fullilove klutznick argued november decided july minority business enterprise mbe provision public works employment act act requires absent administrative waiver least federal funds granted local public works projects must used state local grantee procure services supplies businesses owned minority group members defined citizens negroes orientals indians eskimos aleuts implementing regulations guidelines grantees private prime contractors required extent feasible fulfilling mbe requirement seek available qualified bona fide mbe provide technical assistance needed lower waive bonding requirements feasible solicit aid office minority business enterprise small business administration sources assisting mbe obtaining required working capital give guidance intricacies bidding process administrative program recognizes contracts awarded bona fide mbe even though lowest bidders bids reflect merely attempts cover costs inflated present effects prior disadvantage discrimination provides handling grantee applications administrative waiver mbe requirement basis infeasibility demonstrated showing despite affirmative efforts level participation achieved without departing program objectives program also provides administrative mechanism ensure bona fide mbe encompassed program prevent unjust participation minority firms whose access public contracting opportunities impaired effects prior discrimination petitioners several associations construction contractors firm engaged heating ventilation air conditioning work filed suit declaratory injunctive relief federal district alleging sustained economic injury due enforcement mbe requirement mbe provision face violated inter alia equal protection clause fourteenth amendment equal protection component due process clause fifth amendment district upheld validity mbe program appeals affirmed held judgment affirmed pp affirmed chief justice burger joined justice white justice powell concluded mbe provision act face violate constitution pp viewed legislative administrative background act legislative objectives mbe provision administrative program thereunder ensure without mandating allocation federal funds according inflexible percentages solely based race ethnicity extent federal funds granted act grantees elected participate employ procurement practices congress decided might result perpetuation effects prior discrimination impaired foreclosed access minority businesses public contracting opportunities pp considering constitutionality mbe provision first must determined whether objectives legislation within congress power pp act primarily exercise congress spending power art cl provide general welfare conditions receipt federal moneys upon receipt compliance federal statutory administrative directives since reach spending power least broad congress regulatory powers congress pursuant regulatory powers achieved objectives mbe program may spending power pp ii insofar mbe program pertains actions private prime contractors including responsible violation antidiscrimination laws congress achieved objectives commerce clause legislative history shows rational basis congress conclude subcontracting practices prime contractors perpetuate prevailing impaired access minority businesses public contracting opportunities inequity effect interstate commerce pp iii insofar mbe program pertains actions state local grantees congress achieved objectives use power fourteenth amendment enforce appropriate legislation equal protection guarantee amendment congress abundant historical basis conclude traditional procurement practices applied minority businesses perpetuate effects prior discrimination prospective elimination barriers access public contracting opportunities appropriate ensure businesses denied equal opportunity participate federal grants state local governments one aspect equal protection laws katzenbach morgan oregon mitchell pp iv thus objectives mbe provision within scope congress spending power cf lau nichols pp congress use racial ethnic criteria condition attached federal grant valid means accomplish constitutional objectives mbe provision face violate equal protection component due process clause fifth amendment pp mbe program remedial context requirement congress act wholly fashion swann board education mcdaniel barresi north carolina board education swann pp ii mbe program constitutionally defective may disappoint expectations access portion government contracting opportunities nonminority firms may innocent prior discriminatory actions effectuating limited properly tailored remedy cure effects prior discrimination sharing burden innocent parties impermissible franks bowman transportation pp iii mbe program invalid underinclusive limits benefit specified minority groups rather extending remedial objectives businesses whose access government contracting impaired effects disadvantage discrimination congress sought give select minority groups preferred standing construction industry embarked remedial program place equitable footing respect public contracting opportunities showing congress inadvertently effected invidious discrimination excluding coverage identifiable minority group victim degree disadvantage discrimination equal greater suffered groups encompassed mbe program pp iv contention mbe program face overinclusive bestows benefit businesses identified racial ethnic criteria justified basis competitive criteria remedy present effects identified prior discrimination also without merit mbe provision due account administrative program provides reasonable assurance application racial ethnic criteria narrowly limited accomplishing congress remedial objectives misapplications program promptly adequately remedied administratively particular administrative program provides waiver exemption procedures identify eliminate participation mbe bona fide attempt exploit remedial aspects program charging unreasonable price attributable present effects past discrimination moreover grantees may obtain waiver demonstrate best efforts achieve achieved target minority firm participation within limitations program remedial objectives mbe provision may viewed pilot project appropriately limited extent duration subject reassessment congress prior extension pp continuing effort achieve goal equality economic opportunity congress latitude try new techniques limited use racial ethnic criteria accomplish remedial objectives especially programs voluntary cooperation induced placing conditions federal expenditures program narrowly tailored congress achieve objectives comes judicial review upheld courts satisfied legislative objectives projected administration program give reasonable assurance program function within constitutional limitations pp justice marshall joined justice brennan justice blackmun concurring judgment concluded proper inquiry determining constitutionality racial classifications provide benefits minorities purpose remedying present effects past racial discrimination whether classifications serve important governmental objectives substantially related achievement objectives university california regents bakke opinion brennan white marshall blackmun concurring judgment part dissenting part judged standard minority provision act plainly constitutional racial classifications substantially related achievement important congressionally articulated goal remedying present effects past racial discrimination pp robert benisch argued cause petitioners fullilove et al briefs robert fink robert hickey argued cause petitioner general building contractors new york state new york state building chapter associated general contractors america briefs peter kilgore assistant attorney general days argued cause respondents brief respondent secretary commerce solicitor general mccree deputy solicitor general wallace brian landsberg jessica dunsay silver vincent robert abrams attorney general new york shirley adelson siegel solicitor general arnold fleischer barbara levy assistant attorneys general filed brief respondent state new york allen schwartz james greilsheimer kevin sheridan frances morris filed brief respondents city new york et al briefs amici curiae urging reversal filed kenneth mcguiness douglas mcdowell daniel levinson equal employment advisory council ronald zumbrun john findley pacific legal foundation briefs amici curiae urging affirmance filed julian wilkins jewel lafontant alpha kappa alpha sorority richard larson burt neuborne frank askin robert sedler american civil liberties union et al ronald greene american savings