ASSESSING AFFIRMATIVE ACTION: City of Richmond v. J.A.
Croson Co. STRICTLY SCRUTINIZES MINORITY BUSINESS SETASIDE PLANS
I.
INTRODUCTION
Affirmative action programs,1 implemented in increasing
numbers over the last twenty years, have raised complex constitutional questions, and the Supreme Court has employed inconsistent standards to evaluate them.2 One such affirmative action
program involves laws that require a certain percentage of municipal public works contracting to be set aside for minority business enterprises (MBEs).5 In City of Richmdnd v. J.A. Croson
Co.,4 the Supreme Court, by subjecting an MBE set-aside pro-
gram to strict scrutiny, has jeopardized the viability of MBE setasides and affirmative action in general.5 Indeed, the Court is
adopting too literally Justice Harlan's century old notion that
the Constitution is "color-blind." '6 Striking down affirmative ac1. See e.g., L. TRIBE, AMERICAN CONSTITUTIONAL LAW 1521 (2d ed. 1988). Affirmative action programs are designed to eradicate the effects of past discrimination. Id. The
term affirmative action is often referred to as "reverse discrimination" and "benign discrimination." Id.
2. See generally id. at 1521-44. Some of these standards include: What standard of
review is to be used? Id. What level of scrutiny is correct? Id. Should the scrutiny be the
same for all classifications based on race? Id. Compare Regents of the Univ. of Calif. v.
Bakke, 438 U.S. 265 (1978) (four justices applying intermediate scrutiny) and Fullilove v.
Klutznick, 448 U.S. 448 (1980) (no consensus as to level of scrutiny) with Wygant v.
Jackson Bd. of Educ., 476 U.S. 267 (1986) (plurality of Court advocating strict scrutiny)
and Johnson v. Transp. Agency, 480 U.S. 616 (1987) (no level of scrutiny, decided .on
statutory grounds), illustrating the lack of consensus on any level of scrutiny.
3. See Pub. L. No. 83-163, 67 Stat. 232 (July 30,1952), amended by Pub. L. No. 85536, 72 Stat. 384 (July 18, 1958), codified as 15 U.S.C. 631. Use of set-asides originates
from the Small Business Act of 1953.
4. 488 U.S. 469 (1989).
5. Connecticut Law Tribune, May 8, 1980, at 12 col. 1 (positing that Croson is
"death knell" for MBE set-asides).
6. In Plessy v. Ferguson, 163 U.S. 537, 559 (1890) Justice Harlan argued in dissent
that:
The white race dooms itself to be the dominant race in this country. . . .But
in the view of the Constitution, in the eye of the law, there is in this country no
superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind. . ..
Id.
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tion programs is equally blind to discriminatory realities.7
Racial discrimination by government s violates the equal
protection clause of the fourteenth amendment.9 The Supreme
Court, since Brown v. Board 9f Education," has consistently invalidated laws and other governmental action that foster discrimination.1 1 But, as Professor Tribe has argued, "[i]n matters
of race, at least, the threat of invidious prejudice and oppression
comes from private as well as public sources, and the government must sometimes take the side of the oppressed. '12 Often
the effects of past discrimination are not reversed, 1 3 and affirmative action programs are implemented in an attempt to remedy
lingering prejudice.
Where government action appears to discriminate to the
disadvantage of minorities, the Court evaluates governmental
action by using a "strict scrutiny" standard under which government action is acceptable only if it is necessary to achieve a
compelling purpose. 4 The Supreme Court in Regents of the
University of California v. Bakke began to realize that "benign"
discrimination, necessary to remedy past discrimination, is different.'" Therefore, the Court adopted a less strict standard of
7. See Choper, Continued Uncertainty as to the Constitutionality of Remedial
Racial Classifications:Identifying the Pieces of the Puzzle, 72 IOWA L.REv. 255 (1987)
(commenting on the significance of using racial classifications to remedy prior racial discrimination) [hereinafter Choper] and Comment, Fullilove v. Klutznick: Do Affirmative.
Action Plans Require CongressionalAuthorization?,38 WASH. & LEE L. REV. 1315 (1981)
(citing the persistent judicial concern of racial discrimination).
8. See, e.g., Korematsu v. United States, 523 U.S. 214, 235-40 (1944) (discrimination against persons of Japanese ancestry) and Yick Wo v. Hopkins, 118 U.S. 356, 365-74
(1886) (alien of Japanese ancestry seeking protection of U.S. laws).
9. U.S. CONsT. amend. XIV, sec. 1. Section 1 of the 14th Amendment to the United
States Constitution provides, in pertinent part that "[n]o state shall deprive any person
of life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws." Id.
10. 347 U.S. 483 (1954) (invalidating laws that foster segregation in public schools).
11. See id. at 488.
12. L. TRIBE, CONSTITTIONAL CHOICES 221 (1986).
13. See, e.g., Swan v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971)
and Green v. County School Bd., 391 U.S. 430, 439 (1968) (effects of past discrimination
require Court intervention and imposition of remedies).
14. See J. NOWAK, R. ROTUNDA, & J. YOUNG, CONSTITUTIONAL LAW 530-31 (1986)
[hereinafter CONSTITUTIONAL LAW]. As a general rule, in order to survive strict scrutiny, a
program requires a "compelling purpose" which has a "necessary basis" and there must
be a "tight fit" in the means/end relationship. Id.
15. 438 U.S. 265, 320 (1978).
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review for affirmative action. 16 Justice Powell proposed strict
scrutiny; four justices *proposed intermediate review; and four
justices did not even reach the constitutional issue. 17 Since the
Court upheld federal MBE set-asides" in Fullilove v. Klutznick, 9 thirty-six states and 190 municipalities have enacted such
plans. 20 The statutory scheme in force in the State of Connecticut is similar to those in the majority of states.21
After much speculation among academics,22 the Supreme
Court, in Croson, refused to extend the "special" treatment accorded to benign racial classifications and placed them under
the stricter Brown-type analysis.23 Following Croson, courts will
now be compelled to strike down MBE statutes.24
This Comment will chart the Supreme Court's past affirmative action decisions, 5 illustrating how the Court, during the
past two decades, has vacillated between different levels of scru16. Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 320 (1978) (medical
school admissions quota struck down).
17. CONSTITUTIONAL LAW, supra note 14 at 520-31.
18. See infra notes 45-55 and accompanying text for a discussion of the various
Justice's positions in Fullilove.
19. 448 U.S. 448 (1980).
20. N.Y. Times, June 20, 1989, at All col. 1 (Atlanta authorizing a $517,000 study
to find support for that city's set-aside plan).
21. The Connecticut statutory scheme is compiled in a series of statutes, CONN.
GEN. STAT. §§ 32-90 through 32-9n, 7-148u, 4a-61, 4a-62. See infra notes 188-96 for the
text of those statutes.
22. See, e.g., Note, The Non-perpetuation of Discrimination in Public Contracting:A Justificationfor State and Local Minority Business Set-Asides After Wygant, 101 HARV. L. REV. 1797 (1988) (proposing that courts should seek justification for
affirmative action plans in non-perpetuation of discrimination) [hereinafter Note] and
Days, Fullilove, 96 YALE L.J. 453, 477 (1987) (a principled approach to minority setasides) [hereinafter Days].
23. See Brown, 247 U.S. at 488. In a Brown-type analysis the Court will require
government to provide a compelling purpose and necessary basis for any type of discriminatory action. Id.
24.
See Ward's Cove Packing v. Antonio, 109 S.Ct. 2115 (1989) (placing new &
insurmountable obstacles before workers bringing suit for employment discrimination
under Civil Rights Act of 1964) and Martin v. Wilks, U.S. , 109 S.Ct. 2180
(1989) (entitling white firefighters to challenge hiring and promotion policy on basis of
racial preferences).
25. E.g., Bakke, 438 U.S. at 286 (medical school admissions quota); Fullilove, 448
U.S. 448 (federal MBE set-aside plan); Wygant v. Jackson Bd. of Educ., 476 U.S. 267
(1988) (layoff preference for minority school teachers); United States v. Paradise, 480
U.S. 149 (1987) (judicial remedy designed to remedy past discrimination); and Johnson
v. Transp. Agency, 480 U.S. 616 (1987) (voluntary affirmative action plan begun by
employer).
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tiny, ultimately returning to strict scrutiny.26 The Comment will
then analyze the six Croson opinions in the decision,2 7 relating
each Justice's position to his or her past affirmative action decisions. Finally, the Comment will argue that the position espoused by the Croson Court ignores the difficult economic position faced by MBEs, and that the decision may well be the end
for MBE set-aside programs similar to the one enacted in
Connecticut.2
II.
BACKGROUND
The Supreme Court first examined 29 affirmative action programs in Regents of the University of California v. Bakke.3 0 In
Bakke, the Medical School of the University of California at Davis reserved sixteen seats for minority applicants.3 1 Allan Bakke,
26. See CONSTITUTIONAL LAW, supra note 14 at 531-33. Ordinary scrutiny requires
that a law have a "legitimate" purpose and be merely "rationally related" to that purpose. Id. Only a "loose fit" between means and end is required. Id. Intermediate scrutiny
requires that a law have an "important purpose" and that it have a "substantial basis."
Id.
27. Croson, 488 U.S. at 475. Justice O'Connor delivered the opinion of the court.
Id. Justices Stevens and Kennedy filed opinions concurring in part and concurring in the
judgment. Id. Justice Scalia filed an opinion concurring in the judgment. Id. Justice
Marshall filed a dissenting opinion. Id. Justice Blackmun filed a dissenting opinion with
Justice Brennan. Id.
