Affirmative Action in Employment: A Legal Overview

^Pr^ep^ar^{ed f}^o^r^M^e^m^b^ers^an^d^Com^mⁱ^t^t^ees^of^C^ong^r^e^ss

Introduc tion ..................................................................................................................................... 1
Judicial Affirmative Action Remedies.............................................................................................3
Voluntary Affirmative Action..........................................................................................................4
Affirmative Action Consent Decrees...............................................................................................8
Affirmative Recruitment and Outreach Programs.........................................................................10
Military Cases................................................................................................................................14
Author Contact Information..........................................................................................................16

Affirmative action remains at the center of legal and political debate at the federal, state, and local
levels. Seeds of the current legal controversy may be traced to the early 1960s as first the Warren
and then the Burger Court grappled with the seemingly intractable problem of racial segregation
in the nation’s public schools. Judicial rulings from this period recognized an “affirmative duty,”
cast upon local school boards by the Equal Protection Clause, to desegregate formerly “dual
school” systems and to eliminate “root and branch” the last “vestiges” of state-enforced ²
segregation. To remedy the legacy of past discrimination, courts eventually turned to mandatory ³
student reassignment and busing to overcome persisting patterns of racially imbalanced schools.
Soon after, Congress and the Executive followed the Court’s lead by approving a panoply of laws
and regulations which authorize, either directly or by judicial or administrative interpretation,
“race-conscious” strategies to promote minority opportunity in jobs, education, and governmental
contracting.
The basic statutory framework for affirmative action in employment derives from the Civil Rights
Act of 1964. Public and private employers with 15 or more employees are subject to a
comprehensive code of equal employment opportunity regulations under Title VII of the 1964 ⁴
Act. The Title VII remedial scheme rests largely on judicial power to order monetary damages ⁵
and injunctive relief, including “such affirmative action as may be appropriate,” to make
discrimination victims whole. Except as may be imposed by order of a court to remedy
“egregious” violations of law, however, or by consent decree to settle pending claims, there is no
general statutory obligation on employers to adopt affirmative action plans. But the EEOC has
issued guidelines to protect employers and unions from charges of “reverse discrimination” when
they voluntarily take actions to eliminate the effects of past discrimination. In addition, federal
departments and agencies are required to periodically formulate affirmative action plans for their
employees and a “minority recruitment program” to correct minority “underrepresentation” in ⁶
specific federal job categories.

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The historical model for federal laws and regulations establishing minority participation “goals”
may be found in Executive Orders which since the early 1960s have imposed affirmative minority
hiring and employment requirements on federally financed construction projects and in
connection with other large federal contracts. Executive Order 11246, as currently administered
by the Office of Federal Contract Compliance Programs, requires that all employers with 50 or
more employees and federal contracts in excess of $50,000 file written affirmative action plans
with the government. These must include minority and female hiring goals and timetables to
which the contractor must commit its “good faith” efforts. Smaller contractors are bound by the
nondiscrimination requirements of the Executive Order, but are not required to maintain formal ⁷
written programs. Judicial decisions early on had upheld the executive order program as a
constitutionally valid governmental response to racial segregation in the construction trades and
affected industries.
By the mid-1980s, the Supreme Court had approved the temporary remedial use of race- or
gender-conscious selection criteria by private employers under Title VII. These measures were
deemed a proper remedy for “manifest racial imbalance” in “traditionally segregated” job ⁸
categories, if voluntarily adopted by the employer, or for entrenched patterns of “egregious and ⁹
longstanding” discrimination by the employer, if imposed by judicial decree. In either
circumstance, however, the Court required proof of remedial justification rooted in the
employer’s own past discrimination and its persistent workplace effects. Thus, a “firm basis” in
evidence, as revealed by a “manifest imbalance”—or “historic,” “persistent,” and “egregious”
underrepresentation—of minorities or women in affected job categories was deemed an essential
predicate to preferential affirmative action. Of equal importance, all racial preferences in
employment were to be judged in terms of their adverse impact on “identifiable” non-minority
group members. But the consideration of race or gender as a “plus” factor in employment
decisions, when it did not unduly hinder or “trammel” the “legitimate expectations” of non-¹⁰
minority employees, won ready judicial acceptance. Affirmative action preferences, however,
had to be sufficiently flexible, temporary in duration, and “narrowly tailored” to avoid becoming
rigid “quotas.”
A perennial aspect of the legal debate over affirmative action has centered on the proper role of
the remedy in employment discrimination litigation. One legal theory emphasizes compensation
for actual victims of discrimination, while another focuses more upon the elimination of barriers
to equal opportunity for all members of a previously excluded class of individuals. In a series of
cases during the 1980s, the Justice Department argued, largely without success, that victim
compensation was the only proper remedial objective and that class-based affirmative action
remedies, which benefit women and minorities who are not themselves actual victims of an
employer’s past discrimination, are illegal. The employment cases to date have yet to fully
embrace this position, although it appears to have gained some footing in the minority contracting ¹¹
arena.

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Judicial precedents on affirmative action in employment have developed along two concurrent
but not necessarily coterminous lines. One line of authority delineates the permissible scope of
affirmative action imposed by judicial decree to remedy proven violations of Title VII or the
Constitution. The other involves the validity of voluntary affirmative action plans by public and
private employers. Several basic principles emerge from the case law.
First, a fundamental prerequisite to the adoption of minority goals or preferences is a remedial
justification rooted in the employer’s own past discrimination and its persistent workplace effects.
Stricter probative standards mandated by the Constitution may bind public employers in this
regard than apply to private employers under Title VII. Basically, a “firm basis” in evidence—as
revealed by a “manifest imbalance,” or “persistent” and “egregious” disparities in the
employment of minorities or women in affected job categories—has been viewed by the courts as
an essential predicate for affirmative action preferences.
Secondly, beyond a record of past discrimination by the employer, all affirmative action plans are
judged in terms of the burden they place on identifiable non-minorities. Thus, remedies that
immediately result in the displacement of more senior white male employees—like promotion
preferences or minority group protections against layoff—are most suspect and least likely to
pass legal or constitutional muster. At the other end of the spectrum, hiring or recruitment goals or
preferences that do not “unnecessarily trammel” the “legitimate expectations” for advancement of
non-minority candidates are more likely to win judicial acceptance. Finally, all “race-conscious”
affirmative action remedies must be sufficiently flexible, temporary in duration, and “narrowly
tailored” so as to avoid becoming rigid “quotas.”

Even before the Supreme Court had spoken, every federal circuit court of appeals, in cases dating
back to the very inception of the 1964 Civil Rights Act, had approved use of race or gender
preferences to remedy “historic,” “egregious,” or “longstanding” discrimination. This line of
judicial authority was ratified by the Court’s rulings in Local 28, Sheetmetal Workers v. EEOC ¹²
and United States v. Paradise. The former involved contempt proceedings against a union with
an established history of racial and ethnic discrimination for its willful violation of a judicially
imposed 29% minority membership goal. To remedy years of union evasion, amounting to
contempt of court, the Second Circuit had approved an order reinstating the minority membership
goal and requiring that job referrals be made on the basis of one apprentice for every four
journeyman. The Supreme Court affirmed, five to four.
Justice Brennan wrote for a plurality of four Justices that Title VII does not preclude race-
conscious affirmative action as a “last resort” for cases of “persistent or egregious”
discrimination, or to dissipate the “lingering effects of pervasive discrimination,” but that, in most
cases, only “make whole” relief—in the form of back pay or specific hiring orders—for
individual victims is required. The plurality also felt that by twice adjusting the union’s deadline,
and because of the district court’s “otherwise flexible application of the membership goal,” the
remedy had been enforced as a “benchmark” of the union’s compliance “rather than as a strict
racial quota.” Rounding out the five-Justice majority was Justice Powell, who emphasized the
history of “contemptuous racial discrimination” revealed by the record, and the temporary and

¹²⁴⁷^{8 U}^.^S^.⁴²¹⁽¹⁹⁸⁶⁾^;⁴⁸^{0 U}^.^S.¹^{49 (}¹⁹⁸⁷⁾^.

flexible nature of the remedy. In separate dissents, Justices White and O’Connor found the
referral quota excessive because economic conditions in the construction industry made
compliance impracticable, while Chief Justice Burger and Rehnquist read Title VII to bar all
judicially-ordered race-conscious relief for the benefit of non-victims.
A parallel situation was presented by Paradise. In 1972, to remedy nearly four decades of
systematic exclusion of blacks from the ranks of the Alabama State troopers, the district court
ordered a hiring quota and enjoined the state from discriminating in regard to promotions. Seven
years later, a series of consent decrees calling for new nondiscriminatory promotion procedures
was approve to rectify the total dearth of back troopers in the upper ranks. In the interim,
however, the court ordered a one-to-one racial quota for the rank of corporal and above, provided
sufficient qualified blacks were available, until 25% of each rank was black. Only one round of
promotions for corporal was made before the quota for that and the sergeant rank was suspended.
The Supreme Court granted review of the order under the Equal Protection Clause.
Justice Brennan, whose plurality opinion was again joined by Justices Marshall, Blackmun, and
Powell, considered several factors in determining whether the plan violated the equal protection
rights of white troopers: the necessity of the relief and the efficacy of alternative remedies, the
plan’s flexibility and duration, the relationship between the plan’s numerical goals and the
relevant labor market, and the plan’s impact on the rights of third parties. Significant was the fact
that the order did not require the promotion of anyone and could be waived in the absence of
qualified minority candidates, as it already had been with respect to lieutenant and captain
positions. It was also tied to the percentage of minorities in the area workforce, 25%. Finally,
because it did not bar white advancement, but merely postponed it, the plan did not impose
unacceptable burdens on innocent third parties.
Justice Brennan therefore concluded that the promotion quota was “narrowly tailored” and
justified by the government’s “compelling” interest in eradicating the state’s “pervasive,
systematic, and obstinate exclusion” of blacks and its history of resistance to the court’s orders.
Justice Stevens, who provided the fifth vote for the Court’s judgment, stated in a separate opinion
that the district court did not exceed the bounds of “reasonableness” in devising a remedy. Justice
O’Connor, joined in dissent by Justice Scalia and the Chief Justice, found the plan “cannot
survive judicial scrutiny” because the one-to-one promotion quota is not sufficiently tied to the
percentage of blacks eligible for promotion. Finally, Justice White, in a two sentence dissent,
stated simply that the district court “exceeded its equitable powers.”

