   Legal Guidance on the Implications of the Supreme Court’s
         Decision in Adarand Constructors, Inc. v. Peha
This memorandum sets forth preliminary legal guidance on the implications of the Supreme C ourt’s
   decision in Adarand Constructors, Inc. v. Peha, which held that “ strict scrutiny’’ is the standard
   that governs judicial review of the constitutionality of federal affirmative action programs that
   use racial and ethnic criteria as a basis for decisionmaking. The memorandum is not intended
   to serve as a definitive statement of what Adarand means for any particular affirmative action
   program; rather, it is intended to provide a general overview of the Court’s decision and the
   application of the strict scrutiny standard in the context of affirmative action.

                                                                                      June 28, 1995

                       M e m o r a n d u m O p in io n   to   G enera l C oun sels


   This memorandum sets forth preliminary legal guidance on the implications of
the Supreme Court’s recent decision in Adarand Constructors, Inc. v. Pena, 515
U.S. 200 (1995), which held that federal affirmative action programs that use
racial and ethnic criteria as a basis for decisionmaking are subject to strict judicial
scrutiny. The memorandum is not intended to serve as a definitive statement of
what Adarand means for any particular affirmative action program. Nor does it
consider the prudential and policy questions relevant to responding to Adarand.
Rather, it is intended to provide a general overview of the Court’s decision and
the new standard for assessing the constitutionality of federal affirmative action
programs.
   Our conclusions can be briefly summarized. Adarand made applicable to federal
affirmative action programs the same standard of review, strict scrutiny, that City
of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), applied to state and local
affirmative action measures— with the important caveat that, in this area, Con­
gress may be entitled to greater deference than state and local governments.
Although Adarand itself involved contracting, its holding is not confined to that
context; rather, it is clear that strict scrutiny will now be applied by the courts
in reviewing the federal government’s use of race-based criteria in health, edu­
cation, hiring, and other programs as well.
   The Supreme Court in Adarand was careful to dispel any suggestion that it
was implicitly holding unconstitutional all federal affirmative action measures
employing racial or ethnic classifications. A majority of the Justices rejected the
proposition that “ strict scrutiny” of affirmative action measures means “ strict
in theory, fatal in fact,” and agreed that “ [t)he unhappy persistence of both the
practice and the lingering effects of racial discrimination against minority groups
in this country” may justify the use of race-based remedial measures in certain
circumstances. 515 U.S. at 237. See id. at 268 (Souter, J., dissenting); id. at 273
(Ginsburg, J., dissenting). Only two Justices advocated positions that approach
a complete ban on affirmative action.

                                                    171
                    Opinions o f the Office o f Legal Counsel in Volume 19


   The Court’s decision leaves many questions open— including the constitu­
tionality of the very program at issue in the case. The Court did not discuss in
detail the two requirements of strict scrutiny: the governmental interest underlying
an affirmative action measure must be “ compelling” and the measure must be
“ narrowly tailored” to serve that interest. As a consequence, our analysis of
Adarand’s effects on federal action must be based on Croson and the lower court
decisions applying strict scrutiny to state and local programs. It is unclear, how­
ever, what differences will emerge in the application of strict scrutiny to affirma­
tive action by the national government; in particular, the Court expressly left open
the question of what deference the judiciary should give to determinations by Con­
gress that affirmative action is necessary to remedy discrimination against racial
and ethnic minority groups. Unlike state and local governments, Congress may
be able to rely on national findings of discrimination to justify remedial racial
and ethnic classifications; it may not have to base such measures on evidence
of discrimination in every geographic locale or sector of the economy that is
affected. On the other hand, as with state and local governments under Croson,
Congress may not predicate race-based remedial measures on generalized, histor­
ical societal discrimination.
   Two additional questions merit mention at the outset. First, the Court has not
resolved whether a governmental institution must have sufficient evidence of
discrimination to establish a compelling interest in engaging in race-based
remedial action before it takes such action. A number of courts of appeals have
considered this question in reviewing state and local affirmative action plans after
Croson, and all have concluded that governments may rely on “ post-enactment”
evidence — that is, evidence that the government did not consider when adopting
the measure, but that reflects evidence of discrimination providing support for
the government’s determination that remedial action was warranted at the time
of adoption. Those courts have said that the government must have had some
evidence of discrimination when instituting an affirmative action measure, but that
it need not marshal all the supporting evidence at that time. Second, while
Adarand makes clear that remedying past discrimination will in some cir­
cumstances constitute a compelling interest sufficient to justify race-based meas­
ures, the Court did not address the constitutionality of programs aimed at
advancing nonremedial objectives — such as promoting diversity and inclusion.
For example, under Justice Powell’s controlling opinion in Regents o f the Univ.
o f Calif, v. Bakke, 438 U.S. 265 (1978), increasing the racial and ethnic diversity
of the student body at a university constitutes a compelling interest, because it
enriches the academic experience on campus. Under strict scrutiny, it is uncertain
whether and in what settings diversity is a permissible goal of affirmative action
beyond the higher education context. To the extent that affirmative action is used
to foster racial and ethnic diversity, the government must seek some further objec­
tive beyond the achievement of diversity itself.

                                             172
  Legal Guidance on the Implications o f the Supreme Court's Decision in Adarand Constructors, Inc.
                                                v. Pena

   Our discussion in this memorandum proceeds in four steps. In Section I, we
analyze the facts and holding of Adarand itself, the scope of what the Court did
decide, and the questions it left unanswered. Section II addresses the strict scrutiny
standards as applied to state and local programs in Croson and subsequent lower
court decisions; we consider the details of both the compelling interest and the
narrow tailoring requirements Croson mandated. In Section III, we turn to the
difficult question of how precisely the Croson standards should apply to federal
programs, with a focus on the degree of deference courts may give to congres­
sional determinations that affirmative action is warranted. Finally, in an appendix,
we sketch out a series of questions that should be considered in analyzing the
validity under Adarand of federal affirmative action programs that employ race
or ethnicity as a criterion. The appendix is intended to guide agencies as they
begin that process.

                                            I. The Adarand Case

A. Facts

   Adarand involved a constitutional challenge to a Department of Transportation
(“ DOT” ) program that compensates persons who receive prime government con­
tracts if they hire subcontractors certified as small businesses controlled by
“ socially and economically disadvantaged” individuals. The legislation on which
the DOT program is based, the Small Business Act, establishes a government-
wide goal for participation of such concerns at “ not less than 5 percent of the
total value of all prime contract and subcontract awards for each fiscal year.”
15 U.S.C. § 644(g)(1). The Act further provides that members of designated racial
and ethnic minority groups are presumed to be socially disadvantaged. Id.
§ 637(a)(5), § 637(d)(2),(3); 13 C.F.R. § 124.105(b)(1).1 The presumption is rebut­
table. 13 C.F.R. §§ 124.1 ll(c)-(d), 124.601-124.609.2
   In Adarand, a nonminority firm submitted the low bid on a DOT subcontract.
However, the prime contractor awarded the subcontract to a minority-owned firm
that was presumed to be socially disadvantaged; thus, the prime contractor
received additional compensation from DOT. 515 U.S. at 205. The nonminority
firm sued DOT, arguing that it was denied the subcontract because of a racial
classification, in violation of the equal protection component of the Fifth Amend­
    1The following groups are entitled to the presumption: African American; Hispanic; Asian Pacific; Subcontinent
Asian; and Native American. See Adarand, 515 U.S. at 205. This list o f eligible groups parallels that o f many
federal affirmative action programs.
   2 DOT also uses the subcontractor compensation mechanism in implementing the Surface Transportation and U ni­
form Relocation Assistance Act o f 1987 ( “ STU RA A ” ), Pub. L. No. 100-17, § 106(c)(1), 101 Stat. 145, and its
successor, the Intermodal Surface Transportation Efficiency Act o f 1991 ( “ ISTEA” ), Pub. L. No. 102-240, § 1003(b),
105 Stat. 1919-22. Both laws provide that “ not less than 10 percent” o f funds appropriated thereunder “ shall be
expended with small business concerns owned and controlled by socially and economically disadvantaged individ­
u a ls /' STURAA and ISTEA adopt the Small Business A ct's definition o f “ socially and economically disadvantaged
individual," including the applicable race-based presumptions. Adarand, 515 U.S. at 208.


                                                        173
                             Opinions o f the Office o f Legal Counsel in Volume 19


ment’s Due Process Clause. The district court granted summary judgment for
DOT. The Court of Appeals for the Tenth Circuit affirmed, holding that DOT’s
race-based action satisfied the requirements of “ intermediate scrutiny,” which it
determined was the applicable standard of review under the Supreme Court’s
rulings in Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990), and Fullilove v.
Klutznick, 448 U.S. 448 (1980). See Adarand, 515 U.S. at 210.

B. The Holding

   By a five-four vote, in an opinion written by Justice O’Connor, the Supreme
Court held in Adarand that strict scrutiny is now the standard of constitutional
review for federal affirmative action programs that use racial or ethnic classifica­
tions as the basis for decisionmaking. The Court made clear that this standard
applies to programs that are mandated by Congress, as well as those undertaken
by government agencies on their own accord. 515 U.S. at 227. The Court over­
ruled Metro Broadcasting to the extent that it had prescribed a more lenient
standard of review for federal affirmative action measures. Id.3
   Under strict scrutiny, a racial or ethnic classification must serve a “ compelling
interest” and must be “ narrowly tailored” to serve that interest. Id* This is the
same standard of review that, under the Supreme Court’s decision in City o f Rich­
mond v. J.A. Croson Co., 488 U.S. 469 (1989), applies to affirmative action meas­
ures adopted by state and local governments. It is also the same standard of review
that applies to government classifications that facially discriminate against minori­
ties. Adarand, 515 U.S. at 221—24.
   In a portion of her opinion joined by Chief Justice Rehnquist, Justice Kennedy,
and Justice Thomas, Justice O ’Connor sought to “ dispel the notion that strict
scrutiny is ‘strict in theory, but fatal in fact’ ” when it comes to affirmative action.
Id. at 237 (quoting Fullilove, 448 U.S. at 519 (Marshall, J., concurring in the
judgment)). While that familiar maxim doubtless remains true with respect to
classifications that, on their face, single out racial and ethnic minorities for invid­
ious treatment,5 Justice O’Connor’s opinion declared that the federal government
may have a compelling interest to act on the basis of race to overcome the
“ persistence of both the practice and lingering effects of racial discrimination
against minority groups in this country.” Id. In this respect, Justice O’Connor’s
opinion in Adarand tracks her majority opinion in Croson. There, too, the Court

    3 Justice O 'C o n n o r (along with three other Justices) had dissented in Metro Broadcasting and urged the adoption
o f strict scrutiny as the standard o f review for federal affirmative action measures.
    4 A classification review ed under intermediate scrutiny need only (i) serve an “ important” governmental interest
and (ii) be “ substantially related” to the achievement o f that objective. Metro Broad., 497 U.S. at 564-65.
    5 See, e.g., McLaughlin v. Florida, 379 U.S. 184, 192 (1964) (racial and ethnic classifications that single out
m inorities for disfavored treatment are in alm ost all circumstances “ irrelevant to any constitutionally acceptable
legislative purpose” ) (internal quotations omitted); Loving v. Virginia, 388 U.S. 1, 11 (1967) ( “ There is patently
no legitimate overriding purpose independent o f invidious racial discrimination which justifies” state law that prohib­
ited interracial marriages).


                                                          174
   L eg a l G uidance o n the Im plications o f the Suprem e C ourt's D ecision in A d a ra n d Constructors, Inc.
                                                       v. Peha

declined to interpret the Constitution as imposing a flat ban on affirmative action
by state and local governments. 488 U.S. at 509-11.
   Two members of the Adarand majority, Justices Scalia and Thomas, wrote sepa­
rate concurring opinions in which they took a more stringent position. Consistent
with his concurring opinion in Croson , Justice Scalia would have adopted a near­
absolute constitutional bar to affirmative action. Taking issue with Justice O’Con­
nor’s proposition that racial classifications may be employed in certain cir­
cumstances to remedy discrimination against minorities, Justice Scalia stated that
the “ 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.” Adarand, 515 U.S. at 239 (Scalia, J., concurring in part and concurring
in the judgment).6 According to Justice Scalia, “ [individuals who have been
wronged by unlawful racial discrimination should be made whole; but under our
Constitution there can be no such thing as either a creditor or a debtor race. That
concept is alien to the Constitution’s focus on the individual . . . ." Id . The com­
pensation of victims of specific instances of discrimination through “ make-
whole” relief, which Justice Scalia accepts as legitimate, is not affirmative action,
as that term is generally understood. Affirmative action is a group-based remedy:
where a group has been subject to discrimination, individual members of the group
can benefit from the remedy, even if they have not proved that they have been
discriminated against personally.7 Justice O’Connor’s treatment of affirmative
action in Adarand is consistent with this understanding.
   Although Justice Thomas joined the portion of Justice O ’Connor’s opinion
holding that the government’s interest in redressing the effects of discrimination
can be sufficiently compelling to warrant the use of remedial racial and ethnic
classifications, he apparently agrees with Justice Scalia’s rejection of the group-
based approach to remedying discrimination. Justice Thomas stated that the
“ government may not make distinctions on the basis of race,” and that it is
“ irrelevant whether a government’s racial classifications are drawn by those who
wish to oppress a race or by those who have a sincere desire to help those thought
to be disadvantaged.” Id. at 240 (Thomas, J., concurring in part and concurring
in the judgment).