loan league et al bill lann lee asian american legal defense education fund john jones norman redlich william robinson richard seymour norman chachkin laurence fordham henry monaghan robert goldstein lawyers committee civil rights law vilma martinez morris baller joel contreras mexican contractors truckers association et al daniel ingram minority contractors assistance project nathaniel jones francis pohlhaus john fillion national association advancement colored people et al jack greenberg james nabrit iii eric schnapper vernon jordan robert harris naacp legal defense educational fund et al robert pickett national bar association et al briefs amici curiae filed arthur kinoy affirmative action coordinating center et al robert helman justin finger jeffrey sinensky richard weisz league walter robert pelcyger minority contractors association bernard parks lenwood jackson national conference black mayors chief justice burger announced judgment delivered opinion justice white justice powell joined granted certiorari consider facial constitutional challenge requirement congressional spending program absent administrative waiver federal funds granted local public works projects must used state local grantee procure services supplies businesses owned controlled members statutorily identified minority groups may congress enacted public works employment act pub stat amended local public works capital development investment act pub stat et seq amendments authorized additional billion appropriation federal grants made secretary commerce acting economic development administration eda state local governmental entities use local public works projects among changes made addition provision become focus litigation section act referred minority business enterprise mbe provision requires except extent secretary determines otherwise grant shall made act local public works project unless applicant gives satisfactory assurance secretary least per centum amount grant shall expended minority business enterprises purposes paragraph term minority business enterprise means business least per centum owned minority group members case publicly owned business least per centum stock owned minority group members purposes preceding sentence minority group members citizens negroes orientals indians eskimos aleuts november petitioners filed complaint district southern district new york seeking declaratory injunctive relief enjoin enforcement mbe provision named defendants secretary commerce program administrator state city new york actual potential project grantees petitioners several associations construction contractors subcontractors firm engaged heating ventilation air conditioning work complaint alleged sustained economic injury due enforcement mbe requirement mbe provision face violated equal protection clause fourteenth amendment equal protection component due process clause fifth amendment various statutory antidiscrimination provisions hearing held day complaint filed district denied requested temporary restraining order scheduled matter expedited hearing merits december district issued memorandum opinion upholding validity mbe program denying injunctive relief sought fullilove kreps supp appeals second circuit affirmed holding even exacting standard review mbe provision passes constitutional muster considered context many years governmental efforts remedy past racial ethnic discrimination found difficult imagine purpose program remedy discrimination view number factors contributed legitimacy mbe provision significant narrowed focus limited extent statutory administrative program size impact duration looked also holdings courts appeals district courts mbe program constitutional expressly rejected petitioners contention mbe requirement violated equal protection guarantees constitution ii mbe provision enacted part public works employment act made various amendments title local public works capital development investment act act intended measure alleviate problem national unemployment stimulate national economy assisting state local governments build needed public facilities accomplish objectives congress authorized secretary commerce acting eda make grants state local governments construction renovation repair improvement local public works projects act placed number restrictions project eligibility designed assure federal moneys targeted accomplish legislative purposes established criteria determine grant priorities apportion federal funds among political jurisdictions criteria directed grant funds toward areas high unemployment statute authorized appropriation billion period ending september appropriation soon consumed grants made program early congress began consideration expanded appropriations amendments grant program administration appropriation referred round local public works program applicants seeking billion grants competed billion available funds nearly applications granted results provoked widespread concern fairness allocation process act authorize appropriation additional billion fund round ii grant program congressional hearings debates concerning amendments focused primarily politically sensitive problems priority geographic distribution grants supplemental appropriation result attention inclusion act provisions revising allocation criteria legislation provisions however retained underlying objective direct funds areas high unemployment act also added new restrictions applicants seeking qualify federal grants among mbe provision origin provision amendment house version act offered floor house february representative mitchell maryland offered amendment provided notwithstanding provision law grant shall made act local public works project unless least per centum articles materials supplies used project procured minority business enterprises purposes paragraph term minority business enterprise means business least percent owned minority group members case publicly owned businesses least percent stock owned minority group members purposes preceding sentence minority group members citizens negroes orientals indians eskimos aleuts amendment put forward new concept rather one building upon prior administrative practice introductory remarks sponsor rested proposal squarely ongoing program small business act pub stat become evident served model administrative program developed enforce mbe provision first point opposition well madam chairman last years government sba tested courts times found legitimate bona fide bill representative roe new jersey suggested change language expressing twin intentions federal administrator discretion waive requirement application feasible grantee mandated achieve least participation minority businesses unless infeasibility demonstrated proposed substitute first sentence amendment language eventually enacted except extent secretary determines otherwise grant shall made act local public works project unless applicant gives satisfactory assurance secretary least percent amount grant shall expended minority business enterprises supporters mbe amendment echoed sponsor concern number factors difficult isolate quantify seemed impair access minority businesses public contracting opportunities representative conyers michigan spoke frustration existing situation due intricacies bidding process fault minority contractors businessmen unable gain access government contracting opportunities representative biaggi new york spoke need amendment promote sense economic equality nation expressed view without amendment legislation may potentially inequitable minority businesses workers perpetuate historic practices precluded minority businesses effective participation public contracting opportunities amendment accepted house two weeks later senate considered package amendments local public works capital development investment act time senator brooke massachusetts introduced mbe amendment worded somewhat differently house version aimed achieving objectives statement support requirement reiterated summarized various expressions house side amendment necessary ensure minority businesses deprived access government contracting opportunities generated public works program senate adopted amendment without debate conference committee called resolve differences house senate versions public works employment act adopted language approved house mbe provision conference reports added comment provision shall dependent availability minority business enterprises located project area device mbe participation requirement subject administrative waiver thought required