I. Introduction

In many respects the Supreme Court's 1989 decision, City of Richmond v. J.A Croson Co.,(1) was the most significant civil rights case of the nineteen eighties. It set new standards of review in equal protection cases and quickly became a decisive precedent in the areas

of public employment, higher education, and voting rights laws. Ironically, for the first four years after the decision, Croson had little direct influence in the area of public contracting law where the case originated, though that has now changed dramatically Most importantly, Croson has changed the terms of the debate on affirmative action policy in the United States. What follows is a discussion of the various impacts of Croson in the eight year period since the Supreme Court decision.

II. The Croson Legal Principles

The Croson case, like so many landmark decisions, began over a mundane, almost trivial, incident. Richmond needed to instar new urinals in the city jail.(2) The J.A. Croson firm was the only bidder at $126,530.(3) When it sought a minority subcontractor to comply with the 30% "goal" in the city's Minority Business Enterprise (MBE) program, the only responding subcontractor quoted a price that would have made the project unprofitable for Croson.(4) Croson asked the city for a waiver, and when that was refused, began the lawsuit in 1984 that resulted in victory in 1989.(5)

The Croson decision was the culmination of a trend in the Supreme Court and appellate courts toward tightening standards for the use of racial classifications. In Wygant v. Jackson Board of Education,(6) decided in 1986, the Supreme Court announced two clear principles for evaluating the use of racial classifications.(7) First, there had to be a compelling state purpose, and second, the remedy had to be narrowly tailored.(8) After the Fourth Circuit rather reluctantly upheld Richmond's MBE goals in J.A. Croson Co. v. City of Richmond,(9) decided in 1985, the Supreme Court remanded the case asking the circuit to take a second look at the city's MBE program "in light of Wygant.(10)

By 1989, when the Supreme Court considered the Croson case again, the Justices were the beneficiaries of more extensive reviews of MBE programs in circuits court decisions and in law review articles. Two years earlier, in 1987, the Sixth and Ninth Circuits had struck down MBE programs,(11) and the Fourth Circuit had concluded on remand of Croson that Richmond's program could not survive strict scrutiny.(12) That same year, Drew S. Days, III, the former Assistant Attorney General in the Carter administration, who had argued and won Fullilove v. Klutznick,(13) in which a deeply divided Supreme Court upheld a federal MBE program, wrote in the Yale Law Journal:

Specifically, I find myself asking whether Congress and the

Supreme Court, in enacting and approving the Public Works

Employment Act, established standards for the formulation

and judicial review of minority set-aside program-9 that,

constitutionality aside, fall below those we ought to employ,

given our justifiable national sensitivity to racial

classifications. These concerns multiply at the prospect of the

proliferation of minority set-aside programs at the state and local

levels even though they, too, may be fully explicable and

constitutionally permissible responses to patterns of

discrimination against minority contractors.(14)

Later in the article, Days foreshadowed the Croson decision when he wrote that, "it is essential that state and local agencies also establish the presence of discrimination in their own bailiwicks, based either upon their own fact-finding processes or upon determinations made by other competent institutions, such as courts and administrative agencies.,(15)

Consequently, by 1989, the constitutionality of MBE programs was a mature issue, attracting not only the focused attention of the Court but scores of amicus briefs from interested parties in the legal, governmental, civil rights, and business communities.(16) Croson, therefore, was decided with an eye toward creating enduring legal principles. This intent was one reason the three dissenters were so biting in their criticisms.(17) First, the Court repeated that the standard for evaluating any use of racial classifications was strict scrutiny, whether the intended beneficiary was a member of a group in the majority or a minority.(18) Second, the Court addressed the obligation of a local jurisdiction to establish prior discrimination before it could employ a suspect racial classification.(19) Justice O'Connor, writing for the plurality, stated that it was necessary for a government to make:

[p]roper findings ... to define both the scope of the injury and

the extent of the remedy necessary to cure its effects. Such

findings also serve to assure all citizens that the deviation

from the norm of equal treatment of all racial and ethnic

groups is a temporary matter, a measure taken in the service

of the goal of equality itself.(20)

Justice O'Connor went on to say that the judiciary would have a responsibility to examine those findings because "[a]bsent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are 'benign' or 'remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.(21)

No longer were rhetorical statements or sweeping generalizations sufficient to establish racial classifications. Croson, quoting the plurality opinion in Wygant, affirmed that "[i]n the absence of particularized findings, a court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future."'(22)

Croson further admonished against the use of "a generalized assertion that there has been past discrimination in an entire industry' because such a declaration provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy."(23)) Again, referring to Wygant, the Croson Court reiterated the distinction between 'societal discrimination' which is an inadequate basis for race-conscious classifications, and the type of identified discrimination that can support and define the scope of race-based relief.(24)

Other legal principles articulated by the Croson Court include:

1. State and local governments may act to remedy direct as

well as indirect contract discrimination for which they are

responsible;(25)

2. Evidence of general societal discrimination or of

discrimination by an entire industry in the past is not enough to

justify racial classifications;(27)

3. Finding discrimination in one market does not permit an

assumption that discrimination exists in all markets;(28)

4. Finding discrimination against one minority group does

not permit an assumption that discrimination exists against

all such groups;(29)

5. The proper prima facie test of contract discrimination is

whether qualified, willing, and able minority firms are

underutilized statistically by state and local governments or their

prime contractors;(30)

6. If discrimination is identified, race-neutral remedies must

be utilized first;(31)

7. If race conscious programs are necessary in extreme cases,

they must be narrowly tailored.(32)

These principles made it clear that not only were most of the MBE programs in the country vulnerable, but many other forms of affirmative action, if tested by Croson standards, would not survive. Few MBE or other affirmative action programs, founded as they generally were on the basis of broad generalizations about American history and contemporary societal discrimination, and implemented on the basis of political bargains, were consistent with Croson's demands for proper findings and narrow tailoring.

Nevertheless, these programs had powerful political and bureaucratic support. At least 234 MBE program existed in state and local governments, often interrelated with more than 100 federal programs.(34) No one knows how many affirmative action programs in public employment, admissions, and scholarships were in place throughout the country, but, like other entitlements, each of these programs was supported by local political coalitions and by bureaucracies whose livelihoods depended on their continuation. Groups advocating preferences often insisted that prospective organizational leaders be screened for their support of affirmative action. Indeed, the existence of racial preferences became so widespread that few incumbent politicians, administrators, or academic officers had not, at some time, at least passively supported them. Repudiating one's previous positions is always awkward. Thus, there were not many persons in the leadership class in a position to advocate dismantling the edifice of preferences.

III. The Era of Frustration in Public Contracting Cases

After Croson was decided, commentators immediately seized on its potential significance. David M. O'Brien, a University of Virginia professor of government, remarked that "the 190 cities and 36 states that presently have racial affirmative action programs must immediately re-examine them in light of the court's new stance.(35)

The National League of Cities said in its newspaper:

The decision cast a pall of uncertainty over state or local

programs which use a numerical quota or any other form of

racial preference. It is likely to lead to the reassessment of

affirmative action plan,,; and other race preferences in many

communities and could well lead to a rash of lawsuits alleging

reverse discrimination against cities.(36)

Perhaps the most telling statement about the potential significance of Croson came in the form of a manifesto by thirty distinguished law school dean.,. and professors.(37) The document, released by participants in a conference convened by Professor Laurence Tribe, sought to limit the interpretation of the decision and to "permit local governments adequate time to establish the relevant factual record" should their programs be challenged.(38) Nevertheless, Croson quickly took its place among the pantheon of cases selected for constitutional law texts.

After a landmark decision, the first cases brought in lower courts, testing the principles the Supreme Court has announced, will often assume disproportionate significance in the legal community. The first two post-Croson cases, regarding the constitutionality of MBE program,;, both had peculiar characteristics which enormously influenced the behavior of those who had, the responsibility for enforcing the decision, but which made them poor guides to the future of the law.

For example, in the first post-Croson challenge to a Minority and Women Business Enterprises (MWBE) program, the plaintiff (a contractors' association) sought a preliminary injunction against a San Francisco program granting a 5% preference to MWBE bidders on the city's prime contracts.(39) Buoyed by the Croson decision,(40) their previous victory in Associated General Contractors of California, Inc. v. City & County of San Francisco(41) (AGCC I) in 1987, and their desire to economize in litigation costs, the plaintiffs did not conduct discovery and a trial was not held.(42) Consequently, the record consisted largely of the city's disparity study and council hearings held to gather evidence of past discrimination which lent support to the ordinance.(43)

Both the district court and the Ninth Circuit accepted the city's evidence at face value," even when a minimal inquiry would have revealed serious flaws in it. The city's disparity study used both census data and a list of firms compiled by the city's Human Rights Commission (HRC) which administered the MWBE program to calculate availability of minority- and women-owned firms for public contracting."' Despite the fact that the two sources yielded very different results in the published study,46 neither the district court nor the circuit court evaluated the availability measures. As it turned out, the use of census data was flawed. In compiling the numbers, the study counted all MWBE firms with and without employees as available and counted only firms with employees as available for non-MWBEs. The consequence was to inflate the relative numbers of MWBEs by a factor of six.(47)

Without knowing about this misuse of census data, and without asking whether any differences in firm characteristics might influence the disparity in utilization, the circuit court compounded the problem by proclaiming that "[a]ccording to the [the San Francisco Board of Supervisors'] findings, `[t]he disparity cannot be attributed to chance.... [T]he Board finds that the results can only be attributed to discriminatory procurement practices.' . . . The City's findings appear [to be] supported by the record."(48) This conclusion was questionable law.(49) It was even worse social science.(50) Nevertheless, the court's denial of plaintiffs motion for a preliminary injunction, in which the opinion of the court reflects that it made the motion as if full discovery had been completed, suggested to jurisdictions around the country that if a study found some sort of disparity, their MWBE programs would be upheld.(51)

That same year, the Ninth Circuit heard another challenge, this time brought against an MWBE program in King County (Seattle) by a contractor, Coral Construction.(52) The trial judge upheld the program on the basis of "boiler-plate" affidavits orchestrated by the city attorney.(53) MWBE owners signed a prepared form alleging that their businesses were hampered by discrimination.(54) The circuit court, however, did not think that anecdotal evidence was a sufficient factual predicate for the MWBE preferences and, therefore, it reversed and remanded the case back to the lower court.(55)

In its remand decision, the circuit panel indicated its interest in the results of a new disparity study completed for the county that had arrived too late to be considered by the lower court.(56) The plaintiff, however, weighing the costs of challenging the study before the same lower court judge that had previously upheld the program, took another course. Coral Construction decided, instead, to petition the Supreme Court to rule that post-enactment evidence embodied in the disparity study was invalid because such material was not consistent with Croson's mandate to identify discrimination before creating a narrowly tailored remedy.(57) The Supreme Court, however, refused to hear the case(58) and Coral Construction settled with the county for attorney's fees and a small additional amount.(59) Again, the study was probably vulnerable had it been the subject of a trial. Among other reasons, it avoided group specific findings required by Croson, so as not to reveal that Asian-American-owned firms were overutilized in many categories.(60)

Nevertheless, the major impact of the Coral Construction Co. v. King County(61) Case was the circuit court's acceptance of the relevance of studies done after MWBE legislation had been passed.(62) That meant that if the first disparity study was attacked, additional studies could be done to defend against litigation.(63) Consequently, plaintiffs would never know exactly the quality and quantity of the evidence the defendants would produce. That added considerably to the cost and uncertainty of any challenge to MWBE programs.