28. See infra notes 188-96 for the text of the relevant Connecticut statutes.
29. Two earlier cases deserve mention. They both involved potential affirmative
action issues, which the Court chose, not to address. See DeFunnis v. Ogedard, 416 U.S.
312 (1974) (rejecting a challenge to a law school admissions program on grounds of mootness) and United Jewish Organizations v. Carey, 430 U.S. 144 (1977) (upholding legislative redistricting controlled by racial population).
30. 438 U.S. 265 (1978).
31. Id. at 272-75. Davis had two types of admissions programs for the enteriiIg
class of 100 students: the regular admissions program and the special admissions program. Id. at 272-73. Under the regular admissions program, candidates with an overall
undergraduate grade point average below 2.5 on a scale of 4.0 were rejected. Id. Interviews were given to about one out of six eligible applicants and following the interview,
each applicant was rated on a scale of I to 100 by each of the committee members. Id. at
274. The full admissions committee then offered admissions to eligible applicants on the
basis of their review of the applicant's file and, if applicable, his interview score. Id. The
full committee considered and acted upon the applications as they were received. Id. The
special admissions program was operated by a separate committee, a majority of whom
were members of minority groups. Id. The 1973 and 1974 application forms asked candidates whether they wished to be considered as "economically and/or educationally disadvantaged" and members of a "minority group." Id. at 274-75. If an applicant of a minority group was found, by the committee, to be "disadvantaged," he was rated in a manner
similar to the one employed by the regular admissions committee. Id. at 274-75. How-
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J.A. CROSON CO.
who was not a member of one of the specified minority groups,
was denied admission. 2 Bakke felt that his rejection was due to
the special admissions program, 33 and brought suit in California
state court.3 ' The Supreme Court of California held that the admissions plan violated the equal protection clause of the four35
teenth amendment, and compelled Bakke's admission.
The Supreme Court of the United States, by a 5-4 vote, specifically struck down the Davis admissions plan. 6 But the Court,
also by a 5-4 vote, ruled generally that educational institutions
may take race into consideration when carrying out admissions
3 8
programs.37 Justice Powell was the swing vote in each instance.
Bakke yielded no majority for any particular standard of review for "benign" discrimination. Four justices did not even
reach the constitutional issue; they decided the case on the
ground that the Davis plan violated the Civil Rights Act of
1964.39 Justice Powell concluded that since the plan included a
racial preference, strict scrutiny was the proper standard of review to apply.40 In applying his test, Justice Powell found no
ever, special candidates, were not required to meet the 2.5 grade point cut off and were
not ranked against candidates in the general admissions process. Id. at 275. The special
committee continued to recommend candidates until 16 special admissions seats were
filled. Id. During a four-year period 63 minority students were admitted under the special program, but no disadvantaged whites were admitted under the same process even
though many applied. Id.
32. Id. at 277.
33. Id. at 276-77. In fact, Bakke applied twice. Id. at 276. He was denied admission
in both 1973 and 1974. Id. at 277. It was only in 1974 that Bakke had sufficient credentials under the regular admissions program. Id.
34. Bakke, 438 U.S. at 278. Bakke's suit contained three major allegations against
the Davis program. Id. He claimed that Title VI of the Civil Rights Act of 1964, the
equal protection clause of the fourteenth amendment to the United States Constitution,
and the applicable portion of the constitution of the State of California had been violated by the university. Id.
35. Regents of the Univ. of Calif. v. Bakke, 18 Cal. 3d 34, 132 Cal. Rptr. 680, 553
P.2d 1152 (1976), afl'd in part, rev'd in part 438 U.S. 265 (1978).
36. Bakke, 438 U.S. at 308-421. Justice Powell held that the Davis program violated equal protection. Id. at 324. Justice Stevens, joined by Chief Justice Burger, and
Justices Stewart and Rehnquist held that the program violated the Civil Rights Act of
1964. Id. at 408-21.
37. Id. at 357-80. Justices Powell, Brennan, White, Marshall, and Blackmun held
that the use of race is permissible in creating admissions criteria. Id.
38. Id.
39. Id. at 411-21.
40. Bakke, 438 U.S. at 287-99.
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compelling interest for the Davis program. 4 ' Four other justices,
in separate opinions, seemed to favor an intermediate level of
scrutiny.42 They voted to uphold the Davis program as an acceptable example of affirmative action programs that relied on
racial goals or preferences.4 3
Two terms later44 the Court decided Fullilove v. Klutznick.45 That case involved a challenge to the federal MBE setaside portion of the Public Works Employment Act.46 This time
all nine justices reached the constitutional issue, but again, no
majority of the justices ascribed to any particular standard of
review for upholding the validity of the set-asides. 47 Chief Justice Burger wrote the plurality opinion, which was joined by Justices Powell and White.4 8 Chief Justice Burger did not adopt a
particular standard of review; instead he felt that the set-aside
plan would easily have survived even the strictest scrutiny. 49
Aside from only applying a particular standard of review,
Justice Powell was concerned with remedying identifiable past
discrimination."0 In concurrence, Justice Powell, consistent with
the standard he applied in Bakke, closely examined evidence of
41. Id. at 288-320. Justice Powell examined four possible interests: (1) The schools
attainment of a minimum percentage of a particular racial class; (2) the state's eradicating the effects of prior "identified" discrimination; (3) the Plan producing more physicians who would care for the minority sector; and (4) the school's attainment of a diversified student body. Id.
42. Id. at 324 (Brennan, Marshall, White, & Blackmun, JJ., concurring in the judgment in part and dissenting in part).
43. Id. at 357-61.
44. A discussion of United Iron Workers of Am. v. Weber, 443 U.S. 193 (1979), is
omitted as it involved a challenge to an affirmative action program under the Civil
Rights Act of 1964, and any consideration of the equal protection clause is absent from
the court's opinion. Id.
45. 448 U.S. 448 (1980).
46. Pub.L. 95-28, 91 Stat. 116 (1977). The Act was an amendment of the Local
Public Works Capital Development and Investment Act of 1976, Pub.L. 94-269, 90 Stat.
999 (1976).
47. Fullilove, 448 U.S. at 453.
48. Id. at 473-78. The Chief Justice concluded that federal public works projects
could be funded under the unique spending and commerce powers afforded to the federal government. Id. at 478.
49. Id. at 478-82. In fact, the Chief Justice termed the analysis be conducted in a
"careful" manner. Id. This claim is supported by the Chief Justice contrasting the program at issue with the scrutiny used by Justice Powell in Bakke. Id. at 480.
50. It is interesting to note how Justice White's position changed. In Bakke, he
agreed with Justice Powell's strict scrutiny. Bakke, 438 U.S. at 362. In Fullilove, he
agreed with the less strict scrutiny of Justice Burger. Fullilove, 448 U.S. at 453.
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past discrimination in the construction industry as a whole. 1
Justice Powell's application of strict scrutiny found that the setaside plan was necessary to accomplish the compelling governmental objective of eradicating the effects of past identified
discrimination.2
Justice Marshall remained true to the intermediate scrutiny
position he advocated in Bakke.5 The federal program at issue
in Fullilove passed his middle-level review. Finally, Justices
Stewart and Rehnquist applied strict scrutiny,54 and took the
position that "[u]nder our Constitution, the government may
never act to the detriment of a person solely because of that person's race. . . . In short, racial discrimination is by definition invidious discrimination."5 5
After Fullilove, the constitutionality of affirmative action
programs seemed safe. Remedial action would be permitted only
when justified by a finding of past "societal" discrimination. 6
The use of quotas was acceptable, 57 and a majority of the justices would apply an intermediate form of constitutional
scrutiny. 8
The Supreme Court did not revisit a "pure" affirmative action issue59 until Wygant v. Jackson Board of Education. In
Wygant case, benign discrimination took the form of employment lay-off preferences that granted black public school teach51.
52.
Fullilove, 448 U.S. at 511 (Powell, J. concurring).
Id. at 510 (Powell, J., concurring). Justice Powell applied the same test that he
applied in Bakke, requiring a compelling governmental interest. Id. (Powell, J.,
concurring).
53. Id. at 517 (Marshall, J., concurring). Justice Marshall's opinion was joined by
Justices Brennan and Blackmun. Id. (Marshall, J., concurring).
54. Id. at 557 (Stevens, J., dissenting). Justice Stevens' approach in dissent was not
as strict as Justices Stewart and Rehnquist. Id. (Stevens, J., dissenting). He argued that
"[riacial characteristics may serve to define a group of persons who have suffered a spe-
cial wrong and who, therefore, are entitled to special reparations. . .
dissenting).
." Id.
(Stevens, J.,
55. Fullilove, 448 U.S. at 525 (Stewart, J., dissenting).
56. Fullilove, 448 U.S. at 480-92.
57. See Bakke, 438 U.S. at 320, where the use of quotas was explicitly rejected by
Justice Powell. Id.
58. See id. at 265 and Fullilove, 448 U.S. at 453. Justices Brennan, Marshall, and
Blackmun, and possibly Justice White would consistently apply intermediate scrutiny.
Id. I state that this is a majority because the other justices are split.
59. Once again, a discussion of FirefightersLocal Union No. 1784 v. Stetts, 467
U.S. 561 (1984) is omitted because of its emphasis on the Civil Rights Act of 1964.
60. 476 U.S. 267 (1986).