assure minority business participation otherwise thought repetition prior experience expected participation minority business accounting inordinately small percentage government contracting causes disparity perceived involving longstanding existence maintenance barriers impairing access minority enterprises public contracting opportunities sometimes involving direct discrimination relating lack senator brooke put capable qualified minority enterprises ready willing work words sponsor mbe provision designed begin redress grievance extant long legislative objectives mbe provision must considered background ongoing efforts directed toward deliverance promise equality economic opportunity sponsors mbe provision house senate expressly linked provision existing administrative programs promoting minority opportunity government procurement particularly related small business act section delegates small business administration sba authority obligation whenever determines action necessary enter contracts procurement agency federal government furnish required goods services turn enter subcontracts small businesses performance contracts authority lay dormant decade commencing however sba directed president develop program pursuant authority assist small business concerns owned controlled socially economically disadvantaged persons achieve competitive position economy time mbe provision enacted regulations governing program defined social economic disadvantage follows applicant concern must owned controlled one persons deprived opportunity develop maintain competitive position economy social economic disadvantage disadvantage may arise cultural social chronic economic circumstances background similar cause persons include limited black americans american indians oriental americans eskimos aleuts congress began consideration public works employment act house committee small business issued lengthy report summarizing activities including evaluation ongoing program one chapter report entitled minority enterprises allied problems small business summarized committee report title dealing subject matter original report prepared house sba oversight minority enterprise observed subcommittee acutely aware economic policies nation must function within guided constitutional system guarantees equal protection laws effects past inequities stemming racial prejudice remained past congress recognized reality past discriminatory practices degree adversely affected present economic system minority persons comprise percent nation population million businesses approximately percent owned minority individuals recent data department commerce also indicates gross receipts businesses country totals billion amount billion percent realized minority business concerns statistics result random chance presumption must made past discriminatory systems resulted present economic inequities order right situation congress formulated certain remedial programs designed uplift socially economically disadvantaged persons level may effectively participate business mainstream economy purposes report term minority shall include minority individuals considered economically socially disadvantaged subcommittee report also gave consideration operations office minority business enterprise agency department commerce organized pursuant executive orders formulate coordinate federal efforts assist development minority businesses report concluded ombe efforts totally inadequate achieve policy increasing opportunities subcontracting minority businesses public contracts ombe efforts hampered glaring lack specific objectives prime contractor required achieve lack enforcement provisions lack meaningful monitoring system backdrop legislative administrative programs inconceivable members houses fully aware objectives mbe provision reasons prompting enactment although statutory mbe provision outlines bare bones federal program makes number critical determinations decision initiate limited racial ethnic preference specification minimum level minority business participation identification minority groups encompassed program provision administrative waiver application program feasible congress relied administrative agency flesh skeleton pursuant delegated rulemaking authority develop administrative operation consistent legislative intentions objectives required public works employment act secretary commerce promulgated regulations set motion round ii federal grant program regulations require construction projects funded legislation must performed contracts awarded competitive bidding unless federal administrator made determination circumstances relating particular project method public interest competitive bidding employed regulations echo statute requirement contracts awarded basis lowest responsive bid submitted bidder meeting established criteria responsibility also restate mbe requirement eda also published guidelines devoted entirely administration mbe provision guidelines outline obligations grantee seek available qualified bona fide mbe provide technical assistance needed lower waive bonding requirements feasible solicit aid office minority business enterprise sba sources assisting mbe obtaining required working capital give guidance intricacies bidding process eda regulations contemplate anticipated congress local public works projects entail award predominant prime contract prime contractor assuming grantee obligations fulfilling mbe requirement eda guidelines specify prime contractors selected competitive bidding bids prime contract shall considered grantee responsive least percent contract funds expended mbe administrative program envisions competitive incentive motivate aspirant prime contractors perform obligations mbe provision qualify responsive bidders since contract awarded lowest responsive bidder incentive expected motivate prime contractors seek competitive available qualified bona fide minority firms consistent legislative intention eda guidelines also outline projected administration applications waiver mbe requirement may sought grantee either bidding process technical bulletin issued eda discusses greater detail processing waiver requests clarifying certain issues left open guidelines specifies waivers may total partial depending circumstances illustrates projected operation waiver procedure posing hypothetical questions projected administrative responses one hypothetical particular interest indicates limitations scope racial ethnic preference contemplated federal program grantee prime contractor confronted available qualified bona fide minority business enterprise lowest competitive bidder hypothetical provides question request waiver requirement based unreasonable price asked mbe ever granted answer possible imagine situations mbe might ask price product services unreasonable therefore waiver justified however waiver request honored following determinations made mbe quote unreasonably priced determination based nature product service subcontractor geographic location site subcontractor prices similar products services relevant market area general business conditions market area furthermore subcontractor price considered unreasonable merely trying cover costs price results disadvantage affects mbe cost business results discrimination contractor contacted mbes meaningful choice accept unreasonably high price administrative approach consistent legislative intention recalled report house subcommittee sba oversight minority enterprise subcommittee took special care note using term minority intended include minority individuals considered economically socially disadvantaged subcommittee also cognizant existing administrative regulations designed ensure firms maintained lists bona fide minority business enterprises whose competitive position impaired effects disadvantage discrimination report subcommittee expressed intention criteria continue govern administration sba program sponsors mbe provision reliance prior administrative practice intended term minority business enterprise given limited application even found expression legislative debates representative roe made point hen talking companies held minority groups ertainly people variety backgrounds included really measurement talking people minority deprived iii required pass constitutionality act congress assume gravest delicate duty called perform blodgett holden opinion holmes program employs racial ethnic criteria even remedial context calls close examination yet bound approach task appropriate deference congress branch charged