In hindsight, from the perspective of opponents of racial preferences, neither of these cases were appropriate for judicial implementation of the Croson principles. Neither case was sufficiently funded nor was appropriate discovery conducted.(64) Perhaps equally important, the social science research and trial strategies needed to evaluate whether jurisdictions had made proper findings had not been developed.

Nevertheless, whatever their defects as full evaluations of the post-Croson MBE programs and in the evidence needed to sustain them, Associated General Contractors of California, Inc. v. Coalition for Economic Equity (AGCC II) and Coral carried a powerful message to local jurisdictions. The lesson was that a study, almost any study, even one done after the enactment of legislation, was useful, and perhaps necessary, to support an MBE program.(65) Even if the data for a properly conducted study was not available and if the quality of analysis of that data was far below social science standards, a "study" could be used to prop up the existing program or even expand it. Such a study would cheer the MBE program supporters, intimidate the program's opponents, create some useful headlines, satisfy editorial writers, and perhaps most importantly, add immeasurably to the plaintiff's costs in litigation.

Consequently, disparity studies, in many instances, were not objective analyses for the purpose of discovering when and where discrimination was occurring, so that narrowly tailored remedies could be designed. Indeed, they rarely identified the details of the discrimination they asserted as rampant, or found any person, agency, procedure, practice, or company to be the cause of the discrimination. The studies were instead designed to be briefs for MBE programs and to function as insurance policies designed to discourage litigation.(66) If a lawsuit was brought, the study would provide the appearance of an attempt to follow Croson in a way that would undermine any claim for damages by contractors adversely affected by racial preference program.

AGCC II and Coral thus established a market for disparity studies and consultants moved to fill such a market. Approximately 140 disparity studies have been completed at an estimated cost of over $54 million.(67) Generally, jurisdictions willing to pay for these studies were governments intending to buttress their MBE program. Thus, consultants soon discovered that reports were unwelcome if they conceded that the data was too incomplete or flawed for a proper analysis, or if the analysis showed that there was no evidence of public contracting discrimination in general or against particular groups large enough to have powerful political supporters.(68) When the big eight accounting firm, Peat Marwick, announced that its disparity study for the City of Miami found white women, but not African-American or Hispanic contractors, under-utilized, Mayor Xavier Suarez replied, "[w]e should never have done [the disparity study]."(69) Similarly, the Los Angeles City Council refused to accept a disparity study that found Hispanics, but not African-Americans, under-utilized.(70) Florida and Louisiana both rejected studies completed by professors from their major state universities which did not find discrimination in the states' contracting process and then hired consultants to do new studies.(71)

Particularly in the early post-Croson period, when litigation challenging the results of a disparity study was less likely, the imperative for consultants to provide study sponsors with the results they required was strong. It turned out there was an easy way to meet those expectations. As a generalization, in every geographical area and industrial sector, MWBEs are smaller and newer than non-MWBE firms.(72) The latter category includes Fortune 500 and other large stockholder corporations, as well as proprietorships and partnerships owned by white males.(73) A proper study would take the differences in the characteristics of MWBEs and non-MWBE firms into account to determine whether the disparities were the reflection of firm characteristics that appropriately influence the contracting selection process or were invidious discrimination.(74)

Indeed, the Croson Court anticipated this problem when Justice O'Connor described the statistical test that should be used "[w]here there is a significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually engaged by the locality or the locality's prime contractors, an inference of discriminatory exclusion could arise."(75) But the disparity studies often misquoted or ignored Croson's test and calculated disparities by comparing the head counts of MWBEs and non-MWBEs. Almost always, the smaller and newer MWBEs received fewer contract dollars than the larger, more experienced non-MWBEs, and the studies invariably labeled that result evidence of discrimination.

The other major disparity study technique was to gather anecdotal claims of discrimination through surveys or interviews. Often the samples used were skewed,(76) but even if they were not, there was never any attempt to verify or even investigate the truth of the allegation.(77) In almost any large organization in the United States, there are a few people who erroneously or maliciously will claim discrimination, in addition to those with valid claims. The difficulty lies in distinguishing between the accurate and the inaccurate. Unfortunately, the disparity studies had no interest in that. Instead, any allegation, usually made anonymously, was reproduced to buttress the picture of discrimination the studies were designed to create.

The combination of statistical disparities based on head counts and unverified anecdotes usually were politically sufficient to support MWBE contracting programs. For the first five years after Croson, disparity studies effectively served as shields for MWBE programs. As one minority leader told the Columbus (Ohio) City Council:

I want a strong set-aside law, please. No watered-down stuff.

And Jerry [City Council President Hammond], if they talk

about suing, that's okay. I am no virgin in that area, either.

...

If they sue, so what. It'll take 10 or 15 years to get it in

court. By that time, enough folks will be rich enough, would

have enough money to sue them back.(78)

The council passed an MWBE program and eventually allocated approximately $700,000 for disparity studies.(79)

If one used a telescopic lens in 1994 focused on cases related to racial preferences in public contracting to examine the effects of Croson, the decision would have appeared to be of little consequence. But if one used a wide-angle lens and included more recent cases, the picture would be dramatically different.

IV. Croson Crosses Over into Non-Contracting Areas

While Croson initially was proving to have only minor impact on state and local MWBE programs, the principles articulated in the case applied to all forms of racial classifications in state and local programs, and the decision was having a major influence in other legal arenas. By the eighth anniversary of Croson, January 23, 1997, the decision had been cited in 341 published opinions. Of these opinions, 17 were by the United States Supreme Court, 109 by federal circuit courts, 168 by federal district courts, and 47 by state courts.(80)

The Supreme Court's opinions illustrate the diverse range of issues Croson has touched. There have been five Voting Rights Act cases citing Croson;(81) two cases each in the areas of desegregation,(82) sexual harassment,(83) and construction;(84) and one decision each in vote dilution,(85) jury selection,(86) racial preferences in broadcast licenses,(87) abortion,(88) free speech,(89) and employment.(90) The circuit court references to Croson show similar diversity, including such issues as construction, higher education, and employment which comprise about sixty percent of these circuit court cases, while other varied issues make up the other forty percent of the cases.

A. Public Employment

Appellate courts have most frequently cited Croson with regard to the use of racial classifications in public employment. However, in the course of deciding a complex issue many factors are relevant. Thus, citing a particular case as precedent does not necessarily mean that the decision was essential to the outcome. Some citations are window dressing or serve as post-hoc rationalizations for decisions reached on other grounds. Moreover, particularly in public employment cases, specific fact situations may dictate the outcome. Many of these public employment cases had long, pre-Croson histories.(91) Nevertheless, the Croson principles have played a major role in the most recent public employment cases and do seem to be influencing a trend toward judicial skepticism over the use of racial classifications.

Most of the cases in public employment citing Croson arose over the hiring of fire fighters and police officers, and many involved consent decrees. Because consent decrees are theoretically voluntary, the judicial analysis of these cases generally centered on Title VII,(92) rather than on an equal protection approach focusing on Croson. Initially, Croson's effect on the outcome of public employment cases was mixed, with some preferential programs surviving challenge,(93) and others failing judicial scrutiny. Since 1994, however, only one federal circuit court has upheld a race conscious public employment challenge where Croson was involved and that case was decided on the unique characteristics of the job at issue.(94)

Decisions issued by the Sixth Circuit typify the growing impact of Croson in the public employment sector. In 1990, in Long v. City of Saginaw,(95) a police department's plan to rehire one furloughed white officer for each minority hired was ruled unconstitutional.(96) The court found the statistics upon which the city based its racial preferences were "without probative value."(97) The court reached this conclusion largely because the statistics were based on an overly broad job classification that included bouncers, meter maids, dog catchers, and other positions unrelated to police work.(98) On the other hand, in 1992 the circuit upheld hiring policies benefitting minorities implemented by both the Cincinnati Police and Fire Departments.(99)

Since then, however, the Sixth Circuit has consistently refused to uphold race conscious consent decrees.(100) In each of its four decisions, the court found seriously deficient the government's failure to use statistics addressing the special qualifications of the relevant jobs as Croson requires. Most recently, in Middleton v. City of Flint,(101) a 1996 case, the circuit demonstrated the difficulty of satisfying Croson by overturning a district court opinion(102) permitting a plan requiring fifty percent of those promoted to police sergeant to be minority.(103)

Similarly, the Eleventh Circuit, which twice upheld a preference program in Peightal v. Metropolitan Dade County,(104) has subsequently ruled otherwise. In Ensley Branch, N.A.A.C.P v. Seibels,(105) the Eleventh Circuit found that Birmingham, Alabama preference programs benefitting African-Americans and women were unconstitutional.(106) The court remanded the case with instructions for the district court to accommodate the effect of time's passage because "[a]fter thirteen years of racial preferences -- and even longer with respect to firefighters and police officers -- the district court should consider the retrospective, remedial purpose of affirmative action satisfied except where it finds that past discrimination continues to taint a particular position."(107) On the same day that it handed down Ensley Branch, the Eleventh Circuit also ruled in In re Birmingham Reverse Discrimination Employment Litigation(108) that a consent decree mandating that half the annual promotions to fire lieutenants be awarded to African-Americans was "entirely arbitrary" and "unnecessarily trammels the rights of non-black employees."(109)

A similar pattern of change emerged from Fifth Circuit rulings. In a 1994 decision, the Fifth Circuit upheld the Houston Police Department's plan to assist promotion of African-Americans and Hispanics, while devoting very little of its opinion to identifying discrimination.(110) Two years later, in Police Ass'n of New Orleans v. City of New Orleans,(111) the court found the city's consent decree violated the Equal Protection Clause, based on the total lack of identified past discrimination.(112)

In 1991, in upholding a Boston Fire Department program advantaging African-Americans and Hispanic-surnamed applicants for the department, First Circuit Judge Breyer, now on the Supreme Court, wrote that, "[w]e conclude that Croson has not radically changed applicable preexisting law."(113) Such a sweeping judicial conclusion is unimaginable today. In comparison, just a year later, the First Circuit said Croson now clearly requires more than a showing of simple statistical disparity.(114)

The present state of public employment law was more clearly expressed by the Fourth Circuit, when it found a preferential hiring program unconstitutional without the identification of specific discrimination as Croson requires.(115) The court said, "[i]nferring past discrimination from statistics alone assumes the most dubious of conclusions: that the true measure of racial equality is always to be found in numeric proportionality."(116) The Fourth Circuit went further in 1996, not only holding a preferential hiring program for Prince George's County (Md.) firefighters unconstitutional, but holding open the possibility of damages against the administrators of the program.(117) Obtaining damages is a possibility because "[i]n 1989 the Supreme Court's decision in J.A Croson ... should have put all reasonable administrators of local affirmative action programs on notice that their programs would be subject to strict scrutiny."(118)

B. Voting Rights

The year after Croson, the 1990 Decennial Census was conducted. The results of that census resulted in redrawn Congressional districts around the country which in turn yielded a series of Supreme Court decisions considering the constitutionality of race-based decisions in applying the 1965 Voting Rights Act.(119) These decisions were determined in part by the Croson precedent.

