as or lower than unsuccessful white applicants.
Writing for the Sixth Circuit majority, Judge Martin adopted the Powell position
in Bakke to find that the law school had a compelling interest in achieving a racially
diverse student body, and that its admission’s policy was “narrowly tailored” to that
end. “Soft variables” were found to treat each applicant as an individual and to be
“virtually indistinguishable” from “plus factors” and the Harvard Plan approved by

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Justice Powell in Bakke. The law school’s policy “did not set-aside or reserve” seats
on the basis of race. Rather, in 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 isolated.” The majority opinion further
emphasized that the admissions program was “flexible,” with no “fixed goal or
target;” that it did not use “separate tracks” for minority and nonminority candidates;
and did not function as a “quota system.”
Supreme Court Review of the Michigan Cases.
Without waiting for a final appeals court decision, the Supreme Court agreed
to review the Gratz undergraduate admissions case in tandem with the Sixth Circuit
ruling in Grutter on December 2, 2002. Oral arguments were heard on April 1,
2003. Following a reportedly intense debate within the Bush Administration, the
Department of Justice filed briefs amicus curiae on January 16, 2003 opposing the
affirmative action admissions policies of the University of Michigan and advocating
race neutral alternative plans for achieving a diverse student body.150 The Court
handed down its rulings in Grutter and Gratz on June 23, 2003. Writing for the
majority in the former was Justice O’Connor, who was joined by Justices Stevens,
Souter, Ginsburg, and Breyer in upholding the Law School admissions policy. Chief
Justice Rehnquist authored an opinion, in which Justices O’Connor, Scalia, Kennedy,
and Thomas joined, striking down the University’s undergraduate racial admissions
program. Justice Breyer added a sixth vote to invalidate the racial bonus system in
Gratz, but declined to join the majority opinion.
The Grutter Decision.
A notable aspect of the Grutter majority opinion was the degree to which it
echoed the Powell rationale from Bakke. Settling, for the present, the doctrinal
imbroglio that had consumed so much recent lower court attention, Justice
O’Connor quoted extensively from Justice Powell’s opinion, finding it to be the
“touchstone for constitutional analysis of race-conscious admissions policies.” But
her opinion was not without its own possible doctrinal innovations. Overarching
much of her reasoning were two paramount themes, that drew considerable criticism
from Justice Thomas and his fellow dissenters. First, in applying “strict scrutiny” to
the racial aspects of the Law School admissions program, Justice O’Connor stressed
the situational nature of constitutional interpretation, taking “relevant differences into
account.” Thus, the majority opines, “[c]ontext matters when reviewing race-based
governmental action” for equal protection purposes and “[n]ot every decision
influenced by race is equally objectionable,” but may depend upon “the importance
and the sincerity of the reasons advanced by the governmental decisionmaker” for
that particular use of race. Second, and equally significant, was the deference
accorded to the judgment of educational decisionmakers in defining the scope of their
academic mission, even in regard to matters of racial and ethnic diversity.
“[U]niversities occupy a special niche in our constitutional tradition,” Justice
150 Brief for the United States As Amicus Curiae Supporting Petitioner, Grutter v. Bollinger,
No. 02-241 (filed 1-17-2003); Id. Gratz v. Bollinger, No. 02-516 (filed 1-17-2003).