The remedial justification for voluntary affirmative action in employment was explored by the ¹³
Court in Wygant v. Jackson Board of Education. A collective bargaining agreement between the
school board and the teacher’s union in that case provided a hiring preference for minority
teachers coupled with layoff protection until the minority composition of the faculty mirrored that
of the student body district wide. Seniority was to govern layoff except that in no event were
overall minority faculty percentages to be reduced. In the face of a constitutional challenge by ten
laid-off white teachers, the Court voided the minority layoff provision, but no particular rationale
commanded majority support.

¹³⁴⁷^{6 U}^.^S^.²⁶⁷⁽¹⁹⁸⁶⁾^.

Seven members of the Wygant Court agreed that some forms of voluntary affirmative action may
be constitutionally justifiable on the part of a governmental entity itself guilty of past
discrimination. However, neither the asserted interest in the presence of minority teachers as
critical “role models,” or to ameliorate “societal discrimination,” provided “compelling”
justification for the layoff plan absent “convincing” evidence of the board’s own past
discrimination. Moreover, while innocent non-minorities could be made to share some of the
burden, the remedy could not intrude too severely upon their rights. Because the minority layoff
protection in Wygant “impose[d] the entire burden of achieving racial equality on particular
individuals,” Justice Powell concluded that innocent third parties were impacted too heavily. In
this respect, the layoff provision was distinguishable from preferential hiring decisions, which
“diffuse” the burden more generally. Reserving judgment on the hiring issue, Justice White
concurred that the layoff remedy went too far because it displaced more senior white employees
in favor of minorities who were not actual discrimination victims. In a separate concurrence,
Justice O’Connor aligned herself with the Powell view that societal discrimination will not justify
voluntary affirmative action remedies, and that the layoff plan was infirm because overbroad and
not “narrowly tailored” to the board’s past discrimination.
Significantly, Wygant was a constitutional case decided on Fourteenth Amendment equal
protection principles. Corollary issues concerning voluntary affirmative action plans adopted by ¹⁴
private employers under Title VII reached the High Court in United Steelworkers v. Weber. The
Weber case upheld a voluntary affirmative action plan by a private employer, including a minority
quota for a craft training program, to rectify “manifest racial imbalance in traditionally segregated
job categories.” The Court required no specific finding of past discrimination by the employer,
deciding the case instead on the basis of the historically well established record of nationwide
bias in trade union membership.
In 1974, the employer and union in Weber negotiated an affirmative action plan to increase the
percentage of blacks in skilled craft positions from 2% to the level of their overall participation in
the area workforce, or 39%. By reserving half of the company’s craft training program slots for
minorities, several white employees were passed over in favor of less senior blacks. There was no
evidence that the under-representation of minorities in craft jobs was attributable to past
discrimination by the employer. Nonetheless, relying on general judicial and research findings
relative to nationwide patterns of minority exclusion from trade union membership, the Supreme
Court ruled five to two that “racial preferences” in the program were a lawful means to combat
“manifest racial imbalance” in craft positions resulting from “old patterns of racial segregation
and hierarchy.”
Conceding that Title VII could literally be read to bar all race-conscious employment practices,
the Court decided that the purpose of the act, rather than its literal meaning, controlled. The
legislative history and context from which the act arose, Justice Brennan wrote, compelled the
conclusion that the primary purpose of Title VII was to “open employment opportunities for
Negroes in occupations which have traditionally been closed to them.” Accordingly, “[i]t would
be ironic indeed” to read the statute to preclude “all voluntary, private, race-conscious efforts” to
abolish workplace segregation. Moreover, the specific plan in question, mandating a one to one
racial ratio until a specific minority participation rate is achieved, was permissible affirmative ¹⁵
action because it did “not unnecessarily trammel the interest of white employees.” Weber thus

¹⁴⁴⁴^{3 U}^.^S^.¹⁹³⁽¹⁹⁷⁹⁾^.
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⁽^c^onti^nue^d.^..)

permitted private employers to implement certain forms of temporary affirmative action to
advance minority employment opportunities, even where such measures have an incidental
adverse impact on white workers.
In Johnson v. Transportation Agency,¹⁶ the Court reviewed a voluntary affirmative action plan
adopted by a public employer, the Transportation Agency of Santa Clara County, California. That
plan authorized the agency to consider the gender of applicants as one factor for promotion to
positions within traditionally segregated job classifications in which women had been
underrepresented. Women were significantly underrepresented in the county’s labor force as a
whole and in five of seven job categories, including skilled crafts where all 238 employees were
men. The plan’s long range goal was proportional representation. However, because of the small
number of positions and low turnover, actual implementation was based on short term goals
which were adjusted annually and took account of qualified minority and female availability. No
specific numerical goals or quotas were used.
The petitioner in Johnson was a male employee who had applied for promotion to the position of
road dispatcher, only to be rejected in favor of a female competitor. Both the petitioner and the
woman who won the promotion were deemed well qualified for the position, although the
petitioner had scored slightly higher in the first round interview. The appointing official for the
agency indicated that in reaching the decision to promote the female candidate, he had considered
the candidates’ qualifications, backgrounds, test scores, and expertise as well as gender
considerations.
The Supreme Court upheld the county’s action, six to three. Justice Brennan decided for the
majority that Title VII was not coextensive with the Constitution and that, therefore, Weber not
Wygant was controlling. The noted disparities in female workforce participation satisfied the
Weber requirement for a “manifest imbalance” since to require any additional showing could
expose the employer to discrimination lawsuits and operate as a disincentive to voluntary
compliance with the statute. The Court likened the county plan to the treatment of race as a “plus”
factor in the “Harvard Plan”for higher educational admissions approved by Justice Powell in the ¹⁷
Bakke case. Because sex was but one factor in the decision-making process, no applicant was
excluded from participation on account of sex. In a caveat, however, the Court warned that “[i]f a
plan failed to take distinction in qualification into account in providing for actual employment
decision, it would dictate mere blind hiring by the numbers,” and would be invalid because “it
would hold supervisors to achievement of a particular percentage of minority employment or
membership . . . regardless of circumstances such as economic conditions or the number of ¹⁸
available qualified minority applicants . . .”

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^e^{nd a}^s^so^{on a}^s^t^h^e^pe^rc^eⁿ^ta^g^e^of^bla^c^k^sk^ille^{d c}^r^a^f^t^w^o^rk^e^r^{s in the}^{. .}^{. pla}ⁿ^{t a}^p^prox^im^a^t^e^s^the^pe^rc^eⁿ^ta^g^e^of^bla^c^k^{s in}
^t^h^{e l}^o^cal^l^a^bo^{r f}^o^rce.^{” Id}^.^at²⁰⁸^-⁰⁹^.
¹⁶⁴⁸^{0 U}^.^S^.⁷⁹²⁽¹⁹⁷³⁾^.
¹⁷^R^e^g^e^nts^of^the^Uⁿ^iv^{. of}^C^a^lif^orⁿⁱ^a^v^.^B^a^k^k^e^,⁴³⁸^U^.^S.²⁶^{5 (}¹⁹⁷⁸⁾^.
¹⁸^I^d^{. a}^t⁶³^{6 (}^c^iti^ng^She^e^t^Me^ta^{l W}^o^r^k^e^r^s^v^.^EEO^C^,⁴⁷^{8 U}^.^S.⁴²^1,⁴⁹^{5 (}^O^’^C^oⁿⁿ^o^r^,^J^.^,^c^onc^ur^rⁱ^ngⁱⁿ^pa^r^t^a^nd^dis^s^e^ntiⁿ^g
ⁱⁿ^p^a^rt⁾^.^Ju^stⁱ^{ce S}^t^even^{s con}^c^u^rre^d^t^h^at^t^h^e^p^l^an^w^a^{s co}ⁿ^sⁱ^s^t^eⁿ^t^wⁱ^t^h^Web^e^r^a^{nd J}^u^s^t^ic^e^O^’^C^oⁿ^nor^,ⁱⁿ^a^s^e^pa^r^a^te
^c^onc^ur^r^e^nc^e^,^pr^ov^ide^d^a^sⁱ^x^t^{h v}^o^t^e^f^o^r^the^ju^dg^m^e^{nt. I}ⁿ^he^r^o^pⁱⁿ^ioⁿ^,^how^e^v^e^r^{, to s}^u^p^por^{t a}^v^o^l^unta^r^y^a^f^fⁱ^r^m^a^tiv^e^ac^tion
^plaⁿ^,^the^r^e^s^h^oul^{d be}^“^a^s^t^a^tis^tic^a^l^dis^p^a^r^ity^s^u^ff^ic^ie^{nt to s}^u^pp^{ort a}^p^r^im^a^f^a^cⁱ^e^c^l^aⁱ^m^unde^{r T}^itle^V^II^b^y^the^em^plo^y^e^e
⁽^c^onti^nue^d.^..)