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ers more protection than their white counterparts." The sense
of security engendered by Fullilove was short-lived, as a plurality of the Court used strict scrutiny to strike down the lay-off
scheme.62
-Justice Powell, author of the plurality opinion, posited that
strict scrutiny was to be applied to all laws that discriminated
against a suspect classification of people who had not been discriminated against in the past.6 3 The plurality then examined
three governmental interests that might have been sufficiently
"compelling" to justify the lay-off preference, rejecting each. 4
First, the court held that eradicating the effects of past societal
discrimination was "too amorphous a basis for imposing a racially classified remedy. . . . [and therefore] insufficient -and
over-expansive."65
Second, the school board's desire to provide minority students with "role models '6 6 was held insufficient. 6 7 The Court
held that, if allowed, the "role model" theory might hurt black
61. Wygant, 476 U.S. at 270-71. Article XII of a collective bargaining agreement
between the school and teachers provided:
[i]n the event that it becomes necessary to reduce the number of teachers
through layoff from employment by the Board, teachers with the most seniority in the district shall be retained, except that at no time will there be a
greater percentage of minority personnel laid off than the current percentage
of minority personnel employed at the time of the layoff. In no event will the
number given notice of possible layoff have greater than the number of positions to have eliminated. Each teacher so affected will be called back in reverse
order for positions for which he is certificated maintaining the above minority
balance.
Id.
62. Id. at 268. The plurality opinion was authored by Justice Powell, joined by
Chief Justice Burger, and Justice Rehnquist. Id. Justice O'Connor concurred in part and
concurred in the judgment. Id. at 269, 284. Justice White concurred in the judgment. Id.
at 294.
63. Quoting his opinion in Bakke, Justice Powell wrote that "'[r]acial and ethnic
distinctions of any sort are inherently suspect and thus call for the most exacting judicial
examination." Id. at 273-74. Justice Powell also held that any racial classification must
be justified by a compelling governmental interest, whose means must be narrowly tailored to the achievement of that goal. Id.
64. Id.
65. Id. at 276.
66. Swan v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1, 16 (1971) (giving
guidance to lower courts and school boards concerning techniques of desegregation). The
role model theory essentially stands for the proposition that minority students will place
a greater emphasis on education if they are taught by their own ethnic peers. Id. The
root of this theory is cited by the Court as having been developed in Swan. Id.
67. Wygant, 476 U.S. at 275-76.
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students, because it might justify school systems with a small
black student body hiring fewer black teachers.6 8 The Court also
indicated that the "role model" theory might cause practical
problems, since it could be used to justify almost any governmental objective."9
Finally, the Court examined the school board's asserted objective of remedying the effects of their past discrimination. 0
Here, too, the school board failed, as it could not satisfy the
Court's requirement that there be "convincing evidence," "sufficient evidence," or a "strong basis in evidence" that remedial
action was necessary.7 1 The Court reached this holding even
though the trial court arguably had not determined the amount
of discrimination in the Jackson School District."2
The two concurrences seemed, in spirit, consistent with Jus68. Id. The Court required that:
[iun particular, a public employer like the Board must ensure that, before it
embarks on an affirmative-action program, it has convincing evidence that remedial action is warranted. That is, it must have sufficient evidence to justify
the conclusion that there has been prior discrimination.., the trial court mdst
make a factual determination that the employer had a strong basis in evidence
for its conclusion that remedial action was necessary. The ultimate burden remains with the employees to demonstrate the unconstitutionality of an affirmative- action program. But unless such a determination is made, an appellate
court reviewing a challenge by non-minority employees to remedial action cannot determine whether the race-based action is justified as a remedy for prior
discrimination.
Id.
69. Id. at 275-78. The plurality avoided passing on the specific issue of whether the
remedying of past discrimination was a compelling objective. Id. at 278
70. Id. at 277-78
71. This discussion raises yet another theme in the analysis of affirmative action
programs. The Supreme Court is seemingly concerned with the burden placed on the
government's showing a compelling interest.
72. Wygant, 476 U.S. at 278, n.5. Justice Powell, in a footnote, indicated Justice
Marshall's contention that "the plurality has too quickly assumed the absence of a legitimate factual predicate . . . for affirmative action in the Jackson schools.
... Id. In
support of that assertion, Justice Marshall engaged in an unprecedented reliance on nonrecord documents provided to the courts by the respondent. Id. at 278. Justice Powell
stated that this collective citation to factual materials not considered by the District
Court or the Court of Appeals below is unusual enough by itself and that much of the
material relied on by Justice Marshall was the subject of the previous lawsuit in Jackson
II, where the court concluded that it "had not been established that the board had discriminated against minorities in its hiring practices." Id. at 279. "Moreover, as noted in
Jackson I ... the Board expressly denied that it had engaged in employment discrimination." Id.
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tice Powell's opinion. Justice O'Connor" centered her analysis
on the original hiring policy, concluding that it was possible for
a preferential lay-off policy to be valid, provided that hiring occurred properly.7 4 The other concurring opinion, authored by
Justice White, stated that discriminatory lay-offs (even benign
ones) were virtually unconstitutional per se.75
All four dissenters remained consistent with their past positions. Justices Marshall, Brennan, and Blackmun joined to argue
that under intermediate scrutiny, the lay-off plan's means were
sufficiently tailored to the goals employed.7 6 Justice Stevens' dissent took a different, more practical look at the problem." He
did not advocate a particular level of scrutiny, but argued that
the Board's goal was "inclusionary," in that it sought to bring
minority teachers into the system to properly provide role models for the children. 8
In all, the Wygant decision provided a warning to those
seeking to implement affirmative action programs, cautioning
them first to analyze instances of past discrimination in order to
document the basis for the plan.79 In fact, Wygant stands for the
proposition that in the employment area, only well documented,
specific findings of past discrimination will justify benign gov73. Justice O'Connor, appointed by President Ronald Reagan in 1981, replaced
Justice Stewart who sided with Justice Rehnquist in holding that strict scrutiny should
be applied in affirmative action cases. See, e.g., Fullilove, 448 U.S. at 453.
74. Wygant, 478 U.S. at 286 (O'Connor, J., concurring in part and concurring in
the judgment).
75. Id. at 295 (White, J., concurring). In his view the case was easy to analyze. Id.
(White, J., concurring). If it would not be permissible to "discharge whites and hire
blacks until the latter comprised a suitable percentage of the work force . . ." then the
lay-off policy would also violate equal protection. Id. (White, J., concurring).
76. Id. at 295-97 (Marshall, Brennan, & Blackmun, JJ., dissenting).
77. Id. at 313 (Stevens, J., dissenting).
78. Wygant, 476 U.S. at 314-16 (Stevens, J., dissenting). Justice Stevens noted that
in public education a school board may reasonably conclude that an integrated faculty is
better able to provide benefits to the student body than an all white, or nearly all white
faculty could provide. Id. at 315 (Stevens, J., dissenting). Such an integrated faculty aids
in teaching one of the most important lessons taught in American public schools which is
that the diverse ethnic or cultural backgrounds do not identify essential differences
among human beings. Id. (Stevens, J., dissenting). He further notes that it is far more
convincing and effective for a white child to be taught by an integrated faculty that
color, like beauty, is "only skin deep" rather than the white child learning this lesson
from a white teacher, Id. at 316 (Stevens, J., dissenting).
79. See Note, supra note 22, at 1808-11 (proposing that courts should seek justification for affirmative action plans in the non-perpetuation of discrimination, and suggesting that a firm evidentiary basis is required for survival after Wygant).
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ernmental discrimination.8 0
Two other recent decisions are worthy of mention."1 In the
2 the Court
first, U.S. v. Paradise,"
upheld numerically-oriented
promotion preferences as a judicial remedy for identified past
discrimination in the Alabama State Police Department." A 5-4
Court upheld the District Court's order; Justice Marshall, joined
by Justices Brennan, Blackmun, and this time Stevens, 4 held
that even under strict scrutiny, the court order would be
upheld. 5
In the second decision, Johnson v. Transportation
Agency, 88 the Court, by a 6-3 vote, upheld a voluntary affirma80. See Wygant, 476 U.S. at 275 (noting, however, that in Wygant, Justices Powell,
Rehnquist, and O'Connor, and Chief Justice Burger held that the remedy of prior identified discrimination may be the only form of tolerable affirmative action).
81. Two cases decided under Title VII of the Civil Rights Act of 1964 are omitted
here. See Local 28, Sheet Metal Workers Int'l Ass'n v. Equal Employment Opportunity
Comm'n, 478 U.S. 421 (1988) (upholding judicially-ordered 29 percent admission goal for
a union) and Local Number 93, Int'l Ass'n of Firefighters v. Cleveland, 478 U.S. 501
(1986) (upholding similar plan).
82. 480 U.S. 149 (1987).
83. Id. at 154-63. Specifically, in 1972 a federal district court found that Alabama
had been blatantly discriminating against blacks, for nearly four decades, in hiring for
State Trooper positions. Id. at 154. During the entire 37-year history of the state patrol
system, there had never been a black trooper. Id. The district court therefore imposed a
hiring quota and forbade further discrimination. Id. at 154-55. The department then
dragged its feet in promoting newly-hired blacks to the higher ranks and twelve years
after instituting a hiring quota, not a single one of the 131 highest-ranking officers in the
department was black, and only 4 of the 66 corporals (the lowest officer rank) were black.
Id. at 163. Therefore, the district court imposed a temporary one-for-one requirement
which ordered that for every white promoted to corporal, a black must also be promoted,
so long as qualified black candidates were available. Id. at 158, 163.