   6 In his Croson concurrence. Justice Scalia said that he believes that “ there is only one circumstance in which
the States may act by race to 'undo the effects of past discrimination': where that is necessary to eliminate their
own maintenance o f a system o f unlawful racial classification.” 488 U.S. at 524 (Scalia, J., concurring in the judg­
ment). For Justice Scalia, “ [tjhis distinction explains [the Supreme C ourt’s] school desegregation cases, in which
[it has] made plain that States and localities sometimes have an obligation to adopt race-conscious remedies.” Id.
The school desegregation cases are generally not thought o f as affirmative action cases, however. Outside of that
context. Justice Scalia indicated that he believes that “ (a]t least where state or local action is at issue, only a social
emergency rising to the level o f imminent danger lo life and limb . . . can justify an exception to the principle
embodied in the Fourteenth Amendment that our Constitution is color-blind.” Id. at 521.
   7 See Local 28, Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 482 (1986); Wygant v. Jackson Bd.
ofEduc., 476 U.S. 267, 277-78 (1986) (plurality opinion), id. at 287 (O ’Connor, J., concurring).

                                                          175
                           Opinions o f the Office o f Legal Counsel in Volume 19


   The four dissenting Justices in Adarand (Justices Stevens, Souter, Ginsburg,
and Breyer)8 would have reaffirmed the intermediate scrutiny standard of review
for congressionally authorized affirmative action measures established in Metro
Broadcasting, and would have sustained the DOT program on the basis of
Fullilove, where the Court upheld federal legislation requiring grantees to use at
least ten percent of certain grants for public works projects to procure goods and
services from minority businesses. Justices Stevens and Souter argued that the
DOT program was more narrowly tailored than the legislation upheld in Fullilove.
Adarand, 515 U.S. at 259-64 (Stevens, J., dissenting); id. at 266-67 (Souter. J.,
dissenting). All four dissenters stressed that there is a constitutional distinction
between racial and ethnic classifications that are designed to aid minorities and
classifications that discriminate against them. As Justice Stevens put it, there is
a difference between a “ No Trespassing” sign and a “ welcome mat.” Id. at 245
(Stevens, J., dissenting). See id. (“ [a]n attempt by the majority to exclude mem­
bers of a minority race from a regulated market is fundamentally different from
a [race-based] subsidy that enables a relatively small group of [minorities] to enter
that market” ); see also id. at 270 (Souter, J., dissenting); id. at 275-76 (Ginsburg,
J., dissenting). For the dissenters, Justice O ’Connor’s declaration that strict scru­
tiny of affirmative action programs is not “ fatal in fact” signified a “ common
understanding” among a majority of the Court that those differences do exist,
and that affirmative action may be entirely proper in some cases. Id. at 271, 275
(Ginsburg, J., dissenting). In Justice Ginsburg’s words, the “ divisions” among
the Justices in Adarand “ should not obscure the Court’s recognition of the persist­
ence of racial inequality and a majority’s acknowledgment of Congress’ authority
to act affirmatively, not only to end discrimination, but also to counteract discrimi­
nation’s lingering effects.” Id. at 273. The dissenters also emphasized that there
is a “ significant difference between a decision by the Congress of the United
States to adopt an affirmative-action program and such a decision by a State or
a municipality.” Id. at 249 (Stevens, J., dissenting); id. at 264 (Souter, J., dis­
senting). They stressed that unlike state and local governments, Congress enjoys
express constitutional power to remedy discrimination against minorities; there­
fore, it has more latitude to engage in affirmative action than do state and local
governments. Id. at 255 (Stevens, J., dissenting). Justice Souter noted that the
majority opinion did not necessarily imply a contrary view. Id. at 268-69 (Souter,
J., dissenting).
  Thus, there were at most two votes in Adarand (Justices Scalia and Thomas)
for anything that approaches a blanket prohibition on race-conscious affirmative
action. Seven justices confirmed that federal affirmative action programs that use

  8 Justice Stevens wrote a dissenting opinion that was joined by Justice Ginsburg. Justice Souter wrote a dissenting
opinion that was joined by Justices G insburg and Breyer. And Justice Ginsburg wrote a dissenting opinion that
was joined by Justice Breyer.


                                                       176
   Legal Guidance on the Implications o f the Supreme Court’s Decision in Adarand Constructors, Inc.
                                                 v. Pena

race or ethnicity as a decisional factor can be legally sustained under certain cir­
cumstances.

C. Scope o f Adarand

   Although Adarand involved government contracting, it is clear from the
Supreme Court’s decision that the strict scrutiny standard of review applies when­
ever the federal government voluntarily adopts a racial or ethnic classification
as a basis for decisionmaking.9 Thus, the impact of the decision is not confined
to contracting, but will reach race-based affirmative action in health and education
programs, and in federal employment.10 Furthermore, Adarand was not a “ quota”
case: its standards will apply to any classification that makes race or ethnicity
a basis for decisionmaking.11 Mere outreach and recruitment efforts, however,
typically should not be subject to the Adarand standards. Indeed, post-Croson
cases indicate that such efforts are considered race-neutral means of increasing
minority opportunity.12 In some sense, of course, the targeting of minorities
through outreach and recruitment campaigns involves race-conscious action. But
the objective there is to expand the pool of applicants or bidders to include minori­
ties, not to use race or ethnicity in the actual decision. If the government does
not use racial or ethnic classifications in selecting persons from the expanded pool,
Adarand ordinarily would be inapplicable.13
   Adarand does not require strict scrutiny review for programs benefitting Native
Americans as members of federally recognized Indian tribes. In Morton v.
Mancari, 417 U.S. 535 (1974), the Supreme Court applied rational basis review

    9 By voluntary affirmative action, we mean racial or ethnic classifications that the federal government adopts on
 its own initiative, through legislation, regulations, o r internal agency procedures. This should be contrasted with
affirmative action that is undertaken pursuant to a court-ordered remedial directive in a race discrimination lawsuit
against the government, or pursuant to a court-approved consent decree settling such a suit. Prior to Croson, the
Supreme Court had not definitely resolved the standard o f review for court-ordered or court-approved affirmative
action. See United States v. Paradise, 480 U.S. 149 (1987) (court order); Local 93. Int'l Ass'n o f Firefighters v.
City o f Cleveland, 478 U.S. 501 (1986) (consent decree) The Court has not revisited the issue since Croson was
decided. Lower courts have applied strict scrutiny to affirmative action measures in consent decrees. See, e.g., Stuart
v. Roache, 951 F.2d 446, 449 (1st Cir. 1991) (Breyer, J.) cert, denied, 504 U.S. 913 (1992).
    ,0Title VII o f the 1964 Civil Rights Act is the principal federal employment discrimination statute. The federal
government is subject to its strictures. See 42 U.S.C. §2000e-17. The Supreme Court has held that the Title VII
restrictions on affirmative action in the workplace are somewhat more lenient than the constitutional limitations.
See Johnson v. Transportation Agency, 480 U.S. 616, 627-28 n.6 (1987). But see id. at 649 (O ’Connor, J., concurring
in the judgment) (expressing view that Title VII standards for affirmative action should be “ no different” from
constitutional standards).
    11 We do not believe that Adarand calls into question federal assistance to historically-black colleges and univer­
sities.
    i2See, e.g., Peightal v. Metropolitan Dade County, 26 F.3d 1545, 1557-58 (11th Cir. 1994); Billish v. City o f
Chicago, 962 F.2d 1269, 1290 (7th Cir. 1992), vacated on other grounds, 989 F.2d 890 (7th Cir.) (en banc), cert,
denied, 510 U.S. 908 (1993); Coral Constr. Co. v. King County, 941 F.2d 910, 923 (9th Cir. 1991), cert, denied,
502 U.S. 1033(1992).
    13 Outreach and recruitment efforts conceivably could be viewed as race-based decisionmaking o f the type subject
to Adarand if such efforts work to create a “ minorities-onJy” pool o f applicants or bidders, or if they are so focused
on minorities that nonminorities are placed at a significant competitive disadvantage with respect to access to con­
tracts, grants, or jobs.


                                                        177
                            Opinions o f the Office o f Legal Counsel in Volume 19


to a hiring preference in the Bureau of Indian Affairs for members of federally
recognized Indian tribes. The Court reasoned that a tribal classification is “ polit­
ical rather than racial in nature,” because it is “ granted to Indians not as a discrete
racial group, but, rather, as members of quasi-sovereign tribal entities.” Id. at
554. See id. at 553 n.24.
  Adarand did not address the appropriate constitutional standard of review for
affirmative action programs that use gender classifications as a basis for decision­
making. Indeed, the Supreme Court has never resolved the matter.14 However,
both before and after Croson, nearly all circuit court decisions have applied inter­
mediate scrutiny to affirmative action measures that benefit women.15 The Sixth
Circuit is the only court that has equated racial and gender classifications: pur­
porting to rely on Croson, it held that gender-based affirmative action measures
are subject to strict scrutiny.16 That holding has been criticized by other courts
of appeals, which have correctly pointed out that Croson does not speak to the
appropriate standard of review for such measures.17

D. Open Questions on Remand

   Adarand did not determine the constitutionality of any particular federal affirma­
tive action program. In fact, the Supreme Court did not determine the validity
of the federal legislation, regulations, or program at issue in Adarand itself.
Instead, the Court remanded the case to the Tenth Circuit for a determination
of whether the measures satisfy strict scrutiny.
   Adarand left open the possibility that, even under strict scrutiny, programs statu­
torily prescribed by Congress may be entitled to greater deference than programs
adopted by state and local governments. This is a theme that some of the Justices
had explored in prior cases. For example, in a portion of her Croson opinion
joined by Chief Justice Rehnquist and Justice White, Justice O ’Connor wrote that
Congress may have more latitude than state and local governments in utilizing
affirmative action. And in his concurrence in Fullilove, Justice Powell, applying
strict scrutiny, upheld a congressionally mandated program, and in so doing, said
that he was mindful that Congress possesses broad powers to remedy discrimina­
tion nationwide. In any event, in Adarand, the Court said that it did not have

   ,4 The lone gender-based affirmative action case that the Supreme Court has decided is Johnson v. Transportation
Agency, 480 U.S. 616 (1987). But Johnson o n ly involved a Title VII challenge to the use of gender classifications—
 no constitutional claim was brought. Id. at 620 n.2. And as indicated above (see supra note 10), the Court in
Johnson held that the Title VII parameters o f affirmative action are not coextensive with those o f the Constitution.
   15 See, e.g., Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 1579-80 (11th Cir. 1994); Contractors Ass’n v.
City o f Philadelphia, 6 F.3d 990, 1009-10 (3d Cir. 1993); Lamprecht v. FCC , 958 F.2d 382, 391 (D.C. Cir. 1992)
(Thomas, J.); Coral Constr. Co, v. King County, 941 F.2d at 930-31; Associated Gen. Contractors v. City and
County o f San Francisco, 813 F.2d 922, 939 (9th Cir. 1987).
   16 See Conlin v. Blanchard, 890 F.2d 811, 816 (6th Cir. 1989); see also Brunet v. City o f Columbus, 1 F.3d
390, 404 (6th Cir. 1993), cert, denied, 510 U .S. 1164 (1994).
   17 See, e.g., Seibels, 31 F.3d at 1580.


                                                         178
  Legal Guidance on the Implications o f the Supreme Court's Decision in Adarand Constructors, Inc.
                                                v. Pena

to resolve whether and to what extent courts should pay special deference to Con­
gress in evaluating federal affirmative action programs under strict scrutiny.
  Aside from articulating the components of the strict scrutiny standard, the
Court’s decision in Adarand provides little explanation of how the standard should
be applied. For more guidance, one needs to look to Croson and lower court
decisions applying it. That exercise is important because Adarand basically
extends the Croson rules of affirmative action to the federal level — with the
caveat that application of those rules might be somewhat less stringent where
affirmative action is undertaken pursuant to congressional mandate.

                                        II. The Croson Standards

   In Croson, the Supreme Court considered a constitutional challenge to a Rich­
mond, Virginia ordinance that required prime contractors who received city con­
tracts to subcontract at least thirty percent of the dollar amount of those contracts
to businesses owned and controlled by members of specified racial and ethnic
minority groups— commonly known as minority business enterprises (“ MBEs” ).
The asserted purpose of Richmond’s ordinance was to remedy discrimination
against minorities in the local construction industry.
   Croson marked the first time that a majority of the Supreme Court held that
race-based affirmative action measures are subject to strict scrutiny.18 Justice
O’Connor’s opinion in Croson19 said that “ the purpose of strict scrutiny is to
‘smoke out’ illegitimate uses of race by assuring that the legislative body is pur­
suing a goal important enough to warrant use of a highly suspect tool. The test
also ensures 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.” 488 U.S. at 493 (plurality opinion). See also id.
at 520 (Scalia, J., concurring in the judgment) (“ [S]trict scrutiny must be applied
to all governmental classifications by race, whether or not its asserted purpose
is ‘remedial’ or ‘benign.’ ” ). In short, the compelling interest inquiry centers on
“ ends” and asks why the government is classifying individuals on the basis of
race or ethnicity; the narrow tailoring inquiry focuses on “ means” and asks how
the government is seeking to meet the objective of the racial or ethnic classifica­
tion.
  Applying strict scrutiny, the Court held that (a) the Richmond MBE program
did not serve a “ compelling interest” because it was predicated on insufficient

   18 Croson was decided by a six-three vote. Five o f the Justices in the majority (C hief Justice Rehnquist, and
Justices W hite, O ’Connor, Scalia, and Kennedy) concluded that strict scrutiny was the applicable standard of review.
Justice Stevens concurred in part and concurred in the judgm ent, but consistent with his long-standing views, declined
to “ engag[e] in a debate over the proper standard o f review to apply in affirmative-action litigation.” 488 U.S.
at 514 (Stevens, concurring in part and concurring in the judgment).
   19 Justice O 'C onnor’s opinion was for a majority o f the Court in some parts, and for a plurality in others.