constitution power provide general welfare enforce appropriate legislation equal protection guarantees fourteenth amendment art cl amdt columbia broadcasting system democratic national committee accorded great weight decisions congress even though legislation implicated fundamental constitutional rights guaranteed first amendment rule different congressional program raises equal protection concerns see cleland national college business mathews de castro pass choice made single judge school board considered decision congress president however sense render immune judicial scrutiny say defer judgment congress constitutional question hesitate invoke constitution determine congress overstepped bounds constitutional power columbia broadcasting supra clear objective mbe provision disclosed necessarily extended review legislative administrative background program designed ensure extent federal funds granted public works employment act grantees elect participate employ procurement practices congress decided might result perpetuation effects prior discrimination impaired foreclosed access minority businesses public contracting opportunities mbe program mandate allocation federal funds according inflexible percentages solely based race ethnicity analysis proceeds two steps outset must inquire whether objectives legislation within power congress must go decide whether limited use racial ethnic criteria context presented constitutionally permissible means achieving congressional objectives violate equal protection component due process clause fifth amendment enacting mbe provision clear congress employed amalgam specifically delegated powers public works employment act nature primarily exercise spending power art cl recognized power provide general welfare independent grant legislative authority distinct broad congressional powers buckley valeo butler congress frequently employed spending power broad policy objectives conditioning receipt federal moneys upon compliance recipient federal statutory administrative directives repeatedly upheld constitutional challenge use technique induce governments private parties cooperate voluntarily federal policy california bankers assn shultz lau nichols oklahoma csc helvering davis steward machine davis mbe program structured within familiar legislative pattern program conditions receipt public works grants upon agreement state local governmental grantee least federal funds devoted contracts minority businesses extent accomplished overcoming barriers access awarding contracts bona fide mbe conditioned require mbe bids contracts competitively priced might competitively priced present effects prior discrimination admittedly problems administering program respect conditions may formidable although primary responsibility ensuring minority participation falls upon grantee procurement practices grantee involve award prime contract general prime contractor obligations assure minority participation devolve upon private contracting party contractual condition eligibility award prime contract need explore outermost limitations objectives attainable application spending power reach spending power within sphere least broad regulatory powers congress pursuant regulatory powers congress achieved objectives mbe program may spending power difficulty perceiving basis accomplishing objectives mbe program commerce power insofar program objectives pertain action private contracting parties power enforce equal protection guarantees fourteenth amendment insofar program objectives pertain action state local grantees turn first commerce power art cl congress chosen drawn commerce clause regulate practices prime contractors federally funded public works projects katzenbach mcclung heart atlanta motel legislative history mbe provision shows rational basis congress conclude subcontracting practices prime contractors perpetuate prevailing impaired access minority businesses public contracting opportunities inequity effect interstate commerce thus congress take necessary proper action remedy situation ibid necessary prime contractors shown responsible violation antidiscrimination laws cases dealing application title vii civil rights act stat amended express doubt congressional authority prohibit practices challenged perpetuating effects unlawful discrimination occurring prior effective date act franks bowman transportation see california brewers assn bryant teamsters albemarle paper moody griggs duke power insofar mbe program pertains actions private prime contractors congress achieved objectives commerce clause conclude respect objectives mbe provision within scope spending power certain contexts limitations reach commerce power regulate actions state local governments national league cities usery avoid complications look fourteenth amendment power regulate procurement practices state local grantees federal funds fitzpatrick bitzer review cases persuades us objectives mbe program within power congress enforce appropriate legislation equal protection guarantees fourteenth amendment katzenbach morgan equated scope authority broad powers expressed necessary proper clause art cl correctly viewed positive grant legislative power authorizing congress exercise discretion determining whether legislation needed secure guarantees fourteenth amendment katzenbach upheld voting rights act stat prohibited application state literacy requirements otherwise qualified voters completed sixth grade accredited american school language english predominant medium instruction uphold exercise congressional authority found prerequisite application literacy requirement violate equal protection clause enough perceive basis upon congress reasonably predicate judgment application literacy qualifications within compass discriminate terms access ballot consequently terms access provision administration governmental programs four years later oregon mitchell upheld voting rights act amendments stat imposed nationwide prohibition use various tests devices federal state local elections unanimous albeit separate opinions concluding congress within authority prohibit use voter qualifications congress reasonably determine legislation appropriate method attacking perpetuation prior purposeful discrimination even though use tests devices might discriminatory effects see city rome cases reviewing parallel power congress enforce provisions fifteenth amendment amdt confirm congressional authority extends beyond prohibition purposeful discrimination encompass state action discriminatory impact perpetuating effects past discrimination south carolina katzenbach cf city rome supra respect mbe provision congress abundant evidence conclude minority businesses denied effective participation public contracting opportunities procurement practices perpetuated effects prior discrimination congress course may legislate without compiling kind record appropriate respect judicial administrative proceedings congress among data evidence long history marked disparity percentage public contracts awarded minority business enterprises disparity considered result lack capable qualified minority businesses existence maintenance barriers competitive access roots racial ethnic discrimination continue today even absent intentional discrimination unlawful conduct although much history related experience minority businesses area federal procurement direct evidence congress pattern disadvantage discrimination existed respect state local construction contracting well relation mbe provision congress acted within competence determine problem national scope although act recites preambulary findings subject satisfied congress abundant historical basis conclude traditional procurement practices applied minority businesses perpetuate effects prior discrimination accordingly congress reasonably determined prospective elimination barriers minority firm access public contracting opportunities generated act appropriate ensure businesses denied equal opportunity participate federal grants state local governments one aspect equal protection laws insofar mbe program pertains actions state local grantees congress achieved objectives use power fourteenth amendment conclude respect objectives mbe provision within scope spending power relevant similarities mbe program federal spending program reviewed lau nichols lau language barrier effectively foreclosed chinese pupils access educational opportunities offered san francisco public school system shown resulted discrimination purposeful otherwise unlawful acts nevertheless