The first challenge to reach the Supreme Court was Shaw v. Reno.(120) "As a result of the 1990 census, North Carolina became entitled to a [twelfth] seat in the United States House of Representatives."(121) The state's general assembly drew up a district that was likened to a "`Rorschach ink-blot test'" and a "`bug splattered on a windshield.'"(122) Much of the district wound in a "snakelike fashion" along Interstate 85.(1230

Justice O'Connor found the state's redistricting efforts in violation of the Equal Protection Clause for failing to be narrowly tailored or to serve a compelling state interest. She lamented that, "[i]t is unsettling how closely the North Carolina plan resembles the most egregious racial gerrymanders of the past."(112) She twice cited Croson to support her view that the redistricting carried the unacceptable baggage of reverse discrimination. First, she wrote that "`[a]bsent searching judicial inquiry . . . , there is simply no way of determining what classifications are "benign" or "remedial" and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics'"(125) Second, she noted that "[classifications] threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility."(126)

Two years later, in Miller v. Johnson,(127) the Supreme Court returned to voting rights issues to consider a district that had been drawn to satisfy the Bush era Justice Department.(128) In Miller, Justice Kennedy found that the district in question violated the Equal Protection Clause and cited Croson several times for the principle that laws classifying individuals by race must be narrowly tailored and serve a compelling state interest.(129)

On June 13, 1996, the Supreme Court revisited the issue of racially gerrymandered districts in a pair of 5-4 rulings. In Bush v. Vera,(130) authored by Justice O'Connor, the Court invalidated three Congressional districts in Texas, one drawn for the benefit of Hispanics and two drawn to advantage African-Americans.(131) In Shaw v. Hunt (Shaw II),(132) Chief Justice Rehnquist's opinion invalidated two North Carolina congressional districts.(133) In both cases, the Court again ruled that the states' reapportionment schemes had created bizarrely shaped districts which violated the Equal Protection Clause because the districts were not narrowly tailored to serve a compelling state interest.(134)

Croson served as a precedent in both decisions. In Shaw II, Chief Justice Rehnquist cited Croson to affirm the need that discrimination be clearly identified,(135) thus establishing "a `strong basis in evidence' to conclude that remedial action was necessary, `before'" the government embarked on a preferential policy.(136) The emphasis on "before" was supplied in the opinion and appears to suggest that the Supreme Court is interpreting Croson in a way that would reject post-enactment evidence. Determining a compelling interest which identifies discrimination, so that a narrowly tailored remedy can be fashioned, must be completed before legislation is enacted.(137)

C. Higher Education

Although there have been fewer cases, Croson has crossed over with more force into higher education litigation than any other area. A pair of landmark Croson-driven circuit court decisions, Podberesky v. Kirwan(138) and Hopwood v. Texas,(139) have dramatically rewritten the law regarding racial preferences in higher education. The Podberesky court cited Croson eleven times(140) and the Hopwood court cited Croson seventeen times.(141) Both decisions were affirmed en banc by their respective circuits and the Supreme Court denied certiorari.(142)

In 1978, the University of Maryland College Park campus instituted the Benjamin Banneker Scholarship Program which provided financial aid to high achieving African-American students.(143) In 1990, after being accepted by the University, Daniel Podberesky, a Hispanic, sought but was denied a Banneker scholarship.(144) Mr. Podberesky sued and lost at the district court level.(145) The Fourth Circuit reversed and remanded, however, noting that the University had conceded that it had not discriminated against African-Americans in admission and financial aid "for many years."(146) The University's President had referred to the "`lingering effects of historic discrimination,'"(147) but there was no explanation of that concept.(148) The University then prepared its own version of a disparity study, employing some of the same concepts and even some of the same consultants used in minority business disparity studies.(149) College Park sought to prove that its campus had a poor reputation in the African-American community, that its campus climate was perceived as hostile, that African-Americans were underrepresented in the student body, and that African-Americans had low graduation and retention rates.(150)

In light of this new evidence, Podberesky was unsuccessful again in the district court,(151) but the circuit court did not believe the Croson principles had been applied properly.(152) The Fourth Circuit relied heavily on Croson in ruling that the Banneker scholarships were not a narrowly tailored remedy for past discrimination, in part, because in 1992 more than half of the awards were made to students educated outside of the state of Maryland.(153) Nor had discrimination been identified with sufficient specificity by distinguishing historical or societal discrimination from behaviors appropriate for contemporary remedy.(154) The court further explained that "[w]hen we begin by assuming that every predominately [sic] white college or university discriminated in the past, whether or not true, we are no longer talking about the kind of discrimination for which a race-conscious remedy may be prescribed."(155)

The court, relying again on Croson, also found the University's statistical analysis unpersuasive because the University failed to consider qualifications in determining the potential pool of admissions applicants.(156) The court said:

In analyzing underrepresentation, disparity between the

composition of the student body and the composition of a

reference pool is significant in this case only to the extent

that it can be shown to be based on present effects of past

discrimination. In more practical terms, the reference pool

must factor out, to the extent practicable, all nontrivial, non-race-based

disparities in order to permit an inference that

such, if any, racial considerations contributed to the remaining

disparity.(157)

On March 18, 1996, the Fifth Circuit overturned the district court decision of Hopwood v. Texas(158) and found unconstitutional the University of Texas law school's admission policy benefitting African-Americans and Mexican-Americans.(159) The law school not only considered these two groups in a separate admissions process,(160) but used substantially different standards in evaluating these admissions candidates.(161)

In Hopwood, Judge Jerry E. Smith authored a very aggressive, controversial opinion,(162) finding that one of the policy's goals of furthering diversity was not a compelling interest justifying preferences in admissions.(163) In language typical of his forceful opinion, Judge Smith applied Croson to hold:

the use of race in admissions for diversity in higher education

contradicts, rather than furthers, the aims of equal

protection. Diversity fosters, rather than minimizes, the use of

race. It treats minorities as a group, rather than as

individuals. It may further remedial purposes but, just as likely, may

promote improper racial stereotypes, thus fueling racial

hostility.(164)

The University's diversity argument was undermined by the fact that it applied to only two groups, thus excluding other minorities.(165) Furthermore, Cheryl Hopwood, the lead plaintiff, despite raising a severely handicapped child, boasted a 3.8 undergraduate average which, when combined with her LSAT score, gave her a composite applicant's ranking higher than all but one of the blacks admitted in the year she applied.(166)

Croson was not only the first case cited by Judge Smith, but it shaped the Fifth Circuit's opinion both philosophically(167) and as precedent. Croson was cited for the proposition that the focus of the law school's remedial interest had to be confined to law school practices, rather than discrimination elsewhere in Texas, either in society or in public schools.(168) Because there was no evidence of identified discrimination by the law school, race conscious admission procedures were not permitted by Croson.(169)

Hopwood also quoted this seldom cited passage from Justice O'Connor's opinion in Croson which states that "`[t]he dissent's watered down version of equal protection review effectively assures that race will always be relevant in American life, and that the "ultimate goal" of "eliminat[ing] entirely from governmental decision-making such irrelevant factors as a human being's race" ... will never be achieved.'"(170) Hopwood generated enormous media interest(171) and has enjoyed great precedential value.(172) With an estimated 800 to 900 college and university scholarship programs using race, and an unknown number of race-based admissions policies, Podberesky and Hopwood are cases of potentially enormous impact. Hopwood had a direct impact, as several Texas universities immediately suspended their preferential admissions policies.(173) The ripple effect extended outside the circuit when the Georgia Attorney General recommended that its university system similarly suspend its preferential admissions policy.(174) After unsuccessfully appealing Hopwood to the Supreme Court,(175) the Texas Attorney General ruled that all racial and ethnic preferences be eliminated from scholarship and admissions decisions.(176)

V. The Era of Fruition in Public Contracting Cases

While Croson was having a powerful impact in several areas of the law as described in the previous sections,(177) the disparity study strategy limited its impact in the field of public contracting.(178) Although no disparity study was successfully attacked for six years after the Croson decision, plaintiffs did win a few cases. MWBE programs that were not supported by disparity studies were ruled unconstitutional in Elyria, Ohio,(179) Detroit, Michigan,(180) and San Diego, California.(181) Federal judges enjoined MWBE programs in Shelby County, Tennessee(182) and Columbus, Ohio,(183) until disparity studies could be completed. Dade County, Florida(184) and Cleveland, Ohio,(185) faced with determined individual plaintiffs and inadequate studies, were forced to settle and pay hundreds of thousands of dollars to the contractors and their attorneys. None of these cases created much publicity and they had little discernable impact on the disparity study industry.

A more notable plaintiff's victory occurred in O'Donnell Construction Co. v. District of Columbia,(186) which held that the District's MBE program was unconstitutional because the statistical basis on which the disparity was calculated was flawed.(187) The D.C. Circuit, with a concurring opinion by current Supreme Court Justice Ginsburg, noted a number of non-discriminatory reasons MBEs might not bid on public works contracts: (1) they were too small to take on large scale projects; (2) they were fully occupied on other projects; (3) district contracts may not have been as lucrative as other contracts available; or (4) they may not have the expertise needed to perform the contracts.(188) While O'Donnell was a major defeat for an MWBE program, the District had prepared only a half-hearted, in-house study, and so the national disparity study industry largely ignored the decision.(189)

Then in the months spanning December 1995 to September 1996, the first three cases in which disparity studies were subject to full discovery and trial were decided.(190) There were similarities in each of the three cases: (1) all had been in the courts for a period of at least five years;(191) (2) all were brought by construction associations that had the resources and the determination to see the litigation through to the end;(192) and (3) all directly turned on the validity of the disparity studies underlying particular MWBE programs.(193) The most significant similarity, however, was that the jurisdictions, Philadelphia, Columbus, and Dade County, lost all three cases, and in each trial opinion, the judges expressed dismay about the quality of research represented in the disparity studies.(194)

Each trial judge saw the necessity of basing the statistical analysis on the terms Croson had established. As Judge Bechtle said in Contractors Ass'n of Eastern Pennsylvania v. City of Philadelphia:

'Qualified,' `willing' and `able' are the THREE pillars of the

Croson test; a fortiori, a municipality may not enact

race-based remedial measures unless it determines that qualified,

willing and able minority contractors have been excluded

from participating in public contracting.(195)

In Associated General Contractors of America v. City of Columbus.(196) Judge Graham rejected each of the methods the disparity consultants had used to determine availability in the seven different studies the city had commissioned because they did not determine which firms were qualified, willing, and able.(197) Instead, he argued:

The city maintains records of all firms which have submitted

bids on prime contracts. This would be a ready source of

information regarding the identity of the firms which are

qualified to provide contracting services as prime contractors.