                                                         179
                    Opinions o f the Office o f Legal Counsel in Volume 19


evidence of discrimination in the local construction industry, and (b) it was not
“ narrowly tailored” to the achievement of the city’s remedial objective.

A. Compelling Governmental Interest

  1. Remedial Objectives

   Justice O ’Connor’s opinion in Croson stated that remedying the identified
effects of past discrimination may constitute a compelling interest that can support
the use by a governmental institution of a racial or ethnic classification. This
discrimination could fall into two categories. First, the government can seek to
remedy the effects of its own discrimination. Second, the government can seek
to remedy the effects of discrimination committed by private actors within its
jurisdiction, where the government becomes a “ passive participant” in that con­
duct, and thus helps to perpetuate a system of exclusion. 488 U.S. at 492 (plurality
opinion); id. at 519 (Kennedy, J., concurring in part and concurring in the judg­
ment). In either category, the remedy may be aimed at ongoing patterns and prac­
tices of exclusion, or at the lingering effects of prior discriminatory conduct that
has ceased. See Adarand, 515 U.S. at 269 (Souter, J., dissenting) (“ The Court
has long accepted the view that constitutional authority to remedy past discrimina­
tion is not limited to the power to forbid its continuation, but extends to elimi­
nating those effects that would otherwise persist and skew the operation of public
systems even in the absence o f current intent to practice any discrimination.” ).
   Croson requires the government to identify with precision the discrimination
to be remedied. The fact and legacy of general, historical societal discrimination
is an insufficient predicate for affirmative action: “ While there is no doubt that
the sorry history of both private and public discrimination in this country has
contributed to a lack of opportunities for black entrepreneurs, this observation,
standing alone, cannot justify a rigid racial quota in the awarding of public con­
tracts in Richmond, Virginia.” 488 U.S. at 499. See id. at 505 (“ To accept Rich­
mond’s claim that past societal discrimination alone can serve as the basis for
rigid racial preferences would be to open the door to competing claims for
‘remedial relief for every disadvantaged group.” ). Similarly, “ amorphous”
claims of discrimination in certain sectors and industries are inadequate. Id. at
499 (“ [A]n amorphous claim that there has been past discrimination in a particular
industry cannot justify the use of an unyielding racial quota.” ). Such claims
“ provide[] no guidance for [the government] to determine the precise scope of
the injury it seeks to remedy,” and would have “ no logical stopping point.” Id.
at 498 (internal quotations omitted). The Court indicated that its requirement that
the government identify with specificity the effects of past discrimination anchors
remedial affirmative action measures in the present. It declared that “ [i]n the
absence of particularized findings” of discrimination, racial and ethnic classifica­

                                            180
  Legal Guidance on the Implications o f the Supreme Court’s Decision in Adarand Constructors, Inc.
                                                v. Pena

tions could be “ ageless in their reach into the past, and timeless in their ability
to affect the future.” Id. (internal quotations omitted).
   The Court in Croson did not require a judicial determination of discrimination
in order for a state or local government to adopt remedial racial or ethnic classi­
fications. Rather, relying on Justice Powell’s plurality opinion in Wygant v. Jack­
son Bd. o f Educ., 476 U.S. 267 (1986), the Court said that the government must
have a “ ‘strong basis in evidence for its conclusion that remedial action was
necessary.’ ” Croson, 488 U.S. at 500 (quoting Wygant, 476 U.S. at 277). The
Court then suggested that this evidence should approach “ a prima facie case of
a constitutional or statutory violation” of the rights of minorities. 488 U.S. at
500.20 Notably, the Court said that significant statistical disparities between the
level of minority participation in a particular field and the percentage of qualified
minorities in the applicable pool could permit an inference of discrimination that
would support the use of racial and ethnic classifications intended to correct those
disparities. Id. at 507. See id. at 501 (“ There is no doubt that where gross statis­
tical disparities can be shown, they alone in a proper case may constitute prima
facie proof of a pattern or practice of discrimination.” ) (internal quotations
omitted). But the Court said that a mere underrepresentation of minorities in a
particular sector or industry when compared to general population statistics is an
insufficient predicate for affirmative action. Id. (“ When special qualifications are
required to fill particular jobs, comparisons to the general population (rather than
to the smaller group of individuals who may possess the necessary qualifications)
may have little probative value.” ) (internal quotations omitted).
   Applying its “ strong basis in evidence” test, the Court held that the statistics
on which Richmond based its MBE program were not probative of discrimination
in contracting by the city or local contractors, but at best reflected evidence of
general societal discrimination. Richmond had relied on limited testimonial evi­
dence of discrimination, supplemented by statistical evidence regarding: (i) the
disparity between the number of prime contracts awarded by the city to minorities
during the years 1978-1983 (less than one percent) and the city’s minority popu­
lation (fifty percent), and (ii) the extremely low number of MBEs that were mem­
bers of local contractors’ trade associations. The Court found that this evidence
was insufficient. It said that more probative evidence would have compared, on
the one hand, the number of qualified MBEs in the local labor market with, on
the other hand, the number of city contracts awarded to MBEs and the number
of MBEs in the local contractors’ associations.

   20 Lower courts have consistently said that Croson requires remedial affirmative action measures to be supported
by a “ strong basis in evidence” that such action is wan-anted. See, e.g., Peightal, 26 F.3d at 1553; Concrete Works
v. City and County o f Denver, 36 F.3d 1513, 1521 (10th Cir 1994), cert, denied, 514 U.S. 1004 (1995); Donaghy
v. City o f Omaha, 933 F.2d 1448, 1458 (8th Cir.), cert, denied, 502 U.S. 1059 (1991). Some courts have said
that this evidence should rise to the level o f prima facie case o f discrimination against minorities. See, e.g., O'Donnell
Constr. Co. v. District o f Columbia, 963 F.2d 420, 424 (D.C. Cir. 1992); Stuart, 951 F.2d at 450; Cone Corp.
v. Hillsborough County, 908 F.2d 9 0 8 ,9 1 5 (11th Cir.), cert denied, 498 U.S. 983 (1990).

                                                          181
                             Opinions o f the Office o f Legal Counsel in Volume 19


   In Adarand, Justice O’Connor’s opinion noted that “ racial discrimination
against minority groups in this country is an unfortunate reality,” and as an
example, it pointed to the “ pervasive, systematic, and obstinate discriminatory
conduct’’ that underpinned the court-ordered affirmative action measures that were
upheld in United States v. Paradise, 480 U.S. 149 (1987). Adarand, 515 U.S.
at 237 (internal quotations omitted).21 Her opinion did not say, however, that only
overwhelming evidence of the sort at issue in Paradise can justify affirmative
action. Again, Croson indicates that what is required is a “ strong basis in evi­
dence” to support the government’s conclusion that race-based remedial action
is warranted, and that such evidence need only approach a prima facie showing
of discrimination against minorities. 488 U.S. at 500. The factual predicate in
Paradise plainly exceeded a prima facie showing. Post-Croson lower court
decisions support the conclusion that the requisite factual predicate for race-based
remedial action does not have to rise to the level of discrimination in Paradise.
   The Court in Croson left open the question whether a government may introduce
statistical evidence showing that the pool of qualified minorities would have been
larger “ but for” the discrimination that is to be remedied. Post-Croson lower
court decisions have indicated that such evidence can be probative of discrimina­
tion.22
   Croson also did not discuss the weight to be given to anecdotal evidence of
discrimination that a government gathers through complaints filed with it by
minorities or through testimony in public hearings. Richmond had relied on such
evidence as additional support for its MBE plan, but the Court discounted it. Post-
Croson lower court cases, however, have said that anecdotal evidence can buttress
statistical proof of discrimination 23
   In addition, Croson did not discuss which party has the ultimate burden of
persuasion as to the constitutionality of an affirmative action program when it
is challenged in court. Prior to Croson, the Supreme Court had spelled out the
following evidentiary rule: while the entity defending a remedial affirmative action
measure bears the initial burden of production to show that the measures are sup­
ported by “ a strong basis in evidence,” the “ ultimate burden” of proof rests

   21 T he measures at issue in Paradise w ere intended to remedy discrimination by the Alabama Department of
Public Safety, which had not hired a black trooper at any rank for four decades, 480 U.S. at 168 (plurality opinion),
and then when blacks finally entered the departm ent, had consistently refused to promote blacks to the upper ranks.
Id. at 169-71.
   22 See, e.g.. Contractors Ass’n, 6 F.3d at 1008; O’Donnell Constr. Co. v. District o f Columbia, 963 F.2d 420,
427 (D.C. Cir. 1992); cf. Associated Gen. Contractors v. Coalition for Econ. Equity, 950 F.2d 1401, 1415 (9th
Cir. 1991) (government had evidence that an "o ld boy netw ork” in the local construction industry had precluded
m inority businesses from breaking into the mainstream o f “ qualified” public contractors), cert, denied, 503 U.S.
985 (1992).
   23 See, e.g., Contractors Ass’n, 6 F.3d at 1002-03 (while anecdotal evidence o f discrimination alone rarely will
satisfy the Croson requirements, it can place important gloss on statistical evidence of discrimination); Coral Constr.
Co., 941 F.2d at 919 ( “ [t]he combination o f convincing anecdotal and statistical evidence is potent;” anecdotal
evidence can bring “ cold numbers to life*’); Cone Corp. 908 F.2d at 916 (testimonial evidence adduced by county
in developing M BE program, combined w ith gross statistical disparities in minority participation in public contracting,
provided “ more than enough evidence o n the question o f prior discrimination and need for racial classification” ).


                                                          182
  Legal Guidance on the Implications o f the Supreme Court's Decision in Adarand Constructors, Inc.
                                                v. Pena

upon those challenging the measure to demonstrate that it is unconstitutional.
Wygant, 476 U.S. at 277-78 (plurality opinion).24 Lower courts consistently have
said that nothing in Croson disturbs this evidentiary rule.25
  Finally, and perhaps most significantly, Croson did not resolve whether a
government must have sufficient evidence of discrimination at hand before it
adopts a racial classification, or whether “ post-hoc” evidence of discrimination
may be used to justify the classification at a later date — for example, when it
is challenged in litigation. The Court did say that governments must “ identify
[past] discrimination with some specificity before they may. use race-conscious
relief.” 488 U.S. at 504. However, every court of appeals to consider the question
has allowed governments to use “ post-enactment” evidence to justify affirmative
action — that is, evidence that the government did not consider when adopting
a race-based remedial measure, but that nevertheless reflects evidence of discrimi­
nation providing support for the determination that remedial action was warranted
at the time of adoption 26 Those courts have interpreted Croson as requiring that
a government have some evidence of discrimination prior to embarking on
remedial race-conscious action, but not that it marshal all such evidence at that
time.27


   24 See also Wygant, 476 U.S. at 293 (O ’Connor, J., concurring in part and concurring in the judgment) (when
the government “ introduces its statistical proof as evidence o f its remedial purpose, thereby supplying the court
with the means for determimng that the [government] had a firm basis for concluding that remedial action was
appropriate, it is incumbent upon the [challengers] to prove their case; they continue to bear the ultimate burden
of persuading the court that the [government’s] evidence did not support an inference of prior discrimination and
thus a remedial purpose, or that the plan instituted on the basis o f this evidence was not sufficiently ‘narrowly
tailored’ ” ).
   25 See, e.g., Concrete Works, 36 F.3d at 1521-22; Contractors Ass'n, 6 F.3d at 1005; Cone Corp., 908 F.2d
at 916.
   26See Concrete Works, 36 F.3d at 1521; Contractors Ass'n, 6 F.3d at 1004), Coral Constr. Co., 941 F.2d at
920. As the Second Circuit put it when permitting a state government to rely on post-enactment evidence to defend
a race-based contracting measure, “ [t]he law is plain that the constitutional sufficiency of . . . proffered reasons
necessitating an affirmative action plan should be assessed on whatever evidence is presented, whether prior to
or subsequent to the program’s enactm ent." Harrison & Burrowes Bridge Constr. Inc. v. Cuomo, 981 F.2d 50,
60 (2d Cir. 1992).
   27 See Concrete Works, 36 F.3d at 1521 (“ Absent any preenactment evidence o f discrimination, a municipality
would be unable to satisfy Croson. However, we do not read Croson's evidentiary requirement as foreclosing the
consideration o f post-enactment evidence.” ); Coral Constr. Co., 941 F.2d al 920 (requirement that municipality
have “ some evidence’’ o f discrimination before engaging in race-conscious action “ does not mean that a program
will be automatically struck down if the evidence before the municipality at the time o f enactment does not completely
fulfill both prongs o f the strict scrutiny test. Rather, the factual predicate for the program should be evaluated based
upon all evidence presented to the district court, w hether such evidence was adduced before or after enactment
of the [program].” ). O ne court has observed that the “ risk o f insincerity associated with post-enactment evidence
. . . is minimized” where the evidence “ consists essentially o f an evaluation and re-ordering o f [the] pre-enactment
evidence” on which a government expressly relied in formulating its program. Contractors Ass'n, 6 F.3d at 1004.
Application of the post-enactment evidence rule in that case essentially gave the government a period of transition
in which to build an evidentiary foundation for an affirmative action program that was adopted before Croson,
and thus without reference to the Croson requirements. In Coral Construction, the Ninth Circuit permitted the govern­
ment to introduce post-enactment evidence to provide further factual support for a program that had been adopted
after Croson, with the Croson standards in mind. See Coral Constr. Co., 941 F.2d at 914-15, 919-20.