upheld constitutionality federal regulation applicable public school systems receiving federal funds prohibited utilization criteria methods administration effect defeating substantially impairing accomplishment objectives educational program respect individuals particular race color national origin emphasis added moreover upheld application san francisco school system recipient federal funds requirement inability speak understand english language excludes national group children effective participation educational program offered school district district must take affirmative steps rectify language deficiency order open instructional program students ibid true mbe provision differs program approved lau mbe program directly employs racial ethnic criteria means accomplish congressional objectives however objectives essentially approved lau holding lau instructive exercise congressional authority way mbe provision mbe program like federal regulations reviewed lau primarily regulates state action use federal funds voluntarily sought accepted grantees subject statutory administrative conditions mbe participation requirement directed utilization criteria methods practices thought congress effect defeating substantially impairing access minority business community public funds made available congressional appropriations turn question whether means accomplish plainly constitutional objectives congress may use racial ethnic criteria limited way condition attached federal grant mindful matter pay deference opinion congress choice instrumentalities perform function within power national mutual insurance tidewater transfer opinion jackson however congress may employ racial ethnic classifications exercising spending legislative powers classifications violate equal protection component due process clause fifth amendment recognize need careful judicial evaluation assure congressional program employs racial ethnic criteria accomplish objective remedying present effects past discrimination narrowly tailored achievement goal stress limited scope inquiry dealing remedial decree legislative authority congress furthermore petitioners challenged constitutionality mbe provision face sought damages specific relief injury allegedly flowing specific applications program attempted show applied identified situations mbe provision violated constitutional statutory rights party case circumstances given reasonable construction light projected administration find mbe program face free constitutional defects must upheld within congressional power parker levy fortson dorsey aptheker secretary state see raines review regulations guidelines governing administration mbe provision reveals congress enacted program strictly remedial measure moreover remedy functions prospectively manner injunctive decree pursuant administrative program grantees prime contractors required seek available qualified bona fide mbe required provide technical assistance needed lower waive bonding requirements feasible solicit aid office minority business enterprise sba sources assisting mbe obtain required working capital give guidance intricacies bidding process supra program assumes grantees undertake efforts good faith obtain least participation minority business enterprises recognized achieve target contracts awarded available qualified bona fide mbe even though lowest competitive bidders long higher bids challenged found reflect merely attempts cover costs inflated present effects prior disadvantage discrimination supra available grantee provision authorized congress administrative waiver basis demonstration despite affirmative efforts level participation achieved without departing objectives program supra also administrative mechanism including complaint procedure ensure bona fide mbe encompassed remedial program prevent unjust participation program minority firms whose access public contracting opportunities impaired effects prior discrimination supra threshold matter reject contention remedial context congress must act wholly fashion swann board education rejected argument considering school desegregation remedy basis examination racial composition student bodies unavoidable starting point racially based attendance assignments permissible long absolute racial balance school required mcdaniel barresi citing swann observed remedial process steps almost invariably require students assigned differently race approach freeze status quo target desegregation processes citations omitted north carolina board education swann invalidated state law absolutely forbade assignment student account race foreclosed implementation desegregation plans designed remedy constitutional violations held ust race students must considered determining whether constitutional violation occurred also must race considered formulating remedy school desegregation cases dealt authority federal formulate remedy unconstitutional racial discrimination however authority incorporate racial criteria remedial decree also extends statutory violations federal antidiscrimination laws violated equitable remedy may appropriate case include racial ethnic factor franks bowman transportation see teamsters albemarle paper moody another setting held state may employ racial criteria reasonably necessary assure compliance federal voting rights legislation even though state action entail remedy constitutional violation jewish organizations williamsburgh carey opinion white joined brennan blackmun stevens jj burger dissenting grounds discussed remedial powers federal alert limitation power federal courts restructure operation local state governmental entities plenary federal required tailor scope remedy fit nature extent violation dayton board education brinkman quoting milliken bradley swann board education supra deal noted earlier limited remedial powers federal example broad remedial powers congress fundamental organ government state federal repose comprehensive remedial power congress expressly charged constitution competence authority enforce equal protection guarantees congress may induce voluntary action assure compliance existing federal statutory constitutional antidiscrimination provisions also congress authority declare certain conduct unlawful may authorize induce state action avoid conduct supra specific challenge mbe program charge impermissibly deprives nonminority businesses access least portion government contracting opportunities generated act must conceded objective remedying historical impairment access mbe provision effect awarding contracts mbe otherwise might awarded businesses may innocent prior discriminatory actions failure nonminority firms receive certain contracts course incidental consequence program part objective similarly past impairment access public contracting opportunities may incidental consequence business usual public contracting agencies among prime contractors constitutional defect program may disappoint expectations nonminority firms effectuating limited properly tailored remedy cure effects prior discrimination sharing burden innocent parties impermissible franks supra see albemarle paper supra jewish organizations supra actual burden shouldered nonminority firms relatively light connection consider scope public works program compared overall construction contracting opportunities moreover although may assume complaining parties innocent discriminatory conduct within congressional power act assumption past nonminority businesses may reaped competitive benefit years virtual exclusion minority firms contracting opportunities another challenge validity mbe program assertion underinclusive limits benefit specified minority groups rather extending remedial objectives businesses whose access government contracting impaired effects disadvantage discrimination extension course appropriate congress provide function courts even context concept legislature may take one step time remedy part broader problem without relevance see dandridge williams williamson lee optical reviewing federal program seeks confer preferred status upon nondisadvantaged minority give special assistance one several groups established similarly disadvantaged minorities even setting congress without certain authority see personnel administrator massachusetts feeney califano webster morton mancari congress sought give select minority groups preferred standing construction industry embarked remedial program place equitable footing respect public contracting opportunities showing case congress inadvertently effected invidious discrimination