• Last updated on November 11, 2022

The Supreme Court upheld a federal public works program that required a 10 percent set-aside of federal funds for minority-controlled businesses.

The Public Works Employment Act of 1977 was the first federal statute to include an explicitly race-conscious classification since the Freedman’s Bureau Act of 1877. Nonminority contractors challenged the act as a violation of the equal protection component of the Fifth Amendment’s due process clause.Affirmative action;Fullilove v. Klutznick[Fullilove v. Klutznick]

The six justices voting to uphold the statute were divided into two plurality opinions, each supported by three justices. In one opinion, Chief Justice Warren E. Burger deferred to the special powers of Congress under the spending and commerce clauses as well as the enforcement clause of the Fourteenth Amendment. Applying the strict scrutiny test, moreover, Burger concluded that the set-asides were an appropriate means for the Congress to pursue its compelling interest “in redressing the discrimination that affects minority contractors.” In the other plurality opinion, Justice William J. Brennan, Jr., insisted that whites as a class did not suffer from historical discrimination, and therefore, he argued that all affirmative action programs should be judged according to the standard of intermediate scrutiny.

The Fullilove decision encouraged the passage of numerous set-aside programs at the federal, state, and local levels. The Court, however, put stringent limits on such programs in Richmond v. J. A. Croson Co.[case]Richmond v. J. A. Croson Co.[Richmond v. J. A. Croson Co.] (1989) and Adarand Constructors v. Peña[case]Adarand Constructors v. Peña[Adarand Constructors v. Peña] (1995), holding that all racial classifications must be reviewed according to the strict scrutiny test.

Adarand Constructors v. Peña

Affirmative action

Bolling v. Sharpe

Judicial scrutiny

Race and discrimination

Regents of the University of California v. Bakke

Richmond v. J. A. Croson Co.

United Steelworkers of America v. Weber

Categories: History