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O’Connor states, such that “[t]he Law School’s educational judgment . . .that
diversity is essential to its educational mission is one to which we defer.”
Institutional “good faith” would be “presumed” in the absence of contrary evidence.
Justice Thomas’ dissent, joined by Justice Scalia, took particular exception to what
he viewed as “the fundamentally flawed proposition that racial discrimination can be
contextualized” – deemed “compelling” for one purpose but not another – or that
strict scrutiny permits “any sort of deference” to “the Law School’s conclusion that
its racial experimentation leads to educational benefits.” Indeed, the dissenters found
such deference to be “antithetical” to the level of searching review demanded by
strict scrutiny.
Satisfied that the Law School had “compelling” reasons for pursuing a racially
diverse student body, the Court moved to the second phase of strict scrutiny analysis.
“Narrow tailoring,” as noted, requires a close fit between “means” and “end” when
the state draws any distinction based on race. In Grutter, the concept of “critical
mass,” so troubling to several Justices at oral argument, won the majority’s approval
as “necessary to further its compelling interest in securing the educational benefits
of a diverse student body.” In this portion of her opinion, Justice O’Connor draws
chapter and verse from the standards articulated by Justice Powell in Bakke.
We find that the Law School’s admissions program bears the hallmarks of
a narrowly tailored plan. As Justice Powell made clear in Bakke, truly
individualized consideration demands that race be used in a flexible,
nonmechanical way. It follows from this mandate that universities cannot
establish quotas for members of certain racial groups or put members of those
groups on separate admissions tracks. Nor can universities insulate applicants
who belong to certain racial or ethnic groups from the competition for admission.
Universities can, however, consider race or ethnicity more flexibly as a “plus”
factor in the context of individualized consideration of each and every applicant.
Justice O’Connor drew a key distinction between forbidden “quotas” and permitted
“goals,” exonerating the Law School’s admission program from constitutional
jeopardy. She observes that both approaches pay “some attention to numbers.” But
while the former are “fixed” and “reserved exclusively for certain minority groups,”
the opinion continues, the Law School’s “goal of attaining a critical mass” of
minority students required only a “good faith effort” by the institution. In addition,
Justice O’Connor notes, minority Law School enrollment between 1993 and 2000
varied from 13.5 to 20.1 percent, “a range inconsistent with a quota.” Responding,
in his separate dissent, the Chief Justice objected that the notion of a “critical mass”
was a “sham,” or subterfuge for “racial balancing,” since it did not explain disparities
in the proportion of the three minority groups admitted under its auspices.
Other factors further persuaded the Court that the Law School admissions
process was narrowly tailored. By avoiding racial or ethnic “bonuses,” the policy
permitted consideration of “all pertinent elements of diversity,” racial and nonracial,
in “a highly individualized, holistic review of each applicant’s file.” Justice
O’Connor also found that “race neutral alternatives” had been “sufficiently
considered” by the Law School, although few specific examples are provided.
Importantly, however, the opinion makes plain that “exhaustion” of “every
conceivable alternative” is not constitutionally required, only a “serious good faith
consideration of workable race-neutral alternatives that will achieve the diversity the

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university seeks.” Consequently, the Law School was not required to consider a
lottery or lowering of traditional academic benchmarks – GPA and LSAT scores –
for all applicants since “these alternatives would require a dramatic sacrifice of
diversity, the academic quality of all admitted students, or both.” And, because the
admissions program was based on individual assessment of all pertinent elements of
diversity, it did not “unduly burden” non-minority applicants. Nonetheless, as she
had during oral argument, Justice O’Connor emphasized the need for “reasonable
durational provisions,” and “periodic reviews” by institutions conducting such
programs. To drive home the point, the majority concludes with a general
admonition. “We expect that 25 years from now, the use of racial preferences will
no longer be necessary to further the interest approved today.”
Besides Justices Thomas and Scalia, and the Chief Justice, another dissenting
opinion was filed by Justice Kennedy, who agreed with his brethren that the
“constancy” of minority admissions over a period of years “raised a suspicion” of
racial balancing that the Law School was required by the rigors of strict scrutiny to
rebut. Arguing from different statistics than the majority, he found “little deviation
among admitted minority students from 1995 to 1998,” which “fluctuated only by
0.3% from 13.5% to 13.8” and “at no point fell below 12%, historically defined by
the Law School as the bottom of its critical mass range.” In addition, he contended,
the use of daily reports on minority admissions near the end of the process shifted the
focus from individualized review of each applicant to institutional concerns for the
numerical objective defined by a “critical mass.” For these reasons, he agreed with
his fellow dissenters that deference to the Law School in this situation was
“antithetical to strict scrutiny, not consistent with it.”
The Gratz Decision.
The four Grutter dissenters were joined by Justices O’Conner and Breyer in
striking down the racial bonus system for undergraduate admissions in Gratz.
Basically, the same factors that saved the Law School policy, by their absence,
conspired to condemn the undergraduate program, in the eyes of the majority. Since
the university’s “compelling” interest in racial student diversity was settled in
Grutter, the companion case focused on the reasons why the automatic award of 20
admission points to minority applicants failed the narrow tailoring aspect of strict
scrutiny analysis. Relying, again, on the Powell rationale in Bakke, the policy was
deemed more than a “plus” factor, as it denied each applicant “individualized
consideration” by making race “decisive” for “virtually every minimally qualified
underrepresented minority applicant.” Nor did the procedure for “flagging”
individual applications for additional review rescue the policy since “such
consideration is the exception and not the rule,” occurring – if at all – only after the
“bulk of admission decisions” are made based on the point system. The opinion of
the Chief Justice rejected the University’s argument based on “administrative
convenience,” that the volume of freshman applications makes it “impractical” to
apply a more individualized review. “[T]he fact that the implementation of a
program capable of providing individualized consideration might present
administrative challenges does not render constitutional an otherwise problematic
system.” Finally, the majority makes plain that its constitutional holding in Gratz is
fully applicable to private colleges and universities pursuant to the federal civil rights