excluding coverage identifiable minority group victim degree disadvantage discrimination equal greater suffered groups encompassed mbe program inconceivable special facts case might made challenge congressional decision limit mbe eligibility particular minority groups identified act see vance bradley oregon mitchell opinion brennan white marshall record find basis hold congress without authority undertake kind limited remedial effort represented mbe program congress courts heavy burden dealing host intractable economic social problems also contended mbe program overinclusive bestows benefit businesses identified racial ethnic criteria justified basis competitive criteria remedy present effects identified prior discrimination conceivable particular application program may effect however peculiarities specific applications us case presented challenge involving specific award construction contract denial waiver request questions specific application must await future cases mean claim overinclusiveness entitled consideration present case history governmental tolerance practices using racial ethnic criteria purpose effect imposing invidious discrimination must alert us deleterious effects even benign racial ethnic classifications stray narrow remedial justifications even context facial challenge presented case mbe provision pass muster unless due account administrative program provides reasonable assurance application racial ethnic criteria limited accomplishing remedial objectives congress misapplications program promptly adequately remedied administratively significant administrative scheme provides waiver exemption two fundamental congressional assumptions underlie mbe program present effects past discrimination impaired competitive position businesses owned controlled members minority groups affirmative efforts eliminate barriers access evaluate bids adjustment present effects past discrimination assure least federal funds granted public works employment act accounted contracts available qualified bona fide minority business enterprises assumptions may rebutted administrative process administrative program contains measures effectuate congressional objective assuring legitimate participation disadvantaged mbe administrative definition tightened less definite aspects statutory identification minority groups encompassed program administrative scrutiny identify eliminate participation program mbe bona fide within regulations guidelines example spurious entities exposed significant aspect surveillance complaint procedure available reporting unjust participation enterprise individuals mbe program supra even specific contract awards waiver available avoid dealing mbe attempting exploit remedial aspects program charging unreasonable price price attributable present effects past discrimination supra must assume congress intended close scrutiny false claims prompt action grantees given opportunity demonstrate best efforts succeed succeeded achieving statutory target minority firm participation within limitations program remedial objectives circumstances waiver partial waiver available compliance demonstrated waiver may sought granted time contracting process even prior letting contracts facts warrant program defective waiver may sought grantee prime contractors may experience difficulty fulfilling contract obligations assure minority participation may administratively cumbersome wisdom concentrating responsibility grantee level us evaluate purpose allow eda maintain close supervision operation mbe provision administrative complaint mechanism allows grievances prime contractors assert grantee failed seek waiver appropriate case finally note private parties opposed governmental entities transgress limitations inherent mbe program possibility constitutional violation removed see steelworkers weber use racial ethnic criteria premised assumptions rebuttable administrative process gives reasonable assurance application mbe program limited accomplishing remedial objectives contemplated congress misapplications racial ethnic criteria remedied dealing facial challenge statute doubts must resolved support congressional judgment limited program necessary step effectuate constitutional mandate equality economic opportunity mbe provision may viewed pilot project appropriately limited extent duration subject reassessment revaluation congress prior extension miscarriages administration transitory economic impact businesses encompassed program irremediable iv congress due consideration perceived pressing need move forward new approaches continuing effort achieve goal equality economic opportunity effort congress necessary latitude try new techniques limited use racial ethnic criteria accomplish remedial objectives especially programs voluntary cooperation remedial measures induced placing conditions federal expenditures program may press outer limits congressional authority affords basis striking petitioners mounted facial challenge program developed politically responsive branches government part congress must proceed programs narrowly tailored achieve objectives subject continuing evaluation reassessment administration programs must vigilant flexible program comes judicial review courts must satisfied legislative objectives projected administration give reasonable assurance program function within constitutional limitations justice jackson admonished different context maintain succeed tasks counsels urged earnestly members humbly faithfully heeded forces conservatism liberalism radicalism reaction emotion caught legislative process averaged come rest compromise measure missouri compromise law legislative policy decision striking closes area compromise conflicts actually temporarily composed decision takes away democratic federalism another defenses domestic disorder violence vice judicial supremacy exerted ninety years field policy progressive closing avenues peaceful democratic conciliation social economic conflicts said matters must respect limitations powers judicial usurpation justifiable promising permanent good country kind presuppose depart judicial process go beyond resolving cases controversies brought conventional form consciously encroach upon functions coordinate branches stay experimentation things social economic grave responsibility denial right experiment may fraught serious consequences nation new state ice liebmann dissenting opinion affirmed appendix opinion burger primary obligation carrying mbe participation requirement rests eda grantees grantee contractors make subcontracts purchase substantial supplies firms hereinafter referred prime contractors must seek available bona fide mbe make every effort use many possible project mbe bona fide minority group ownership interests real continuing created solely meet mbe requirements example minority group owners stockholders possess control management interest capital interest earnings commensurate percentage ownership claim minority ownership status based mbe available project located market area mbe mbe perform project services supply project materials time needed relevant market area depends kind services supplies needed eda require grantees prime contractors engage mbe wide market area economically feasible mbe qualified perform services supply materials needed grantees prime contractors expected use mbe less experience available nonminority enterprises expect provide technical assistance mbe needed inability obtain bonding ordinarily disqualify mbe grantees prime contractors expected help mbe obtain bonding include mbe overall bond waive bonding feasible small business administration sba prepared provide guarantee bond mbe participating lpw local public works project lack working capital ordinarily disqualify mbe sba prepared provide working capital assistance mbe participating lpw project grantees prime contractors expected assist mbe obtaining working capital sba otherwise grantee make sure knows names addresses qualifications relevant mbe include project location market areas grantees also hold prebid conferences invite interested contractors representatives mbe support organizations arrangements made office minority business enterprise provide assistance grantees prime contractors fulfilling mbe requirement grantees prime contractors also aware support available small business administration grantee must monitor performance prime contractors make sure commitments expend funds mbe fulfilled grantees administer every project tightly although provision waiver included section act eda approve