84. Paradise,480 U.S. at 153, 189. Justice Brennan announced the decision of the
Court and delivered an opinion in which Justices Marshall, Blackmun, and Powell
joined. Id. at 153. Justice Stevens concurred in the judgment. Id. at 189.
85. Id. at 151. In general, the Court found that the race-conscious relief ordered by
the district court was justified by the government's compelling interest in eradicating the
police department's pervasive, systematic, and obstinate discriminatory exclusion of
blacks. Id. In fact, the Court noted that the record amply demonstrated that the Department's intentional discrimination and promotional procedure was so discriminatory, that
it resulted in an upper rank structure that totally excluded blacks and even excluded
blacks from competing for promotions. Id. The Court also found that the district court's
enforcement order was supported by the societal interest in compliance with federal
court judgments since the Department had a consistent history of resistance to the district court's orders. Id. Relief, such as the one-for-one promotional requirement, was imposed after the Department failed to abide by the court order since it was narrowly
tailored to serve its purposes, both as applied to the initial corporal promotions and as a
continuing contingent order with respect to the upper ranks. Id.
86. 480 U.S. 616 (1987).
BRIDGEPORT LAW REVIEW
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tive action plan by an employer in the absence of identified prior
discrimination. 7 It is important to note that Johnson was not a
constitutional decision; instead, it was decided under Title VII
of the 1964 Civil Rights Act. 8 However, the decision indicated
that the Court might again relax the strictness of affirmative action program analysis.8 9
III.
A.
THE CROSON DECISION
The Facts
On April 11, 1983, the city of Richmond, Virginia adopted
the Minority Business Utilization Plan" (The Plan) requiring
contractors who wished to bid on Richmond construction
projects to subcontract thirty percent of the contract amount to
an MBE.9 1 The Plan's stated purpose was to remedy past discrimination in the construction industry.9 2 The Plan did not apply if the contractor was itself an MBE or if the City waived the
requirement.9 3 The Plan expired on June 30, 1988. 9"
The Plan gave the Richmond Department of General Services authority to adopt procedures for waiver of the 30 percent
87. Id. at 619. Justice Brennan delivered the opinion of the Court, in which Justices Marshall, Blackmun, Powell, and Stevens joined. Id. Justice Stevens filed a concurring opinion. Id. Justice O'Connor filed an opinion concurring in the judgment. Id. Justice White filed a dissenting opinion. Id. Justice Scalia filed a dissenting opinion, in
which Justices Rehnquist and White partially joined. Id.
88. Id. at 639-40. Although other cases decided under the Civil Rights Act of 1964
have been omitted, a discussion of Johnson is included in the text.
89. Paradise,480 U.S. at 185, and Johnson, 480 U.S. at 640, both decided in the
1987 Term, illustrate that the Court may be reversing its strict Wygant position, as the
two affirmative action programs under attack were upheld by more than a plurality.
90. Ordinance No. 83-69-59 (codified in Richmond, Va., City Ordinance, § 12156(a) (1985)).
91. Richmond, Va., City Code, § 12-23 (1985). Minority group members were defined as "[c]itizens of the United States who are Blacks, Spanish-speaking, Orientals,
Indians, Eskimos, or Aleuts." Id.
92. Croson, 822 F.2d at 1363. After the speakers at the Richmond City Council
meeting were done, the members of the Council discussed the nationwide background of
benign programs. Id. Thereafter assertions were made that there was discrimination in
the Richmond construction industry. Id.
93. Richmond, Va., City Code, § 12-126(a) (1985).
94. Croson, 488 U.S. at 478 n.1 (citing Memphis Light, Gas & Water Div. v. Craft,
436 U.S. 1, 8-9 (1978)). "The expiration of the ordinance has not rendered the controversy between the city and Croson moot. There remains a live controversy between the
parties over whether Richmond's refusal to award Croson a contract pursuant to the
Ordinance was unlawful and thus entitles Croson to damages." Id.
1990]
J.A. CROSON CO.
requirement.9 5 According to the regulations, a waiver would be
allowed only after a showing that the contractor made every
"feasible" attempt at procuring an MBE.9 s The Director of General Services was vested with the authority to make final
determinations.9 7
The Richmond City Council adopted the Plan after conducting a public hearing.9 8 Proponents of the set-aside provision
relied on a study that indicated that, while the general population of Richmond was 50 percent black, only .67 percent of the
city's prime construction contracts had been awarded to minority businesses in the five year period from 1978 to 1983.11
In October 1983, the J.A. Croson Company (Croson) bid for
the installation of plumbing fixtures at the city jail.10 0 Croson, a
non-MBE contractor, determined that it could meet the Plan requirements by purchasing certain plumbing fixtures from an
MBE. 10 1 Croson contacted Continental Metal Hose (Continental), a local MBE, but could not get a firm price for the required
02
fixtures.1
95. Richmond, Va., Ordinance No. 83-69-59 (April 11, 1983) (revised July 12, 1983).
96. See id. The Plan required that the contractor illustrate that she had made
every reasonable attempt to procure an MBE, and that those MBEs contacted were either unable or unwilling to help. Id. The Plan also required that the contractor document her attempt at finding an appropriate MBE. Id.
97. J.A. Croson Co. v. Richmond, 779 F.2d 181, 196 (4th Cir. 1985) vacated 478
U.S. 1016 (1986) on remand 822 F.2d 1355 (4th Cir. 1987) afl'd 488 U.S. 469 (1989). The
Director was vested with the power to make the final determination on the waiver request. Id.
98. Croson, 488 U.S. at 479. Seven members of the public spoke to the merits of
the Ordinance: five were in opposition, two in favor. Proponents of the set-aside provision relied on a study which indicated that, while the general population of Richmond
was 50 percent black, only .67 percent of the city's prime construction contracts had
been awarded to minority businesses in the five-year period from 1978 to 1983. Id.
99. Id. at 479-480.
100. Id. at 481.
101. See Brief for Appellee at 5, City of Richmond v. J.A. Croson Co., 488 U.S. 469
(1989) (No. 87-998). The required plumbing fixtures were specially designed for use in a
penal institution, and only two manufacturers met the required specifications. Id. The
cost of the fixtures represented approximately 75 percent of the cost of the project. Id.
Croson's regional manager, Eugene Bonn, determined that the only way in which to satisfy the City's requirement that 30 percent of the contract be awarded to an MBE was to
order the fixture from a minority owned supplier. Id.
102. Croson, 488 U.S. at 482. On September 20, Bonn contacted five or six MBEs
that were potential suppliers of the fixtures. Id. "After contacting three local and state
agencies that maintained lists of MBEs, many of the MBEs contacted by Bonn expressed an interest in the project or in tendering a quote." Id. On October 12, 1983, the
day the bids were due, Bonn again telephoned a group of MBEs, at which time, Melvin
BRIDGEPORT LAW REVIEW
[Vol. 11:237
Croson was the only bidder on the project and was awarded
the contract on October 13th. 0 s Later that month, Croson requested a waiver of the MBE requirement. 0 4 The City denied
instead to rebid the prothe request for waiver 05 and elected
10 7
ject.0 6 Croson then brought suit.
The District Court, applying intermediate scrutiny, upheld
the Richmond ordinance. 0 8 The Court of Appeals for the Fourth
Circuit affirmed. 09 Croson sought certiorari from the United
States Supreme Court, which summarily vacated the judgment
and remanded the case for consideration in light of Wygant."0
On remand, and without briefing or argument on the impact of
Brown, president of Continental Metal Hose (Continental), a local MBE, expressed his
desire to participate in the project. Id. Brown contacted two suppliers of the specified
fixtures for a price quotation. Id. One supplier, Ferguson Plumbing Supply, which is not
an MBE, had already made a quotation directly to Croson, and refused to quote the
same fixtures to Continental. Id. A second supplier contacted by Brown was an agent of
Bradley, one of the two manufacturers of the specified fixtures. Id. This agent was not
familiar with Brown or Continental, and stated that before a quote could be made to
either Brown or Continental, a credit check was required which would take at least 20
days to complete. Id.
103. Id.
104. Brief for Appellee at 7, City of Richmond v. J.A. Croson Co., 488 U.S. 469
(1989) (No. 87-998).
105. Id.
106. Croson, 778 F.2d at 184. Croson requested that General Services review the
city's decision. Id. The request was denied because the Richmond City Code only provided for review of decisions that resulted in one party receiving an award of a contract
over another, not decisions to rebid a project. Id.
107. Id. at 182, n.1. The original action was filed with the Circuit Court of the City
of Richmond. Id. It was' later removed to the District Court for the Eastern District of
Virginia. Id.
108. Id. The district court utilized the three-part test derived from South Florida
Chapter of Association Gen. Contractors of Am. v. Metropolitan Dade County, 723 F.2d
846, 851-52 (11th Cir.), cert. denied, 469 U.S. 871 (1984), which held; (1) that the governmental body has the authority to pass such legislation; (2) that adequate findings have
been made to ensure that the governmental body is remedying the present effects of past
discrimination rather than advancing any racial or ethnic group's interest over another;
and (3) that the use of such classifications extends no further than the established needs
of remedying past discrimination. Id.
109. Croson, 779 F.2d at 183. The Fourth Circuit made 3 findings: (1) Since the
Plan would increase the number of subcontractors in the future, the Plan was not beyond the scope of the Council's powers, and hence violative of art. I, sec. 11 of the Virginia Constitution; (2) The Council had made sufficient findings .to support the Plan; and
(3) The statistical disparity between the minority population and the number of contracts awarded to MBEs is sufficient evidence to support the ordinance. Id. at 183-90.