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laws. “We have explained that discrimination that violates the Equal Protection
Clause of the Fourteenth Amendment committed by an institution that accepts federal
funds also constitutes a violation of Title VI [of the 1964 Civil Rights Act].”
Justice O’Connor, concurring in Gratz, emphasized the “mechanical” and
“automatic” nature of the selection index scoring, which distinguished it from the
Law School program, and made impossible any “nuanced judgments” concerning
“the particular background, experiences, or qualities of each particular candidate.”
She agreed that the Admissions Review Committee was “kind of an afterthought,”
particularly since the record was barren of evidence concerning its methods of
operation and “how the decisions are actually made.”
Dissenting opinions were filed jointly, by Justices Stevens and Souter, and
separately by Justice Ginsburg. The former argued on technical grounds that since
the named petitioners had already enrolled in other schools, and were not presently
seeking freshman admission at the university, they lacked standing to seek
prospective relief and the appeal should be dismissed. But Justice Souter argued
separately on the merits that the Michigan undergraduate admission program was
sufficiently different from the racial quota in Bakke to be constitutionally acceptable.
At the very least, he felt, a more appropriate course would be to remand the case for
further development of the record to determine whether the entire “admissions
process, including review by the [Admissions Review Committee], results in
individualized review sufficient to meet the Court’s standards.” Justice Ginsburg
found “no constitutional infirmity” in the Michigan program since only “qualified”
applicants are admitted, the current policy is not intended “to limit or decrease”
admissions of any racial or ethnic group, and admissions of nonminority groups is
not “unduly restricted.” More broadly, she opined that government decisionmakers
may properly distinguish between policies of inclusion and exclusion, because the
former are more likely to comport with constitutional imperatives of individual
equality.
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 been before 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.151 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.152 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
151 See Morgan v. Hennigan, 379 F. Supp. 410 (D. Mass), aff’d sub nom. Morgan v.
Kerrigan, 509 F.2d 580 (lst Cir. 1974).
152 See McLaughlin v. Boston School Committee, 938 F. Supp. 1001 (D.Mass. 1996).

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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,153 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
more a means of racial balancing,” which is neither “a legitimate [n]or necessary
means of advancing the lofty principles credited in the policy.”154
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,155 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,156
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
153 160 F.3d 790 (lst Cir. 1998).
154 160 F.3d at 799.
155 189 F.3d 431 (4th Cir. 1999), cert. denied 120 S.Ct 1420 (2000).
156 197 F.3d 123 (4th Cir. 1999), cert. denied 120 S.Ct 1420 (2000).

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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
“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.157
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.
157 Id. at 133.

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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.158 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
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.
The diversity issue has also arisen in another educational setting. 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 California159
challenged the school’s admissions policy as an equal protection violation. While
158 269 F.3d 305 (4th Cir. 2001), cert. denied, 70 USLW 3482 (S.Ct. 4-15-2002).
159 1999 WL 694865 (9th Cir. 9-9-99).

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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.’160
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
would it be reasonable, to require defendants to attempt to obtain an ethnically
diverse representative sample of students without specific racial target and
classifications.”161
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 Township162 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
160 Id. at pp 2-3.
161 Id. at 4.
162 91 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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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.
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,163 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.
163 930 P.2d 730 (Nev. 1997), cert. denied No. 97-1104, 118 S. Ct 1186 (1998).

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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
The Michigan cases resolved an issue that had vexed the lower federal courts
for a quarter century. Historically, judicial insistence on strict scrutiny has largely
condemned governmental distinctions based on race except in the most narrowly
circumscribed remedial or national security circumstances. To the short list of
governmental interests sufficiently “compelling” to warrant race-based
decisionmaking a majority of the Court has now added the pursuit of diversity in
higher education. But this expansion is not without qualification and may require
further judicial elaboration before its implications are fully known. Significant here
is Justice O’Connor’s emphasis upon contextualism when applying strict judicial
review and deference to the judgment of educators in the formulation of diversity
policies. Any such policy, it now seems, must be sufficiently flexible to permit
individualized assessment of each applicant on a range of factors – academic and
nonacademic – which may include, but not be dominated by, race or ethnicity.
Affording greater latitude, however, the good faith of the institution is “presumed,”
absent sufficient contrary evidence.