waiver exceptional circumstances grantee must demonstrate sufficient relevant qualified minority business enterprises whose market areas include project location justify waiver grantee must detail waiver request efforts grantee potential contractors exerted locate enlist mbe request must indicate specific mbe contacted reason mbe used grantee request waiver waiver request ordinarily made initial bidding negotiation procedures proved unsuccessful grantee situated area minority population small may apply waiver requesting bids project projects negro individual black race african origin individual culture origin parentage oriental individual culture origin parentage traceable areas south soviet union east iran inclusive islands adjacent thereto pacific including limited indonesia indochina malaysia hawaii philippines indian individual origins original people north america recognized indian either tribe tribal organization suitable authority community suitable authority community may educational institutions religious organizations state agencies eskimo individual origins original peoples alaska aleut individual origins original peoples aleutian islands person organization information indicating unjust participation enterprise individuals mbe program believes mbe participation requirement improperly applied contact appropriate eda grantee provide detailed statement basis complaint upon receipt complaint grantee attempt resolve issues dispute event grantee requires assistance reaching determination grantee contact civil rights specialist appropriate regional office complainant believes grantee satisfactorily resolved issues raised complaint may personally contact eda regional office footnotes fed reg amended fed reg cfr part dept commerce economic development administration local public works program round ii guidelines minority business participation lpw grants hereinafter guidelines app dept commerce economic development administration eda minority business enterprise mbe technical bulletin additional assistance information available grantees contractors meeting mbe requirement hereinafter technical bulletin app title vi civil rights act stat title vii et seq civil rights act stat amended et seq ohio contractors assn economic development administration constructors assn kreps rhode island chapter associated general contractors kreps supp ri associated general contractors secretary commerce carolinas branch associated general contractors kreps supp sc ohio contractors assn economic development administration supp sd ohio montana contractors assn secretary commerce supp mont florida east coast chapter secretary commerce sd see associated general contractors secretary commerce supp cd cal vacated remanded consideration mootness remand supp cd cal vacated remanded sub nom armistead associated general contractors california post appeals district rejected petitioners various statutory arguments without extended discussion bill discussed report accepted conference committee preference senate version conf conf stat stat stat stat stat actual appropriation full amount authorized made several weeks later pub stat cong rec remarks randolph see hearings related bills subcommittee economic development house committee public works transportation sess stat supp ii actual appropriation full authorized amount made day pub stat hearings supra cong rec stat supp ii stat supp ii cong rec remarks mitchell reintroduced first sentence amendment modified provide notwithstanding provision law grant shall made act local public works project unless least per centum dollar volume contract shall set aside minority business enterprise unless least per centum articles materials supplies used project procured minority business enterprises remarks roe ibid remarks mitchell remarks conyers remarks biaggi remarks brooke first paragraph senator brooke formulation identical version originally offered representative mitchell quoted text supra second paragraph senator brooke amendment provided section shall interpreted defund projects less percent minority participation areas minority population less percent event correct level minority participation predetermined secretary consultation eda based upon lists qualified minority contractors solicitation competitive bids minority firms lists cong rec ibid ibid conf conf ibid conference committee bill agreed senate cong rec house signed law may remarks brooke remarks mitchell remarks brooke exec order cfr comp exec order cfr cfr small business administration office business development section program standard operating procedure see relevant rules regulations require applicant identify disadvantages racial group generally disadvantages must personally affected applicant ability enter mainstream business system small business administration office minority small business capital ownership development msb cod programs standard operating procedure social disadvantage individuals including within racial ethnic groups shall determined sba basis membership alone group conclusive individual socially disadvantaged pp emphasis added another chapter report house committee small business summarized review sba security bond guarantee program making specific reference minority business participation construction industry basic problem disclosed testimony years developed business system traditionally excluded measurable minority participation past present system conducting business transactions overtly precluded minority input currently often encounter business system racially neutral face past overt social economic discrimination presently operating effect perpetuate past inequities minorities recently participated measurable extent total business system generally construction industry particular summarizing pp general accounting office questionable effectiveness procurement program civil rights minorities women government contractors may ibid exec order cfr comp exec order cfr congressional observations respect effect past discrimination current business opportunities minorities see pp pp see also doc doc stat supp ii cfr part stat supp ii cfr guidelines app relevant portions guidelines set appendix opinion guidelines app see cong rec remarks mitchell roe guidelines app see cong rec remarks mitchell roe guidelines app relevant portions guidelines set appendix opinion technical bulletin app technical bulletin app text accompanying supra cong rec remarks roe technical bulletin app definitions set appendix opinion technical bulletin app technical bulletin app relevant portions technical bulletin set appendix opinion complaint order establish standing challenge validity program petitioners alleged pecific examples economic injury three instances one number assertedly awarded public works contract enforcement mbe provision petitioners requested declaratory injunctive relief continued enforcement mbe provision seek remedy specific instances assertedly unlawful discrimination app appeals relied upon department commerce statistics calculate billion federal grants conditioned upon compliance mbe provision amounted total nearly billion spent construction thus minimum minority business participation contemplated program account annual expenditure construction work fullilove kreps mbe provision supp ii classifies minority business enterprise business least per centum owned minority group members case publicly owned business least per centum stock owned minority group members minority group members defined citizens negroes orientals indians eskimos aleuts administrative definitions set appendix opinion categories also classified minorities regulations implementing nondiscrimination requirements railroad revitalization regulatory reform act see cfr congress relied precedent mbe provision see cong rec remarks brooke house subcommittee sba oversight minority enterprise whose activities played significant part legislative history mbe provision also recognized categories included within federal government definition minority business enterprise pp specific inclusion groups mbe provision demonstrates congress concluded victims discrimination petitioners press challenge congress classification categories appeals reason pass upon issue time cf gao report congress minority firms local public works projects mixed results dept commerce economic development administration local public works program interim report percent minority business enterprise requirement sep jackson struggle judicial supremacy jackson american system government although complaint alleged