Justice White, dissenting, would have overruled Weber as a “perversion” of Title VII, as would
Justices Scalia and the Chief Justice, joining in a separate dissent. The dissenters criticized the
majority for using Title VII “to overcome the effect not of the employer’s own discrimination, but
of societal attitudes that have limited entry of certain races, or of a particular sex, into certain
jobs.” Noting the district court finding of no past discrimination by the county agency, they
argued in light of Sheetmetal Workers that “there is no sensible basis for construing Title VII to
permit employers to engage in race- or sex-conscious employment practices that courts would be
forbidden from ordering them to engage in following a judicial finding of discrimination.”
To date, therefore, the Supreme Court has permitted race-conscious hiring criteria by private
employers under Title VII, either as a remedy for past discrimination or to redress a “conspicuous
racial imbalance in traditionally segregated job categories,” but refused to find that a state’s
interest in faculty diversity to provide teacher “role models” was sufficiently compelling to
warrant a race-conscious layoff policy. Lower courts are similarly divided, though a few have
applied an “operational need analysis” to uphold police force diversity policies, recognizing “that
‘a law enforcement body’s need to carry out its mission effectively, with a workforce that appears
unbiased, is able to communicate with the public and is respected by the community it serves,’ ¹⁹
may constitute a compelling state interest.”
A three-judge panel of the Seventh Circuit has pressed the legal debate one step further by relying ²⁰
on the student diversity rulings in the Michigan cases to uphold Chicago Police Department’s ²¹
affirmative action hiring program. The decision in Petit v. City of Chicago found that large
urban police departments have an “even more compelling need for diversity” than universities
and affirmed the Chicago police program “under the Grutter standards.” A “strong basis” for
affirmative action was provided by expert testimony that the city’s minority residents deeply
distrusted police, and that creating a diverse force at the sergeant rank would “set a proper tone”
in the department to earn the trust of the community. Outside of law enforcement, however, courts
generally allow for consideration of race in hiring and promotion decisions only in response to
demonstrable evidence of past discrimination by the employer or within the affected industry. No

^(...c^on^tin^ue^d)
^be^ne^fⁱ^cⁱ^a^r^ie^{s of}^the^a^f^fⁱ^r^m^a^tive^a^c^tion^{. .}^{. .”}^E^qua^l^P^r^o^t^e^c^tion^staⁿ^d^a^{rds, n}^o^{t T}^itle^V^I^I^,^sh^oul^{d g}^o^v^e^rn^pu^blic^e^m^ploy^e^e
^cases,^an^d^sh^{e w}^a^{s cri}^tⁱ^cal^o^f^t^h^e^maj^o^ri^t^y^f^o^{r p}^r^o^vⁱ^dⁱⁿ^{g i}ⁿ^ad^e^q^u^a^t^e^guⁱ^d^an^{ce as t}^o^t^h^{e st}^atⁱ^s^tⁱ^calⁱ^m^b^a^l^aⁿ^{ce st}^an^d^a^rd^.
^Bu^{t b}^ecau^{se th}^{ere w}^e^{re n}^o^w^o^m^eⁿⁱⁿ^sk^illed^craf^{t p}^o^s^iti^oⁿ^s^{, a}ⁿ^d^g^eⁿ^d^e^{r w}^a^{s o}ⁿ^l^y^{a p}^l^u^s^f^acto^r^{, eith}^er^stan^d^a^rd^w^a^s
^sa^tisfⁱ^e^d^he^re^.
¹⁹^P^a^tr^olm^e^n’^s^B^e^ne^v^o^le^{nt A}^s^s^o^c^.^{v. C}^ity^of^N^e^w^Y^o^r^k^{, 310 F}^.³^d⁴³^,^{52 (}²⁰⁰²⁾⁽^q^uotiⁿ^g^B^a^r^hol^{d v}^.^R^o^dr^ig^ue^z^,⁸⁶³
^F.2^d²³³^,²³⁸⁽²^{d C}ⁱ^r^.¹⁹⁸⁸⁾⁾^;^R^e^y^nolds^v^.^C^ity^of^C^h^ic^a^g^{o, 296}^F.^3d⁵²^{4 (}⁷^th^{Cir. 2}⁰⁰²^{). See also}^C^o^{tter v}^.^City^o^f^st
^B^o^s^t^on^,³²³^F.^{3d 16}^{0, 17}^{2 n. 10}⁽¹^Cⁱ^r.²⁰⁰³⁾⁽^d^e^c^lining^t^o^a^d^dre^{ss que}^sti^on^of^c^o^m^p^e^lling^inte^re^{st b}^u^{t e}^x^pre^ssing
^s^y^m^p^ath^y^f^o^{r “th}^e^arg^u^m^eⁿ^t^th^{at co}^mm^uⁿ^{ities p}^l^ace^m^o^{re tru}^s^{t in}^{a d}ⁱ^v^e^{rse p}^o^{lice f}^o^{rce an}^d^t^h^{at th}^{e r}^e^su^ltin^g^tru^s^t^th
^re^duc^e^s^c^r^im^e^ra^te^{s a}^{nd im}^prov^e^s^policⁱⁿ^g^”^{); W}^ittm^e^r^v^.^P^e^te^{rs, 8}⁷^{F. 3}^d⁹¹^{6 (7}^Ci^r.¹⁹⁹⁶^)(c^oⁿ^sⁱ^d^er^atⁱ^oⁿ^o^f^race
^p^e^rm^ittedⁱⁿ^p^r^o^m^o^tin^g^b^l^ack^co^rr^ectioⁿ^s^o^f^fⁱ^{cer to}^su^p^e^rv^iso^r^b^ecau^{se p}^r^isoⁿ^co^u^l^dⁿ^o^{t acco}^m^p^lishⁱ^t^{s “m}^is^sioⁿ^o^f
^pa^cⁱ^fⁱ^c^a^{tion a}^{nd r}^e^f^o^r^m^a^tion”^of^pr^e^dom^inaⁿ^tly^bla^c^k^inm^a^tes^w^{ith ne}^a^r^ly^a^ll^w^h^ite^sta^f^f⁾^{. But se}^e^Lom^a^c^k^v^.^Cit^y^of
^N^e^w^a^r^k^{, 463 F.}^3d³^{03 (}³^d^Cⁱ^r^.²⁰⁰⁶⁾⁽^c^ity^polic^y^de^sⁱ^gⁿ^e^d^{to e}^lim^ina^t^e^sⁱ^ng^le^-^r^{ace f}ⁱ^r^e^co^m^p^anⁱ^e^{s b}^yⁱⁿ^vo^l^uⁿ^t^ari^l^y
^t^r^an^sf^erriⁿ^g^fⁱ^re^fⁱ^gh^t^e^{rs t}^o^dⁱ^f^f^e^r^eⁿ^t^co^m^p^anⁱ^e^{s so}^l^e^l^y^oⁿ^t^h^e^b^a^si^s^o^f^{race vi}^o^l^at^ed^t^h^{e E}^q^u^a^l^P^r^o^t^ectⁱ^oⁿ^Cl^a^u^se).
²⁰^Iⁿ^G^r^utte^r^v^.^B^o^ll^ing^e^r^,⁵³⁹^U^.^S.⁵⁰⁶⁽²⁰⁰³⁾^{, a}^{5 t}^o⁴^m^a^jo^rit^y^of^the^Justic^e^s^he^{ld t}^h^a^t^the^Uⁿ^iv^e^r^sity^of^Mic^h^ig^aⁿ
^L^a^w^Sc^{hool ha}^{d a}^“^c^o^m^p^e^lling^”^inte^re^s^t^{in t}^h^e^“^e^duc^a^tio^na^l^be^ne^f^its^tha^t^f^l^ow^f^r^o^m^a^div^e^rs^e^s^t^ude^nt^body^,”^w^h^ic^h
^ju^stif^ied^{its race-b}^a^sed^eff^o^{rts to}^a^sse^m^b^{le a “critical}^m^a^{ss” o}^f^“^unde^r^r^e^pr^e^s^eⁿ^te^d”^mⁱ^nor^ity^s^t^ude^nts^.^For^m^o^r^e
^inf^o^r^m^a^{tion, s}^e^e^C^R^S^R^e^por^{t R}^L³⁰⁴¹^0,^Affirma^tⁱ^{ve Actio}ⁿ^aⁿ^d^Div^e^{rsity in}^Pu^b^{lic E}^d^u^c^a^tioⁿ^:^Leg^a^l^Develo^p^m^en^ts^{, by}
^J^ody^Fe^de^r^.
²¹³⁵²^F.^3d¹¹¹¹⁽⁷^th^Cⁱ^r^.²⁰⁰³⁾^,^cer^t^.^d^eⁿⁱ^ed⁵⁴^{1 U.}^S^.¹⁰⁷⁴⁽^U^.^S^{. 200}⁴⁾^.

rule of deference like that extended to educational institutions has been recognized for employers,
nor is one necessarily implied by the Michigan cases.