But the seeds of future controversy may lie in questions arguably raised but not
fully addressed by the latest rulings. As outlined by Justice Scalia in his Grutter
dissent:
Some future lawsuits will presumably focus on whether the discriminatory
scheme in question contains enough evaluation of the applicant ‘as an
individual,’ . . . and sufficiently avoids ‘separate admission tracks’ . . . Some
will focus on whether a university has gone beyond the bounds of a ‘good faith
effort’ and has so zealously pursued its ‘critical mass’ as to make it an
unconstitutional de facto quota system, rather than merely ‘a permissible goal.’
. . . And still other suits may claim that the institution’s racial preferences have
gone below or above the mystical Grutter- approved ‘critical mass.’
Claims of a de facto quota system, or breach of “good faith,” may be more readily
alleged than proven after Grutter, however.
The argument in Grutter boiled down to a battle of statistics. Thus, the
University pointed to percentage variability, year to year, in minority admissions over

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a relevant period and the marginal impact on the admission chances of nonminorities.
It dubbed this the “causation fallacy.” In selective admissions, the competition is so
intense that even without affirmative action, it argued, the overwhelming majority
of rejected white applicants still would not gain admission. Conversely, the Grutter
dissenters cited other statistics indicating the decisive weight of race in the
admissions process. Marginally qualified minority candidates were many times more
likely to be admitted than non-minorities of like qualifications.164 Nonetheless, for
the Grutter majority, race only amounted to a “plus” factor in the “critical mass”
calculus, and educational officials’ bona fides was presumed. Accordingly, any
future diversity challenge may be futile unless statistics of this sort are supported by
direct evidence of school officials’ intent to camouflage their actions so as to evade
constitutional limitations.
Also unanswered by the Court’s latest rulings is the constitutional status of
racially exclusive diversity policies not directly involving admissions. Thus, the
legality of race-based scholarship and financial aid, recruitment and outreach, or
college preparation courses that exclusively target minority populations may pose
next generation issues after Grutter and Gratz. Arguably, such programs may not so
severely impact opportunities for nonminority students as where the admissions
decision is involved, better enabling them to withstand the Court’s strict scrutiny
analysis. Scholarship and financial aid, however, may present a closer question since
attendance, in many circumstances, is impossible without it. Ultimately, the
outcome may depend on the extent to which institutional assistance is available from
other funding sources for nonminority students excluded from race-based programs.
A 1994 policy guidance by the Department of Education may provide direction for
race-conscious financial aid programs.165
Beyond education, issues may inevitably arise concerning the implications of
Grutter on efforts to achieve racial diversity in other social and economic spheres.
164 Framing this debate were findings from a 1998 study compiled by Derek Bok and
William Bowen, former presidents of Harvard and Princeton, respectively, of 80,000 black
and white students at 28 of the nation’s most selective institutions. Bowen and Bok, The
Shape of the River: Long-Term Consequences of Considering Race in College and
University Admissions (1998). At the extremes of academic performance, rejection and
acceptance rate for minority and non-minorities were close to the same. In middle ranges
(1100 to 1300 SATs), minorities were three or four times more likely to be accepted than
a comparable non- minority. If all racial preferences were eliminated, however, the rate of
white student admissions would improve only slightly, from 25% (a 1-in-4 chance) to
26.5%. The reason: white applicants vastly outnumber minorities, only a few of whom are
actually admitted. Thus, while the advantage to preferred minorities may be great, the
University of Michigan argued, the burden on white applicants is relatively small.
Petitioners in the Michigan cases, however, countered that equal protection is an individual
right to compete on an equal footing that does not depend on the aggregate impact of the
admissions process on white and minority applicants as groups.
165 59 Fed. Reg. 8756, 8757 (2-23-1994)(indicating that “a college may use race or national
origin as a condition of eligibility in awarding financial aid if this use is narrowly tailored,
or in other words, if it is necessary to further its interest in diversity and does not unduly
restrict access to financial aid for students who do not meet the race-based eligibility
criteria”).