110. Croson, 478 U.S. at 1016.
1990]
J.A. CROSON CO.
Wygant,11 the original court of appeals panel reversed itself by
applying strict scrutiny. 1 2 Richmond then appealed to the Supreme Court."'3
B.
The Opinion
The Supreme Court affirmed the second Fourth Circuit decision 6-3, with Justice O'Connor delivering the opinion of the
Court. 1 4 After setting forth the facts and procedural history of
the case, Justice O'Connor turned to justifying the choice of the
Wygant strict scrutiny analysis over the Fullilove intermediate
scrutiny standard. 5 She began this portion of her opinion by
citing the conflict generated by each proponent's position 11 6 In
111. Brief for Appellant at 11, City of Richmond v. J.A. Croson Co., 488 U.S. 469
(1989) (No. 87-990) (citing to Wygant as reason for reconsideration).
112. Croson, 488 U.S. 485-487. The Supreme Court noted that the appellate court's
majority expressed that the "core" of the Wygant holding was that a municipality that
wished to employ a racial preference could not rely on broad assumptions of historical
discrimination to show that a plan was justified by a compelling governmental interest.
Id. The lower court interpreted the requirement that "[flindings of societal discrimination will not suffice; the findings must concern 'prior discrimination by the governmental
unit involved,'" and concluded that if a plan is supported by a compelling governmental
interest, so would every other plan that had been enacted in the past or that would be
enacted in the future. Id. at 485-486. The lower court then determined that the 20 percent figure was chosen arbitrarily in that it was not "tied to the number of minority
subcontractors in Richmond or to any other relevant number." Id. at 486.
113. City of Richmond v. J.A. Croson Co., 478 U.S. 1016 (1988) (case remanded
and vacated to Fourth Circuit Court of Appeals).
114. Croson, 488 U.S. at 476. Justice O'Connor announced the judgment of the
Court and delivered Parts I, III-B, and VI of the opinion, in which Chief Justice Rehnquist, and Justices White, Stevens, and Kennedy joined, an opinion with respect to Part
II, in which Chief Justice Rehnquist and Justice White joined, and an opinion with respect to Part III-A and V, in which Chief Justice Rehnquist, and Justices White and
Kennedy joined. Id. Justices Stevens and Kennedy filed opinions concurring in part and
concurring in the judgment. Id. Justice Scalia filed an opinion concurring in the judgment. Id. Justice Marshall filed a dissenting opinion, in which Justices Brennan and
Blackmun joined. Id. Justice Blackmun filed a dissenting opinion, in which Justice Stevens joined. Id.
115. U.S. 486-492.
116. U.S. 486-492. Justice O'Connor began her opinion by noting that the parties
and their supporting amici battled over the scope of the city's power to adopt legislation
designed to address the effects of past discrimination. Id. The appellees, relying on the
Wygant decision argued that the city must limit any race-based remedial efforts of its
own prior discrimination. Id. The appellees' position was essentially the position taken
by the Court of Appeals below. Id. Appellant argued that the Fullilove decision was
controlling, and as a result the city of Richmond had sweeping legislative power to attack
and define the effects of prior discrimination in its local construction industry. Id. Justice O'Connor speaking for the majority of the Court stated that ". . . neither of these
BRIDGEPORT LAW REVIEW
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setting out the Fullilove holding, Justice O'Connor emphasized
that the federal set-aside was promulgated under section five of
the fourteenth amendment. 117 "That Congress may identify and
redress the effects of society-wide discrimination does not mean
that, a fortiori, the States and their political subdivisions are
free to decide that such remedies are appropriate. 11 8 Justice
O'Connor concluded that the Court's "treatment of an exercise
of congressional power in Fullilove cannot be dispositive
here."""
Justice O'Connor had to get Fullilove out of the way lest
anyone think that the Court was bound to adopt its less restrictive standard of review. By distinguishing Fullilove, Justice
O'Connor defined the standard lower courts are to apply in the
future when deciding the constitutionality of affirmative action
programs.12 0 Aside from the confusion the lower court exhibited
over the Fullilove/Wygant choice, other circuit courts had gone
in a variety of directions.' 2 ' The early cases adopted the view
advocated by Justice Marshall in Bakke and Fullilove. 22 At the
same time, the Sixth Circuit was examining other constitutional
grounds. 23 Then, after Wygant, the circuits, followed the Supreme Court and switched to a strict scrutiny standard.124 With
two rather stark alternatives can withstand analysis." Id.
117. Croson, 488 U.S. at 487.
118. 488 U.S. at 489.
119. Id.
120. Id. (only Wygant is left from which to derive doctrine).
121. Croson, 488 U.S. at 476. Initially, lower federal courts, relying largely on the
decision in Fullilove, applied the Fullilove standard of review in assessing the constitutionality of state and local minority set-aside provision under the equal protection clause
of the fourteenth amendment. Id. However, since the Wygant decision, the lower federal
courts had attempted to apply its standards in evaluating the constitutionality of state
and local programs which allocate a portion of public contracting opportunities exclusively to minority owned businesses. Id.
122. See, e.g., Schmidt v. Oakland Unified School Dist., 662 F.2d 550, 559 (9th Cir.
1981) (applying Bakke/Fullilove intermediate scrutiny standard to affirmative action
plan requiring "responsible bidders" for school district contracting); Arrington v. Associated Gen. Contractors, 403 So.2d 893, 902 (Ala. 1981), cert. denied, 455 U.S. 913 (1982)
(applying less restrictive standard of scrutiny to set-aside plan); and South Florida,723
F.2d at 852 (applying intermediate scrutiny to MBE set-aside). See supra notes 30-55
and accompanying text, for a discussion of Bakke and Fullilove.
123. See, e.g., Ohio Contractors Ass'n v. Keip, 713 F.2d 167, 172 (6th Cir. 1983)
(decided on equal protection grounds) and Southwest Wash. Chapter, Nat'l Elec. Contractors Ass'n v. Pierce County, 100 Wash.2d 109, 121-122, 667 P.2d 1092, 1099 (1983)
(decided on equal protection grounds).
124. See, e.g., Michigan Road Builders Ass'n, Inc. v. Milliken, 834 F.2d 583 (6th
1990]
J.A. CROSON CO.
one short passage, the Court sent a message that future affirmative action cases would be subject to a more stringent standard
12 5
of review.
Justice O'Connor then set out the requirements of review.' 26
A remedial plan must pursue an "important" remedial goal. The
means chosen must "fit" the goal so closely that there is no possibility that the motive for the classification is illegitimate. 2 '
Justice O'Connor's version of strict scrutiny also called for a
"firm" evidentiary basis for the remedial classification. 2 '
Justice O'Connor then applied the standard. She held that
by not sufficiently showing any type of identified past discrimination, Richmond had failed to demonstrate an important governmental interest sufficient to justify the Plan. 29 Her analysis
of the proffered "end" goal of the Plan rejected four arguments.
The Court first disposed of the argument that past discrimination in the construction industry was an adequate justification
for the Plan, concluding that the argument failed "in establishing identified discrimination in the Richmond construction
30
industry.'
Second, that the Plan called itself "remedial" was not in itCir. 1987) (applying Wygant evidentiary requirements to substantiate an MBE setaside) and Associated Gen. Contractors of Calif. v. City and County of San Francisco,
813 F.2d 922 (9th Cir. 1987) (striking down MBE set-aside plan while upholding woman
business enterprise set-aside on Wygant grounds).
125. Croson, 488 U.S. 469, 492. With one fell swoop the Court did away with the
earlier, more tempered analysis like Bakke and Fullilove. Id.
126. Id. at 493. The Court held the following:
[A]bsent searching judicial inquiry into the justification for such race-based
measures, there is simply no way of determining what classifications are "benign" or "remedial" and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. Indeed, the purpose
of strict scrutiny is to "smoke out" illegitimate uses of race by assuring that
the legislative body is pursuing a goal important enough to warrant the use of
a highly suspect tool. The test also insures that the means chosen "fit" this
compelling goal so closely that there is little or no possibility that the motive
for the classification was illegitimate racial prejudice or stereotype.
Id.
127. Id. at 493-497. This standard is a synthesis derived from the Court after Justice O'Connor reviewed the Bakke, and Wygant decisions, ruling that societal discrimination and the role model theory are deficient in light of the danger of stigmatic harm
carried by classifications based on race. Id.
128. Id. at 493.
129. Croson, 488 U.S. at 497. In fact, Justice O'Connor held that the plan suffered
from the same two defects that the Wygant Court held fatal. Id.
130. Id. at 498.
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[Vol. 11:237
self enough to justify a 30 percent set-aside. 1 ' It is here that
Justice O'Connor rejected the various statistical arguments
which compared the number of MBEs in a market with the
amount of city construction dollars and the percentage of MBE
participation in awards.3 2 Third, the Court also attacked Justice
Marshall's position in dissent that discriminatory findings may
be "shared" from jurisdiction to jurisdiction as lacking prece33
dential authority.1
Finally, the Court examined the minority groups, other than
blacks, which the Plan sought to protect. 3 4 The Court found
"absolutely no evidence of past discrimination" as to these
groups, and their inclusion in the Plan diminished the City's
credibility in the Court's eyes. 3 5 Justice O'Connor also analyzed
the "means" requirement of strict scrutiny and held that the
Plan was not tailored narrowly enough. 3 6 The Court pointed to
the Plan's inclusion of MBEs from anywhere in the country and
its requirement of the rigid 30 percent quota as reasons for in37
validating the Plan.