State and local programs mandating affirmative action in employment initially met with greater
judicial approval than public contracting preferences for minorities in the wake of the Supreme ²²
Court’s decision in City of Richmond v. J.A. Croson and Co. This may be due, in part, to the fact
that employment preferences are frequently, though not always, linked to settlements of
individual or class action lawsuits. Depending on the stage of proceedings, a formal record of past
discrimination may already have developed when agreement is reached. At the very least, there is
usually some allegation of misconduct by the public employer. In addition, there may be
underlying judicial findings of discrimination or district court involvement in fashioning or
approving the consent decree, both of which are factors traditionally prompting deference by ²³
appellate courts when reviewing affirmative action efforts.
Between 1972 and 1983, the Department of Justice sued 106 public employers; of those, 93 were
settled by consent decree. These court-approved agreements typically set goals and timetables for
increasing minority and female under-representation in the workforce. Of the cases that the
Justice Department still monitors, many stem from litigation dating back to the 1970s, mainly ²⁴
against police and fire departments. Under Croson and, subsequently, Adarand Constructors, ²⁵
Inc. v. Pena, however, these orders and consent decrees have come under “strict scrutiny.” For
example, a major ruling by the Eleventh Circuit in 1994 invalidated a consent decree involving
the Birmingham, Ala. fire department for being an “entirely arbitrary” fixed quota that unduly ²⁶
restricted opportunities for whites, and judicial rulings in Boston forced abandonment of a 1980 ²⁷
consent decree, which established a race-based policy for promoting sergeants. Indeed, a

²²⁴⁸⁸^U.S^.⁴⁶⁹⁽¹⁹⁸⁹^)(rejectin^g^{a l}^o^{cal g}^o^v^e^rn^men^t^{’s eff}^o^{rt to}^p^r^o^m^o^t^{e p}^u^b^{lic c}^oⁿ^t^ractiⁿ^g^o^p^p^o^r^t^uⁿ^iti^{es f}^o^r^mⁱⁿ^o^r^ity
^en^t^r^ep^ren^e^u^r^s).
²³^E.g^.^Ma^je^s^k^e^v^.^C^ity^o^f^C^h^ic^a^g^{o, 218}^F.^3d⁸^{16 (}⁷^th^Ci^r.²⁰⁰⁰^)(ci^t^y^’^s^affⁱ^r^m^atⁱ^v^{e act}ⁱ^oⁿ^p^l^an^l^a^w^f^u^l^b^ecau^{se i}^t
^r^e^m^e^die^s^pa^s^t^dis^c^rⁱ^mⁱ^na^{tion a}ⁿ^d^w^a^s^na^r^r^o^w^l^y^ta^ilor^e^d)^{; Mc}^N^a^m^a^r^a^v^.^C^ity^of^C^h^ic^ag^{o, 13}^{8 F}^.³^d¹²^19,¹²²³^-²⁴⁽⁷^th
^Cⁱ^r^.¹⁹⁹⁸⁾⁽^s^ta^ting^t^h^a^t^r^a^w^s^t^a^tis^tic^s^do^not^pr^ov^eⁱⁿ^te^nti^ona^l^dis^c^rⁱ^mⁱ^na^{tion, b}^u^{t a}^l^s^o^fⁱ^ndi^ng^tha^t^de^f^e^nda^nt^ha^d
^pr^e^s^eⁿ^te^{d s}^t^r^o^ng^ba^sⁱ^sⁱⁿ^e^v^ideⁿ^c^e^of^ne^e^d^{to r}^e^m^e^d^y^dis^c^rⁱ^mⁱ^na^{tion, t}^h^r^o^ug^{h c}^o^m^b^ina^tioⁿ^of^s^t^a^tis^tic^s^,^aⁿ^e^c^dota^l^st
^e^v^ideⁿ^c^e^,^a^{nd j}^udicⁱ^a^l^fⁱ^nd^ing^s⁾^;^B^o^s^t^on^P^o^lic^e^Su^pe^rⁱ^or^O^f^fⁱ^c^e^r^s^F^e^d’^n,¹⁴^{7 F.}^3d¹³^{, (}¹^Cⁱ^r^.¹⁹⁹⁸⁾⁽^doc^um^eⁿ^ta^r^y
^evi^d^en^{ce i}ⁿ^rel^a^tⁱ^oⁿ^t^o^earlⁱ^e^{r co}^nsen^t^d^{ecree su}^p^p^o^r^t^e^d^p^r^ef^eren^tⁱ^a^l^p^r^o^m^o^tⁱ^oⁿ^o^f^b^l^{ack o}^f^fⁱ^{cer t}^o^ran^k^o^f^lⁱ^e^u^t^en^an^t⁾^.
^Bu^{t cf}^{. Cru}^m^p^t^oⁿ^v^.^Bri^d^g^e^p^o^r^t^E^d^u^c^{. A}^ss’n^,⁹⁹³^F.2^d¹⁰²³⁽²^d^Ci^{r. 1}⁹⁹³^)(ref^u^sin^g^to^eq^u^a^{te p}^a^rties^’^stip^u^l^atioⁿ^s^{as to}
^e^x^is^te^nc^e^of^dis^c^rⁱ^mⁱ^na^{tion w}^{ith j}^udicⁱ^a^l^de^te^r^m^ina^{tion tha}^t^s^u^c^h^di^s^c^rⁱ^mⁱ^na^{tion e}^x^is^te^d)^{; R}^e^y^nolds^v^.^R^obe^r^t^s^,²⁰²^F.3^d^th
¹³⁰^{3 (}¹¹^Cⁱ^r^.²⁰⁰⁰⁾⁽^c^oⁿ^s^e^nt^de^c^r^e^e^did^{not e}^s^ta^b^lis^{h t}^h^a^t^s^t^a^t^e^tr^aⁿ^s^por^ta^tⁱ^oⁿ^de^pa^r^t^m^e^{nt ha}^d^dis^c^rⁱ^mⁱ^na^te^{d a}^g^aⁱ^ns^t
^bla^c^k^em^ploy^ee^s⁾^.
²⁴^S^{ee “Backd}^r^a^f^t^,^Co^u^r^t^s^{are L}ⁱ^f^tⁱⁿ^{g Decad}^es-Ol^d^Coⁿ^s^en^t^{Decrees Req}^uⁱ^riⁿ^g^Affⁱ^r^m^atⁱ^v^e^A^c^tⁱ^oⁿ^,^{“ 86}^A^.^B.^A^.^J.⁴⁸
⁽^A^pr^{il 200}⁰⁾^.
²⁵⁵¹^{5 U}^.^S^.²⁰⁰⁽¹⁹⁹⁵⁾⁽^a^pp^ly^ing^“^s^t^r^ic^{t s}^c^r^u^tiny^”^{to a}^f^e^de^r^a^{l tr}^aⁿ^s^por^ta^tion^pr^og^r^a^m^of^fⁱ^na^nc^ia^{l inc}^eⁿ^tⁱ^v^e^s^f^o^r^pr^im^e
^c^ontra^c^t^{ors w}^{ho su}^bc^oⁿ^tra^c^t^e^d^t^o^fⁱ^r^m^{s o}^w^ne^{d by}^ra^cⁱ^a^l^mⁱ^noritie^{s a}^{nd ru}^ling^t^h^a^t^a^{ll “}^r^a^cⁱ^a^l^c^l^a^ssifⁱ^c^a^tions”^by
^g^o^v^e^rn^m^e^{nt a}^t^aⁿ^y^le^v^e^l^m^u^{st be}^j^u^stif^ie^{d by}^a^“^c^o^m^p^e^lling^g^o^v^e^rnm^e^nta^l^inte^re^st”^a^{nd “}ⁿ^a^r^r^o^w^l^y^ta^ilore^d”^t^o^tha^t^e^nd)^.
²⁶^{In re}^Birm^ing^h^a^m^Re^v^e^rse^Dis^c^ri^mⁱ^na^{tion Em}^ploy^m^e^{nt L}^itig^{., 20}^F.3^d¹⁵²⁵⁽¹¹^th^Cⁱ^r^.¹⁹⁹⁴⁾^.^Se^e^a^l^s^o^T^h^ig^pe^{n v}^.
^Bⁱ^{bb C}^o^uⁿ^ty^G^a^{., She}^r^if^f^’^s^De^p’^{t, 22}^{3 F}^.³^d¹²³¹⁽¹¹^th^Cⁱ^r^.²⁰⁰⁰⁾⁽^C^r^os^on^c^ontr^o^lle^d^w^h^ite^polic^e^of^fⁱ^c^e^r^s^’^{§ 19}⁸³
^a^c^{tion a}^g^aⁱ^ns^{t s}^h^e^r^if^f^’^s^de^pa^rt^m^e^{nt, c}^h^a^lle^ng^ing^c^o^ns^titu^tio^na^lity^of^c^ons^eⁿ^t^de^c^r^e^e^,^a^dopte^d^to^s^e^ttle^{prior r}^ace
^dis^c^rⁱ^mⁱ^na^{tion a}^c^tio^{n, r}^e^q^u^irⁱⁿ^g^t^h^a^t⁵⁰^%^of^a^{ll a}ⁿⁿ^u^a^l^pr^om^otions^be^a^w^a^r^de^{d to bla}^c^k^of^fⁱ^c^e^r^s⁾^.
²⁷^S^{ee Co}^t^t^e^{r v.}^Ci^t^y^o^f^Bo^st^oⁿ^,⁷³^F^.^S^u^pp^.²^d⁶²^(D.^M^ass.¹⁹⁹⁹^),^v^acat^ed^an^d^rem^aⁿ^d^e^d^,²¹⁹^F^.^3d³¹^(l^st^Ci^r^.²⁰⁰⁰^).