BBC does not explain why it did not use this data. On prime

contracts only the firms which submit bids are `available.'(198) The Judge continued:

The concept of investigating discrimination in the award of

prime contracts by indirect statistical analysis is

inappropriate in this case. The process of awarding prime contracts is

not the equivalent of a lottery in which every bidder has an

equal chance. Prime contracts are awarded to the lowest

responsible bidder. The city maintains complete records of all

bidders and the amounts of their bids. If a contract is

awarded to a bidder who did not submit the lowest bid, then

the director of the city agency seeking the contract must

furnish a written explanation to the mayor and city council.

If the award of prime contracts is being manipulated in a

discriminatory fashion, that will be evident by reviewing the

records. If there is no manipulation of the bidding process

and if M/FBEs are nevertheless receiving a disproportionately

low amount of prime contracts, then there is a

non-discriminatory reason for that disparity -- they were underbid.(199)

In Judge Ryskamp's decision in Engineering Contractors Ass'n of South Florida v. Metropolitan Dade County,(200) he focused on the different capacities firms have for large contracts. He stated:

It is important to note that the average capital construction

contract let by Dade County is worth approximately $3

million. In order to bid and win a large contract, it is

reasonable to assume that a firm must be sufficiently large

and established to achieve the financing, bonding and

insurance requisites necessary to put forth a successful bid.

Given this, it is likewise reasonable to conclude that larger

firms may, on average, have higher dollar contract awards.

Concomitantly, smaller firms would be expected to have

smaller average dollar awards. If, as the evidence indicates,

MWBEs tend to be, on average, smaller, and non-MWBEs

tend to be larger, this could account for disparities in the

average size of the County contract awarded.(201)

Nor, following Croson's demands that discrimination be identified, were the trial courts impressed with the nature of the anecdotal data in the disparity studies before them. Repeatedly, the courts expressed discomfort with basing racial preferences on such subjective and improperly gathered materials. Judge Graham said in Associated General Contractors of America:

While local governments are not held to the same standards

as a court, nevertheless, when the matter under investigation

relates to race-based preferences, their obligation to protect

the constitutional rights of all of their citizens requires that

the investigation be done in a competent and objective

manner.

...

Such an investigation should meet minimum standards for

a reasonably competent forensic investigation. The

investigators should be impartial and unbiased and they should be

reasonably thorough and diligent. Extra care should be taken

in gathering and evaluating anecdotal evidence from

advocates of race- and gender-based preferences. Such informants

may be prone to exaggerate or fabricate circumstances and

events or omit important details. Attempts should be made

to verify claims of discrimination where it is reasonable to do

so.

The investigators should limit themselves to facts and

should not solicit or report rumors or innuendos. They should

obtain appropriate details. They should at least ask the

fundamental questions any first-year journalism student

knows to ask: "who, what, when, where, why and how?" . . .

It should not be assumed that every adverse experience of a

minority or female subject was the result of discrimination.

The investigation should look for indicia of a race- or

gender-based animus or evidence of disparate treatment.(202)

The court was particularly critical of the role the Minority Business Enterprise and Legal Defense and Educational Fund (MBELDEF) played in gathering anecdotes and arranging the legislative hearings, explaining:

MBELDEF was put in charge of investigating discrimination,

facilitating the city's public hearings and drafting the

proposed EBO legislation. Putting MBELDEF in this role

would be like putting the NRA in charge of investigating the

need for gun control legislation. The city, charged with the

duty of protecting the rights of all of its citizens, entrusted to

an organization dedicated to advocating the interests of one

class of its citizens the task of investigating the need for

legislation which would benefit that class at the expense of

other citizens.(203)

In the Dade County case, Judge Ryskamp made similar points regarding anecdotes:

Plaintiffs' respond with several points the Court believes to

be valid concerning the reliability of this anecdotal evidence.

First, whether discrimination has occurred is often complex

and requires a knowledge of the perspectives of both parties

involved in an incident as well as knowledge about how

comparably placed persons of other races, ethnicities, and

genders have been treated. Persons providing anecdotes

rarely have such information. Attributing an incident to

discrimination when the practice is just aggressive business

behavior, barriers faced by all new or small businesses, or bad

communication is always a possibility.

Second, social scientists are frequently concerned about the

problem of "interviewer bias" or "response bias" in any

interviewing or survey situation. When the respondent is

made aware of the political purpose of questions or when

questions are worded in such a way as to suggest the answers

the inquirer wishes to receive, "interviewer bias" can occur.

If a sample is not carefully constructed, the persons providing

the anecdotes may reflect a "response bias" because the

persons most likely to respond are those who feel the most

strongly about a problem, even though they may not be

representative of the larger group.

Third, individuals who have a vested interest in preserving

a benefit or entitlement may be motivated to view events in

a manner that justifies the entitlement. Consequently, it is

important that both sides are heard and that there are other

measures of the accuracy of the claims. Attempts to

investigate and verify the anecdotal evidence should be made.(204) Consequently the Court found:

Without corroboration, the Court cannot distinguish between

allegations that in fact represent an objective assessment of

the situation, and those that are fraught with heartfelt, but

erroneous, interpretations of events and circumstances. The

costs associated with the imposition of race, ethnicity, and

gender preferences are simply too high to sustain a patently

discriminatory program on such weak evidence.(205)

In short, in the first three cases, where there was careful examination of disparity studies methods, courts were highly critical of them, and the MWBE programs the studies supported did not survive. Strict scrutiny, as Croson intended, invalidated racial preferences, but it took years of litigation, and yet it directly affected only three jurisdictions.(206)

Nevertheless, beyond the visibility of the published decisions criticizing the MWBE programs and the disparity studies on which they were based, there are innumerable actions influenced by Croson that are invisible, except to the immediate participants. Government lawyers have advised that goals should not be expanded or set on certain contracts, and that good faith provisions should not be interpreted in quota-like fashion. Jurisdictions have become more cautious about creating new race-conscious programs and more demanding in dealing with disparity study consultants using methodologies courts have criticized. Litigation has been settled by abandoning race-conscious in favor of race-neutral programs.(207) All of these actions should be tallied in a complete inventory of Croson's consequences.

VI. Croson's Future and Political Science Theory

What were the Court's intentions in Croson and have they been implemented? Before Croson, it was generally acknowledged that an affirmative action plan could go too far and violate the Equal Protection Clause, but there were no clear judicial guidelines defining "too far." After Croson, not only did a majority of the Court agree that the appropriate test for the use of a racial classification affecting any group was strict scrutiny,(208) but a series of explicit requirements were established about the "proper findings" necessary for the factual predicate when a race conscious remedy was required.(209) Many of the previous justifications for affirmative action programs were specifically condemned.

The Croson majority clearly intended to make it more difficult to use racial classifications in a wide variety of public programs.(210) According to Croson, only "[i]n the extreme case, [will] some form of narrowly tailored racial preference . . . be [possibly] necessary to break down patterns of deliberate exclusion."(211)

It is possible that the Croson majority, given the general unpopularity of racial preferences in public opinion polls, did not anticipate such a tenacious defense of racial preferences in public contracting. What the court certainly did not intend was the development of the disparity study industry that could be used as a tool to avoid the implementation of the Croson decision.

The consequence of the disparity study strategy was that seven years after the Supreme Court decided Croson, MBE programs had been struck down in only a handful of the jurisdictions where they existed.(212) But that evaluation of the effects of the Croson decision or of the disparity study strategy would be far too narrow. Given the results-driven nature of most disparity studies, the fact that they were produced at all had the consequence of changing the debate about MBE programs, from rhetorical assertions about injustice in society generally, to an analysis of actual contracting processes and outcomes. For the first time, advocates had to publish a fact-based justification for particular race-based programs.(213) Often those facts did not exist or showed MWBE programs had caused overutilization of the favored groups.(211) The most common outcome was that some MWBE groups were underutilized in some categories, but not in others. That logically led to a situation where the overutilized MWBE groups should have been excluded from at least some categories of the program. When that was proposed, it tended to destabilize the MWBE coalition, if the excluded groups were of any size.

On a more theoretical level, the use of racial preferences in affirmative action programs in jurisdictions where they require multi-racial support ultimately must be based on a concept of social justice acceptable to political majorities. It is possible to construct such a concept based on distributive justice, proportional representation, or reparations theories. However, programs that are explicitly racially and ethnically redistributive must confront several difficult political issues, such as which groups should benefit from them and when society should end the intervention.(215)

On the other hand there are competing theories of social justice based on the rights of individuals, equal opportunity, and merit-based selection. Croson, by affirming the social justice concepts of race-neutral public policies based on personal rights, legitimated that position in countless debates around the country. Finding support in Supreme Court decisions is still a powerful trump card in American dialogue.

More tangibly, Croson raised the stakes considerably for the proof necessary to use racial preferences. Strict scrutiny may not be fatal in fact as its critics claim, but the example in United States v. Paradise,(216) of the warranted use of racial classifications given most recently by the Supreme Court in Adarand Constructors v. Pena,(217) will not provide useful support for many race programs. The facts in Paradise reflected an obstinate use of a stated anti-African-American selection policy by a public agency.(218) They are the kind of "patterns of deliberate exclusion" that Croson identifies as the "extreme case," where race conscious remedies may be employed.(219) But such a fact pattern will occur rarely, if ever again, in the foreseeable future. In any event, the Paradise precedent cannot be used to uphold contemporary MWBE programs, which by definition, exist only in governments that have taken voluntary steps to encourage participation in public contracting by these businesses.

