1980] AFFIRMATIVE ACTION TRILOGY 17 "deference" due Congress in view of its broad remedial powers. 101 As the Chief Justice put it: "It is fundamental that in 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 competence and authority to enforce equal protection guarantees."102 The opinion rejected "the contention that in the remedial context the Congress must act in a wholly 'color blind' fashion."103 Instead of traditional equal protection analysis, it spoke of the program's racial and ethnic criteria as calling for "close examination" with "appropriate deference to the Congress."104 Later, addressing the equal protection component of the fifth amendment, the Chief Justice stated: "We recognize that need for careful judicial evaluation to assure that any congressional program that employs racial or ethnic criteria to accomplish the objective of remedying the present effects of past discrimination is narrowly tailored to the achievement of that goal."105 Still later, he stated “[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees.”106 Given this confusing array of potential standards, perhaps the most significant aspect of the Chief Justice's opinion for future cases is the suggestion that deference to Congress, even in a remedial context, is not inexhaustable. 107 Justice Powell wrote a separate concurring opinion 108 applying his version of equal protection analysis as set forth in Bakke. 109 He began 101. Id. 2773. 102. Id. 2777. 103. Id. 2776-77. In his effort to find apposite authority to support the challenged provision, the Chief Justice suggested that there are "relevant similarities" between it "and the federal spending program reviewed in Lau v. Nichols, 414 U.S. 593 (1974)." 100 S. Ct. at 2775. In Bakke, however, the opinion of the Brennan four expressed "serious doubts" as to whether Lau, a case involving Title VI of the Civil Rights Acts of 1964, had been correctly analyzed. 438 U.S. at 352. 104. 100 S. Ct. at 2771-72. 105. Id. 2776. Imputing to the sponsors of the challenged provision reliance on "prior administrative practice" under the Small Business Administration's § 8(a) program, id. 2765, and citing the reference by one of the provision's supporters to contractors who are "minority and deprived," id. 2771, the Chief Justice characterized the administrative program under the challenged provision as effectuating "the congressional objective of assuring legitimate participation by disadvantaged [minority business enterprises]." Id. 2779. Accordingly, he rejected a claim that the program on its face was overinclusive. Id. 2779-80. Neither the language of the provision, nor its guidelines, however, limit participation to "disadvantaged" minority contractors. 106. Id. 2781. 107. Although the Chief Justice endorsed the right of Congress "to try new techniques such as the limited use of racial and ethnic criteria to accomplish remedial objectives," he tempered the endorsement, noting the existence of limitations on congressional power. "That the program may press the outer limits of congressional authority affords no basis for striking it down.” Id. 108. 100 S. Ct. at 2783-94 (Powell, J., concurring). 109. See text at notes 32-54 supra. 18 WAYNE LAW REVIEW [Vol. 27 with the proposition that "[r]acial classifications must be assessed under the most stringent level of review. . . ."110 He asserted that such classifications "are fundamentally at odds with the ideals of a democratic society implicit in the Due Process and Equal Protection Clauses, [and] cannot be imposed simply to serve transient social or political goals, however worthy they may be."111 For Justice Powell, the distinction between "permissible remedial action" and "impermissible racial preference" turns on "the existence of a constitutional or statutory violation" as found by "an appropriate governmental authority."112 Furthermore, "[t]he degree of specificity required in the findings of discrimination may vary with the nature and authority of a governmental body."113 Accordingly, he asserted that in reviewing the constitutionality of the challenged provi sion: [W]e must decide: (i) whether Congress is competent to make Justice Powell answered each of these questions in the affirmative. In answering (i), he referred to "the unique constitutional power" given Congress "of legislating to enforce the provisions of the Thir teenth, Fourteenth and Fifteenth Amendments."115 Responding to (ii), he stated “the legislative history . . . demonstrates that Congress reasonably concluded that private and governmental discrimination had contributed to the negligible percentage of public contracts awarded minority contractors."116 Yet, tacitly recognizing the paucity 110. 100 S. Ct. at 2784 (Powell, J., concurring). 112. Id. 2785. Justice Powell rejected the suggestion of the court of appeals that the challenged provision "must be viewed as serving a compelling state interest if the reviewing court can 'perceive a basis' for legislative action," stating: "[s]uch a test might allow a court to justify legislative action even in the absence of affirmative evidence of congressional findings." Id. 2788 n.4. Interestingly, Justice Powell seems to have approved "the percentage chosen for the set-aside" as being "within the scope of congressional discretion" because he was able to perceive a reasonable basis for that percentage. See note 120 infra. 