The Evidentiary Predicate for Affirmative Action after Croson: A Proposal for Shifting the Burdens of Proof

Abstract

Despite popular commentary to the contrary, the Supreme Court's recent decision in City of Richmond v. J.A. Croson Co. does not signal the end of voluntary affirmative action in America. Although the Court did indeed strike down Richmond, Virginia's minority business set-aside program on constitutional grounds, Croson nonetheless represents the first recognition in a Supreme Court majority opinion that race-conscious affirmative action is, in some circumstances, a constitutionally permissible tool for remedying the effects of prior racial discrimination. Justice O'Connor, the author of the majority opinion in Croson, concluded by noting that "[n]othing we say today precludes a state or local entity from taking action to rectify the effects of identified discrimination within its jurisdiction.... In the extreme case, some form of narrowly tailored racial preference might be necessary to break down patterns of deliberate exclusion." Racial classifications in affirmative action plans, the Court held, are henceforth subject to strict scrutiny, but apparently not to scrutiny that is "strict in theory but fatal in fact."