In discussing the case for judicial review, Alexander Hamilton recognized:

The judiciary, on the contrary, has no influence over either

the sword or the purse; no direction either of the strength or

of the wealth of the society, and can take no active resolution

whatever. It may truly be said to have neither FORCE nor

WILL but merely judgment; and must ultimately depend

upon the aid of the executive arm even for the efficacy of its

judgments.(220)

Research on the consequences of Supreme Court decisions has long recognized that implementation is the achilles heel of judicial policy. In practical terms in the modern era, this research suggests that Supreme Court decisions are most likely to be implemented when the Court is united, there is agreement by the branches of government, the President and Congress, that have enforcement power, and there is concurrence of other law enforcement officials and interest groups.(221)

The Croson decision enjoyed none of those important elements. The Supreme Court has been deeply divided on affirmative action issues. Justices Brennan, Marshall, and Blackmun wrote strong dissents in Croson,(222) although none of them are still on the Court. Many post-Croson decisions involving racial classifications have been decided by a 5-4 margin.(223) Though the current Republican party has moved closer to the Reagan era opposition to racial preferences, the Bush White House did little symbolically or practically to reinforce Croson.(224) Until 1994, Congress was controlled by Democrats. When the Republicans took power in the 104th Congress, a number of attempts, including the Dole-Canady bill, were introduced to overturn federal preference programs, but they failed even to reach a floor vote because of other priorities among Republicans and the united opposition of Democrats.(225) Curiously, the anti-preference position has not been able to translate its popular support into a strong, well-financed, and broad-based lobbying voice.(226) Consequently, the interest group politics on this issue have been dominated by the traditional civil rights coalition which has abandoned its old credo of race-neutral policies, opting instead for the new mantle of supporting racial preferences for disadvantaged or underrepresented groups. Since this coalition had close political ties to the civil rights enforcement agencies in most governments, these agencies were committed to an affirmative action perspective of the law. They had little interest in enforcing Croson or even in gathering objective data about the consequences of MWBE programs. Consequently, almost all enforcement of Croson came through litigation, where plaintiffs who were dependent on dues payers or business income found themselves at a tremendous disadvantage in suing defendants who financed their legal costs with taxes.

Despite these difficulties, Croson has changed the law. In the non-public contracting area, circuit court decisions such as Podberesky,(227) Hopwood,(228) and Middleton(229) have been based on Croson. Croson decisively changed the burden of proof and the type of evidence considered relevant in these cases.

Now Croson may have its intended effect in the public contracting arena. If the cases invalidating local MBE programs are upheld on appeal, jurisdictions that choose to commission disparity studies will have to base them on a more rigorous legal and social science analysis. They may turn to race neutral programs with stronger enforcement against the discrimination that does exist and increase efforts to reduce barriers for all small firms to participate in public contracting. In either instance, Croson will succeed.

Finally, although Croson originally exempted federal programs from the scope of its ruling, the force of its logic became the principle precedent for requiring strict scrutiny in evaluating these national programs in Adarand.(230) Thus, the Croson legal principles and the subsequent cases interpreting them will now be applied to the 100 or more federal program employing racial classifications.(231)

The growth of minority- and women-owned businesses, propelled as it is by long-term immigration, demographic, and economic factors, probably will continue regardless of the fate of MWBE programs. Between 1982 and 1992, according to census data for companies with employees, African-American-owned firms grew by 67%, Hispanic-owned firms grew by 189%, Asian-owned firms grew by 177%, women-owned firms grew by 162%, and non-MWBE firms grew by 24%.(232) No one can be certain what role MWBE programs had in those growth outcomes, but most firms market themselves in the private economy which is unaffected by public contracting programs.

Furthermore, although the principal, intended beneficiaries of MWBE programs are firms owned by African-Americans, these firms had the slowest growth rate of any MWBE group. Indeed, there are now more than four times as many firms owned by Hispanics and Asian-Americans, and thirteen times as many owned by women than by African-Americans, which means African-American firms will get decreasing shares of the benefits of MWBE programs in the future.(233) That may lessen the passionate support for MWBE programs among African-American politicians who have always provided the political energy for such programs.

While the long-term success of businesses owned by minorities and women is promising, the legal future of the Croson decision is uncertain. While Croson continuously has been affirmed by the Supreme Court, the judiciary, like the public, is divided about affirmative action. The division in part reflects a partisan line, though there is no uniformity among the parties. Whether Croson's principles will transcend shifts in the party controlling judicial nominations can only be answered in the future.

(1) 488 U.S. 469 (1989).

(2) See id. at 481.

(3) See id. at 482.

(4) See id. at 483 (indicating that the cost of the project would have increased $7,663.16 with the use of this minority subcontractor).

(5) See id. at 482-83 (describing the events leading up to the action brought by J.A. Croson).

(6) 476 U.S. 267 (1986).

(7) See id. at 274 (stating that a two-pronged examination was to be used to evaluate racial classifications).

(8) See id.

(9) 779 F.2d 181, 194 (4th Cir. 1985), cert. granted, vacated, 478 U.S. 1016 (1986), affd, 488 U.S. 469 (1989).

(10) See J.A. Croson Co. v. City of Richmond, 478 U.S. 1016, 1016 (1986) (vacating judgment and drawing the Fourth Circuit's attention to the Wygant decision issued just a few weeks earlier), vacating 779 F.2d 181 (4th Cir. 1985), aff'd, 488 U.S. 469 (1989).

(11) See Michigan Rd. Builders Ass'n v. Milliken, 834 F.2d 583, 594 (6th Cir. 1987) (holding unconstitutional a Michigan law providing for MBE set-asides); Associated Gen. Contractors of Cal., Inc. v. City & County of San Francisco, 813 F.2d 922, 938-39 (9th Cir. 1987) [hereinafter AGCC 1] (holding unconstitutional a San Francisco ordinance giving preferences to Minority Business Enterprises [hereinafter MBEs]).

(12) See J.A. Croson Co. v. City of Richmond, 822 F.2d 1355, 1358-60 (4th Cir. 1987) (failing to find sufficient evidence of prior discrimination and a basis for establishing a remedy), aff'd, 488 U.S. 469 (1989).

(13) 448 U.S. 448 (1980).

(14) Drew S. Days, III, Fullilove, 96 Yale L.J. 453, 456 (1987).

(15) Id. at 480-81. Justice O'Connor quoted the Days article three times in Croson. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 491, 504, 506 (1989).

(16) See Croson, 488 U.S. at 475-76 (indicating that 17 State governments alone filed amicus briefs urging the Court to uphold the Richmond MBE program and listing numerous other amicus briefs received by the Supreme Court both supporting Richmond's MBE program and urging reversal).

(17) See id at 528 (Marshall, J., dissenting) (supporting Richmond's set-aside plan as indistinguishable from the federal set-aside plan upheld in Fullilove); id at 561 (Blackmun, J., dissenting) arguing that Richmond's efforts, were meant to remedy persistent discrimination).

(18) See id. at 494 (explaining that the "standard of review ... is not dependent on the race of those burdened or benefited bY a particular classification"). Additionally, the Court noted that African-Americans were a majority on the Richmond City Council when the MBE plan was passed. See id. at 495 (stating that five of the nine seats On the city council were held by African-Americans).

(19) See id. at 498-506 (holding that particularized findings are necessary before employing set-aside programs to remedy past discrimination).

(20) Id. at 510. Compare the need for searching judicial scrutiny articulated by the majority in Croson with the words of Justice Marshall a decade earlier: "[i]t is unnecessary in 20th-century America to have individual Negroes demonstrate that they have been victims of racial discrimination; the racism of our society has been so pervasive that none, regardless of wealth or position, has managed to escape its impact.' Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 400 (1978) (Marshall, J., concurring in part and dissenting in part).

(21) Croson, 488 U.S. at 493.

(22) Id. at 498 (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986)).

(23) Id.

(24) Id. at 497.

(25) See id. at 509 (Nothing we say today precludes a state or local entity from taking action to rectify the effects of identified discrimination within its jurisdiction.').

(26) See id at 500 ("When a legislative body chooses to employ a suspect classification, it cannot rest upon a generalized assertion as to the classification's relevance to its goals.").

(27) See id. at 499 ("It is sheer speculation [as to) how many minority firms ... would be in Richmond absent past societal discrimination.")

(28) See id at 503 ("Blacks May be disproportionately attracted to industries other than construction."); see also id. at 504 ("Congress explicity recognized that the scope of the problem would vary from market area to market area.").

(29) See Id. at 506 (The random inclusion of racial groups that, as a practical matter, may never have suffered from discrimination in the construction industry in Richmond suggests that perhaps the city's purpose was not in fact to remedy past discrimination.').

(30) See id. at 509 ("Where there is a significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually engaged by the locality or the locality's prime contractors, an inference of discriminatory exclusion could arise.").

(31) See id at 507 ("First, there does not appear to have been any consideration of the use of race-neutral means th increase minority business participation in city contracting."); see also United States v. Paradise, 480 U.S. 149, 171 (1987) (setting forth the factors relevant to determining whether race-conscious remedies are appropriate).

(32) See Croson, 488 U.S. at 509 (In the extreme case, some form of narrowly tailored racial preference might be necessary to break down patterns of deliberate exclusion.").

(33) See Minority Business Enterprise Defense and Education Fund, Inc., The Effect of Richmond V. Crosson on MBE Programs Nationwide (June 1989) (on file with author). On the basis of extrapolation from a national survey, however, Leslie A. Nay and James E. Jones, Jr. came to the conclusion that there may have been as many as 2396 MBE contracting programs at the time of the Croson decision. See Leslie A. Nay & James E. Jones, Jr., Equal Employment and Affirmative Action in Local Governments: A Profile, 8 Law & Ineq. J. 103, 126 (1989) (stating that it was plausible to assume that survey governments had identical percentages of affirmative action in contracting programs and set-aside programs as non-survey governments).

(34) The Croson decision exempted federally administered programs, although many of them demanded that local governments create NEE requirements for locally administered, federally-funded programs. See, e.g., 49 C.F.R. [section]23.45 (1996) (requiring recipients of Department of Transportation contracts to establish certain MBE procedures). However, in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), the Supreme Court required that the same strict scrutiny standard be applied to federal programs as Croson applied to state and local programs. Id. at 235.

(35) David M. O'Brien, Court Takes a New Path on Set-Asides, Atlanta J. & Const., Jan. 29, 1989, at C1 (analyzing the potential impact of Croson on affirmative action programs). Charles F. Abernathy, a Georgetown University law professor specializing in civil rights issues, commented that "any city would be crazy not to review its affirmative action programs after this case. This decision is not an insurmountable burden, but [local governments] will have to look at the background of their own rules." CITY & STATE, Jan. 30, 1989, at 20 (on file with author) (noting that all cities will have to review their affirmative action programs after Croson).

(36) Cynthia Pols, Supreme Court 7Yes Cities' Hands on Bias, Nat'l Cities Wkly, Jan. 30, 1989, at 1.

(37) See Constitutional Scholars' Statement on Affirmative Action After City of Richmond v. J.A. Croson Co., 98 YALE L.J. 1711, 1712, 1714 (1989) (stating that properly constructed raceconscious remedial measures by state and local governments remain constitutional after Croson and proposing guidelines for future standards).

(38) Id. at 1714.

(39) See Associated Gen. Contractors of Cal., Inc. v. Coalition for Econ. Equity, 950 F.2d 1401, 1404 (9th Cir. 1991) [hereinafter AGCC II].

(40) City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).

(41) 813 F.2d 922 (9th Cir. 1987).

(42) See Associated Gen. Contractors of Cal., Inc. v. City & County of San Francisco, 748 F. Supp. 1443, 1449 (N.D. Cal. 1990) (noting plaintiff's allegations that the city's program neither served a compelling interest nor was narrowly tailored).