                                                         183
                             Opinions o f the Office o f Legal Counsel in Volume 19


2. Nonremedial Objectives

   Because Richmond defended its MBE program on remedial grounds, the Court
in Croson did not explicitly address if and when affirmative action may be adopted
for “ nonremedial” objectives, such as promoting racial diversity and inclusion.
The same is true of the majority opinion in Adarand, since the program at issue
in that case also is said to be remedial. In his Adarand dissent, Justice Stevens
said that the majority’s silence on the question does not foreclose the use of
affirmative action to serve nonremedial ends. 515 U.S. at 258 (Stevens, J., dis­
senting). Thus, in the wake of Croson and Adarand, there are substantial questions
as to whether and in what settings nonremedial objectives can constitute a compel­
ling interest.28
   To date, there has never been a majority opinion for the Supreme Court that
addresses the question. The closest the Court has come in that regard is Justice
Powell’s separate opinion in Regents o f the Univ. o f Calif, v. Bakke, 438 U.S.
265 (1978), which said that a university has a compelling interest in taking the
race of applicants into account in its admissions process in order to foster greater
diversity among the student body 29 According to Justice Powell, this would bring
a wider range of perspectives to the campus, and in turn, would contribute to
a more robust exchange of ideas— which Justice Powell said was the central mis­
sion of higher education and in keeping with the time-honored First Amendment
value in academic freedom. See id. at 311-14.30 Since Bakke, Justice Stevens
has been the most forceful advocate on the Court for nonremedial affirmative
action measures. He has consistently argued that affirmative action makes just
as much sense when it promotes an interest in creating a more inclusive and
diverse society for today and the future, as when it serves an interest in remedying
past wrongs. See Adarand, 515 U.S. at 257 (Stevens, J., dissenting); Croson, 488
U.S. at 511-12 & n.l (Stevens, J., concurring); Johnson, 480 U.S. at 646-47 (Ste­
vens, J., concurring); Wygant, 476 U.S. at 313-15 (Stevens, J., dissenting). As
a circuit judge in a case involving an ostensibly remedial affirmative action
measure, Justice Ginsburg announced her agreement with Justice Stevens’ position
“ that remedy for past wrong is not the exclusive basis upon which racial classi­
fications may be justified.” O’Donnell Constr. Co., 963 F.2d at 429 (Ginsburg,
J., concurring) (citing Justice Stevens’ concurrence in Croson, 488 U.S. at 511).
   In Metro Broadcasting, the majority relied on Bakke and Justice Stevens’ vision
of affirmative action to uphold FCC affirmative action programs in the licensing
of broadcasters on nonremedial grounds; the Court said that diversification of
   28G iven the nation's history o f discrimination, virtually all affirmative action can be considered remedial in a
broad sense. But as Croson makes plain, that histoiy, on its ow n, cannot properly form the basis o f a remedial
affirm ative action measure under strict scrutiny.
   29 A lthough Justice Powell wrote for him self in Bakke , his opinion was the controlling one in the case.
   30A lthough it apparently has not been tested to any significant degree in the courts. Justice Pow ell's thesis may
carry over to the selection o f university faculty: the greater the racial and ethnic diversity o f the professors, the
greater the array o f perspectives to which the students would be exposed.


                                                         184
  Legal Guidance on the Implications o f the Supreme Court's Decision in Adarand Constructors, Inc.
                                                v. Pena

ownership of broadcast licenses was a permissible objective of affirmative action
because it serves the larger goal of exposing the nation to a greater diversity of
perspectives over the nation’s radio and television airwaves. 497 U.S. at 567-
68. The Court reached that conclusion under intermediate scrutiny, however, and
thus did not hold that the governmental interest in seeking diversity in broad­
casting is “ compelling.” Adarand did not overrule the result in Metro Broad­
casting— a point not lost on Justice Stevens. See Adarand, 515 U.S. at 258 (Ste­
vens, J., dissenting) (“ The majority today overrules Metro Broad, only insofar
as it” is inconsistent with the holding that federal affirmative action measures
are subject to strict scrutiny. ‘‘The proposition that fostering diversity may provide
a sufficient interest to justify [a racial or ethnic classification] is not inconsistent
with the Court’s holding today — indeed, the question is not remotely presented
in this case . . . .” ).
   On the other hand, portions of Justice O’Connor’s opinion in Croson and her
dissenting opinion in Metro Broadcasting appear to cast doubt on the validity
of nonremedial affirmative action programs. In one passage in her opinion in
Croson, Justice O ’Connor stated that affirmative action must be “ strictly reserved
for the remedial setting.” 488 U.S. at 493 (plurality opinion). Echoing that theme
in her dissenting opinion (joined by Chief Justice Rehnquist and Justices Kennedy
and Scalia) in Metro Broadcasting, Justice O’Connor urged the adoption of strict
scrutiny for federal affirmative action measures, and asserted that under that
standard, only one interest has been “ recognized” as compelling enough to justify
racial classifications: “ remedying the effects of racial discrimination.” 497 U.S.
at 612. Justice Kennedy’s separate dissent in Metro Broadcasting was also quite
dismissive of non-remedial justifications for affirmative action; he criticized the
majority opinion for “ allow[ing] the use of racial classifications by Congress
untied to any goal of addressing the effects of past race discrimination” ). Id. at
632 (Kennedy, J., dissenting).
   Nowhere in her Croson and Metro Broadcasting opinions did Justice O ’Connor
expressly disavow Justice Powell’s opinion in Bakke. Accordingly, lower courts
have assumed that Justice O ’Connor did not intend to discard Bakke?1 That propo­
sition is supported by Justice O ’Connor’s own concurring opinion in Wygant, in
which she expressed approval of Justice Powell’s view that fostering racial and
ethnic diversity in higher education is a compelling interest. 476 U.S. at 286.
Furthermore, in Wygant, Justice O’Connor said that there might be governmental

   31 See Winter Park Communications, Inc. v. FCC, 873 F.2d 347, 353-54 (D.C. Cir. 1989), a ffd sub. nom. Metro
Broad., Inc. v. FCC , 497 U.S. 547 (1990); Winter Park, 873 F.2d at 357 (W illiams, J., concurring in part and
dissenting in part); Shurberg Broad., Inc. v. FCC, 876 F.2d 902, 942 (D.C. Cir. 1989) (Wald, C.J., dissenting),
a ffd sub. nom. Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990). In Davis v. Halpern, 768 F. Supp. 968 (S.D.N.Y.
1991), the court reviewed the law o f affirmative action in the wake o f Croson and Metro Broadcasting , and, citing
Justice Pow ell's opinion in Bakke, said that a university has a compelling interest in seeking to increase the diversity
of its student body. Id. at 981. See also United States v. Board o f Educ. Township o f Piscataway, 832 F. Supp.
836, 847-48 (D.N.J. 1993) (under constitutional standards for affirmative action, diversity in higher education is
a compelling governmental interest) (citing Bakke and Croson ).


                                                          185
                              Opinions o f the Office o f Legal Counsel in Volume 19


interests other than remedying discrimination and promoting diversity in higher
education that might be sufficiently compelling to support affirmative action. Id.
For example, Justice O’Connor left open the possibility that promoting racial
diversity among the faculty at primary and secondary schools could count as a
compelling interest. Id. at 288 n*. In his Wygant dissent, Justice Stevens argued
that this is a permissible basis for affirmative action. Id. at 313-15 (Stevens, J.,
dissenting).
   On the assumption that Bakke remains the law, it is clear that to the extent
affirmative action is used to foster racial and ethnic diversity, the government
must seek some further objective, beyond the mere achievement of diversity
itself.32 As Bakke teaches, in higher education, that asserted goal is the enrichment
of the academic experience. And according to the majority in Metro Broadcasting,
the asserted independent goal that justifies diversifying the owners of broadcast
licenses is adding variety to the perspectives that are communicated in radio and
television. That same kind of analysis must be applied to efforts to promote racial
and ethnic diversity in other settings.
   For instance, diversification o f the ranks in a law enforcement agency arguably
serves vital public safety and operational needs, and thus enhances the agency’s
ability to carry out its functions effectively. See Wygant, 476 U.S. at 314 (Stevens,
J., dissenting) (“ [I]n law enforcement . . . in a city with a recent history of racial
unrest, the superintendent of police might reasonably conclude that an integrated
police force could develop a better relationship with the community and thereby
do a more effective job of maintaining law and order than a force composed only
of whites.” ); Paradise, 480 U.S. at 167 n.18 (plurality opinion) (noting argument
that race-conscious hiring can “ restore[] community trust in the fairness of law
enforcement and facilitate[] effective police service by encouraging citizen
cooperation” ).33 It is more difficult to identify any independent goal that may
be attained by diversifying the racial mix of public contractors. Justice Stevens
concurred in the judgment in Croson on precisely that ground. Citing his own
Wygant dissent, Justice Stevens contrasted the “ educational benefits to the entire
student body” that he said could be achieved through faculty diversity with the
minimal societal benefits (other than remedying past discrimination, a predicate
that he said was not supported by the evidence in Croson) that would flow from
a diversification of the contractors with whom a municipality does business. See
Croson, 488 U.S. at 512-13 (Stevens, J., concurring in part and concurring in
the judgment). Furthermore, the Court has stated that the desire to develop a
   32The Court has consistently rejected “ racial balancing” as a goal o f affirmative action. See Croson, 488 U.S.
at 507; Johnson , 480 U.S. at 639; Local 28 Sheet Metal Workers' Int’l Ass’n v. EEOC, 478 U.S. 421, 475 (1986)
(plurality opinion); Bakke, 438 U.S. at 307 (opinion o f Powell, J.).
   33See also Detroit Police Officers' Ass’n v. Young, 608 F.2d 671, 696 (6th Cir. 1979), cert, denied , 452 U.S.
938 (1981) ( “ The argument that police need more minority officers is not simply that blacks communicate better
w ith blacks o r that a police department should cater to the public's desires. Rather, it is that effective crime prevention
and solution depend heavily on the public support and cooperation which result only from public respect and con­
fidence in the police.” ).


                                                            186
  Legal Guidance on the Implications o f the Supreme Court’s Decision in Adarand Constructors, Inc.
                                                v. Pena

growing class of successful minority entrepreneurs to serve as “ role models” in
the minority community is not, on its own, a valid basis for a racial or ethnic
classification. See Croson, 488 U.S. at 497 (citing Wygant, 476 U.S. at 276 (plu­
rality opinion)); see also Wygant, 476 U.S. at 288 n* (O’Connor, J., concurring).
   Diversification of the health services profession was one of the stated predicates
of the racial and ethnic classifications in the medical school admissions program
at issue in Bakke. The asserted independent goal was “ improving the delivery
of health-care services to communities currently underserved.” Bakke, 438 U.S.
at 310. Justice Powell said that “ [i]t may be assumed that in some situations
a State’s interest in facilitating the health care of its citizens is sufficiently compel­
ling to support the use of a suspect classification.” Id. The problem in Bakke,
however, was that there was “ virtually no evidence” that the preference for
minority applicants was “ either needed or geared to promote that goal.” Id.34
   Assuming that some nonremedial objectives remain a legitimate basis for
affirmative action after Adarand, there is a question of the nature of the showing
that may be necessary to support racial and ethnic classifications that are premised
on such objectives. In higher education, the link between the diversity of the stu­
dent body and the diversity of viewpoints on the campus does not readily lend
itself to empirical proof. Justice Powell did not require any such evidence in
Bakke. He said that the strong First Amendment protection of academic freedom
that allows “ a university to make its own judgments as to education includes
the selection of its student body.” Bakke, 438 U.S. at 312. A university is thus
due some discretion to conclude that a student “ with a particular background—
 whether it be ethnic, geographic, culturally advantaged or disadvantaged— may
bring to a professional school of medicine experiences, outlooks, and ideas that
enrich the training of its student body and better equip its graduates to render
with understanding their vital service to humanity.” Id. at 314.
   It could be said that this thesis is rooted in a racial stereotype, one that presumes
that members of racial and ethnic minority groups have a “ minority perspective”
to convey. As Justice O’Connor stated in Croson, a driving force behind strict
scrutiny is to ensure that racial and ethnic classifications are not motivated by
“ stereotype.” Croson, 488 U.S. at 493 (plurality opinion). There are sound argu­
ments to support the contention that seeking diversity in higher education rests
on valid assumptions. The thesis does not presume that all individuals of a par­
ticular race or ethnic background think and act alike. Rather, it is premised on
what seems to be a common sense proposition that in the aggregate, increasing
the diversity of the student body is bound to make a difference in the array of
perspectives communicated at a university. See Metro Broad., 497 U.S. at 579
(“ The predictive judgment about the overall result of minority entry into broad­
casting is not a rigid assumption about how minority owners will behave in every

   34 Aside from (he proffered justification in Bakke, the government may have other reasons for seeking to increase
the number o f minority health professionals.