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Justice O’Connor’s opinion noted the “special niche” occupied by universities, in
matters of educational policy, particularly when preparing students for military
service or to compete in a multicultural and global economy. As amicus briefs in the
Michigan cases attest, corporate America’s interest in developing a racially diverse
workforce may be no less keen. To date, the Court has permitted race-conscious
hiring criteria by private employers under Title VII, either as a remedy for past
discrimination or to redress a “conspicuous racial imbalance in traditionally
segregated job categories,”166 but refused to find that a state’s interest in faculty
diversity to provide teacher “role models” was sufficiently compelling to warrant a
race-conscious layoff policy.167
Lower courts are similarly divided, though a few have applied an “operational
need analysis” to uphold police force diversity policies, recognizing “that ‘a law
enforcement body’s need to carry out its mission effectively, with a workforce that
appears unbiased, is able to communicate with the public and is respected by the
community it serves,’ may constitute a compelling state interest.”168 A three-judge
panel of the Seventh Circuit pressed the legal debate one step further by relying on
Grutter to uphold Chicago Police Department’s affirmative action hiring program.
The decision in Petit v. City of Chicago169 found that large urban police departments
have an “even more compelling need for diversity” than universities and affirmed
the Chicago police program “under the Grutter standards.” A “strong basis” for
affirmative action was provided by expert testimony that the city’s minority residents
deeply distrusted police, and that creating a diverse force at the sergeant rank would
“set a proper tone” in the department to earn the trust of the community. Outside of
law enforcement, however, courts generally allow for consideration of race in hiring
and promotion decisions only in response to demonstrable evidence of past
discrimination by the employer or within the affected industry. No rule of deference
like that extended to educational institutions has been recognized for employers, nor
is one necessarily implied by the Michigan cases.
Finally, a note on race-neutral alternatives, and the position taken by the United
States in Grutter. Siding with the petitioners, as amicus curiae, the Justice
Department noted the importance of diversity in education, but refrained from
supporting or opposing Bakke. As noted supra, the Administration argued instead
that the admissions policies are not narrowly tailored because the University ignores
race-neutral alternatives. Specifically, the brief pointed to socioeconomic status and
166 United Steelworkers of America v. Weber, 443 U.S. 179 (1979). In Johnson v.
Transportation Agency, 480 U.S. 616 (1980), the Court extended this analysis to gender-
conscious affirmative action programs in regard to use of a “plus” factor in hiring and
promotion decisions.
167 Wygant v. Board of Education, 476 U.S. 267 (1986).
168 Patrolmen’s Benevolent Assoc. v. City of New York, 310 F.3d 43, 52 (quoting Barhold
v. Rodriguez, 863 F.2d 233, 238 (2d Cir. 1988); Reynolds v. City of Chicago, 296 F.3d 524
(7th Cir. 2002). See also Cotter v. City of Boston, 323 F.3d 160, 172 n. 10 (1st Cir.
2003)(declining to address question of compelling interest but expressing sympathy for “the
argument that communities place more trust in a diverse police force and that the resulting
trust reduces crime rates and improves policing”).
169 352 F.3d 1111 (7th Cir. 2003).

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“percentage plans” in Texas, Florida, and California that guarantee admission to top
graduates from every state high school, regardless of race. The University, however,
replied that such programs are counterproductive and would not work in Michigan.
Justice O’Connor, in Grutter, generally agreed, for several reasons. First, in her
view, percentage plans depend upon and would actually perpetuate racial
segregation to operate effectively; in this sense, they are not race-neutral at all.
Second, they would encourage minority students to stay in inferior schools rather
than seek better education in more competitive environments. Third, she found, such
plans would not work at all in the law school or at the graduate level. And, by
basing admission solely on academic standing, these plans conflict with the “holistic”
approach endorsed by the majority, which individually considers each student.

In addition to percentage plans, educational authorities have experimented with
other forms “alternative action,” or policies designed to promote racial diversity
without relying on racial preferences. “Class-based” affirmative action, for example,
takes socioeconomic status or family educational background of applicants into
account. Florida has replaced race and ethnicity with other socio-economic and
geographical proxies for diversity; increased the state’s need-based financial aid
program; sought to improve the state’s lowest performing primary and secondary
schools; and provided free SAT prep courses at those schools. California state
schools have targeted financial aid programs towards underprivileged neighborhoods
as a means of reaching minority students. Another approach considers “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
underrepresentation in higher education.
Whether academic institutions may completely avoid the constitutional shoals
by adopting such “race-neutral” plans to increase minority admissions may not be
fully answered by the Court’s latest rulings. By avoiding the use of explicit racial
classifications and dual track admission policies, these efforts are far less susceptible
to facial challenge as an equal protection violation. Programs involving the explicit
consideration of race remain most at risk. But policies that employ nonracial factors
as a proxy for race may be vulnerable if the purpose or intent is to benefit minority
groups. In Washington v. Davis,170 and related rulings,171 the Supreme Court
determined that a race neutral law with a disparate racial impact on minority groups
170 426 U.S. 229 (1976).
171 Cf. 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).

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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 racial diversity policies may not escape strict judicial
scrutiny if an objecting non-minority applicant is able to show that the plan was
racially motivated – to aid racial or ethnic minorities – and fails to provide the
“holistic” and “individualized” review mandated by Grutter and Gratz. The same
limitations may apply to private institutions, which are immune from constitutional
limitations, under Title VI of the 1964 Civil Rights Act. .

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