113. 100 S. Ct. at 2794 n.14 (Powell, J., concurring). 114. Id. 2785. 115. Id. 2786. 116. Id. 2787-88. Elsewhere, Justice Powell noted: "Congress knew that minority contractors were receiving only 1% of federal contracts at the time the set-aside was enacted." Id. 2793. In his view, the Court was not confined to an examination of the legislative history of the challenged provision alone. "Rather, we may properly examine the total contemporary record of congressional action dealing with the problems of racial discrimination against minority business enterprises." Id. 2787. 1980] AFFIRMATIVE ACTION TRILOGY 19 of that legislative history- and noting the need for support-Justice Powell urged Congress not to "be content with findings that merely meet constitutional standards."117 In answering (iii), Justice Powell spoke of the "special responsibility" of the courts "to make a searching inquiry into the justification for employing a race-conscious remedy" and their need to "be sensitive to the possibility that less intrusive means might serve the compelling state interest equally as well."118 Nevertheless, noting the emphasis placed upon "the importance of Congressional action to effectuate the goals of the Fourteenth Amendment,"119 he concluded that it was sufficient to sustain "Congress' choice of a remedy . . . if the means selected are equitable and reasonably necessary to the redress of identified discrimination."120 Justice Powell explicitly related his more permissive “means" test to congressional legislation. 121 Even in this limited context, however, he appears to have espoused strict scrutiny in form while dismantling it in substance. 122 Id. 117. Id. 2789 n.8. Justice Powell stated: Race-conscious remedies, popularly referred to as affirmative action programs, almost invariably affect some innocent persons . . . . Respect and support for the law, especially in an area as sensitive as this, depend in large measure upon the public's perception of fairness. . . . It therefore is important that the legislative record supporting race-conscious remedies contain evidence that satisfies fair minded people that the congressional action is just. 118. Id. 2791. To the same effect, see Dunn v. Blumstein, 405 U.S. 330, 334 (1972). 119. 100 S. Ct. at 2790 (Powell, J., concurring). Asserting that the federal courts have not been "limited to the least restrictive means" in their choice of remedies to redress racial discrimination, Justice Powell reasoned that "the enforcement clauses of the Thirteenth and Fourteenth Amendments give Congress a similar measure of discretion to choose a suitable remedy for the redress of racial discrimination." Id. 120. Id. 2791. Since nothing in the language of the challenged provision or its legislative history gives any indication as to how the set-aside percentage was determined, Justice Powell's analysis on this subject consisted of adding the percentage of minority contractors (4%) to the percentage of minority group members in the "national population" (17%) and dividing by two. Id. 2793. On the basis of these calculations, he concluded that "[t]he percentage chosen for the set-aside is within the scope of congressional discretion." Id. 121. Justice Powell cautioned: "My view that this set aside is within the discretion of Congress does not imply . . . that use of a set-aside will always be an ap propriate remedy or that the selection of a set-aside by any other governmental body would be constitutional." He added "[T]he breadth of discretion in the choice of remedies may vary with the nature and authority of a governing body." Id. 2797 n.14. One federal court has not considered itself bound by the Fullilove decision in the context of a federal agency regulation requiring set-asides on the basis of race and sex in awarding contracts on state highway projects. Central Alabama Paving, Inc. v. James, Civ. Action 80-358-N. (D.C.M.D. Ala. Oct. 10, 1980). 122. Interestingly, in Bakke, Justice Powell wrote: Political judgments regarding the necessity for the particular classification may be weighed in the constitutional balance, . . . but the standard of justification will remain constant. This is as it should be, since those political judg 20 WAYNE LAW REVIEW [Vol. 27 Justice Marshall, in a brief opinion, 123 joined by Justices Brennan and Blackmun, applied the intermediate standard of scrutiny suggested by the Brennan four in Bakke. 