                                                      187
                             Opinions o f the Office o f Legal Counsel in Volume 19


case but rather is akin to Justice Powell’s conclusion in Bakke that greater admis­
sion of minorities would contribute, on average, to the robust exchange of ideas.” )
(internal quotations omitted). Nonetheless, after Croson and Adarand, a court
might demand some proof of a nexus between the diversification of the student
body and the diversity of viewpoints expressed on the campus.35 Likewise, a court
may demand a factual predicate to support the proposition that greater diversity
in a law enforcement agency will serve the operational needs of the agency and
improve its performance,36 or that minority health care professionals are more
likely to work in medically underserved communities.37

IB. Narrow Tailoring Test

   In addition to advancing a compelling goal, any governmental use of race must
also be “ narrowly tailored.” There appear to be two underlying purposes of the
narrow tailoring test: first, to ensure that race-based affirmative action is the
product of careful deliberation, not hasty decisionmaking; and, second, to ensure
that such action is truly necessary, and that less intrusive, efficacious means to
the end are unavailable. As it has been applied by the courts, the factors that
typically make up the “ narrow tailoring” test are as follows: (i) whether the
government considered race-neutral alternatives before resorting to race-conscious
action; (ii) the scope of the affirmative action program, and whether there is a
waiver mechanism that facilitates the narrowing of the program’s scope; (iii) the
manner in which is used, that is, whether race is a factor in determining eligibility
for a program or whether race is just one factor in the decisionmaking process;
(iv) the comparison of any numerical target to the number of qualified minorities
in the relevant sector or industry; (v) the duration of the program and whether
it is subject to periodic review; and (vi) the degree and type of burden caused
by the program. In Adarand, the Supreme Court referred to its previous affirmative
action decisions for guidance on what the narrow tailoring test entails. It specifi­
cally mentioned that when the Tenth Circuit reviewed the DOT program at issue
in Adarand under intermediate scrutiny, it had not addressed race-neutral alter­
natives or the duration of the program.
   Before describing each of the components, three general points about the narrow
tailoring test deserve mention. First, it is probably not the case that an affirmative
action measure has to satisfy every factor. A strong showing with respect to most
of the factors may compensate for a weaker showing with respect to others.

   35 Justice Powell cited literature on this subject in support o f his opinion in Bakke. See 438 U.S. at 312-13 n.48,
315 n.50.
   36 See Hayes v. North State Law Enforcement Officers A ss'n , 10 F.3d 207, 215 (4th Cir. 1993) (although the
use o f racial classifications to foster diversity o f police department could be a constitutionally permissible objective,
city failed to show a link between effective law enforcement and greater diversity in the department’s ranks).
   31 See Bakke , 438 U.S. at 311 (opinion o f Powell, J.) (noting lack o f empirical data to support medical school's
claim that minority doctors will be more likely to practice in a disadvantaged community).


                                                          188
 Legal Guidance on the Implications o f the Supreme Court's Decision in Adarand Constructors, Inc.
                                               v. Peha

   Second, all of the factors are not relevant in every case. For example, the objec­
tive of the program may determine the applicability or weight to be given a factor.
The factors may play out differently where a program is nonremedial.
   Third, the narrow tailoring test should not necessarily be viewed in isolation
from the compelling interest test. To be sure, the inquiries are distinct: as indicated
above, the compelling interest inquiry focuses on the ends of an affirmative action
measure, whereas the narrow tailoring inquiry focuses on the means. However,
as a practical matter, there may be an interplay between the two. There is some
hint of this in Croson. In several places, the Court said that the weak predicate
of discrimination on which Richmond acted could not justify the adoption of a
rigid racial quota— which suggests that if Richmond had opted for some more
flexible measure the Court might have been less demanding when reviewing the
evidence of discrimination. By the same token, the more compelling the interest,
perhaps less narrow tailoring is required. For example, in Sheet Metal Workers,
and Paradise, the Supreme Court upheld what on their face appear to be rather
rigid classifications to remedy egregious and persistent discrimination.
   However, it bears emphasizing that the Supreme Court has never explicitly rec­
ognized any trade-off between the compelling interest and narrow tailoring tests.
It is also far from clear that the Court in Croson would have found that a more
flexible MBE program, supported by the generalized evidence of discrimination
on which Richmond relied, could withstand strict scrutiny. In addition, the mem­
bership of the Court has changed dramatically in the years since Sheet Metal
Workers and Paradise. Both cases were decided by five-four margins, and only
one member of the majority (Justice Stevens) remains. And while Justice
O’Connor agreed with the majority in Sheet Metal Workers and Paradise that
ample evidence of deeply entrenched discrimination gave rise to a very weighty
interest in race-based action, she dissented on the ground that the particular rem­
edies selected were too rigid.

  1. Race-Neutral Alternatives

   In Croson, the Supreme Court said that the Richmond MBE program was not
“ narrowly tailored,” in part because the city apparently had not considered race-
neutral means to increase minority participation in contracting before adopting
its race-based measure. The Court reasoned that because minority businesses tend
to be smaller and less-established, providing race-neutral financial and technical
assistance to small and/or new firms and relaxing bonding requirements might
achieve the desired remedial results in public contracting— increasing opportuni­
ties for minority businesses. 488 U.S. at 507, 510. Justice Scalia suggested an
even more aggressive idea: “ adopt a preference for small businesses, or even
for new businesses — which would make it easier for those previously excluded
by discrimination to enter the field. Such programs may well have a racially dis­

                                               189
                             Opinions o f the Office o f Legal Counsel in Volume 19


proportionate impact, but they are not based on race.” Id. at 526 (Scalia, J.,
concurring). As such, they would not be subjected to strict scrutiny.
   The Court in Croson did not specify the extent to which governments must
consider race-neutral measures before resorting to race-conscious action. It would
 seem that the government need not first exhaust race-neutral alternatives, but only
give them serious attention.38 This principle would comport with the purposes
of ensuring that race-based remedies are used only when, after careful consider­
ation, a government has concluded that less intrusive means would not work. It
also comports with Justice Powell’s view that in the remedial setting, the govern­
ment need not use the “ least restrictive means” where they would not accomplish
the desired ends as well. See Fullilove, 448 U.S. at 508 (Powell, J., concurring);
see also Wygant, 476 U.S. at 280 n.6 (plurality opinion of Justice Powell) (narrow
tailoring requirement ensures that “ less restrictive means” are used when they
would promote the objectives of a racial classification “ about as well” ) (internal
quotations omitted).39
   This approach gives the government a measure of discretion in determining
whether its objectives could be accomplished through some other avenue. In addi­
tion, under this approach, the government may not be obliged to consider race-
neutral alternatives every time that it adopts a race-conscious measure in a par­
ticular field. In some situations, the government may be permitted to draw upon
a previous consideration of race-neutral alternatives that it undertook prior to
adopting some earlier race-based measure.40 In the absence of prior experience,
however, a government should consider race-neutral alternatives at the time it
adopts a racial or ethnic classification. More fundamentally, even where race-neu-
tral alternatives were considered, a court might second-guess the government if
the court believes that an effective race-neutral alternative is readily available and
hence should have been tried. See Metro Broadcasting, 497 U.S. at 625
(O’Connor, J., dissenting) (FCC affirmative action programs are not narrowly tai­
lored, in part, because “ the FCC has never determined that it has any need to
resort to racial classifications to achieve its asserted interest, and it has employed
race-conscious means before adopting readily available race-neutral, alternative
means” ); Paradise, 480 U.S. at 199-200 (O’Connor, J., dissenting) (district
court’s race-based remedial order was not narrowly tailored because the court
“ had available several alternatives” that would have achieved the objectives in
a less intrusive manner).41
    38See Coral Constr. Co., 941 F.2d al 923 ( “ fW]hile strict scrutiny requires serious, good faith consideration
o f race-neutral alternatives, strict scrutiny does not require exhaustion o f every such possible alternative. ” ).
    39 Cf. Billish, 989 F.2d at 894 (7th C ir.) (en banc) (Posner, J.) (in reviewing affirmative action measures, courts
m ust be “ sensitiv[e] to the importance o f avoiding racial criteria . . . w henever it is possible to do so, [as] Croson
requires” ), cert, denied, 510 U.S. 908 (1993).
    40See Contractors Ass’n, 6 F.3d at 1009 n. 18.
   41 See also Seibels, 31 F.3d at 1571 (city should have implemented race-neutral alternative o f establishing non-
discriminatory selection procedures in police and fire departments instead of adopting race-based procedures; “ contin­
ued use o f discrim inatory tests . . . compounded the very evil that [race-based measures] were designed to elimi­
n ate” ); Aiken v. City o f Memphis, 37 F.3d 1155, 1164 (6th Cir. 1994) (remanding to low er court, in part, because


                                                         190
  Legal Guidance on the Implications o f the Supreme Court’s Decision in Adarand Constructors, Inc.
                                                v. Pena

   2. Scope o f Program/Administrative Waivers

   Justice O’Connor’s opinion for the Court in Croson criticized the scope of Rich­
mond’s thirty percent minority subcontracting requirement, calling it a “ rigid
numerical quota” that did not permit consideration, through some form of
administrative waiver mechanism, of whether particular individuals benefiting
from the ordinance had suffered from the effects of the discrimination that the
city was seeking to remedy. 488 U.S. at 508. At first blush, this criticism of
the Richmond plan may appear to conflict with previous Court decisions, joined
by Justice O ’Connor, that held that race-based remedial measures need not be
limited to persons who were the victims of discrimination. (See supra pp. 174—
75.) Upon closer reading, however, Croson should not be interpreted as intro­
ducing a “ victims-only” requirement through the narrow tailoring test.42 The
Court’s rejection in Adarand of Justice Scalia’s position that compensation is due
only to individuals who have been discriminated against personally provides fur­
ther confirmation that Croson did not impose any such requirement.
   The Court’s focus in Croson on individualized consideration of persons seeking
the benefit of a racial classification appears to have been animated by three sepa­
rate concerns about the scope of the Richmond plan. First, the Court indicated
that in order for a remedial affirmative action program to be narrowly tailored,
its beneficiaries must be members of groups that were the victims of discrimina­
tion. The Court faulted the Richmond plan because it was intended to remedy
discrimination against African-American contractors, but included among its bene­
ficiaries Hispanics, Asian-Americans, Native-Americans, Eskimos, and Aleuts —
 groups for which Richmond had proffered “ absolutely no evidence o f past
discrimination.” Id. at 506. Therefore, the Court said, even if the Richmond MBE
program was “ ‘narrowly tailored’ to compensate African-American contractors
for past discrimination, one may legitimately ask why they are forced to share
this ‘remedial relief’ with an Aleut citizen who moves to Richmond tomorrow?”
Id,43 Second, the Court said that the Richmond plan was not even narrowly tai­
lored to remedy discrimination against black contractors because “ a successful
black entrepreneur . . . from anywhere in the country” could reap its benefits.

evidence suggested that the city should have used obvious set o f race-neutral alternatives before resorting to race­
conscious measures).
  42 Most lower courts have not construed Croson in that fashion. See, e.g., Billish, 962 F.2d at 1292-94, rev'd
on other grounds, 989 F.2d 890 (7th Cir.) (en banc), cert, denied, 510 U.S. 908 (1993); Coral Constr. Co., 941
F.2d at 925-26 n.15; Cunico v. Pueblo Sch. Dist. No. 60, 917 F.2d 431, 437 (10th Cir. 1990). But see Winter
Park Communications. Inc., 873 F.2d at 367-68 (W illiams, J., concurring in part and dissenting in part) (interpreting
Croson as requiring that racial classifications be limited “ to victims o f prior discrimination” ); Main Line Paving
Co. v. Board o f E d u c 725 F. Supp. 1349, 1362 (E.D. Pa. 1989) (MBE program not narrowly tailored, in part,
because it “ containe[d] no provision to identify those who were victims o f past discrimination and to limit the
program’s benefits to them ").
  43 See O’Donnell Constr. Co., 963 F.2d at 427 (MBE program was not narrowly tailored because of “ random
inclusion of racial groups for which there was no evidence of past discrimination” ).


                                                        191
                            Opinions o f the Office o f Legal Counsel in Volume 19


Id. at 508. That is, the geographic scope of the plan was not sufficiently tailored.44
Third, the Court contrasted the “ rigidity” of the Richmond plan with the flexible
waiver mechanism in the ten percent minority participation requirement that was
upheld in Fullilove. As the Court in Croson described it, the requirement in
Fullilove could be waived where a minority business charged a “ higher price
[that] was not attributable to the effects of past discrimination.” Id. See Fullilove,
448 U.S. at 488 (plurality opinion). The theory is that where a business is strug­
gling to overcome discrimination, it may not have the capacity to submit a
competitive bid. That an effective waiver provision allows for “ individualized
consideration” of a particular minority contractor’s bid does not mean that the
contractor has to be a “ victim” of a specific instance of discrimination. It does
mean that if the contractor is wealthy and has entered the mainstream of contrac­
tors in the community, a high bid might not be traceable to the discrimination
that a racial or ethnic classification is seeking to redress. Instead, such a bid might
reflect an effort to exploit the classification.45

   3. M anner in Which Race is Used

  The Court’s attack on the “ rigidity” of the Richmond ordinance also implicates
another common refrain in affirmative action jurisprudence: the manner in which
race is used is an integral part of the narrow tailoring requirement. The clearest
statement of the Court’s somewhat mixed messages in this area is that programs
that make race or ethnicity a requirement of eligibility for particular positions
or benefits are less likely to survive constitutional challenge than programs that
merely use race or ethnicity as one factor to be considered under a program open
to all races and ethnic groups.46
  Two types of racial classifications are subject to criticism as being too rigid.
First and most obvious is an affirmative action program in which a specific
number of positions are set aside for minorities. The prime example is the medical
school admissions program that the Court invalidated in Bakke. Justice Powell’s
   44 Compare Coalition fo r Econ. Equity, 9 5 0 F.2d at 1418 (M BE program intended to remedy discrimination against
minorities in county construction industry was narrowly tailored, in part, because scope o f beneficiaries was limited
to minorities within the county) with Podberesky v. Kinvan, 38 F.3d 147, 159 (4th Cir.) (scholarship program intended
to remedy discrimination against African-Americans in M aryland was not narrowly tailored, in part, because African-
A m ericans from outside M aryland were eligible for the program), cert, denied, 514 U.S. 1128 (1995).
   45 See Milwaukee County Pavers Ass’n v. Fiedler, 922 F.2d 419, 425 (7th Cir.) (noting that administrative waiver
mechanism enabled state to exclude from scope o f beneficiaries o f affirmative action plan in public contracting
“ tw o wealthy black football players’* w ho apparently could compete effectively outside the plan), cert, denied,
500 U.S. 954 (1991); Concrete Gen. Inc. v. Washington Suburban Sanitary Comm’n, 779 F. Supp. 370, 381 (D.
Md. 1991) (M BE program not narrowly tailored, in part, because it had “ no provision to "graduate’ from the program
those contracting firms which have demonstrated the ability to effectively compete with non-M BE’s in a competitive
bidding process” ); see also Shurberg Broad., Inc. v. FCCr 876 F.2d at 916 (opinion o f Silberman, J.) ( “ There
must be som e opportunity to exclude those individuals for whom affirmative action is just another business oppor­
tunity.” ).
   46The factor that we labeled above as “ scope o f beneficiaries/administrative waivers” is sometimes considered
by courts under the heading o f “ flexibility,” along with a consideration o f the manner in which race is used. For
the sake o f clarity we have divided them into two separate components o f the narrow tailoring test.