(43) See id. at 1444 (stating that the court carefully considered the extensive administrative record' along with parties' oral and written presentations).

(44) See AGCC II, 950 F.2d at 1414 (noting that the statistical disparities supported any inference of prior discrimination in the awarding of construction contracts); Associated Gen. Contractors of Cal., Inc., 748 F. Supp. at 1450 (concluding that the statistical analysis had "identified discrimination' within the construction industry).

(45) See Associated Gen. Contractors of Cal., Inc., 748 F. Supp. at 1446 n.3 (showing how the disparity study was conducted for the purpose of a statistical analysis of minority and women-owned firms using data compiled by the Human Rights Commission [hereinafter HRC]).

(46) See BPA Economics, Inc., Statistical Support for San Francisco's MBE/WBE/LBE Ordinance 24 (1989). For example, according to the study availability estimate, census data showed that there were 275 Women Business Enterprises [hereinafter WBE] construction firms or 29.32% of the total construction firms, while the HRC list included only 21 WBE construction firms or 7% of the total construction firms on the list. On the other hand, the HRC listed 40 African-American-owned construction firms or 13.2% of the census data showed 80 African-American-owned construction firms or 8.53% of the total. Id.; see also George R. La Noue, The Disparity Study Shield: Baltimore and San Francisco, in Racial Preferences in Government Contracting 69, 93 (Roger Clegg ed., 1993) (referring to this discrepancy within the 1989 study commissioned by San Francisco, entitled John M.L. Grunstein, BPA's Statistical Support For San Francisco's MBE/WBE/LBE Ordinance (May 15, 1989)).

(47) Instead of the 275 construction WBEs the study counted, there were actually only 35 such firms with employees. See U.S. Dep't of Commerce, 1982 Economic Censuses: Women-Owned Businesses (1986). There were 14 African-American-owned firms with employees, instead of 80 as the study counted; 2 instead of 100 Hispanic firms; and 75 instead of 260 Asian-American firms. See U.S. Dep't of Commerce, 1982 Survey of Minority-Owned Business Enterprises: Black 44 (1985); U.S. Dep't of Commerce, 1982 Survey of Minority-Owned Business Enterprises: Hispanic 161 (1986); U.S. Dep't of Commerce, 1982 Survey of Minority-Owned Business Enterprises: Asian Americans, American Indians, and Other Minorities (1986). Based on an "apples-to-apples" comparison of firms with employees from census data used for determining availability, African-American- and Hispanic-owned construction firms would have been over-utilized, Asian-American-owned firms somewhat under-utilized, and WBEs substantially under-utilized. See La Noue, supra note 46, at 91 (discussing the results of the study conducted for San Francisco by BPA Economics, Inc.). Non-Minority Women Business Enterprises [hereinafter MWBEs] were 82.3% of the census head count of construction firms and received 87.2% of the prime dollar awards.

(48) AGCC II, 950 F.2d at 1414.

(49) See Engineering Contractors Ass'n of S. Fla. v. Metropolitan Dade County, 943 F. Supp. 1546, 1582-83 (S.D. Fla. 1996) (explaining that some statistical analyses fail to provide accurate assessments of discrimination), aff'd, No. 96-5274, 1997 WL 535626, at *1 (11th Cir. Sept. 2, 1997). The Court declared:

Every expert economist who testified in this case stated unequivocally that

the existence of numerical disparities do not lead to the conclusion that

discrimination exists. This is because simple disparity indices do not

account for the myriad factors that can legitimately result in disparities,

such as the availability of MWBEs that are actually qualified to perform

the contract requirements, the size of a firm, which will impact the

dollar value of contracts which can be successfully bid for, the capacity of

a firm to handle multiple County contracts at the same time, etc. Only

when these and other factors which affect the qualifications, ability, and

willingness of a firm to compete for County construction work are taken

into account through using appropriate data and performing regression

analyses can the County accurately determine whether there are actual

disparities in the number of willing able and qualified MWBEs and the amount

of work they are performing in the local construction industry.

Id. In Associated General Contractors of America v. City of Columbus, the Court said, "[t]he mere fact that a statistical discrepancy is large enough not to have occurred by chance does not automatically lead to the conclusion that the discrepancy is `gross,' `significant' or `great enough' to warrant an inference of discrimination." 936 F. Supp. 1363, 1401-02 (S.D. Ohio 1996). In O'Donnell Construction Co. v. District of Columbia, 963 F.2d 420 (D.C. Cir. 1992), the D.C. Circuit stated that "[t]he idea that discrimination caused the low percentage [of minority participation] is nothing more than a hypothesis...." Id. at 426.

(50) The validity of a conclusion about the existence of discrimination stemming from a statistical analysis is dependant on whether the analysis has controlled for variables that legitimately affect the outcome and are not discriminatory. If there has been a failure to control for those variables as occurred in the availability measures used in the San Francisco study, and the resulting disparity has been labeled discrimination, the analysis suffers from what Jonathan R. Cole has called "naive residualism." See Stephen Cole & Robert Fiorentine, Discrimination Against Women in Science: The Confusion of Outcome with Process, in The Outer Circle: Women in the Scientific Community 211 (Harriet Zuckerman et al. eds., 1991) (discussing "naive residualism" or "the practice of attributing any difference in rewards received ... to discrimination"). Other social scientists who have recognized this same problem have written that "[r]esidualism can be a weak ground on which to conclude that discrimination is operating because it assumes that all of the variance which cannot be explained is a result of a specific unmeasured variable." Id. at 213; see Kathleen Cannings, An Interdisciplinary Approach to Analyzing the Managerial Gender Gap, 44 Hum. Rel. 679, 679-80 (1991) (stating that "[a]s is the case with all unexplained residuals, however, what is being called discrimination may simply indicate the failure to specify the relevant variables that determine earnings differences").

(51) See AGCC II, 950 F.2d at 1418 (affirming the trial court's denial of plaintiff's request for a preliminary injunction "enjoining enforcement of the bid preferences ordinance").

(52) See Coral Constr. Co. v. King County, 941 F.2d 910, 915 (9th Cir. 1991) (appealing the trial court's decision which held that the county's MWBE set-aside program was constitutional and denied the plaintiffs motion for summary judgment).

(53) See Coral Constr. Co. v. King County, 729 F. Supp. 734, 737 (W.D. Wash. 1989) (characterizing affidavits as providing strong evidence of past discrimination).

(54) See Coral, 941 F.2d at 917 (noting that the record contained 57 affidavits by MWBEs); Coral, 729 F. Supp. at 737 (stating that several dozen people gave descriptions of past discrimination in the construction industry in that particular county).

(55) See Coral, 941 F.2d at 919 (concluding that anecdotal evidence alone cannot show a pattern of discrimination and noting the need for "a proper statistical foundation").

(56) See id. at 921 (noting the potential importance of later developed information).

(57) See id. (reflecting the Ninth Circuit's belief that evidence developed after enactment of a program to remedy discrimination is relevant to the program's constitutionality).

(58) See 502 U.S. 1033 (1992) (denying certiorari); 503 U.S. 927 (1992) (denying rehearing).

(59) See George R. La Noue, Standards for the Second Generation of Croson-Inspired Disparity Studies, 26 Urb. Law. 485, 487 n. 10 (stating that the case was settled rather than relitigated).

(60) Interview with King County Officials, in Seattle, Wash. (notes of interview on file with author).

(61) 941 F.2d 910 (9th Cir. 1991).

(62) Id. at 921 (emphasizing the importance of such information).

(63) Courts have been uneasy about post enactment disparity studies, but have seldom refused to evaluate them. For example, in Contractors Ass'n of Eastern Pennsylvania v. City of Philadelphia, 6 F.3d 990 (3d Cir. 1993), the court referred to "the risk of insincerity associated with post-enactment evidence." Id. at 1004. Additionally, in Associated General Contractors of America v. City of Columbus, 936 F. Supp. 1363 (S.D. Ohio 1996), a district court articulated a different group of concerns:

The admission of postenactment evidence poses a risk of other undesirable

consequences.

It may encourage a government which has a strong political motivation to

enact race- and

gender-based preferences to proceed without an adequate factual basis,

gambling that the

legislation will not be challenged in court, and knowing that further efforts

can be made

to find a basis for the legislation while litigation is pending. The rule

likewise discourages

citizens who are adversely affected by such legislation from mounting a

constitutional

challenge even when good grounds exist, knowing that they face a moving

target and that

once challenged, the city may spend enormous sums to marshal evidence to

support the

legislation. Thus, the chilling effect of the rule may leave unchallenged

race- and

gender-based preferences which have no remedial justification. This court

would hold the

postenactment evidence inadmissible. However, in this opinion, the court will

consider

all of the evidence which the city has offered in support of the legislation.

Id. at 1383.

(64) Interview with John F. Bradach & Paul A. D'Aloisio, Stoel, Rives, Boley, Jones & Grey, Attorneys for Coral Construction Co. (notes of interview on file with author).

(65) See AGCC II, 950 F.2d 1401, 1414 (9th Cir. 1991) (stating that showing large disparities in the awarding of municipal contracts strongly supports a finding of discrimination); Coral, 941 F.2d at 921 (indicating that evidence developed after enactment of a program to remedy discrimination through a study or otherwise, is relevant to the program's constitutionality).

(66) See La Noue, supra note 46, at 108 (stating that "disparity studies ... serve as a shield").

(67) These studies can be found in the library of The Project on Civil Rights and Public Contracts, University of Maryland, Baltimore County.

(68) See Dorothy J. Gaiter, Racial Reviews: Court Ruling Makes Discrimination Studies a Hot New Industry, Wall St. J., Aug. 13, 1993, at A1 (describing the negative backlash greeting disparity studies that find no evidence of discrimination).

(69) Id.

(70) See James Rainey, Council Calls Study of Contracts Inadequate Hiring: Lawmakers Reject Report that Was 3 1/2 Years in the Making, L.A. Times, Dec. 10, 1994, at 3 (noting that lawmakers termed the report "incomplete and inadequate").

(71) See, e.g., Kevin Metz, Discrimination Study Blasted, Tampa Trib., Jan. 11, 1996, at 9 (noting the angry reaction of Florida legislators).

(72) See Engineering Contractors Ass'n of S. Fla. v. Metropolitan Dade County, 943 F. Supp. 1546, 1563 (S.D. Fla. 1996) (explaining one reason for the disparity in the awarding of construction contracts), aff'd, No. 96-5274, 1997 WL 535626, at *1 (11th Cir. Sept. 2, 1997).

(73) See id. at 1576 (noting that non-MWBEs tend to be larger and more experienced, thus able to receive a disproportionately larger share of contract dollars). The circuit court stated:

Because they are bigger, bigger firms have a bigger chance to win bigger

contracts. It follows that, all other factors being equal and in a perfectly

nondiscriminatory market, one would expect the bigger (on average) non-MWBE

firms to get a disproportionately higher percentage of total construction

dollars awarded than the smaller MWBE firms. The County's own expert

admitted as such.

