The U.S. Commission on Civil Rights defines affirmative action as “any measure, beyond simple termination of a discriminatory practice, adopted to correct or compensate for past or present discrimination or to prevent discrimination from recurring in the future.” President Lyndon Johnson first used the term in a 1965 executive order committing the federal government to providing equal opportunity in employment.
In 1981, the federal government awarded only 3.4 percent of its total procurement to minorities. In Richmond, Virginia, the focal point of the Croson Decision, minorities received only 0.67 percent of $24.6 million in procurement contracts between 1978 and 1983. In 1989 in St. Louis, Missouri, minorities received only 2.2 percent of all city contracting and procurement. Finally, in the City of Atlanta in 1973, minorities received only 0.13 percent of all contracting and procurement.
The experiences of black business owners in Richmond, St. Louis and Atlanta matched those of owners in dozens of other cities across the nation. Discrimination in public-sector procurement denied minorities equal access to commercial opportunities. These practices persisted even when qualified black entrepreneurs were available. Since the Bakke Decision in 1978, 1 the Supreme Court has grappled with determining the circumstances wherein race-based remedies are permissible. In this regard, the Court’s rulings have not always been independent of social influences. 2
In 1977, in the case of Fullilove v.Klutznick, the Court recognized that Congress has unique powers and the ability to impose race-based remedies. The issue at hand was the constitutionality of