131. Id. at 499 (citing Weinberger v. Wiesenfield,.420 U.S. at 648, n.16). Justice
O'Connor wrote that "[t]he District Court accorded great weight to the fact that the city
council designated the plan as 'remedial.' But the mere recitation of a 'benign' or legitimate purpose for a racial classification, is entitled to little or no weight.'" Id.
132. Id. at 501. Justice O'Connor indicated that where special classifications are
necessary, the relevant statistics used to demonstrate discriminatory exclusion are the
number of minorities qualified to undertake the particular task. Id. O'Connor noted that,
in this case, the city does not even know how many MBEs in the relevant market are
qualified to undertake prime or subcontracting work in public construction projects. Id.
at 502. She further noted that the city alsb does not know what percentage of total city
dollars minority firms now receive on prime contracts. Id.
133. Croson, 488 U.S. at 505. The Court criticized Justice Marshall for believing
that Richmond should identify the discrimination it seeks to remedy in its own jurisdiction as being an administrative headache. Id. The Supreme Court noted that it had
never approved of the extrapolation of discrimination in one jurisdiction from another.
Id.
134. See supra note 91 for a discussion of the definition of minority groups.
135. Croson, 488 U.S. at 505-506. Specifically, Justice O'Connor held that:
[i]t may well be that Richmond has never had an Aleut or Eskimo citizen. The
random inclusion of racial groups that, as a practical matter, may never have
suffered from discrimination in the construction industry in Richmond, suggests that perhaps the city's purpose was not in fact to remedy past
discrimination.
Id. at 506.
136. 488 U.S. at 506-507.
137. Id. at 508. The Court held that the city's ohly interest in maintaining a quota
system would seem to be simple administrative convenience. Id. The interest in avoiding
the bureaucratic effort necessary to tailor remedial relief to these who truly suffer the
J.A. CROSON CO.
1990]
In conclusion, Justice O'Connor held that a set-aside program would be constitutional only if the action served to rectify
the effects of prior identified discrimination, as opposed to societal discrimination, and satisfied various questions of proof.138
Essentially the Court backed down from its stringent strict scrutiny formula. Justice O'Connor leaves us with a form of non13 9
fatal strict scrutiny, a novel concept.
C.
Concurrences
The Croson decision contained three separate concurrences
by Justices Stevens, Scalia, and Kennedy, respectively.140 Justice
Stevens' opinion argued that instead of quibbling over the
proper standard of review, courts should identify characteristics
of disadvantaged classes and create a remedy geared toward
erasing those characteristics."" Justice Stevens' opinion is coneffects of prior discrimination could not, in the Court's eyes justify a rigid demarcation
drawn on the basis of some type of suspect classification. Id. Examining the Richmond
plan, the Court found that a Black, Hispanic, or Oriental MBE from anywhere in the
country could enjoy an absolute preference over other Richmond citizens based solely on
race. Id. The Court thought it obvious that such a program would not be sufficiently
narrow in tailoring to remedy the effects of past discrimination. Id.
138. Id. at 509. The Court began backing-off its stringent position by stating that
"[nlothing we say today precludes a state or local entity from taking action to rectify the
effects of identified discrimination within its jurisdiction." Id. The Court claimed that if
the city of Richmond could find evidence that non-minority contractors were systematically excluding minority businesses from subcontracting opportunities, the city could
take action to end the discriminatory exclusion. Id. Justice O'Connor further held that
local government has many ways of dealing with individual instances of racially motivated refusals to employ minority contractors. Id. Under properly drafted laws, a city
would not be wrong in penalizing the discriminator and providing some form of relief to
the victim of such discrimination. Id. Even if there is no evidence of discrimination, a
city can employ many race-neutral devices and increase the accessibility of city contracting opportunities to small entrepreneurs of all races. Id. at 509-510. Some of these
include: simplification of bidding procedures; relaxation of bonding requirements; and
training and financial aid for disadvantaged entrepreneurs of all races. Id. Such actions
would open the public contracting market to all these who have suffered the effects of
past discrimination. Id. at 510.
139. Croson, 488 U.S. at 509-510. The concept is novel because true strict scrutiny
is usually fatal.
140. Id. at 511 (Stevens, J., concurring in part and concurring in the judgment), Id.
at 519 (Kennedy, J., concurring in part and concurring in the judgment), and id. at 519
(Scalia, J., concurring in the judgment).
141. Croson, 488 U.S. at 514 (Stevens, J., concurring). Specifically, in this case,
Justice Stevens argues that the:
approach convinces me that, instead of carefully identifying the characteristics
of the two classes of contractors that are respectively favored and disfavored
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[VoI. 11:237
sistent with his past pronunciations. 4 " He presents the most
sensible, practically based analysis for dealing with affirmative
action problems by advocating the only solution geared to iden143
tifiable victims.
Justice Stevens makes two other points. First he questions
the claim that the public interest in the efficient performance of
construction contracts will be served by granting a preference to
minority business enterprises. 4 4 Justice Stevens posits that
"there is not even an arguable basis for suggesting that the race
of a subcontractor or general contractor should have any relevance to his or her access to the market." '4 5 Second, Justice Stevens believes that courts are better equipped than political entities to identify the important characteristics of a disadvantaged
class. 14 6 Accordingly, in fashioning an effective remedy, courts
47
can best point out those who discriminated in the past.
Justice Scalia's concurrence was also consistent with his
past opinions. 4s He agreed with the majority that strict scrutiny
is the proper standard of review, but argued
that a non-fatal
form of strict scrutiny cannot be effective. 49 To Justice Scalia a
by its ordinances, the Richmond City Council has merely engaged in the type
of stereotypical analysis that is a hallmark of violations of the Equal Protection Clause. Whether we look back at the class of persons benefitted by the
ordinance or at the disadvantaged class, the same conclusion emerges.
Id. at 514-515 (Stevens, J., concurring).
142. See, e.g., United States v. Paradise, 480 U.S. 149, 189 (1987) (Stevens, J., concurring in the judgment), Johnson v. Transportation Agency, 480 U.S. 616, 640 (1987)
(Stevens, J., concurring), Wygant v. Jackson Bd. of Educ., 478 U.S. 267, 313 (1986) (Stevens, J., dissenting) and Fullilove v. Klutznick, 448 U.S. 448, 533 (1980) (Stevens, J.,
dissenting).
143. See Days, supra note 22, at 468-69 for a discussion of the quality of Justice
Stevens' opinions.
144. Croson, 488 U.S. at 512 (Stevens, J., concurring).
145. Id. at 513 (Stevens, J., concurring).
146. Id. (Stevens, J., concurring).
147. Id. at 513-514 (Stevens, J., concurring). Justice Stevens argues that the judicial system and not the legislatures are best equipped to identify past wrongdoers and to
fashion remedies that will create the conditions that presumably would exist had there
been no discrimination in the first place. Id. (Stevens, J., concurring). Therefore, in cases
involving the review of judicial remedies imposed against persons who have been proved
guilty of violations of law, Justice Stevens would, in racial discrimination cases, give the
courts the same broad discretion that courts enjoy in other areas of the law. Id. at 732
(Stevens, J., concurring).
148. See, e.g., Johnson, 480 U.S. at 655 (Scalia, J., with whom the Chief Justice
and Justice White joins dissenting).
149. Croson, 488 U.S. at 520 (Scalia, J., concurring). Even though Justice Scalia did
J.A. CROSON CO.
1990]
benign racial classification is permissible only where it is necessary to undo the government's own discrimination. 150 In short,
Justice Scalia prefers that there be no affirmative action.1 5'
In his concurrence Justice Kennedy sympathized with Justice Scalia's position, 52 but agreed with the majority.' 53 Justice
Kennedy argued that strict scrutiny is the most effective level of
review for two reasons. 54 Strict scrutiny, to Justice Kennedy,
would foster both race neutrality and be consistent with the
Court's recent precedents. 55
D.
Dissent
Justice Marshall's dissenting opinion was joined by Justices
Brennan and Blackmun 5 ' and is consistent with his past posinot join any particular part of the majority opinion, he begins his opinion by claiming
that he "agree[s] with much of the Court's opinion, and, in particular, with its conclusion
that strict scrutiny must be applied to all governmental classifications by race, whether
or not the asserted purpose is 'remedial' or 'benign.'"
Id. (Scalia, J., concurring).
150. Id. at 525 (Scalia, J., concurring), Justice Scalia argued that the Court has, in
past cases discussing school desegregation, "made it clear that the remedial power extends no further than the scope of the constitutional violation." Id. (Scalia, J., concurring). Justice Scalia agreed with the Court's dictum. Id. (Scalia, J., concurring). He argued that there exists a fundamental difference, the effects of "societal" discrimination
and the effects of "identified" discrimination. Id. (Scalia, J., concurring). Justice Scalia
differed with the majority by stating that there is no argument that would justify raceconscious action which would enable a race-neutral remedy to be found. Id. (Scalia, J.,
concurring). There is nothing that would prevent Richmond from according a contracting preference to identified victims of discrimination. Id. (Scalia, J., concurring). In
an effort to justify a racial classification, a governmental entity would have to identify
actual victims of discrimination in fashioning a remedy. Id. (Scalia, J., concurring).