                                                         192
  Legal Guidance on the Implications o f the Supreme Court’s Decision in Adarand Constructors, Inc.
                                                v. Pena

pivotal opinion in the case turned squarely on the fact that the program reserved
sixteen percent of the slots at the medical school for members of racial and ethnic
minority groups. Another example of this type of classification is the program
upheld in Fullilove. It provides that, except where the Secretary of Commerce
determines otherwise, at least ten percent of the amount of federal grants for cer­
tain public works projects must be expended by grantees to purchase goods or
services from minority-owned businesses. 42 U.S.C. § 6705(f)(2).
   The second type of classification that is vulnerable to attack on flexibility
grounds is a program in which race or ethnicity is the sole or primary factor
in determining eligibility. One example is the FCC’s “ distress sale” program,
which allows a broadcaster whose qualifications have been called into question
to transfer his or her license prior to an FCC revocation hearing, provided the
transferee is a minority-owned business.47 Another example of affirmative action
programs in which race or ethnicity is a requirement of eligibility are college
scholarships that are reserved for minorities.48
   Under both types of classifications, persons not within the designated categories
are rendered ineligible for certain benefits or positions.49 Justice Powell’s opinion
in Bakke rested on the fact that the admissions program at issue was a quota
that saved places for minorities solely on the basis of their race.50 As Justice
Powell put it, such a program

           tells applicants who are not Negro, Asian, or Chicano that they are
           totally excluded from a specific percentage of the seats in an
           entering class. No matter how strong their qualifications, quan­
           titative and extracurricular, including their own potential for con­
           tribution to educational diversity, they are never afforded the chance
           to compete with applicants from the preferred groups for the special
           admissions seats.

   47 The distress sale program was upheld under intermediate scrutiny in Metro Broadcasting.
   48 There is a plausible distinction between college scholarships that are reserved for minorities and admissions
quotas that reserve places at a college for minorities. In Podberesky v. Kirwan, 38 F.3d 147 (4th C ir 1994). cert,
denied , 514 U.S. 1128 (1995), the Fourth Circuit held that a college scholarship program for African Americans
was unconstitutional under Croson. The Fourth C ircuit’s decision, however, did not equate the scholarship program
with the admissions quota struck down in Bakke, and it did not turn on the fact that race was a requirement of
eligibility for the program.
   49 The statutes and regulations under which DO T has established the contracting program at issue in Adarand
are different. Racial and ethnic classifications are used in the form o f a presumption that members o f minority
groups are “ socially disadvantaged.” However, that presumption is rebuttable, and members o f nonminority groups
are eligible for the program “ on the basis o f clear and convincing evidence” that they are socially disadvantaged.
Adarand, 515 U.S. at 207. See id. at 259-61 (Stevens, J., dissenting) (arguing that the relevant statutes and regulations
in Adarand are better tailored than the Fullilove legislation, because they “ do[] not make race the sole criterion
of eligibility for participation in the program.” Members o f racial and ethnic are presumed to be disadvantaged,
but the presumption is rebuttable, and even if it does not get the presumption, “ a small business may qualify [for
the program] by showing that it is both socially and economically disadvantaged” ).
   30 Bakke is the only Supreme Court affirmative action case that ultimately turned on the “ quota” issue. In Croson,
the Court referred disparagingly to the thirty percent minority subcontracting requirement at issue in the case as
a “ quota,” but that was not in itself the basis for the C ourt’s decision.


                                                          193
                            Opinions o f the Office o f Legal Counsel in Volume 19


438 U.S. at 319. Justice Powell contrasted admissions programs that require
decisions based “ solely” on race and ethnicity, id. at 315, with programs in which
race or ethnic background is simply one factor among many in the admissions
decision. Justice Powell said that in the latter type of program, “ race or ethnic
background may be deemed a ‘plus’ in a particular applicant’s file, yet it does
not insulate the individual from comparison with all other candidates for the avail­
able seats.” Id. at 317. In Justice Powell’s view, such programs are sufficiently
flexible to meet the narrow tailoring requirement.
   This line of reasoning also resonates in Johnson v. Transportation Agency, 480
U.S. 616 (1987). There, the Supreme Court upheld an affirmative action plan
under which a state government agency considered the gender of applicants51
as one factor in making certain promotion decisions. The Court noted that the
plan “ set[] aside no positions for women,” but simply established goals for
female representation that were not “ construed” by the agency as “ quotas.” Id.
at 638. The Court further observed that the plan “ merely authorize[d] that consid­
eration be given to affirmative action concerns when evaluating qualified
applicants.” Id. The Court stressed that in the promotion decision in question,
“ sex . . . was but one of numerous factors [that were taken] into account.” Id.
The agency’s plan “ thus resemble[d]” the type of admissions program “ approv­
ingly noted by Justice Powell” in Bakke: it “ requires women to compete with
all other qualified applicants. No persons are automatically excluded from consid­
eration; all are able to have their qualifications weighed against those of other
applicants.” Id. See also id. at 656-57 (O’Connor, J., concurring in judgment)
(agency’s promotion decision was not made “ solely on the basis of sex;” rather,
“ sex was simply used as a ‘plus factor’ ” ).
   Finally, Croson itself touches on the point. The Court said that in the absence
of a waiver mechanism that permitted individualized consideration of persons
seeking a share of city contracts pursuant to the requirement that thirty percent
of the dollar value of prime contracts go to minority subcontractors, the Richmond
plan was “ problematic from an equal protection standpoint because [it made] the
color of an applicant’s skin the sole relevant consideration.” 488 U.S. at 508.

   4. Comparison o f Numerical Target to Relevant Market

   Where an affirmative action program is justified on remedial grounds, the Court
has looked at the size of any numerical goal and its comparison to the relevant
labor market or industry. This factor involves choosing the appropriate measure
of comparison. In Croson, Richmond defended its thirty percent minority subcon­
tracting requirement on the premise that it was halfway between .067 percent—
 the percentage of city contracts awarded to African-Americans during the years

  51 A lthough Johnson was a Title VII gender classification case, its reasoning as to the distinction between quotas
and goals is instructive with respect to the constitutional analysis o f racial and ethnic classifications.


                                                       194
  Legal Guidance on the Implications o f the Supreme Court's Decision in Adarand Constructors, Inc.
                                                v. Peha

1978-1983 — and fifty percent— the African-American population of Richmond.
The Court in Croson demanded a more meaningful statistical comparison and
much greater mathematical precision. It held that numerical figures used in a racial
preference must bear a relationship to the pool of qualified minorities. Thus, in
the Court’s view, the thirty percent minority subcontracting requirement was not
narrowly tailored, because it was tied to the African-American population of Rich­
mond, and as such, rested on the assumption that minorities will choose a par­
ticular trade “ in lockstep proportion to their representation in the local popu­
lation.” 488 U.S. at 507.52

    5. Duration and Periodic Review

  Under Croson, affirmative action represents a “ temporary” deviation from “ the
norm of equal treatment of all racial and ethnic groups.” Croson, 488 U.S. at
510. A particular measure therefore should last only as long as it is needed. See
Fullilove, 448 U.S. at 513 (Powell, J., concurring). Given this imperative, a racial
or ethnic classification is more likely to pass the narrow tailoring test if it has
a definite end-date,53 or is subject to meaningful periodic review that enables the
government to ascertain the continued need for the measure. The Supreme Court
has said that a set end-date is less important where a program does not establish
specific numerical targets for minority participation. Johnson, 480 U.S. at 640.
However, it remains important for such a program to undergo periodic review.
See id. at 639-40.
   Simply put, a racial or ethnic classification that was justified at the point of
its adoption may no longer be required at some future point. If the classification
is subject to reexamination from time to time, the government can react to changed
circumstances by fine-tuning the classification, or discontinuing it if warranted.
See Fullilove, 448 U.S. at 489 (plurality opinion); see also Metro Broadcasting,
497 U.S. at 594; Sheet Metal Workers, 478 U.S. at 478 (plurality opinion); id.
at 487-88 (Powell, J., concurring).

   52 Compare Aiken, 37 F.3d al 1165 (remanding to lower court, in part, because race-based promotion goals in
consent decree were tied to “ undifferentiated" labor force statistics; instructing district court on remand to determine
whether racial composition o f city labor force “ differs materially from that o f the qualified labor pool for the posi­
tions” in question) with Edwards v. City o f Houston, 37 F.3d 1097, 1114 (5th Cir. 1994) (race-based promotion
goals in city police department were narrowly tailored, in part, because the goals were tied to the num ber o f minorities
with the skills for the positions in question), reh’g granted, 49 F.3d 1048 (5th Cir. 1995).
   53 See Paradise, 480 U.S. at 178 (plurality opinion) (race-based promotion requirement was narrowly tailored,
in part, because it was “ ephem eral,” and would “ en dured only until” non-discriminatory promotion procedures
were implemented); Sheet Metal Workers, 478 U.S. at 487 (Powell, J., concurring) (race-based hiring goal was nar­
rowly tailored, in part, because it “ was not imposed as a permanent requirement, but [was] o f limited duration” );
Fullilove, 448 U.S. at 513 (Powell, J., concurring) (race-based classification in public works legislation was narrowly
tailored, in part, because it was “ not a permanent part o f federal contracting requirements” ); O'Donnell Constr.
Co., 963 F.2d at 428 (ordinance setting aside a percentage o f city contracts for minority businesses was not narrowly
tailored, in part, because it contained no “ sunset provision” and no “ end [was] in sight” ).


                                                          195
                           Opinions o f the Office o f Legal Counsel in Volume 19


   6. Burden

    Affirmative action necessarily imposes a degree of burden on persons who do
 not belong to the groups that are favored by a racial or ethnic classification. The
 Supreme Court has said, however, that some burdens are acceptable, even when
 visited upon individuals who are not personally responsible for the particular
 problem that the classification seeks to address. See Wygant, 476 U.S. at 280-
 81 (plurality opinion) (“ As part of this Nation’s dedication to eradicating racial
 discrimination, innocent persons may be called upon to bear some of the burden
 of the remedy.” ). This was implicitly reaffirmed in Croson and Adarand: in both
 cases, the Court “ recognize[d] that any individual suffers an injury when he or
 she is disadvantaged by the government because of his or her race, whatever that
race may be,” 54 but declined to hold that the imposition of that burden pursuant
 to an affirmative action measure is automatically unconstitutional.
   In some situations, however, the burden imposed by an affirmative action pro­
gram may be too high. As a general principle, a racial or ethnic classification
crosses that threshold when it “ unsettle[s] . . . legitimate, firmly rooted
expectation[s],” 55 or imposes the “ entire burden . . . on particular individ­
uals.” 56 Applying that principle in an employment case where seniority dif­
ferences between minority and nonminority employees were involved, a plurality
of the Court in Wygant stated that race-based layoffs may impose a more substan­
tial burden than race-based hiring and promotion goals, because “ denial of a
future employment opportunity is not as intrusive as loss of an existing job.”
Wygant, 476 U.S. at 282-83; see also id. at 294 (White, J., concurring). In a
subsequent case, however, Justice Powell warned that “ it is too simplistic to con­
clude that hiring [or other employment] goals withstand constitutional muster
whereas layoffs do not . . . . The proper constitutional inquiry focuses on the
effect, if any, and the diffuseness of the burden imposed on innocent nonminori­
ties, not on the label applied to the particular employment plan at issue.” Sheet
Metal Workers, 478 U.S. at 488 n.3 (Powell, J., concurring).
   In the contracting area, a racial or ethnic classification would upset settled
expectations if it impaired an existing contract that had been awarded to a person
who is not included in the classification. This apparently occurs rarely, if at all,
in the federal government. A more salient inquiry therefore focuses on the scale
of the exclusionary effect of a contracting program. For example, in Fullilove,
Justice Powell thought it salient that the contracting requirement at issue in the
case reserved for minorities a very small amount of total funds for construction
work in the nation (less than one percent), leaving nonminorities able to compete
for the vast remainder. For Justice Powell, this rendered the effect of the program

 54 Adarand, 515 U.S. at 230 (citing Croson).
 55 Johnson, 480 U.S. at 638.
 56Sheet Metal Workers, 478 U.S. at 488 (Pow ell, J., concurring).