124 "The proper inquiry is whether racial classifications designed to further remedial purposes serve important governmental objectives and are substantially related to achievement of those objectives."125 Based on this standard, he found that "the 10% minority set-aside provision . . . is plainly constitutional."126 Contrary to the view of the Chief Justice, 127 Justice Marshall declared that "the question is not even a close one."128 Justice Stewart, in a dissenting opinion joined by Justice Rehnquist, 129 wrote: "Under our Constitution, any official action that treats a person differently on account of his race or ethnic origin is inherently suspect and presumptively invalid. "130 Analogizing congressional legislation to a judicial decree, he asserted that where either "imposes burdens on the basis of race [it] can be upheld only where its sole purpose is to eradicate the actual effects of illegal race discrimination."131 Finding that the challenged provision was enacted, at least in part, "to assure to minority contractors a certain percentage of federally funded public works contracts," and "to compensate for the effects of social, educational, and economic ‘disadvantage,' Justice Stewart concluded that “it cannot stand as a remedy that comports with strictures of equal protection.' "134 133 Turning to what he termed the "ramifications" of the Court's decision, Justice Stewart argued that the laws would again contain odious ments are the product of rough compromise struck by contending groups within the democratic process. When they touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest. 438 U.S. at 299 (emphasis added) (footnotes omitted). 123. 100 S. Ct. at 2795 (Marshall, J., concurring). 124. 125. 126. See text at note 57 supra. 100 S. Ct. at 2796 (Marshall, J., concurring). Id. In Bakke, the question of whether the challenged set-aside amounted to a quota was sharply disputed. Justice Marshall in his Fullilove opinion, however, had no difficulty characterizing the set-aside at issue as "creat[ing] a quota" though not one "in the invidious sense of a ceiling." Id. 2797. 127. See note 107 supra. 128. 129. 100 S. Ct. at 2796 (Marshall, J., concurring). 130. Id. 133. Id. Justice Stewart observed that "[n]o race has a monopoly on... disadvantage." By way of example, he pointed out that "in 1978, 83.4% of persons over the age of 25 who had not completed high school were 'white,' . . . and in 1977, 79.0% of households with annual incomes of less than $5,000 were 'white."" Id. 2301 134. Id. 2802. 1980] AFFIRMATIVE ACTION TRILOGY 1271 definitions of race, 135 that preferential programs would reinforce common stereotypes depicting certain people as unable to achieve success without special protection, 136 and that notions of “racial entitlement" would be fostered and private discrimination would necessarily be encouraged. 137 Justice Stevens, writing a separate dissenting opinion, 138 stated that he was not convinced that the equal protection clause contains an "absolute prohibition against any statutory classification based on race."139 Instead, his concern was that "the reasons for any such classification [would] be clearly identified and unquestionably legitimate.' "140 Moreover, there must be "the most exact connection between justification and classification."141 Referring to the six preferred subclasses, Justice Stevens stated: "There is not one word in the remainder of the Act or in the legislative history that explains why any Congressman or Senator favored the particular definition over any other or that identifies the common characteristics that every member of the preferred class was believed to share."142 Justice Stevens emphasized the shortcomings of the challenged legislation by contrasting it with the Voting Rights Act. 143 He pointed out that the latter was "preceded by exhaustive hearings and debates... and became effective in specific States only after specific findings were made. . . ."144 It remedied the problem of denying access to the elec 135. Id. 2802 (Stewart, J., dissenting). The guidelines included as an appendix to the opinion of the Chief Justice avoid odious definitions of race. As Justice Stevens suggested in his opinion, however, the guidelines "are too vague to be useful." Id. 2804 n.5 (Stevens, J., dissenting). An article in the New York Times discussing the challenged provision suggested that "[s]o far. . . enforcement has been fraught with nagging problems, not the least of which is the determination of who, precisely, is a member of a minority group." N.Y. Times, Nov. 13, 1977, § A, at 1, col. 1, at 66, col. 2. Walter G. Farr, Jr., the general counsel of the Economic Development Administration, the branch of the Commerce Department in charge of the public works program, was quoted as saying “[w]hatever a person is considered by his community, that's what we're basing our judgment on." Id. 136. 100 S. Ct. at 2802 (Stewart, J., dissenting). Justice Stevens was also concerned that the challenged provision would reinforce negative stereotyping. See id. 2809 (Stevens, J., dissenting). 137. Id. 2803 (Stewart, J., dissenting). An empirical study reported in a recent article indicated that some of Justice Stewart's concerns are borne out in the workplace. Diagnosing Race Relations in Management, 16 J. APPLIED BEHAVIORAL Sci. 135 (1980). 138. 100 S. Ct. at 2803 (Stevens, J., dissenting). 139. Id. 2811. 140. Id. 2804. 141. Id. 2805. 142. Id. 2804. He went on to observe, "[q]uite obviously the history of discrimination against black citizens in America cannot justify a grant of privileges to Eskimos or Indians." Id 2805. |