151. Id. (Scalia, J., concurring).
152. Croson, 488 U.S. at 518 (Kennedy, J., concurring). Justice Kennedy posits the
following:
[t]he moral imperative of racial neutrality is the driving force of the Equal
Protection Clause. Justice Scalia's opinion underscores that proposition, quite
properly in my view ....
His opinion would make it crystal clear to the political branches, at least those of the States, that legislation must be based on
criteria other than race.
Id. at 518-519 (Kennedy, J., concurring).
153. Id. at 519 (Kennedy, J., concurring). Justice Kennedy "accept[s] the less absolute rule contained in Justice O'Connor's opinion, a rule that is based on the proposition
that any racial preference must face the most rigorous scrutiny by the courts." Id. (Kennedy, J., concurring).
154. Id. (Kennedy, J., concurring).
155. Id. at 519 (Kennedy, J., concurring).
156. Only Justice Marshall's dissent is discussed in the text as it contains the best
analysis of the issue. Justice Blackmun's dissent is only one paragraph and agrees in
BRIDGEPORT LAW REVIEW
[Vol. 11:237
tions. 157 The opinion makes three basic points. First, it argues
that in matters of local affairs, municipalities are best equipped
to handle problems of local discrimination.' 5" This position lends
support to Justice Marshall's second point that since municipalities should handle discrimination, courts should defer to their
judgment and uphold affirmative action plans if intermediate
scrutiny is satisfied. 159 Justice Marshall finds a plethora of governmental interests sufficient to justify the Plan. 16 0 Some of
those include the City's concern in erasing past discrimination,
preserving autonomy over spending decisions, and giving appropriate deference to the City Council's decision.' 61 Finally, Justice
Marshall agrees with Richmond's argument that the Fullilove
62
standard should be used.1
IV.
ANALYSIS
In Croson the Supreme Court's positions regarding benign
discrimination solidified. As Wygant presaged, a majority of the
Supreme Court now applies strict scrutiny in affirmative action
cases.L6 3 Three justices will consistently advocate an intermediate level of review so that affirmative action programs can survive. 6 Only Justice Stevens has established a framework of
principle with Justice Marshall's. See id. at 560 (Brennan, J., dissenting) and id. at 528
(Marshall, J., Brennan, and Blackmun, JJ., dissenting).
157. See, e.g., Bakke, 438 U.S. at 278-356; Fullilove, 448 U.S. at 517-522; Wygant,
476 U.S. at 295-312; and Johnson, 480 U.S. at 619-40.
158. Croson, 488 U.S. at 533 (Marshall, J., dissenting).
159. Id. at 535 (Marshall, J., dissenting). Justice Marshall, citing his past decisions
wrote that his "view has long been that race-conscious classifications designed to further
remedial goals 'must serve important governmental objectives and must be substantially
related to the achievement of these objectives' in order to withstand constitutional scrutiny." Id. (Marshall, J., dissenting).
160. Croson, 488 U.S. at 527-528 (Marshall, J., dissenting).
161. See id. at 534-549 (Marshall, J., dissenting).
162. Id. at 551-560 (Marshall, J., dissenting).
163. This proposition is derived from the opinions of Chief Justice Rehnquist in
Bakke, Fullilove, Wygant, Johnson and Croson; Justices White's and O'Connor's opinions in Wygant, Johnson, and Croson; Justice Scalia's opinions in Johnson and Croson;
and Justice Kennedy's opinion in Croson. In Justice O'Connor's Croson opinion, she
serves to "reaffirm the view expressed by the plurality in Wygant that the standard of
review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification." Croson, 488 U.S. at 493 (citing Wygant, 476 U.S. at 279-280).
164. Note the consistent position taken by Justices Marshall, Brennan, and Blackmun in all the affirmative action cases discussed in the text at pp.4-11, including Bakke,
J.A. CROSON CO.
1990]
analysis that will best evaluate
the merits and effectiveness of an
65
affirmative action program.1
Most early commentary on the Croson decision suggests
that affirmative action programs are indeed in jeopardy.166 In
fact, the Croson Court has adopted a virtually per se rule of invalidity for affirmative action plans. 6 7 This is true even though
Justice O'Connor takes some of the "bite" out of her version of
strict scrutiny at the end of her opinion."6 8
The Croson Court is not entitled to ignore the difficult situation faced by minority businesses in this country.6 9 For the
most part, mere economic hardship is not a constitutional concern, as economic classifications are not invidious under the
equal protection clause.
70
Furthermore, studies have shown that
minority-owned companies suffer private discrimination in many
industries, and government must be free to correct such discrimination -
which is invidious -
through sensible economic mea-
sures.17 ' The most effective way to do so is through the use of
carefully tailored affirmative action programs that seek to eradicate identified wrongdoers. Croson's burdens of showing a com72
pelling interest in remedying past discrimination are too great.
The constitutional and evidentiary standards set out by the
Court will cost governmental
entities too much time and taxpay73
ers too much money.
Fullilove, Wygant, Johnson, and Croson.
165. Accord Justice Stevens' positions in the cases that appear in supra note 149
and his positions as developed at supra note 145 and accompanying text.
166. See Connecticut Law Tribune, May 8, 1989, at 12-15. In fact, three articles in
the same issue of the Connecticut Law Tribune take relatively the same position. Id.
167. The other Croson opinions agree that the majority is using a rather strict form
of scrutiny. See Croson, 488 U.S. at 511-515 (Stevens, J., concurring); id. at 499 (Kennedy, J., concurring); id. at 519 (Scalia, J., concurring); and id. at 528 (Marshall, J.,
dissenting).
168. Croson, 488 U.S. at 509-510. Recall Justice O'Connor's position in which she
took a lot of the "bite" out of the strictness of the strict scrutiny standard used in the
case by admitting that certain set-asides and affirmative action plans in general may
survive the court's inquiry. Id.
169. See, e.g., Bates, Minority Business Set-Asides: Theory and Practice, in U.S.
Commission on Civil Rights, I Selected Affirmative Action in Employment and Business
Set-Asides 145-52 (1985) (discussing the difficulty of MBEs to receive financing when
attempting to secure loans) [hereinafter Bates].
170. See, Bates, supra note 169.
171. Id.
172. Connecticut Law Tribune, May 8, 1989, at 13, col. 1.
173. See infra notes 204-05 and accompanying text for a discussion of Croson's
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Commentators have suggested various theories that a court
can use when dealing with reverse discrimination issues." 4 One
theory suggests non-perpetuation as a justification for MBE setasides,'175 while another would require a searching inquiry into
remedial alternatives. 176 While these are sound theories, what
the authors ignore is the elementary conflict before the Court.
On one hand is the traditional discrimination analysis, which
finds its roots in Justice Harlan's "color-blind" pronunciations,
and is accepted by the Brown Court.17 7 On the other hand is the
more recently adopted Bakke-type analysis of Justice Brennan
and his three colleagues. 7 8 The Croson Court has seemingly
adopted the former view by favoring rigid scrutiny. 7 9 This is an
unfortunate choice because the Court is ignoring the difficult economic situation faced by MBEs and affirmative action, the
Brown Court did not envision. 1 0
The most sensible approach to determine whether affirmative action programs violate equal protection is that advocated
costly ramifications in Atlanta, Ga.
174. See, e.g., Choper, supra note 7, at 255 (commenting on significance of using
racial classifications to remedy prior racial discrimination); Days, supra note 22, at 477
(a principled approach to minority set-asides); and Note, supra note 22, at 1808 (proposing that courts should seek justification for affirmative action plans in non-perpetuation
of discrimination).
175. See Note, supra note 22, at 1808, 1811 (suggesting that non-perpetuation of
discrimination can serve as compelling governmental interest and so predicting outcome
of Croson case).
176. See Days, supra note 22, at 477 (arguing that state and local governments
should be required to compile data on plan in their locale).
177. See, e.g., Korematsu v. United States, 323 U.S. at 235-40 (Japanese internees)
and Brown v. Bd. of Educ., 347 U.S. at 483 (1952) (school desegregation). See supra note
8, and accompanying text for a discussion of Justice Harlan's "color-blind" pronunciations. See also Brown, 347 U.S. at 355.
178. See Bakke, 438 U.S. at 358-79 (applying intermediate scrutiny level of
review).
179. Croson, 488 U.S. at 529 (Marshall, J., dissenting). Justice Marshall made the
following statement in his Croson dissent:
Today's decision marks a deliberate and giant step backward in this Court's
affirmative action jurisprudence. Cynical of municipality's attempt to redress
the effects of past discrimination .... the majority launches a grapeshot attack
on race- conscious remedies in general. The majority's unnecessary pronouncements will inevitably discourage or prevent governmental entities, particularly
states and localities, from acting to rectify the scourge of past discrimination.
This is the harsh reality of the majority's decision, but it is not the Constitution's command.
Id. (Marshall, J., dissenting).
180. Id. at 528-560 (Marshall, J., dissenting).
1990]
J.A. CROSON CO.
by Justice Stevens. *8 ' Instead of emphasizing a required quantity of evidence to justify remedial action, as does Justice
O'Connor,' 82 Justice Stevens is more concerned with the quality
of evidence and analysis conducted by a plan's proponent.'8
Justice Stevens' position also reflects his rejection of a threetiered system of review. To him, all equal protection review
should be a form of "rational basis" review. Under the Court's
view, one can envision municipalities racing to conduct surveys
and plan market studies to prove the existence of industry discrimination in an effort to support their set-aside programs.'
Justice Stevens' approach is more constructive, as it burdens
those who have discriminated in the past and benefits those minorities truly in need of assistance. 8 5
V.