number of cities and states have successfully fought consent decrees and ended federal
monitoring of their minority hiring practices.
In 1999, the Supreme Court declined to review a Fifth Circuit decision striking down the Dallas ²⁸
Fire Department’s affirmative action plan. In City of Dallas v. Dallas Fire Fighters Association,
the appellate panel held that there was insufficient evidence of past discrimination in the Dallas
Fire Department to justify the department’s policy of promoting some women and minorities over
white males who had achieved scores within the same “band” on a civil service examination.
Evidence of discrimination in the record consisted of a 1976 consent decree between the City and
the Justice Department finding impermissible racial discrimination by the city under Title VII,
and statistical underrepresentation of minorities in the ranks to which the challenged promotions
were made. The court recognized that “out-of-rank promotions do not impose as great a burden
on non-minorities as would layoff or discharge.” But it found that interference by the city with
“legitimate expectations” of promotion based on exam performance was unjustified where
alternative remedies were not yet exhausted, and there was no proof of “a history of egregious
and pervasive discrimination or resistance to affirmative action that has warranted more serious ²⁹
measures in other cases.” Even less evidence of past sex discrimination was found by the court
to justify the city’s gender-based discrimination.
In Ensley Branch, NAACP v. Seibels,³⁰ the Eleventh Circuit rejected both long term and annual
goals imposed by consent decree for the hiring of firefighters and police officers by the City of
Birmingham, Alabama. The main fault with the city’s affirmative action plan was that it had
become a permanent alternative to the development of nondiscriminatory tests and other valid
selection procedures. Rather than ending discrimination, the long-term goals in the plan were
“designed to create parity between the racial composition of the labor pool and the race of the
employees in each job position.” Annual hiring goals had been arbitrarily set at twenty-five to
fifty percent for minorities and had been “mechanically” applied as “rigid quotas,” in the court’s
view, without regard to “relative qualifications” of the candidates. On remand, the district court
was ordered to “re-write the decrees to relate the annual goals to the proportion of blacks in the
relevant, objectively qualified labor pool” and “to make clear that the annual goals cannot last ³¹
indefini tely.”
Likewise, an affirmative action promotional plan for the Maryland State police, agreed to by the
parties with consent of a federal district court, was subjected to strict scrutiny review and found ³²
wanting by the Fourth Circuit in Maryland Troopers Ass’n v. Evans. Specifically, goals linked to
minority representation in the general population, instead of the qualified labor pool, were found
deficient under Croson analysis, as was the failure to first exhaust all race-neutral alternative
means of increasing minority opportunity. The latter factor has frequently been determinative of

²⁸¹⁵⁰^F.^3d⁴³^{8 (}⁵^th^Cⁱ^r^.¹⁹⁹⁸⁾^,^c^e^r^{t. de}^nie^d^,⁵²^{6 U}^.^S.¹⁰⁴⁶⁽¹⁹⁹⁹⁾^.
²⁹^I^d^{. a}^t⁴⁴^0.
³⁰^{31 F.}^{3d 15}⁴⁸⁽¹¹^th^Cⁱ^r^.¹⁹⁹⁴⁾^.
³¹^Id^{. at}¹⁵⁷⁷^{. In}^ad^d^itioⁿ^,^t^h^{e co}^u^r^tⁿ^o^t^e^d^{: “On}^{ce a v}^a^lid^selectioⁿ^p^r^o^ced^u^r^{e is i}ⁿ^p^l^{ace f}^o^{r a p}^a^rticu^l^{ar p}^o^s^it^ioⁿ^,ⁿ^e^ith^er
^t^h^{e Ci}^t^y^o^r^t^h^{e B}^o^ard^m^a^y^coⁿ^tⁱⁿ^u^e^t^o^certⁱ^f^y^,^hⁱ^re,^o^r^p^r^o^m^o^t^{e acc}^o^r^dⁱⁿ^g^t^o^{a race-co}ⁿ^s^ci^ou^{s ‘go}^a^l^’^ab^sen^t^p^r^o^o^f^o^f
^ong^oi^ng^r^a^cⁱ^a^l^dis^c^rⁱ^mⁱ^na^tion,^or^of^ling^e^rⁱ^ng^e^f^f^e^c^t^s^of^pa^s^t^r^a^cⁱ^a^l^dis^c^rⁱ^mⁱ^na^{tion, w}^{ith r}^e^s^p^e^c^t^t^o^t^h^a^t^posⁱ^tio^{n. U}^nde^r
^{no c}ⁱ^r^c^um^s^t^aⁿ^c^e^s^m^a^y^the^Cⁱ^t^y^hir^e^or^pr^om^ote^,^or^t^h^e^B^o^a^r^d^c^e^r^tif^y^,^ca^ndida^te^s^w^{ho a}^r^e^de^m^ons^tr^a^b^ly^le^ss^qua^lif^ie^d
^thaⁿ^othe^r^c^aⁿ^dida^te^s^,^ba^s^e^{d o}ⁿ^t^h^e^r^e^s^u^lts^of^v^a^{lid, jo}^b-^r^e^la^te^{d s}^e^le^c^tion^pr^oc^e^d^ur^e^s^{, u}ⁿ^le^s^s^the^dis^t^rⁱ^c^t^c^our^{t f}ⁱ^nds^tha^t
^su^ch^ap^poⁱⁿ^t^m^en^t^s^{are n}^ecessar^y^t^o^cu^{re em}^p^l^o^y^men^t^dⁱ^scri^mⁱⁿ^a^tⁱ^oⁿ^b^y^t^h^{e Ci}^t^y^o^r^Bo^ard^.^{” I}^d^.
³²⁹⁹³^F.^2d¹⁰⁷²⁽⁴^th^Cⁱ^r^.¹⁹⁹³⁾^.

the constitutional question in the judicial mind.³³ Croson was also applied by the Sixth Circuit to
defeat a 50% minority goal for the rank of sergeant in the Detroit Police Department, which had
been in effect for nearly two decades, since “limiting the duration of a race-conscious remedy ³⁴
which clearly impacts adversely on [nonminorities] is a keystone of a narrowly tailored plan.”
Failure to satisfy the court as to the cause of apparent statistical disparities with respect to ³⁵³⁶
minority employment, the scope or duration of the remedy, the absence of a provision for ³⁷
waiver where qualified minority candidates were unavailable, and the consequent undue burden ³⁸
placed on nonminorities are all factors that have led to judicial invalidation of state and local
affirmative action.

The Court arguably has yet to precisely define “racial classification” for equal protection
purposes, but a plurality of Justices have described the concept in terms of burdens or benefits
placed on individuals because of race, or subjecting individuals to unequal treatment. Race-
conscious action by government or private employers that neither confers a benefit nor imposes a
burden on individuals may not be subject to strict scrutiny or heightened judicial review. Thus,
courts have not found data collection activities concerning the racial or gender makeup of a
workforce to violate the Constitution. “Statistical information as such is a rather neutral entity ³⁹
which only becomes meaningful when it is interpreted.” Similarly, strict scrutiny has generally
not been applied by the courts to minority outreach or recruitment efforts that do not amount to an
actual preference in employment decisionmaking. A public university, for example, may be
racially “aware” or “conscious” by amassing statistics on the racial and ethnic makeup of its
faculty and encouraging broader recruiting of racial or ethnic minorities, without triggering strict