                                                       196
  Legal Guidance on the Implications o f the Supreme Court’s Decision in Adarand Constructors, Inc.
                                                v. Pena

“ limited and so widely dispersed that its use is consistent with fundamental fair­
ness.” Fullilove, 448 U.S. at 515. In some instances, conversely, the exclusionary
effect of racial classifications in contracting may be considered too large. For
example, the lower court in Croson held that Richmond’s thirty percent minority
subcontracting requirement imposed an impermissible burden because it placed
nonminorities at a great “ competitive disadvantage.” J.A. Croson Co. v. City o f
Richmond, 822 F.2d 1355, 1361 (4th Cir. 1987). Similarly, an affirmative action
program that effectively shut nonminority firms out of certain markets or particular
industries might establish an impermissible burden. For example, the dissenters
in Metro Broadcasting felt that the FCC’s distress sale unduly burdened non­
minorities because it “ created a specialized market reserved exclusively for
minority controlled applicants. There is no more rigid quota than a 100% set-
aside . . . . For the would-be purchaser or person who seeks to compete for the
station, that opportunity depends entirely upon race or ethnicity.” 497 U.S. at
630 (O’Connor, J., dissenting). The dissenters also dismissed the majority’s
contention that the impact of distress sales on nonminorities was minuscule, given
the small number of stations transferred through those means. The dissenters said
that “ [i]t is no response to a person denied admission at one school, or discharged
from one job, solely on the basis of race, that other schools or employers do
not discriminate.” Id.

C. The Post-Croson Landscape at the State and Local Level

   Croson has not resulted in the end of affirmative action at the state and local
level. There is no doubt, however, that Croson, in tightening the constitutional
parameters, has diminished the incidence of such programs, at least in contracting
and procurement. The post-Craron experience of governments that continue to
operate affirmative action programs in that area is instructive.57 Many govern­
ments reevaluated their MBE programs in light of Croson, and modified them
to comport with the applicable standards. Typically, the centerpiece of a govern­
ment’s efforts has been a “ disparity study,” conducted by outside experts, to ana­
lyze patterns and practices in the local construction industry. The purpose of a
disparity study is to determine whether there is evidence of discrimination against
minorities in the local construction industry that would justify the use of remedial
racial and ethnic classifications in contracting and procurement. Some studies also
address the efficacy of race-neutral alternatives. In addition to obtaining a disparity

  57   A comprehensive review o f voluntary affirmative action in public employment at the state and local level after
Croson is beyond the scope o f this memorandum. W e note that a number o f the programs have involved remedial
racial and ethnic classifications in connection with hiring and promotion decisions in police and fire departments.
Some o f the programs have been upheld, and others struck down. Compare Peightal, (upholding race-based hiring
goal in county fire department under Croson) with Long v. City o f Saginaw, 911 F.2d 1192 (6th Cir. 1990) (striking
down race-based hiring goal in city police department under Croson and Wygant).


                                                       197
                            Opinions o f the Office o f Legal Counsel in Volume 19


study, some governments have held public hearings in which they have received
evidence about the workings o f the local construction industry.
  Post-Croso/j affirmative action programs in contracting and procurement tend
to employ flexible numerical goals and/or bidding preferences in which race or
ethnicity is a “ plus” factor in the allocation decision, rather than a hard set-
aside of the sort at issue in Croson. It appears that many of the post-Croson
contracting and procurement programs that rest on disparity studies have not been
challenged in court.58 At least one of the programs was sustained in litigation.59
Another was struck down as inconsistent with the Croson standards.60 Challenges
to other programs were not resolved on summary judgment, and were remanded
for further fact finding.61 Contracting and procurement programs that were not
changed after Croson have met with a mixed reception in the courts.62

              III. Application o f the Croson Standards at the Federal Level

   In essence, Adarand federalizes Croson, with one important caveat: Congress
may be entitled to some deference when it acts on the basis of race or ethnicity
to remedy the effects of discrimination. The Court in Adarand hinted that at least
where a federal affirmative action program is congressionally mandated, the
Croson standards might apply somewhat more loosely. The Court concluded that
it need not resolve whether and to what extent the judiciary should pay special
deference to Congress in this area. The Court did, however, cite the opinions
of various Justices in Fullilove, Croson, and Metro Broadcasting concerning the
significance of Congress’ express constitutional power to enforce the antidiscrimi­
nation guarantees of the Thirteenth and Fourteenth Amendments— under Section
2 of the former and Section 5 o f the latter— and the extent to which courts should
defer to exercises of that authority that entail the use of racial and ethnic classifica­
tions to remedy discrimination. See 515 U.S. at 230-31. Some of those opinions

   58 That has been true in Richmond. It is o u r understanding that the city conducted a post-Croson disparity study
and enacted a new M BE program that establishes a bidding preference o f “ 20 points” for prime contractors who
pledge to meet a goal o f subcontracting sixteen percent o f the dollar value o f a city contract to MBEs. The program
w orks at the “ prequalification” stage, when the city is determining its pool o f eligible bidders on a project. Once
the pool is selected, the low bidder is awarded the contract.
   59See Associated Gen. Contractors v. Coalition far Econ. Equity, 950 F.2d 1401 (9th Cir. 1991), cert, denied,
503 U.S. 985 (1992).
   60 Associated Gen. Contractors v. City o f New Haven , 791 F. Supp. 941 (D. Conn. 1992), vacated on mootness
grounds, 41 F.3d 62 (2d Cir. 1994).
   61 Coral Constr. Co. v. King County, 941 F .2d 910 (9th Cir. 1991), cert, denied, 502 U.S. 1033 (1992); Concrete
Works v. City and County o f Denver, 36 F .3 d 1513 (10th Cir. 1994), cert, denied, 514 U.S. 1004 (1995). The
courts in these tw o cases commented favorably on aspects o f the programs at issue and the disparity studies by
w hich they are justified.
   62 We are aware o f at least one such program that survived a motion for summary judgment and apparently is
still in effect today. See Cone Corp. v. Hillsborough County, 908 F.2d 908 (11th Cir.), cert, denied, 498 U.S. 983
(1990). O thers have been invalidated. See, e.g., O'Donnell Constr. Co. v. District o f Columbia, 963 F.2d 420 (D.C.
Cir. 1992); Contractors’ Assoc, v. City o f Philadelphia, 893 F.Supp. 419 (E.D. Pa. 1995); Arrow Office Supply
Co. v. City o f Detroit, 826 F. Supp. 1072 (E.D. Mich. 1993); F. Buddie Constr. Co. v. City o f Elyria, 773 F.
Supp. 1018 (N.D. O hio 1991); Afain Line Paving Co. v. Board ofEduc., 725 F. Supp. 1349 (E.D. Pa. 1989).


                                                       198
  Legal Guidance on the Implications o f the Supreme Court’s Decision in Adarand Constructors, Inc.
                                                v. Pena

indicate that even under strict scrutiny, Congress does not have to make findings
of discrimination with the same degree of precision as a state or local government,
and that Congress may be entitled to some latitude with respect to its selection
of the means to the end of remedying discrimination.63
   In Fullilove, Justice Powell’s concurring opinion said that, even under strict
scrutiny, “ [t]he degree of specificity required in the findings of discrimination
and the breadth of discretion in the choice of remedies may vary with the nature
and authority of a governmental body.” Fullilove, 448 U.S. at 515 n.14 (Powell,
J., concurring). It was therefore of paramount importance to Justice Powell that
the racial and ethnic classification in Fullilove was prescribed by Congress, which,
Justice Powell admonished, “ properly may — and indeed must— address directly
the problems of discrimination in our society.” Id. at 499. Justice Powell empha­
sized that Congress has “ the unique constitutional power” to take such action
under the enforcement clauses of the Thirteenth and Fourteenth Amendments. Id.
at 500. See id. at 483 (plurality opinion) (“ [I]n no organ of government, state
or federal, does there repose a more comprehensive remedial power than in the
Congress, expressly charged by the Constitution with the competence and
authority to enforce equal protection guarantees.” ). Justice Powell observed that
when Congress uses those powers, it can paint with a broad brush, and can devise
national remedies for the national problem of racial and ethnic discrimination.
Id. at 502-03 (Powell, J., concurring). Furthermore, Justice Powell said that
through repeated investigation of that problem, Congress has developed familiarity
with the nature and effects of discrimination: “ After Congress has legislated
repeatedly in an area of national concern, its Members gain experience that may
reduce the need for fresh hearings or prolonged debate when Congress again con­
siders action in that area.” Id. at 503. Because Congress need not redocument
the fact and history of discrimination each time it contemplates adopting a new
remedial measure, the findings that supported the Fullilove legislation were not
   63 Section 1 o f the Fourteenth Amendment prohibits states and municipalities from denying persons the equal
protection o f the laws. Section 5 gives Congress the power to enforce that prohibition. Because Section 1 o f the
Fourteenth Amendment only applies to states and municipalities, see United States v. Guest, 383 U.S. 745, 755
(1966), it is uncertain whether Congress may act under Section 5 o f that amendment to remedy discrimination by
purely private actors. See Adarand, 515 U.S. at 254 n.10 (Stevens, J., dissenting) ( “ Because Congress has acted
with respect to the States in enacting STURAA, we need not revisit today the difficult question of § 5 ’s applicability
to pure regulation o f private individuals."); Metro Broad., 497 U.S. at 605 (O ’Connor, J., dissenting) (“ Section
5 empowers Congress to act respecting the States, and o f course this case concerns only the administration of federal
programs by federal officials.” ). Nevertheless, remedial legislation adopted under Section 5 of the Fourteenth Amend-
ment does not necessarily have to act on the states directly. Indeed, when Congress seeks to remedy discrimination
by private parties, it may be indirectly remedying discrimination o f the states; for in some cases, private discrimination
was tolerated o r expressly sanctioned by the states. Private discrimination, moreover, often can be remedied under
the enforcement provisions o f the Thirteenth Amendment. Section I o f that amendment prohibits slavery and involun­
tary servitude. Section 2 gives Congress the power to enforce that prohibition by passing remedial legislation designed
to eliminate “ the badges and incidents o f slavery in the United States.” Jones v. Alfred Mayer Co., 392 U.S. 409,
439 (1968). The Supreme Court has held that such legislation may be directed at remedying the discrimination
o f private actors, as well as that o f the states. Id. at 438. See also Runyon v. McCrary, 427 U.S. 160, 179 (1976).
In Fullilove, the plurality opinion concluded that the Commerce Clause provided an additional source o f power
under which Congress could adopt race-based legislation intended to remedy the discriminatory conduct o f private
actors. See Fullilove, 448 U.S. at 475 (plurality opinion).


                                                         199
                           Opinions o f the Office o f Legal Counsel in Volume 19


 restricted to the actual findings that Congress made when it enacted that measure.
 Rather, the record included “ the information and expertise that Congress acquires
 in the consideration and enactment of earlier legislation.” Id. A court reviewing
 a race-based remedial act of Congress therefore ‘‘properly may examine the total
contemporary record of congressional action dealing with the problems of racial
discrimination against [minorities].” Id. Finally, Justice Powell gave similar def­
erence to Congress when it came to applying the narrow tailoring test. He said
 that in deciding how best to combat discrimination in the country, the “ Enforce­
ment Clauses of the Thirteenth and Fourteenth Amendments give Congress a . . .
measure of discretion to choose a suitable remedy.” Id. at 508.
   Justice O ’Connor’s opinion in Croson is very much in the same vein. She too
commented that Congress possesses “ unique remedial powers . . . under §5 of
the Fourteenth Amendment.” Croson, 488 U.S. at 488 (plurality opinion) (citing
Fullilove, 448 U.S. at 483 (plurality opinion)). By contrast, state and local govern­
ments have “ no specific constitutional mandate to enforce the dictates of the Four­
teenth Amendment,” but rather are subject to its “ explicit constraints.” Id. at
490 (plurality opinion). Therefore, in Justice O’Connor’s view, state and local
governments “ must identify discrimination, public or private, with some speci­
ficity before they may use race-conscious relief.” Id. at 504. Congress, on the
other hand, can make, and “ has made national findings that there has been societal
discrimination in a host of fields.” Id. It may therefore “ identify and redress
the effects of society-wide discrimination” through the use of racial and ethnic
classifications that would be impermissible if adopted by a state or local govern­
ment. Id. at 490 (plurality opinion).64 Justice O’Connor cited her Croson opinion
and reiterated these general points about the powers of Congress in her Metro
Broadcasting dissent. See 497 U.S. at 605 (O’Connor, J., dissenting) (“ Congress
has considerable latitude, presenting special concerns for judicial review, when
it exercises its unique remedial powers . . . under § 5 of the Fourteenth Amend­
ment.” ) (internal quotations omitted).
   It would be imprudent, however, to read too much into Justice Powell’s opinion
in Fullilove and Justice O’Connor’s opinion in Croson. They do not, for example,
support the proposition that Congress may simply assert that because there has
been general societal discrimination in this country, legislative classifications
based on race or ethnicity are a necessary remedy. The more probable construction
of those opinions is that Congress must have some particularized evidence about
the existence and effects of discrimination in the sectors and industries for which
it prescribes racial or ethnic classifications. For example, Congress established
the Fullilove racial and ethnic classification to remedy what the Court saw as
the well-documented effects of discrimination in one industry— construction—

  64 Justices Kennedy and Scalia declined to join that part o f Justice O ’Connor's opinion in Croson that drew a
distinction betw een die respective powers o f Congress and state or local governments in the area o f affirmative
action.