IMPACT
The Croson decision may serve to strike down many existing MBE set-aside programs. 8 6 For example, Croson's impact
may be fatal to the MBE set-aside scheme in force in the State
of Connecticut.'8 7 Connecticut's statute is typical of the thirtysix states and 190 municipalities that have a set-aside plan.' 8
The Connecticut plan reserves a set-aside for various minority
181. See id. at 510-517 (Stevens, J., concurring). See also, Paradise,480 U.S. at
189 (Stevens, J., concurring in the judgment); Johnson, 480 U.S. at 439-40 (Stevens, J.,
concurring); Wygant, 476 U.S. at 313 (Stevens, J., dissenting); and Fullilove, 448 U.S. at
533 (Stevens, J., dissenting).
182. Croson, 488 U.S. at 497-508 (O'Connor, J., opinion of the Court).
183. See, id. at 513-514 (Stevens, J., concurring). See also supra note 147 and accompanying text for a discussion of Justice Stevens' evidentiary requirements.
184. See supra notes 143-47 and accompanying text for a discussion of Croson's
evidentiary requirements that would create great burdens on municipalities.
185. See Days, supra note 22, at 469 (discussing Fultilove decision). The author
states that "[a]lthough one can disagree, as I do, with Justice Stevens' conclusion that
procedural flaws in the enactment of a minority set-aside provision rendered it unconstitutional, the force of his critique is hard to ignore." Id.
186. See supra note 24 and accompanying text for a discussion of the impending
doom for MBE set-asides.
187. Id.
188. CONN. GEN. STAT. § 32-9e(a)(3) (1989), provides the following:
Minority business enterprise' means any small contractor fifty-one per cent or
more of the capital stock, if any, or assets of which is owned by a person or
persons (1) who are active in the daily affairs of the enterprise; (2) who have
the power to direct the management and policies of the enterprise; and (3) who
are members of a minority, as such term is defined in subsection (a) of section
22-9n. Id.
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groups, and also for women."'
Connecticut's set-aside plan is designed to assist small contractors, as well as MBEs. 190 The statute reserves twenty-five
percent of the average of the total public works contracts to be
awarded to Small Business for award to MBEs.' The award of
contracts is by law left exclusively to the discretion of the
agency granting the award. 92 The amount a single MBE is allowed to receive in one year is limited, 93 and the statutes allow
189. CONN. GEN. STAT. § 32-9n(a) (1989), defining minority to mean:
. . . (1) Black Americans, including all persons having origins in any of the
Black African racial groups not of Hispanic origin; (2) Hispanic Americans,
including all persons of Mexican, Puerto Rican, Cuban, Central or South
American, or other Spanish culture or origin, and all persons having origins in
the Iberian Peninsula, including Portugal, regardless of race; (3) woman;. (4)
Asian Pacific Americans and Pacific islanders; or (5) American Indians and
persons having origins in any of the original peoples of North America and
maintaining identifiable tribal affiliations through membership and participation or community identification.
Id.
190. CONN.
GEN. STAT.
§ 32-9e(a)(1) (1989), provides,
'Small contractor' means any contractor, subcontractor, manufacturer or a service company (A) which has been doing business and has maintained its principal place of business in the state for a period of at least one year prior to the
date of application for certification under this section, (B) which had gross
revenues not exceeding three million dollars in the most recently completed
fiscal year prior to such application and (C) at least fifty-one percent of the
ownership of which is held by a person or persons who are active in the daily
affairs of the business and have the power to elect the management and policies of the business.
Id.
191. CONN. GEN. STAT. § 32-9e(b) (1989), provides,
[T]he head of each state agency... shall set aside in each fiscal year, for award
to small contractors ... contracts or portions of contracts for the construction,
reconstruction or rehabilitation of public buildings, the construction and maintenance of highways and the purchase of goods and services. The total value of
such contracts or portions thereof to be set aside by each such agency shall be
at least twenty-five per cent of the average of the total value of all contracts let
by the head of such state agency for each of the previous three fiscal years....
Contracts or portions thereof having a value of not less than 25% of the total
value of all contracts or portions thereof to be set aside shall be reserved for
award to minority business enterprises.
Id.
192. Id.
193.
CONN. GEN. STAT. § 32-9e(e) (1989), provides,
[i]n no case shall the commissioner of economic development recommend, nor
shall any small contractor be awarded, any such contract or contracts, the total
amount of which exceeds $1,500,000 in any one fiscal year.
1990]
J.A. CROSON CO.
municipalities to enact set-aside ordinances patterned on the
state plan.' Connecticut's statutes leave the adoption of regulations regarding the mechanics of the bidding process within the
discretion of the Commissioner of Administrative Services.1 95 Finally, there exists a Minority Business Enterprise Review Committee, whose duty is to insure compliance with the set-aside
statutes. 196
The constitutionality of Connecticut's MBE set-aside statute is not secure given the Croson Court's pronouncements regarding evidentiary and scrutiny requirements. 19 7 Evidence of
prior discrimination in the construction industry, essential to establishing the necessary basis prong of strict scrutiny, can best
be found in a statute's legislative history.'9 8 Yet the legislative
history of the relevant Connecticut statutes reveals no discussion at the Committee, House of Representatives, or Senate
levels of instances of discrimination in the construction industry
in Connecticut.'9 9 Therefore, the Connecticut set-aside statutes
will probably not pass the Croson Court's demanding analysis. 00
194. See CONN. GEN. STAT. § 7-148u(b) (1989).
195. CONN. GEN. STAT. § 4a-61 (1989), states:
[t]he commissioner of administrative services, with the advise of the commissioner of economic development, shall adopt regulations, in accordance with
chapter 54, establishing procedures for the award of contracts concerning minority business enterprises by the state or any political subdivision of the state
other than a municipality.
Id.
196. CONN. GEN. STAT. § 4a-62(a) (1989), requires the following:
There is established a minority business enterprise review committee.... The
committee shall conduct an ongoing study of contract awards, loans and bonds
made or guaranteed by the state or any political subdivision of the state other
than a municipality for the purpose of determining the extent of compliance
with the provisions of the normal statutes concerning contract awards, loans
and bonds for minority business enterprises, including the set-aside program
for such business enterprises.
Id.
197. See supra notes 128-33 and accompanying text for a discussion of the Croson
Court's requirements.
198. See Croson, 488 U.S. at 495-504 (example of how the Court looked to legislative history to find information regarding prior discrimination).
199. See Act Concerning a Set-Aside Programfor Small Contractors:Hearings on
Bill No. 581 Joint Standing Committee on State and Urban Development, 128-26
(1976), H-178 Connecticut General Assembly House Proceedings,Vol. 19, Part 7, 294750 (daily ed. April 20, 1976), and S-115 Connecticut General Assembly, Senate Proceedings, Vol. 19, Port 3, 1230-36 (daily ed. April 20, 1976).
200. See supra note 138 and accompanying text for a discussion of the Croson
Court's evidentiary requirements.
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Since Connecticut's statutes cannot satisfy Croson's evidentiary requirements, the State will not be able to argue that its
plan is sufficiently narrow in tailoring.01 As a result, the Connecticut statutes will have failed both prongs of the Croson analysis. 20 2 Furthermore, the Connecticut plan will not pass even
Justice Stevens' constitutional test. The absence of legislative
analysis will preclude the state from advancing the position that
20 3
its statutes protect identifiable victims.
Connecticut will be left with two options. First, the state
will have at its disposal various race-neutral devices insuring the
accessibility of public works contracting to MBEs. °4 Second, the
state can search for past instances of discrimination. In fact, this
choice was recently made by the city of Atlanta, Georgia.20 5 In
an effort to satisfy the Croson Court's requirements, Atlanta recently authorized a study, at a cost of $517,000, to determine if
discrimination occurred and whether it still exists in that city's
construction industry.20 6 One can only speculate about the feasibility and costliness of such studies in Connecticut and
elsewhere.20 7
VI.
CONCLUSION
The United States Supreme Court in Croson has clearly established the constitutional requirements for benign discrimination analysis by adopting strict scrutiny as the standard of review. 20 8 In the future, affirmative action programs will have to
meet an important remedial goal and be supported by a necessary basis. 209 By adopting such a rigid requirement, the Court
has jeopardized the future of existing MBE set-aside plans such
201.
202.
203.
Croson, 488 U.S. at 491-492 (defining strict scrutiny).
Id.
See supra note 143 and accompanying text for a discussion of Justice Stevens'
test.
204. Croson, 488 U.S. at 509. In light of the Court's "backing down," the only portion of CONN. GEN. STAT. § 32-9e that should be declared unconstitutional relates to a
set-aside for MBEs. The portion of that section concerning "small businesses" should be
left alone.
205. See N.Y. Times, June 20, 1989, at All, col. 1.
206. Id.
207. See supra note 173 and accompanying text for a discussion of the costliness of
the Croson decision.
208. Croson, 488 U.S. at 491-492.
209. Id. at 720-27.
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J.A. CROSON CO.
as Connecticut's. 210
Justice Stevens proposes the most appropriate standard for
affirmative action analysis.2 1 ' Justice Stevens' proposition is
such that benign programs will survive his form of scrutiny
while truly discriminatory programs will fail. But for now, equal
protection issues will be scrutinized in a "color-blind" fashion,
and American society will continue to be divided by color as
long as that is so.
Fred N. Knopf
210. See supra notes 199-203 and accompanying text for a discussion of the Connecticut set-aside statutes.
211. Croson, 488 U.S. at 511-515 (Stevens, J. concurring).