³³^E.g^.^A^l^e^x^a^nde^r^v^.^Es^te^{pp, 9}⁵^F^.³^d³^12,³^{16 (}⁴^th^Cⁱ^r^.¹⁹⁹⁶⁾⁽^“^T^h^e^pr^og^r^a^m^is^not^na^r^r^o^w^l^y^ta^ilor^e^{d be}^c^a^u^s^e^m^e^aⁿ^s^le^s^s
^dr^a^s^tic^thaⁿ^ou^tr^ig^{ht r}^a^cⁱ^a^l^c^l^a^s^sⁱ^fⁱ^c^a^{tion w}^e^r^e^a^v^a^ila^ble^{to de}^pa^r^t^m^e^{nt of}^fⁱ^cⁱ^a^l^s⁾^{; Middle}^t^{on v}^.^Cⁱ^ty^of^Flint^,⁹²^F^.³^d^th
³⁹⁶^{, 4}¹⁰^-¹¹⁽⁶^Cir.¹⁹⁹⁶^)(rejectiⁿ^{g race-co}ⁿ^s^cio^u^s^p^r^o^m^o^tio^{n p}^l^an^b^ecau^se,ⁱⁿ^{ter alia,}^th^{e City}^h^a^d^s^u^ccess^f^u^lly^u^s^ed
^“l^{ess d}^r^astⁱ^c^,^al^t^e^rn^atⁱ^v^{e wa}^y^s^{” t}^oⁱⁿ^{crease p}^e^rcen^t^a^{ge o}^f^mⁱⁿ^o^rⁱ^t^y^p^o^lⁱ^{ce o}^f^fⁱ^cer^s);^Bo^st^oⁿ^P^o^lⁱ^{ce S}^uperi^o^r^Of^fⁱ^cers^st
^Fe^d’^{n v}^.^Cⁱ^ty^of^B^o^s^t^{on, 1}⁴⁷^F.^3d^13,²⁵⁽¹^Cⁱ^r^.¹⁹⁹⁸⁾⁽^hol^ding^t^h^a^t^one^-^tim^e^a^f^fⁱ^r^m^a^tiv^e^a^c^{tion pr}^o^m^{otion w}^a^s
ⁿ^a^rro^w^l^y^t^aⁱ^l^o^red^b^ecau^{se race-n}^e^u^t^ral^m^easu^r^{es “}^w^o^u^l^dⁿ^o^t^p^r^o^vⁱ^d^{e a t}ⁱ^m^el^y^r^e^m^e^d^y^.^”
³⁴^D^e^tr^oit^Polic^e^O^f^fⁱ^ce^r^s^A^s^s^’^{n v}^.^Y^oung^,⁹⁸^{9 F}^.²^d²²⁵^,²²⁸⁽⁶^th^Cⁱ^r^.¹⁹⁹³⁾^.
³⁵^L^a^lla^v^.^Cit^y^of^Ne^w^Orle^aⁿ^{s, 19}^{99 U.}^{S. Dist.}^L^E^X^I^S³²⁸¹^{(D. L}^a^{. 19}^99)(“^g^r^{oss sta}^tistic^a^l^dis^p^a^r^itie^s”^be^tw^e^eⁿ
^r^a^cⁱ^a^l^c^o^m^pos^ition^of^fⁱ^r^e^de^pa^r^t^m^e^{nt a}^{nd c}^o^m^m^unity^popula^tioⁿ^did^no^{t e}^s^ta^blis^h^“^s^tr^ong^ba^sⁱ^sⁱⁿ^e^v^ideⁿ^{ce” f}^o^r^raci^al
^hⁱ^riⁿ^g^p^r^ef^eren^{ce ab}^sen^t^sh^o^wⁱⁿ^{g t}^h^at^b^l^{ack ap}^p^lⁱ^can^t^s^w^e^{re rej}^ect^e^d^{as “m}^u^c^h^hⁱ^gh^{er” rat}^e^t^h^an^w^hⁱ^t^es);^A^s^h^t^oⁿ^v.^Ci^t^y
^of^Mem^phis^,⁴⁹^F^.^S^u^p^p^.2^d¹⁰⁵¹⁽^W^.D^.Te^{nn. 1}⁹⁹⁹⁾⁽^t^e^s^tim^ony^of^ex^pe^r^t^f^o^r^cⁱ^t^y^ov^e^r^s^t^a^t^e^d^num^be^r^of^bla^c^k^sⁱⁿ
^q^u^a^lⁱ^fⁱ^e^d^l^a^bo^{r po}^o^l^b^ecau^{se w}^r^oⁿ^g^age^gr^{oup w}^a^s^c^ons^ide^r^e^d^{, a}^{nd i}^t^dis^r^e^g^a^r^de^{d b}^o^th^the^le^v^e^{l of}^mⁱ^nor^ity^g^r^oup
^inte^r^e^s^t^a^{nd r}^e^la^tiv^e^l^y^hig^h^e^r^r^a^te^s^of^c^r^im^ina^l^c^onv^ic^tions^a^m^ong^bl^a^c^k^s^,^dis^qua^lif^yⁱ^ng^f^a^c^t^or^s^f^o^r^pol^ic^e^of^fⁱ^c^e^r^s⁾^;^th
^Aⁱ^ken^v.^Cⁱ^t^y^o^f^M^e^m^p^hⁱ^s,³⁷^F.^3d¹¹⁵⁵⁽⁶^Cⁱ^r^.¹⁹⁹⁴⁾⁽^p^r^o^m^o^tion^g^o^a^l^s^s^e^{t by}^c^ons^eⁿ^{t de}^c^r^e^e^w^e^r^e^pr^o^b^le^m^a^tic
^b^ecau^{se t}^h^ey^w^e^r^e^tⁱ^e^d^t^o^go^al^{s f}^o^{r h}ⁱ^riⁿ^g^b^l^{ack o}^f^fⁱ^c^e^rs^w^hⁱ^c^h^w^e^re^,ⁱⁿ^t^u^rⁿ^,^b^a^sed^on^t^h^{e m}ⁱⁿ^o^rⁱ^t^y^popula^tⁱ^{on of}^the
^und^if^fe^re^ntia^te^{d la}^{bor f}^o^rc^e⁾^.
³⁶^Uⁿ^ite^d^Sta^t^e^s^v^.^C^ity^of^Miam^{i, 115}^F.3^d⁸⁷^{0 (}¹¹^th^Cⁱ^r^.¹⁹⁹⁷⁾⁽^R^e^p^or^{t of}^c^ity^’^s^e^x^pe^r^t^{on un}^de^r^r^e^pr^e^s^eⁿ^ta^tion^of
^w^o^m^e^{n a}^{nd m}ⁱ^noritie^{s a}^s^fⁱ^re^fⁱ^g^h^te^{rs la}^c^k^e^d^proba^tiv^e^v^a^lue^w^h^e^r^e^{it w}^a^{s ba}^se^{d on g}^e^ne^ra^{l c}^eⁿ^{sus da}^ta^ra^the^r^thaⁿ
^pro^p^e^r^c^o^m^p^a^r^{isons be}^tw^e^eⁿ^mⁱⁿ^o^rity^c^o^m^positio^{n of}^de^pa^rtm^e^{nt a}^{nd re}^le^v^a^{nt la}^b^o^{r m}^a^rk^e^t^);^A^s^hton^{, supra}^n.³³^a^t
¹⁰⁶⁵⁽^dis^t^rⁱ^c^t^c^o^ur^{t “}^t^r^o^ub^le^d”^by^c^ity^’^s^long^-^t^e^r^m^ope^r^a^tion^un^de^r^c^ons^eⁿ^t^de^c^r^e^e^s^—^s^o^m^e^f^our^te^eⁿ^y^e^a^r^s⁾^.
³⁷^E.g^.^N^o^r^t^{h Sta}^t^e^L^a^w^Enf^o^r^c^em^{ent O}^f^fⁱ^ce^r^s^A^s^s^’^{n v}^.^C^h^a^r^lotte^-^M^e^c^k^l^e^nbur^g^P^o^lic^e^D^e^p’^t^.,⁸⁶^{2 F.}^S^upp^{. 1}⁴⁴⁵
^(W^.D^.N^{.C. 19}^94).
³⁸^E.g^.^C^r^um^pton^v^.^B^r^idg^e^p^o^r^t^E^d^u^c^{. A}^s^s^’^{n, 993}^F.2^d¹⁰^23,¹⁰³¹⁽²^{d C}ⁱ^r^.¹⁹⁹³⁾⁽^fⁱⁿ^ding^pr^e^f^e^r^eⁿ^tia^{l lay}^-^of^f^polic^y^too
^bur^de^ns^om^e^{on n}^onm^inorⁱ^tie^s⁾^.
³⁹^Sus^s^m^aⁿ^v^.^T^a^noue^{, 39}^F.S^u^p^p^.²^{d 1}³^,²⁴⁽^D^.D^.C^.¹⁹⁹⁹⁾⁽^q^u^o^ting^U^nite^d^Sta^t^e^s^v^.^N^e^w^H^a^m^p^s^h^ir^e^,⁵³⁹^F.2^d²⁷^7,²⁸⁰
⁽¹^st^Cⁱ^r^.¹⁹⁷⁶⁾^.

scrutiny equal protection review. These activities do not impose burdens or benefits, it has been
held, nor do they subject individuals to unequal treatment. If that institution, however, then
engages in race-preferential hiring, firing, or promotion, that action is subject to strict scrutiny.
This distinction between “inclusive” forms of affirmative action—such as recruitment,
advertising in minority media, and other outreach to minority communities—and “exclusive”
affirmative action—such as quotas, set-asides, or layoff preferences—has featured prominently in ⁴⁰
many decisions.
One of the first post-Adarand decisions, Shuford v. State Board of Education,⁴¹ upheld provisions
similar to E.O. 11246 in the face of constitutional challenge. A consent decree between the State
Board of Education and separate classes of white and black women had addressed issues of hiring
and promotion within the Alabama system. In addition to a standard nondiscrimination clause, the
decree required yearly reports tracking the number of new women hires, procedures for
expanding the pool of female applicants, numerical hiring goals, and parity for women in the
personnel selection process. Specifically prohibited by the decree, however, were set-asides,
quotas, and the selection of less qualified candidates based on race or gender.
Because expanding the pool of qualified minority or female candidates by “inclusive” recruitment
and outreach only added to the competition faced by non-class members—in this case, white
males—and did not result in lost job opportunities and promotions, the court avoided the
traditional Title VII and equal protection analysis applied to “exclusive” affirmative action
techniques. It upheld the annual statistical report requirement of the decree since “the attempt to
ascertain whether there is a problem and whether progress is being made should be ⁴²
encouraged.” Affirmative recruitment of qualified female candidates was similarly acceptable so
long as the recruitment did not exclude male applicants. Thus, “if the postsecondary system began
recruiting at black and women’s colleges and stopped recruiting at Auburn, this would be an ⁴³
instance of exclusion.”
Since hiring goals could be applied either inclusively or exclusively, whether the decree mandated
appropriate “diagnostic goals that measure the efficacy of pool expansion techniques such as
affirmative recruitment” was treated as a question of underlying intent. The Shuford goals did not
require preferences for women, the court found, and would not permit jobs to be set-aside for
specific groups. Because the goals played no role in the selection process, they served only to
measure the effectiveness of the recruitment programs and to “red flag” those positions where
women were underrepresented. As such, the goals were found to be inclusive and lawful. Shuford
has been cited with approval by several federal appellate courts. Most recently, two separate
appellate panels affirmed consent decrees requiring public employers to devise race-conscious
employment examinations so as to minimize any racially discriminatory impact on minority