Engineering Contractors Ass'n of S. Fla. v. Metropolitan Dade County, No. 96-5274, 1997 WL 535626, at *21 (11th Cir. Sept. 2, 1997).

(74) See Engineering Contractors Assn. of S. Fla., 943 F. Supp. at 1582-83 (contending that the determination of the accuracy of disparity studies involves the consideration of myriad factors).

(75) City of Richmond v. J.A. Croson Co., 488 U.S. 469, 509 (1989) (emphasis added).

(76) Typically, the return rates of mail questionnaires about discrimination in disparity studies have been around 15%. This low response rate creates the problem of a "response bias." In that case, those who respond may feel most strongly about an issue but are not typical of the larger universe. Survey experts usually feel that results of less than 50% are unreliable. See Thomas W. Mangione, Mail Surveys: Improving the Quality 61 (1995)(noting the unreliable nature of mail surveys due to low responses). The court's comments about interviewer bias and response bias related to anecdotes provide additional insight. See also Engineering Contractors Ass'n of S. Fla., 943 F. Supp. at 1579 (indicating that the accuracy of anecdotal evidence must be verified and supplemented by statistical evidence).

(77) See Associated Gen. Contractors of Am. v. City of Columbus, 936 F. Supp. 1363, 1402-07, 1411-29 (S.D. Ohio 1996) (presenting and evaluating the anecdotal claims of discrimination).

(78) Id. at 1433.

(79) See id. at 1432 n.25 (noting the total funds allocated to ensure race-based preferences in the awarding of construction contracts).

(80) The statistics were obtained by shepardizing the Croson case on LEXIS. At present, LEXIS indicates that reported court decisions cite to Croson more than 1,000 times. I am greatly indebted to John Sullivan, Associate Director of the Project on Civil Rights and Public Contracts, for his research and analysis in this section.

(81) See Bush v. Vera, 116 S. Ct. 1941 (1996) (challenging Texas's redistricting plan under the Voting Rights Act); Shaw v. Hunt, 116 S. Ct. 1894 (1996) [hereinafter Shaw II] (alleging racial gerrymandering in redistricting voters); Miller v. Johnson, 515 U.S. 900 (1995) (claiming a violation of the Voting Rights Act in the congressional redistricting plan); United States v. Hays, 515 U.S. 737 (1995) (challenging Louisiana's congressional redistricting plan); Shaw v. Reno, 509 U.S. 630 (1993) [hereinafter Shaw I] (challenging North Carolina's congressional redistricting plan).

(82) See Missouri v. Jenkins, 515 U.S. 70, 70 (1995) (arguing goal of "desegregative attractiveness" in school districting is unconstitutional); United States v. Fordice, 505 U.S. 717 (1992) (alleging discrimination in desegregating the state university system).

(83) See Landgraf v. USI Film Prod., 511 U.S. 244 (1994) (bringing sexual harassment and retaliation charges); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (bringing sexual discrimination action against the firm).

(84) See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (seeking relief from racial classifications in awarding highway construction contracts); Northeastern Fla. Chapter Assoc. Gen. Contractors Am. v. City of Jacksonville, 508 U.S. 656 (1993) (disputing the constitutionality of preferential treatment to MBEs in awarding construction contracts).

(85) See Abrams v. Johnson, 117 S. Ct. 1925 (1997) (taking exception to the legislature's redistricting plan for possibly diluting the strength of the African-American vote).

(86) See Hernandez v. New York, 500 U.S. 352 (1991) (offering race-neutral explanations in using peremptory strikes to select jury).

(87) See Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990) (objecting to minority preferences in transferring existing radio and television licenses).

(88) See Webster v. Reproductive Health Serv., 492 U.S. 490 (1989) (discussing abortion rights).

(89) See Ward v. Rock Against Racism, 491 U.S. 781 (1989) (challenging municipal noise regulation as violative of free speech).

(90) See Wards Cove Packing Co. v. Antonio, 490 U.S. 642 (1989) (alleging employment discrimination).

(91) In Billish v. City of Chicago, 962 F.2d 1269 (7th Cir. 1992), the holding came 19 years after the United States Department of Justice initially brought suit against Chicago claiming that the city's fire department unlawfully discriminated against African-Americans and Hispanics in its hiring and promotion policies. See id. at 1273. In Ensley Branch, N.A.A.C.P. v. Seibels, 20 F.3d 1489 (11th Cir. 1994), the controversy extended for more than 20 years, generating three decisions by the Eleventh Circuit and one by the Supreme Court. See id. at 1493. In Detroit Police Officers Ass'n v. Young, 989 F.2d 225 (6th Cir. 1993), so much time (19 years) elapsed since the Detroit Police Department began giving preferences to African-Americans that the Sixth Circuit looked at the changed demographics of a department, now predominantly African-American, and ruled that the most recent of three consent decrees was "no longer narrowly tailored." See id. at 228.

(92) The leading Supreme Court decision on the application of Title VII to consent decrees is Johnson v. Transportation Agency, 480 U.S. 616, 642 (1987) (holding that an affirmative action plan may be fully consistent with Title VII). While the distinctions between the requirements of Title VII and those of the Equal Protection Clause are not clearly delineated, courts have traditionally treated those of Title VII as more easily satisfied. Id. at 627-28 n.6 (noting that the obligations of a public employer under Title VII must be identical to its obligations under the federal constitution). In McNamara v. City of Chicago, 867 F. Supp. 739 (N.D. Ill. 1994), the court found that the city fire department's promotion policy disadvantaged the constitutional rights of white males under Title VII, but specifically declined to address the equal protection issue. See id. at 752.

(93) The circuit courts, shortly after Croson, upheld race-conscious public employment programs. See Mackin v. City of Boston, 969 F.2d 1273, 1274 (1st Cir. 1992) (upholding the validity of a judicial decree requiring preferential treatment of minorities seeking to join the Boston Fire Department); Billish, 962 F.2d at 1269, 1270 (upholding affirmative action policy of minority promotions); Stuart v. Roache, 951 F.2d 446, 447 (1st Cir. 1991) (upholding a consent decree requiring minority police officers to be favored in promotion decisions); Peightal v. Metropolitan Dade County, 940 F.2d 1394, 1395 (11th Cir. 1991) (upholding the county's use of a preference system for fire fighter applicants); Donaghy v. City of Omaha, 933 F.2d 1448, 1450 (8th Cir. 1991) (upholding use of consent decree to promote an African-American applicant over a Caucasian applicant to a police lieutenant position); Davis v. City & County of San Francisco, 890 F.2d 1438, 1452 (9th Cir. 1989) (using this case as an early example of race conscious public employment programs that were upheld after Croson).

(94) See Wittmer v. Peters, 87 F.3d 916, 920 (7th Cir. 1996) (involving preferences given to African-American applicants for a lieutenant's position at a criminal boot camp). Judge Posner allowed the preferences, persuaded by expert testimony that African-American inmates of the camp would respond more positively to African-American officers than to Caucasian officers. Obviously, such reasoning has application almost nowhere else in public employment. See id. (explaining the use of the "role model" theory as justification for discrimination).

(95) 911 F.2d 1192 (6th Cir. 1990).

(96) See id. at 1202 (holding that the department's plan was not "narrowly tailored" to serve its remedial purpose).

(97) Id. at 1200 (indicating the inability of statistical evidence to justify the use of affirmative action policies).

(98) See id. (noting the incorrect classification of a "relevant statistical work force" used to support the statistical analysis).

(99) See Jansen v. City of Cincinnati, 977 F.2d 238, 246 (6th Cir. 1992) (holding that the race-conscious affirmative action policy was constitutional); Vogel v. City of Cincinnati, 959 F.2d 594, 596 (6th Cir. 1992) (holding that the hiring policy did not violate the Equal Protection Clause of the Fourteenth Amendment).

(100) See United Black Firefighters Ass'n v. City of Akron, 976 F.2d 999 (6th Cir. 1992) (remanding because there was not enough evidence to determine whether the plan comported with strict scrutiny); see also Middleton v. City of Flint, 92 F.3d 396, 413 (6th Cir. 1996) (explaining that even if there were statistics to uphold a compelling state interest, it still would not be found to be narrowly tailored), cert. denied, 117 S. Ct. 1552 (1997); Aiken v. City of Memphis, 37 F.3d 1155, 1158 (6th Cir. 1994) (remanding to determine whether promotions "were made pursuant to a `narrowly tailored' remedy).

(101) Middleton, 92 F.3d at 396.

(102) See Middleton v. City of Flint, 810 F. Supp. 874, 884 (E.D. Mich. 1993) (deciding in district court that the city's plan both served a compelling state interest and was narrowly tailored), rev'd, 92 F.3d 396 (6th Cir. 1996), cert. denied, 117 S. Ct. 1552 (1997).

(103) See Middleton, 92 F.3d at 413 (holding that the city's affirmative action plan was not "narrowly tailored" to achieve its compelling state interest of promoting minority police officers).

(104) 26 F.3d 1545, 1562 (11th Cir. 1994) (holding that the fire department's minority hiring plan satisfies the Croson requirements); 940 F.2d 1394, 1411 (11th Cir. 1991) (holding the fire department's affirmative action program is valid against Title VII challenge).

(105) 20 F.3d 1489 (11th Cir. 1994).

(106) See id. at 1524 (indicating the lack of a strong basis in evidence for the city's race-based affirmative action program).

(107) Id. at 1516.

(108) 20 F.3d 1525 (11th Cir. 1994).

(109) Id. at 1542.

(110) See Edwards v. City of Houston, 37 F.3d 1097, 1113 (5th Cir. 1994) (accepting with little analysis the idea that the police department's promotional tests were discriminatory). It consequently allowed 96 remedial promotions, so as to address a statistically demonstrated "shortfall." See id. at 1109 (noting the compensation awarded to African-Americans and Hispanics to redress the discriminatory promotion examinations).

(111) 100 F.3d 1159 (5th Cir. 1996).

(112) See id. at 1168 (noting that it is unnecessary to determine whether something is narrowly tailored if there is no specific evidence of past discrimination). No matter how barren the record of identified discrimination, however, no circuit has held any jurisdiction liable for damages to a plaintiff who was a victim of racial preferences under a [sections] 1983 claim. For the most extended review of the issue of damages awarded against the government in a Croson-driven challenge, see Pike v. City of Charlotte, 93 F.3d 1241, 1245-47 (4th Cir. 1996).

(113) Stuart v. Roache, 951 F.2d 446, 447 (1st Cir. 1991).

(114) Mackin v. City of Boston, 969 F.2d 1273, 1279 (1st Cir. 1992).

(115) See Maryland Troopers Ass'n v. Evans, 993 F.2d 1072, 1079 (4th Cir. 1993).

(1160 Id. at 1077.