                                                     200
  Legal Guidance on the Implications o f the Supreme Court's Decision in Adarand Constructors, Inc.
                                                v. Pena

 that had hindered the ability of minorities to gain access to public contracting
opportunities. See Fullilove, 448 U.S. at 505-06 (Powell, J., concurring); see also
id. at 473 (plurality opinion).
   Based on this reading of Croson and Fullilove, the endorsement in Adarand
of strict scrutiny of federal affirmative action programs does not mean that Con­
gress must find discrimination in every jurisdiction or industry affected by such
a measure (although it is unclear whether, as a matter of narrow tailoring, the
scope of a classification should be narrowed to exclude regions and trades that
have not been affected by the discrimination that is to be remedied). State and
local governments must identify discrimination with some precision within their
jurisdictions; Congress’s jurisdiction is the nation as a whole. But after Adarand,
Congress is subject to the Croson ‘‘strong basis in evidence” standard. Under
that standard, the general history of racial discrimination in the nation would not
be a sufficient predicate for a remedial racial or ethnic classification. In addition,
evidence of discrimination in one sector or industry is not always probative of
discrimination in other sectors and industries. For example, a history of lending
discrimination against minorities arguably cannot serve as a catch-all justification
for racial and ethnic classifications benefitting minority-owned firms through the
entire economy; application of the narrow tailoring test would suggest that if
lending discrimination is the problem being addressed, then the government should
tackle it directly.65
   Furthermore, under the new standard, Congress probably does not have to hold
a hearing or draft a report each time it adopts a remedial racial or ethnic classifica­
tion. But where such a classification rests on a previous law or series of laws,
those earlier measures must be supported by sufficient evidence of the effects
of discrimination. And if the findings in the older laws are stale, Congress or
the pertinent agency may have to demonstrate the continued relevance of those
findings; this would satisfy the element of the narrow tailoring test that looks
to the duration of classifications and whether they are subject to reevaluation.
Where the record is sparse, Congress or the relevant agency may have to develop
it. That endeavor may involve the commissioning of disparity studies of the type
that state and local governments around the country undertook after Croson to
demonstrate that remedial racial and ethnic classifications in public contracting
are warranted. Together, the myriad state and local studies may provide an impor­
tant source of evidence supporting the use by the federal government of national
remedial measures in certain sectors of the economy.
   Whatever deference a court might accord to federal remedial legislation after
Adarand, it is undecided whether the same degree of deference would be accorded
to nonremedial legislation. In Metro Broadcasting, the majority gave substantial

   63 Patterns and practices o f bank lending to minorities, may, however, reflect a significant “ secondary effect”
o f discrimination in particular sectors and industries, i.e., because o f that discrimination, minorities cannot accumulate
the necessary capital and achieve the community standing necessary to qualify for loans.


                                                          201
                            Opinions o f the Office o f Legal Counsel in Volume 19


deference to congressional judgments regarding the need for diversity in broad­
casting and the linkage between the race of a broadcaster and programming output.
Metro Broad., 497 U.S. at 566, 572-73, 591 n.43. The dissenters did not do so,
precisely because the classifications were nonremedial and hence, in their view,
did not implicate Congress’ powers under the Enforcement Clauses of the Thir­
teenth and Fourteenth Amendments. Id. at 605, 628-29 (O’Connor, J., dissenting).
   Finally, many existing federal affirmative action programs are not specifically
mandated by Congress. Courts are unlikely to accord federal agencies acting with­
out a congressional mandate the same degree of deference accorded judgments
made by Congress itself. Agencies do not have the “ institutional competence”
and explicit “ constitutional authority” that Congress possesses. Adarand, 515
U.S. at 253 (Stevens, J., dissenting).66 Although some existing agency programs
were not expressly mandated in the first instance in legislation, they may nonethe­
less be viewed by a court as having been mandated by Congress through subse­
quent congressional action. For example, in Metro Broadcasting, the programs
at issue were established by the FCC on its own; Congress’s role was limited
to FCC oversight hearings and the passage of an appropriations rider that pre­
cluded the FCC from using any funds to reconsider or cancel its programs. 497
U.S. at 572-79. The majority concluded that this record converted the FCC pro­
grams into measures that had been “ specifically approved — indeed, mandated
by Congress.” Id. at 563.
   Under strict scrutiny, it is uncertain what level of congressional involvement
is necessary before a court will review an agency’s program with deference. What
may be required is evidence that Congress plainly has brought its own judgment
to bear on the matter. Cf. Adarand, 515 U.S. at 252 (Stevens, J., dissenting) (“ An
additional reason for giving greater deference to the National Legislature than to
a local law-making body is that federal affirmative-action programs represent the
will o f our entire Nation’s elected representatives . . . . ” ) (emphasis added); id.
at 255 (Stevens, J., dissenting) (“ Congressional deliberations about a matter as
important as affirmative action should be accorded far greater deference than those
of a State or municipality.” ) (emphasis added).

                                              IV. Conclusion

  Adarand makes it necessary to evaluate federal programs that use race or eth­
nicity as a basis for decisionmaking to determine if they comport with the strict
scrutiny standard. No affirmative action program should be suspended prior to

   66 See Milwaukee County Pavers Ass’n , 7 1 0 F. Supp. at 1540 n.3 (noting that for purposes o f judicial review
o f affirmative action measures, there is a distinction between congressionally mandated measures and those that
are “ independently established" by a federal agency), a ffd , 922 F.2d 419 (7th Cir.), cert, denied, 500 U.S. 954
(1991); cf. Bakke, 438 U.S. at 309 (opinion o f Powell, J.) (public universities, like many “ isolated segments of
our vast governmental structure are not com petent to make [findings of national discrimination], at least in the
absence o f legislative mandates and legislatively determined criteria” ).


                                                      202
 Legal Guidance on the Implications o f the Supreme Court’s Decision in Adarand Constructors, Inc.
                                               v. Pena

such an evaluation. The information gathered by many agencies in connection
with the President’s recent review of federal affirmative action programs should
prove helpful in this regard. In addition, appended to this memo is a nonexhaustive
checklist of questions that provides initial guidance as to what should be consid­
ered in that review process. Because the questions are just a guide, no single
answer or combination of answers is necessarily dispositive as to the validity of
any given program.

                                                             WALTER DELLINGER
                                                            Assistant Attorney General
                                                             Office of Legal Counsel




                                               203
                     Opinions o f the Office o f Legal Counsel in Volume 19


     Appendix: Questions to Guide Review o f Affirmative Action Programs

                                        I. Authority

   Is the use of racial or ethnic criteria as a basis for decisionmaking mandated
by legislation? If not mandated, is it expressly authorized by legislation? If there
is no express authorization, has there been any indication of congressional
approval of an agency’s action in the form of appropriations riders or oversight
hearings? These questions are important, because Congress may be entitled to
some measure of deference when it decides that racial and ethnic classifications
are necessary.
   If there is no explicit legislative mandate, authorization, or approval, is the pro­
gram premised on an agency rule or regulation that implements a statute that,
on its face, is race-neutral? For example, some statutes require agencies to give
preferences to “ disadvantaged” individuals, but do not establish a presumption
that members of racial groups are disadvantaged. Such a statute is race-neutral.
Other statutes, like those at issue in Adarand, require agencies to give preferences
to “ disadvantaged” individuals, but establish a rebuttable presumption that mem­
bers of racial groups are disadvantaged. Such a statute is race-conscious, because
it authorizes agencies to use racial criteria in decisionmaking.

                                        II. Purpose

   What is the objective of the program? Is it intended to remedy discrimination,
to foster racial diversity in a particular sector or industry, or to achieve some
other purpose? Is it possible to discern the purpose from the face, the relevant
statute or legislation? If not, does the record underlying the relevant legislation
or regulation shed any light on the purpose of the program?

A. Factual Predicate: Remedial Programs


   If the program is intended to serve remedial objectives, what is the underlying
factual predicate of discrimination? Is the program justified solely by reference
to general societal discrimination, general assertions of discrimination in a par­
ticular sector or industry, or a statistical underrepresentation of minorities in a
sector or industry? Without more, these are impermissible bases for affirmative
action. If the discrimination to be remedied is more particularized, then the pro­
gram may satisfy Adarand. In assessing the nature of the factual predicate of
discrimination, the following factors should be taken into account:

     1.     Source. Where can the evidence be found? Is it contained in findings
set forth in a relevant statute or legislative history (committee reports and
                                             204
 Legal Guidance on the Implications o f the Supreme Court's Decision in Adarand Constructors, Inc.
                                               v. Pena

hearings)? Is evidence contained in findings that an agency has made on its own
in connection with a rulemaking process or in the promulgation of guidelines?
Do the findings expressly or implicitly rest on findings made in connection with
a previous, related program (or series of programs)?

      2. Type. What is the nature of the evidence? Is it statistical or documentary?
Are the statistics based on minority underrepresentation in a particular sector or
industry compared to the general minority population? Or are the statistics more
sophisticated and focused? For example, do they attempt to identify the number
of qualified minorities in the sector or industry or seek to explain what that
number would look like “ but for” the exclusionary effects of discrimination?
Does the evidence seek to explain the secondary effects of discrimination— for
example, how the inability of minorities to break into certain industries due to
historic practices of exclusion has hindered their ability to acquire the requisite
capital and financing? Similarly, where health and education programs are at issue,
is there evidence on how discrimination has hampered minority opportunity in
those fields, or is the evidence simply based on generalized claims of societal
discrimination? In addition to any statistical and documentary evidence, is there
testimonial or anecdotal evidence of discrimination in the record underlying the
program — for example, accounts of the experiences of minorities and nonminori­
ties in a particular field or industry?

     3. Scope. Are the findings purported to be national in character and dimen­
sion? Or do they reflect evidence of discrimination in certain regions or geo­
graphical areas?

     4. “ Authorship” . If Congress or an agency relied on reports and testimony
of others in making findings, who is the “ author” of that information? The Census
Bureau? The General Accounting Office? Business and trade associations? Aca­
demic experts? Economists? (There is no necessary hierarchy in assessing author­
ship, but the identity of the author may affect the credibility of the findings.)

      5. Timing. Since the adoption of the program, have additional findings of
discrimination been assembled by Congress or the agency that could serve to jus­
tify the need for the program when it was adopted? If not, can such evidence
be readily assembled now? These questions go to whether “ post-enactment” evi­
dence can be marshaled to support the conclusion that remedial action was war­
ranted when the program was first adopted.

B. Factual Predicate: Nonremedial Programs

  Adarand does not directly address whether and to what extent nonremedial
objectives for affirmative action may constitute a compelling governmental

                                              205
                    Opinions o f the Office o f Legal Counsel in Volume 19


interest. At a minimum, to the extent that an agency administers a nonremedial
program intended to promote diversity, the factual predicate must show that
greater diversity would foster some larger societal goal beyond diversity for diver­
sity’s sake. The level and precision of empirical evidence supporting that nexus
may vary, depending on the nature and purpose of a nonremedial program. For
a nonremedial program, the source, type, scope, authorship, and timing of under­
lying findings should be assessed, just as for remedial programs.

                                III. Narrow Tailoring

A. Race-Neutral Alternatives

  Did Congress or the agency consider race-neutral means to achieve the ends
of the program at the time it was adopted? Race-neutral alternatives might include
preferences based on wealth, income, education, family, geography. In the
commercial setting, another such alternative is a preference for new, emerging
businesses. Were any of these alternatives actually tried and exhausted? What was
the nature and extent of the deliberation over any race-neutral alternatives — for
example, congressional debate? agency rulemaking? Was there a judgment that
race-neutral alternatives would not be as efficacious as race-conscious measures?
Did Congress or the agency rely on previous consideration and rejection of race-
neutral alternatives in connection with a prior, related race-conscious measure (or
series of measures)?

B. Continued Need

  How long has the program been in existence? Even if there was a compelling
justification at the time of adoption, that may not be the case today. Thus, an
agency must determine whether there is a continued need for the program. In
that regard, does the program have an end date? Has the end date been moved
back? Is the program subject to periodic oversight? What is the nature of that
oversight— does Congress play a role through hearings/reports, or does the agency
conduct the review or oversight on its own? Has the program ever been adjusted
or modified in light of a periodic review? What were the results of the most
recent review and oversight conducted by either Congress or the agency? Is there
evidence of what might result if the racial classification were discontinued? For
example, is there evidence of the current level of minority participation in govern­
ment contracting where racial criteria are not used (which may speak to whether
discrimination can be remedied without a preference)?



                                            206
 Legal Guidance on the Implications o f the Supreme Court’s Decision in Adarand Constructors, Inc.
                                               v. Pena

C. Pool o f Beneficiaries

   Are the benefits of the program spread relatively equally among minority
individuals or businesses? Is there information on whether the same individuals
or businesses tend to reap most of the benefits, and if so, whether those bene­
ficiaries have overcome discrimination? If the program is intended to remedy
discrimination against minorities, does it include among its beneficiaries subgroups
that may not have been discriminated against? Is there a procedure for tailoring
the pool of beneficiaries to exclude such subgroups? Is there a mechanism for
evaluating whether the program is needed for segments within a larger industry
that have been the locus of discrimination?

D. Manner in Which Race is Used

  Does the program establish fixed numerical set-asides? Is race an explicit
requirement of eligibility for the program? If there is no such facial requirement,
does the program operate that way in practice? Or is race just one of several
factors — a “ plus” — used in decisionmaking? Could the objectives of a program
that uses race as a requirement for eligibility be achieved through a more flexible
use of race?

E. Burden

   What is the nature of the burden imposed on persons who are not included
in the racial or ethnic classification that the program establishes? Does the pro­
gram displace those persons from existing positions/contracts? Does it upset any
settled expectations that they have? Even if that is not the case, the burden may
be impermissible where the exclusionary impact is too great. What is the exclu­
sionary impact in terms of size and dimension? What is the dollar value of the
contracts/grants/positions in question? Does the exclusionary impact of the pro­
gram fall upon a particular group or class of individuals or sectors, or is it more
diffuse? What is the extent of other opportunities outside the program? Are per­
sons who are not eligible for the preference put at a significant competitive dis­
advantage as a result of the program?




                                              207