⁴⁰^Se^e^,^e^.^g^{., A}^lle^{n v}^.^A^l^a^b^am^a^Sta^t^{e B}^d^.^of^Educ^.,¹⁶⁴^F.3^d¹³^47,¹³⁵²⁽¹¹^th^Ci^r.¹⁹⁹⁹^)(raci^al^l^y^coⁿ^s^ci^o^u^s^ou^t^r^each
^e^f^f^o^r^t^s^{to br}^oa^de^{n a}^p^plic^aⁿ^t^po^ol^{not s}^ubje^c^t^t^o^s^t^rⁱ^c^t^s^c^r^u^tiny⁾^{, v}^a^ca^te^{d 21}^{6 F}^.³^d¹²⁶³⁽¹¹^th^Cⁱ^r^.²⁰⁰⁰⁾^;^Du^f^f^y^v.^Wo^l^l^e^,^th
¹²³^F^.³^d¹⁰²⁶^,¹⁰³⁸^-³⁹⁽⁸^Cir.¹⁹⁹^7)(“^Aⁿ^e^m^plo^y^e^{r’s a}^f^fⁱ^r^m^a^tive^e^f^f^o^{rts to re}^c^r^{uit f}^e^m^a^le^a^{nd m}ⁱ^nority^a^pplic^aⁿ^ts
^d^o^e^{s no}^t^con^s^tⁱ^t^u^t^{e d}ⁱ^scri^mⁱⁿ^a^tⁱ^o^n.^”);^Eⁿ^sl^ey^Bran^ch^,^NAA^CP^,^su^p^r^{a n}^.³⁰^,^at^p^.¹⁵⁷¹^(d^escri^bⁱⁿ^{g effo}^rt^{s t}^o^actⁱ^v^el^y
^eⁿ^c^oura^g^e^Bla^c^k^{s to a}^pply^f^o^{r job}^s^{, inc}^l^u^d^ing^w^a^iv^e^r^{s of}^a^ppli^c^a^{tion f}^e^e^s^{, a}^s^“^r^a^c^e^-^ne^utra^l”^{); Billish}^v^.^City^of^Chic^a^g^o,^th
⁹⁶²^F^.²^d¹²⁶⁹^,¹²⁹⁰⁽⁷^Cⁱ^r^.¹⁹⁹²⁾⁽^d^escrⁱ^bⁱⁿ^{g aggr}^es^si^{ve r}^e^cr^uⁱ^tⁱ^{ng as}^“^r^a^c^e^-^ne^utr^a^{l pr}^oc^e^d^ur^e^s^”⁾^r^e^v^’^{d on}^ot^he^r^th
^g^r^oun^ds^{, 9}⁸⁹^F.^2d⁸⁹^{0 (}⁷^Cⁱ^r^.¹⁹⁹³⁾⁽^eⁿ^ba^nc⁾^.
⁴¹⁸⁹^{7 F}^.^S^u^p^p^.¹⁵^{35 (}^M^.D^.A^la^{. 19}⁹⁵⁾^.
⁴²^{Id. a}^t¹⁵⁵²^.
⁴³^{Id. a}^t¹⁵⁵³^.

candidates. “[N]othing in Adarand requires the application of strict scrutiny to this sort of race ⁴⁴
consci ousness .”
Other courts have disagreed, however, and applied strict scrutiny analysis to facially inclusive ⁴⁵
affirmative action programs. In Monterey Mechanical Co. v. Wilson, the Ninth Circuit
considered a California affirmative action statute that required bidders on state contracts either to
subcontract a percentage of their work to female- and minority-owned businesses or to document
a “good faith effort” to do so. The acknowledged low bidder in the case had been denied a
contract with a state university for failure to achieve the mandated goal or to document its
outreach efforts. The appeals court found that the statute treated classes unequally because a
minority prime contractor could avoid the necessity of subcontracting or demonstrating good faith
efforts simply by doing a percentage of the work itself, an option not available to other bidders. In
addition, the statute was found to encourage quotas, even if it did not necessarily require them.
Meanwhile, Messer v. Meno challenged an affirmative action program involving goals, statistics, ⁴⁶
and reporting requirements within the Texas Education Agency. In vacating summary judgment
for TEA, the Fifth Circuit rejected any distinction between inclusive and exclusive affirmative
action, holding that strict scrutiny applies to all governmental racial classifications. In dicta, the
court noted that the “evidence . . . strongly suggests recruitment was not the sole activity affected
by the [affirmative action program], and that once an applicant met the minimum requirements ⁴⁷
for a position, TEA employees considered race or gender in employment decisions.” Although
not disputing the applicability of strict scrutiny, Judge Garza warned in a concurring opinion that
“the tone of the majority’s decision . . . will send the message out that affirmative action is, for all ⁴⁸
intents and purposes, dead in the Fifth Circuit.”
Similarly, in Schurr v. Resort Int’l Hotel,⁴⁹ the Third Circuit disapproved a casino’s goal-oriented
affirmative action plan, which had been applied to deny employment to a white light-and-sound
technician in favor of an equally qualified black applicant, because it had been implemented “in
[t]he absence of any reference to or showing of past or present discrimination in the casino
industry.” The employer argued that the affirmative action plan, and the Casino Control
Commission regulations on which it was based, did not create racial preferences, but simply
articulated goals aimed at recruiting members of minority groups and women. The court,
however, concluded that the regulations “have the practical effect of encouraging (if not outright
compelling) discriminatory hiring,” particularly because Resorts International supervisors who
made hiring decisions testified to a belief that they had to take race into account when filling a
position, if a particular job category had a lower percentage of minority employees than the stated
percentage goal for that category. There was no “meaningful distinction,” the court found,
between the casino’s requirements and the minority participation goals for nongovernmental
contractors, which the Ninth Circuit invalidated in Bras v. California Public Utilities

⁴⁴^A^lle^{n v}^.^A^l^a^b^am^a^Sta^t^e^B^d^{. of}^E^duc^{., s}^upr^a^n.^40,^a^t^p^.¹³⁵³⁽^a^f^fⁱ^r^m^ing^c^ons^eⁿ^{t de}^c^r^e^e^r^e^quirⁱ^ng^t^h^a^t^s^c^hoo^{l b}^o^a^r^d
^d^e^vel^o^p^t^each^{er cert}ⁱ^fⁱ^catⁱ^oⁿ^exa^m^t^h^at^mⁱⁿⁱ^mⁱ^z^e^{s raci}^al^l^y^dⁱ^scri^miⁿ^a^t^o^ryⁱ^m^p^act^);^Ha^y^d^en^v.^Co^un^t^y^o^f^Nass^au^,¹⁸⁰
^F^.^3d⁴²^,⁴⁹⁽²^d^Ci^r.¹⁹⁹⁹⁾^(“^[^A^]^l^t^h^o^u^{gh Nassau}^Co^un^t^y^{was n}^ecess^a^ri^l^y^coⁿ^s^ci^o^u^s^o^f^{race i}ⁿ^d^e^si^gnⁱⁿ^{g i}^t^s^en^t^r^an^ce
^e^x^am^[^f^or^polic^e^of^fⁱ^c^e^r^ca^ndida^te^s^]^{, i}^t^tr^e^a^t^e^d^a^ll^pe^r^s^ons^e^qua^llyⁱⁿ^the^a^d^mⁱ^nis^t^r^a^tio^{n of}^the^e^x^a^m^.”⁾^.
⁴⁵¹²⁵^F.^3d⁷⁰^{2 (}⁹^th^Cⁱ^r^.¹⁹⁹⁷⁾^,^r^e^h’^g^eⁿ^ba^nc^de^nie^d^,¹³^{8 F}^.³^d¹²⁷⁰⁽⁹^th^Cⁱ^r^.¹⁹⁹⁸⁾^.
⁴⁶¹³⁰^F.^3d¹³^{0 (}⁵^th^Cⁱ^r^.¹⁹⁹⁷⁾^.
⁴⁷^I^d^{. a}^t¹³^9.
⁴⁸^I^d^{. a}^t¹⁴^{1 (}^G^a^r^z^a^J^{., c}^onc^ur^rⁱ^ng⁾^.
⁴⁹¹⁹^{6 F}^.³^d⁴⁸⁶⁽³^{d C}ⁱ^r^.¹⁹⁹⁹⁾