(117) See Alexander v. Estepp, 95F.3d 312, 317 (4th Cir.1996) (remanding to consider whether monetary relief is appropriate).

(118) Id. at 317-18.

(119) 42 U.S.C. [sections] 1971 (1994). Since Croson, there have been five Supreme Court decisions applying the Voting Rights Act. In four of these cases the Court found the challenged redistricting plan unconstitutional. See Bush v. Vera, 116 S. Ct. 1941 (1996) (affirming the district court ruling that held the Texas redistricting plan unconstitutional); Shaw II, 116 S. Ct. 1894, 1899 (1996) (stating that the North Carolina plan violates the Equal Protection Clause); Miller v. Johnson, 515 U.S. 900, 910-28 (1995) (holding that Georgia's redistricting plan violates the Equal Protection Clause); Shaw I, 509 U.S. 630 (1993) (holding that under the Equal Protection Clause, plaintiffs stated a claim upon which relief can be granted). In the remaining case, the Court declared that the plaintiffs lacked standing. See United States v. Hays, 515 U.S. 737, 747 (1995) (delivering the Court's opinion that plaintiffs lacked the standing necessary to bring the lawsuit).

(120) See Shaw I, 509 U.S. at 630 (granting the plaintiff's claim for relief in 1993).

(121) Id. at 633.

(122) Id. at 635.

(123) Id. at 635-36 (describing the construction of the African-American districts in the Assembly's revised redistributing plan).

(124) Id. at 641 (noting the comparison between the redistricting plan and prior gerrymandering actions).

(125) Id. at 642-43.

(126) Id. at 643.

(127) 515 U.S. 900 (1995).

(128) See id. at 917 (stating the redistricting plan occurred in response to the Justice Department's maximization agenda).

(129) See id. at 920-22 (noting the burden of the state to satisfy a strict scrutiny test).

(130) 116 S. Ct. 1941 (1996).

(131) See id. at 1950-51 (invalidating three proposed Texas congressional districts as unconstitutional).

(132) 116 S. Ct. 1894 (1996).

(133) See id. at 1899 (holding that the North Carolina plan violated the Equal Protection Clause).

(134) See id. at 1898 (holding that the North Carolina planned reapportionment was not a result of a compelling state interest); see also Bush, 116 S. Ct. at 1949 (noting that the three new districts created from Texas' redistricting plan were "not narrowly tailored to serve a compelling state interest).

(135) The discrimination that provides a compelling basis for a government's use of racial distinctions must be "identified discrimination." See Shaw II, 116 S. Ct. at 1902 (indicating that states must identify discrimination with some degree of specificity before they may institute race-conscious relief).

(136) Id. at 1903 (noting that the district court erred in finding that "an interest in ameliorating past discrimination did not actually precipitate the use of race in the redistricting plan").

(137) Justice O'Connor made the same point in Bush v. Vera, explaining that the results of a 1992 election cannot be used to support a redistricting plan that was approved in 1991. See Bush, 116 S. Ct. at 1962-63.

(138) 38 F.3d 147 (4th Cir. 1994), cert. denied, 514 U.S. 1128 (1995).

(139) 78 F.3d 932 (5th Cir.), cert. denied, 116 S. Ct. 2580 (1996), and cert. denied, 116 S. Ct. 2581 (1996).

(140) See Podberesky, 38 F.3d at 152-56, 158-60 (detailing the pages where reference was made to Croson).

(141) See Hopwood, 78 F.3d at 935, 940-41, 944-45, 947-51, 954-55, 964 (detailing the pages where reference was made to Croson).

(142) See id. at 932, cert. denied, 116 S. Ct. 2580 (1996), and cert. denied, 116 S. Ct. 2581 (1996); Podberesky, 38 F.3d at 147, cert. denied, 514 U.S. 1128 (1995).

(143) See Podberesky, 38 F.3d at 158 (discussing the Banneker scholarship program that directly increases the number of African-American students admitted and, in turn, the number who will graduate).

(144) See Podberesky v. Kirwan, 764 F. Supp. 364, 366 (D. Md. 1991) (holding that the admissions program favoring African-American students did not violate Title VII), rev'd, 956 F.2d 52 (4th Cir. 1992), vacated, 38 F.3d 147 (4th Cir. 1994).

(145) See id. at 378 (indicating that the district court found that the plaintiff failed to state a cause of action because he did not cite to any regulations, even though his complaint was based on disparate impact regulations).

(146) Podberesky v. Kirwan, 956 F.2d 52, 56-57 (4th Cir. 1992) (noting the lack of evidence presented by the University of any present effects of past Title VII violations), vacated, 38 F.3d 147 (4th Cir. 1994).

(147) Id. at 57.

(148) See id. (indicating that "general societal harm is insufficient").

(149) See Podberesky v. Kirwan, 838 F. Supp. 1075, 1084-86 (D. Md. 1993) (analyzing the studies prepared at the behest of the University), vacated, 38 F.3d 147 (4th Cir. 1994).

(150) See id. at 1082 (noting the findings of the University of the effects of its attempts to remedy its past discrimination policies).

(151) See id. at 1099 (holding that the Banneker Program was narrowly tailored and had little impact on the rights of non-African-American students).

(152) See Podberesky v. Kirwan, 38 F.3d 147, 158 (4th Cir. 1994) (stating that when considering whether a program is narrowly tailored, the court can look at race-neutral alternatives and whether the program "furthers a different objective from the one it is claimed to remedy").

(153) See id. at 158-59 (noting the inability of the Banneker Program to withstand a strict scrutiny analysis).

(154) See id. at 155 (noting the district court's error in its analysis of the evidence of the underrepresentation produced by the defendants).

(155) Id.

(156) See id. at 160 (noting that "failure to account for these, and possibly other, nontrival variables cannot withstand strict scrutiny").

(157) Id. (noting the use of arbitrary figures by University of Maryland to justify its recruitment policy).

(158) 861 F. Supp. 551 (W.D. Tex. 1994), aff'd, 78 F.3d 932 (5th Cir.), cert. denied, 116 S. Ct. 2580 (1996), and cert. denied, 116 S. Ct. 2581 (1996).

(159) See Hopwood v. Texas, 78 F.3d 932, 934-35 (5th Cir.), cert. denied, 116 S. Ct. 2580 (1996), and cert. denied, 116 S. Ct. 2581 (1996) (holding that the law school's recruitment policy violated the Fourteenth Amendment by imposing racial preferences).

(160) See id. at 936 n.4 (stating that the only two groups of people who benefited from the separate admissions track were African-Americans and Mexican-Americans).

(161) See id. at 936 (noting that lower scores were reviewed in order to consider and admit more African-Americans and Hispanics).

(162) See id. at 934-62. Possibly the most controversial aspect of the opinion was Judge Smith's attack on Justice Powell's opinion, as binding precedent. Compare Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 311-12 (1978) (noting that "the attainment of a diverse student body ... clearly is a constitutionally permissible goal"), with Hopwood, 78 F.3d at 944 (stating that "race or ethnicity ... for the purpose of achieving a diverse student body is not a compelling interest" and "Justice Powell's view in Bakke is not binding precedent on this issue").

(163) See Hopwood, 78 F.3d at 944 (stating that the diversity of a "student body is not a compelling interest under the Fourteenth Amendment).

(164) Id. at 945.

(165) See id. at 936 n.4 (noting that African-Americans and Mexican-Americans were the only two minority groups considered for preferential treatment).

(166) See Hopwood v. Texas, 861 F. Supp. 551, 564, 589 (1994), aff'd, 78 F.3d 932 (5th Cir.), cert. denied, 116 S. Ct. 2580 (1996), and cert. denied, 116 S. Ct. 2581 (1996); see also Hopwood, 78 F.3d at 946 (illustrating the notion that individuals with different lifestyles and unique backgrounds can also further diversity); Gerald A. Reynolds, Con: Affirmative Action Admissions, Dallas Morning News, Apr. 7, 1996, at IJ (discussing the transformation of the struggle for equal opportunity in a system that distributes benefits based on race).

(167) Judge Scalia's concurrence was cited four times. See Hopwood, 78 F.3d at 935, 940, 945.

(168) See id. at 950 (holding that the use of racial remedies must be limited in application). The law school's position that it was remedying the effects of past discrimination in the Texas school system was undermined by the fact that two-thirds of all admissions offers to African-Americans involved out-of-state applicants, and that preferences were given to applicants who graduated from private secondary schools in the same way that they were extended to public school graduates. See id. at 955 n.50 (arguing that the preferences given to out-of-state applicants and private secondary graduates demonstrate the plaintiff's position that the admissions program was not narrowly tailored).

(169) See id. at 954 (contending that a direct relationship must exist between past discrimination and race-conscious policies within the law school).

(170) Id. at 948 (quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 495 (1989) (O'Connor, J., plurality opinion) (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 320 (1986) (Stevens, J., dissenting)).

(171) See, e.g., Jeffrey Rosen, The Day the Quotas Died, New Republic, Apr. 22, 1996, at 21 (describing the day the Hopwood opinion was released).

(172) A Lexis search reveals that Hopwood was cited 11 times in the first nine months after it was decided. See, e.g., Cohen v. Brown Univ., 101 F.3d 155, 195-96 (1st Cir. 1996) (noting that the Hopwood decision found "even partial consideration of race among other factors would be unconstitutional"); Taxman v. Board of Educ. of Piscataway, 91 F.3d 1547, 1562 n.13 (3d Cir. 1996) (citing the Hopwood holding that diversity "can never serve as a compelling justification for racial classifications"); McLaughlin v. Boston Sch. Comm., 938 F. Supp. 1001, 1015 (D. Mass. 1996) (finding that the law school in Hopwood could not achieve diversity by taking "race and ethnicity into account"); Associated Gen. Contractors of Am. v. City of Columbus, 936 F. Supp. 1363, 1377 (S.D. Ohio 1996) (discussing the strict scrutiny in Hopwood); Messer v. Meno, 936 F. Supp. 1280, 1290 (W.D. Tex. 1996) ("consider[ing] the holding in Hopwood in reaching its decision); Merritt v. Brantley, 936 F. Supp. 988, 990 n.2 (S.D. Ga. 1996) (discussing the Hopwood decision); Back v. Carter, 933 F. Supp. 738, 756 (N.D. Ind. 1996) (concluding from the Hopwood decision that "diversity ... is not an interest sufficient to justify governmental race-based actions").

(173) See Katherine Mangan, Rice U. and U. of Texas Suspend Racial Preferences in Admissions, Chron. Higher Educ., Apr. 5, 1996, at A28 (noting the decision not to "consider race in admissions decisions" at Rice University and the University of Texas).

(174) See Douglas Lederman, Georgia's Attorney General Urges Colleges to Curb Affirmative Action, Chron. Higher Educ., Apr. 19, 1996, at A40 (noting the Attorney General's recommendation to use "strict limitations on affirmative action").

(175) See Texas v. Hopwood, 116 S. C