Commission.⁵⁰ In Bras, the goals had the effect of putting a non-minority contractor on unequal
footing in competing for business from Pacific Bell, which was subject to minority hiring goals
formulated by the California Public Utility Commission pursuant to state law.
Another federal appellate court has applied strict judicial scrutiny as per Adarand to defeat equal
employment opportunity regulations of the Federal Communications Commission (FCC)
imposing affirmative minority outreach and recruitment obligations on applicants for radio ⁵¹
broadcast licenses. In Lutheran Church-Missouri Synod v. FCC, the D.C. Circuit ruling
stemmed from a challenge by the NAACP to the hiring practices of a Lutheran Church
organization which holds FCC licences for two radio stations broadcasting from a seminary in
Clayton, Missouri. Because of the stations’ religious mission, the church has a “Lutheran hiring
preference” requiring job applicants to possess “knowledge of Lutheran doctrine.” The FCC
imposes two basic requirements on radio stations: they must refrain from discriminating in
employment for racial, ethnic, or gender-based reasons; and they must adopt an affirmative action
program of targeted efforts to recruit, hire, and promote women and minorities. Acting on the
NAACP complaint, the FCC ruled that the church’s Lutheran hiring preference was too broad,
and that while the stations had not discriminated, they violated agency regulation because of
insufficient minority recruitment. The church was ordered to pay a $25,000 penalty and to submit
reports every six months listing all job applicants and hires, along with the sex and race of each,
as well as a statement of their efforts to recruit minorities.
A three judge appellate panel rejected FCC and Justice Department arguments that a more lenient
standard of review than strict scrutiny should apply since the FCC regulations “stop[ped] short of
establishing preferences, quotas, . . . set-asides” and did not mandate race-conscious “hiring
decisions.” Adarand required “[a]ll governmental action based on race”—even when “the
government’s motivation to aid minorities can be thought ‘benign’”—to be narrowly tailored to
meet a compelling governmental interest. According to Judge Silberman, by requiring a “formal
analysis” by the employer of minority “underrepresentation” and “availability” statistics, the FCC
regulations “extend beyond outreach efforts and certainly influence ultimate hiring decisions”
because they “pressure stations to maintain a work force that mirrors the racial breakdown of the
‘metropolitan statistical area.’” For this reason, it mattered not to the court “whether a
government hiring program imposes hard quotas, soft quotas, or goals” since any such race-
conscious technique “induces an employer to hire with an eye toward meeting a numerical
target.”
Rather than a remedy for past discrimination, the justification advanced by the government for
the FCC program was to foster “diverse” programming content, an interest deemed “important”
but not “compelling” by the appellate panel. Indeed, the diversity-of-programming rationale
“makes no sense,” said the judge, in the “intrastation” context where the FCC’s “purported goal
of making a single station all things to all people” contradicts “the reality of the radio market,
where each station targets a particular segment: one pop, one country, one news radio, and so on.”
Nor could the FCC regulations be considered “narrowly tailored” because they affected the hiring
of even low-level employees whose impact on programming was negligible. In conclusion, Judge
Silberman observed:

⁵⁰^{59 F.}^{3d 86}⁹⁽⁹^th^Cⁱ^r^.¹⁹⁹⁵⁾^,^c^e^r^t.^de^nie^d^,⁵^{16 U}^.^S.¹⁹^{84 (}¹⁹⁹⁶⁾^.
⁵¹¹⁴^{1 F}^.³^d³⁴⁴^(D^.C.Cir.¹⁹⁹⁸⁾^.

^P^e^r^h^ap^{s th}^{is i}^s^ill^u^s^tr^ativ^{e a}^s^t^o^j^u^{st h}^o^w^m^u^c^h^b^u^r^d^en^t^h^{e te}^r^m^dⁱ^v^e^r^sⁱ^t^y^h^a^{s b}^e^eⁿ^as^k^e^d^to^th
^b^earⁱⁿ^th^{e latter}^p^a^r^t^o^f^t^h^{e 2}⁰^cen^tu^r^yⁱⁿ^th^{e U}ⁿ^{ited S}^t^ates^.^It^appears^{to h}^a^v^e^been^coin^ed
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^prop^ortⁱ^oⁿ^a^l^repres^en^t^a^tⁱ^{on i}^t^sel^f^{. It}^h^a^s^,ⁱⁿ^ou^r^vⁱ^e^w^,^been^u^s^{ed by}^t^h^e^C^o^m^mⁱ^ssⁱ^{on i}ⁿ^bot^h
^w^a^y^s^.^W^e^t^h^eref^{ore con}^c^l^u^{de t}^h^{at i}^t^s^{EEO regu}^latⁱ^on^s^are^uⁿ^c^on^s^tit^u^tioⁿ^a^{l a}ⁿ^{d ca}ⁿⁿ^o^t^s^e^rve⁵²
^as^{a bas}ⁱ^s^f^o^{r its}^decisⁱ^on^an^d^{order in}^th^is^cas^e.
In a sequel, Broadcasters Association v. FCC,⁵³ the appeals court voided new FCC rules designed
to achieve “broad outreach” in recruiting women and minorities for broadcasting careers.
Broadcasters were given a choice between programs specified by the FCC and station-initiated
outreach programs. If the station designed its own program, it had to report the race and sex of
each applicant or person employed. But the regulations specified that a company’s record in
hiring women and minorities would not be a factor in the license renewal decision. The
alternative approach was struck down, again because the recordkeeping and reporting of
employment statistics were deemed a coercive and “powerful threat,” almost certain to pressure
companies to seek proportional representation of women and minorities. Moreover, the entire rule
succumbed to the court’s analysis—the offending portion deemed non-severable from the
whole—perhaps limiting prospects for recasting FCC affirmative action efforts.

The U.S. military has traditionally enjoyed considerable deference from federal courts in
decisions affecting military staffing and manpower needs. Nonetheless, recent challenges to Army
and Air Force equal opportunity policies have triggered strict scrutiny of embedded racial ⁵⁴
classifications. In Berkley v. United States, for example, discharged white male officers from the
Air Force brought a Fifth Amendment equal protection class action challenging the basis for
selecting officers for a reduction in force. The litigation centered on the written instruction from
the Air Force Secretary concerning the evaluation of women and minority officers for that
purpose. The memorandum noted that such individuals may have been disadvantaged in their
careers by past societal attitudes and underutilization by the service. The trial court found no
racial classification drawn by the memorandum, and was satisfied that it met minimal rational ⁵⁵
basis constitutional standards. However, the federal circuit reversed and remanded. It found that
strict scrutiny was triggered because the evaluation instruction provided for a different standard ⁵⁶
based on race and gender. The case was ultimately settled.
In Christian v. United States,⁵⁷ the U.S. Court of Claims reviewed a U.S. Army policy
establishing retention goals for minority and female officers twice considered, but passed over for
promotion, who would otherwise have been subject to mandatory early retirement. The
percentage of minorities and women to be retired was set by a special Army memorandum, which

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established different evaluation standards for minorities and women than officers in general,
ostensibly due to possible past personal or institutional discrimination.
The claims court found that whether the Army program was viewed as a “goal,” “quota,” or
otherwise, the special procedures “pressure[d]” review board members “into making racially
tainted decisions,” thus amounting to “a racial classification subject to strict scrutiny.” It also
found that the purposes put forward by the government in defense of the policy fell short of
“compelling” for several reasons. First, the Army’s desire to project a “perception” of equal
opportunity and to address the problem of “possible past discrimination” in previous training and
assignments was not equivalent to “finding that a particular minority officer was in fact
discriminated against.” Further undermining any remedial justification for the policy was its
focus on issues of “past personal discrimination”—in promotions, assignments, and military
school attendance—affecting minority members of the Army, in general, rather than previous
biased acts of the retirement board, the entity responsible for implementing the minority retention
program. In this respect, the court likened the policy to remedies for “societal discrimination,”
which Croson and Adarand rejected as a “compelling” governmental interest. The Army’s plan
was found to address mere “statistical disparities” in minority retention rates, whatever the cause,
rather than proven “present effects of past discrimination,” the only constitutional justification for ⁵⁸
racial affirmative action.
The Army procedure failed the additional constitutional requirement that affirmative action
measures be “narrowly tailored.” The minority retention goal was not the “least intrusive means”
to remedy discrimination by the Army in promotions. Promotion or recruitment goals would
accomplish the same purpose by “more exact connection” to identified institutional
discrimination with less burden on affected nonminority officers. Moreover, the policy was of
indefinite duration, with no built-in time limitation, and no race-neutral alternatives were
attempted by the government before implementing its affirmative action plan. One alternative
suggested by the court was to increase educational and training opportunities for all officers from
underprivileged backgrounds, whatever their race. This, it was contended, would expand the pool
of minorities eligible for promotion and address the Army’s concern for societal discrimination
without employing a suspect classification. The government successfully appealed the remedy
portion of the court of claims decree, which required reinstatement and backpay of involuntarily ⁵⁹
retired white male officers. But the lower court’s threshold determination that the minority
retention program violated equal protection was neither appealed to nor addressed by the Federal
Circuit.
Similarly, in a legal action by a white officer who was twice denied promotion to full colonel in ⁶⁰
1996 and 1997, Saunders v. White, a federal district court ruled the Army’s equal opportunity
promotion process in use at the time unconstitutional. The Army’s written instruction to
promotion boards required that the possibility of personal or institutional discrimination be taken
into account when evaluating the promotion files of women and minority officers—both in initial
evaluation and any review or revote—and urged that the percentages promoted from these groups
match their proportion in the applicant pool. Because Army promotion selection statistics for
more than two decades demonstrated that minorities and women were promoted at virtually the
same rate as whites—if not slightly higher—the judge found that there was no demonstrable

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record of discrimination to justify the Army’s consideration of race or gender in its promotion
policy. The fatal defect in the Army policy was summed up by the district court: “Nowhere in the
Memorandum are selection board officers obliged to consider the possibility of past
discrimination for non-Nurse Corps males, whites, or any other group for which there is not an
equal opportunity selection goal. Thus, the Memorandum instructs selection board members to,
for example, account for an Hispanic applicant’s ‘past personal or institutional discrimination,’
but not to account for a white applicant’s past discrimination. This undeniably establishes a ⁶¹
preference in favor of one race or gender over another, and therefore is unconstitutional.”
^Jody^F^e^der
^L^e^gⁱ^s^l^at^iv^{e A}^t^torn^e^y
^j^f^eder@^c^rs^.loc.g^ov^{, 7-}⁸⁰⁸⁸

⁶¹^I^d^a^t¹⁰^1.