mbe program violated several federal statutes supra statutory argument urged upon us mbe provision inconsistent title vi civil rights act perceive inconsistency requirements title vi mbe provision extent statutory inconsistencies might asserted mbe provision later specific enactment must deemed control see morton mancari preiser rodriguez bulova watch borden justice powell concurring although place greater emphasis chief justice need articulate judicial standards review conventional terms view opinion announcing judgment substantially accord views accordingly join opinion write separately apply analysis set forth opinion university california regents bakke hereinafter bakke question case whether congress may enact requirement public works employment act pwea federal grants local public work projects funded act set aside minority business enterprises section employs racial classification constitutionally prohibited unless necessary means advancing compelling governmental interest bakke supra see griffiths loving virginia mclaughlin florida reason stated bakke opinion consider adherence standard important consistent precedent equal protection clause equal protection component due process clause fifth amendment demand governmental distinction among groups must justifiable different standards review applied different sorts classifications simply illustrate principle classifications less likely legitimate others racial classifications must assessed stringent level review immutable characteristics bear relation individual merit need irrelevant almost every governmental decision see anderson martin case however believe justified remedy serves compelling governmental interest eradicating continuing effects past discrimination identified congress racial preference never constitute compelling state interest distinctions citizens solely ancestry odious free people whose institutions founded upon doctrine equality loving virginia supra quoting hirabayashi thus merely expresses congressional desire prefer one racial ethnic group another violates equal protection component due process clause fifth amendment see bolling sharpe government legitimate interest ameliorating disabling effects identified discrimination bakke supra see keyes school district denver powell concurring part dissenting part mcdaniel barresi north carolina board education swann green county school board existence illegal discrimination justifies imposition remedy make persons whole injuries suffered account unlawful discrimination albemarle paper moody critical inquiry therefore whether enacted means redressing discrimination never approved remedies absent judicial administrative legislative findings constitutional statutory violations bakke supra see teamsters jewish organizations carey opinion white south carolina katzenbach distinction permissible remedial action impermissible racial preference rests existence constitutional statutory violation legitimate interest creating remedy compelling unless appropriate governmental authority found violation occurred words two requirements must met first governmental body attempts impose remedy must authority act response identified discrimination cf hampton mow sun wong second governmental body must make findings demonstrate existence illegal discrimination bakke regents failed requirements entrusted educational functions made findings past discrimination thus compelling governmental interest present justify use racial quota medical school admissions bakke supra past cases also establish even government proffers compelling interest support reliance upon suspect classification means selected must narrowly drawn fulfill governmental purpose griffiths supra bakke example state university compelling interest attainment diverse student body method selected achieve end use fixed admissions quota appropriate regents quota system eliminated nonminority applicants consideration specified number seats entering class although allowed minority applicants complete available seats contrast admissions program recognizes race factor sole factor assessing applicant qualifications serves university interest diversity ensuring applicant receives fair competitive consideration reviewing constitutionality must decide whether congress competent make findings unlawful discrimination ii whether sufficient findings made establish unlawful discrimination affected adversely minority business enterprises iii whether permissible means redressing identifiable past discrimination none questions may answered without explicit recognition reviewing act congress ii history review congressional action demonstrates beyond question national legislature competent find constitutional statutory violations unlike regents university california congress properly may indeed must address directly problems discrimination society see heart atlanta motel katzenbach mcclung example held congress power commerce clause prohibit racial discrimination public restaurants basis finding discrimination direct adverse effect free flow interstate commerce similarly hearing overwhelming evidence private employment discrimination see pt congress enacted title vii civil rights act order assure equality employment opportunities eliminate discriminatory practices devices fostered racially stratified job environments disadvantage minority citizens mcdonnell douglas green acting purposes title vii congress vested federal courts broad equitable discretion ensure persons aggrieved consequences effects unlawful employment practice far possible restored position unlawful discrimination franks bowman transportation quoting analysis accompanying equal employment opportunity act conference report cong rec addition congress given unique constitutional power legislating enforce provisions thirteenth fourteenth fifteenth amendments early date stated power congress enlarged enforcement provisions war amendments ex parte virginia jones alfred mayer recognized congress competence determine private action inhibiting right acquire convey real property racial discrimination forbidden thirteenth amendment subsequently held congress enactment pursuant powers thirteenth amendment see runyon mccrary provides persons federal remedy racial discrimination private employment see mcdonald sante fe transportation johnson railway express agency katzenbach morgan considered whether fourteenth amendment gave congress power enact voting rights act section provides person educated puerto rico may denied right vote election failure read write english language held congress empowered enact remedy discrimination puerto rican community implicit holding belief congress authority find found members minority group suffered governmental discrimination congress authority find provide redress constitutional violations also confirmed cases construing enforcement clause fifteenth amendment south carolina katzenbach example upheld voting rights act et appropriate remedy violations fifteenth amendment noted congress found insidious pervasive discrimination demanding ster elaborate measures relevant present inquiry express approval congress decision prescrib remedies voting discrimination go effect without need prior adjudication beyond question therefore congress authority identify unlawful discriminatory practices prohibit practices prescribe remedies eradicate continuing effects next inquiry whether congress made findings adequate support determination minority contractors suffered extensive discrimination iii petitioners contend legislative history reflects congressional finding statutory constitutional violations crucial contention assertion reviewing may look beyond legislative history pwea evidence congress believed combating invidious discrimination petitioners theory erect artificial barrier full understanding legislative process congress adjudicatory body called upon resolve specific disputes competing adversaries constitutional role representative rather impartial make policy rather apply settled principles law petitioners contention treat debates complete record congressional decisionmaking underlying statute essentially plea treat congress lower federal congress expected act though duty bound find facts make conclusions law creation national rules governance society simply entail concept recordmaking appropriate judicial administrative proceeding congress responsibility confine vision facts evidence adduced particular parties instead special attribute legislative body lies broader mission investigate consider facts opinions may relevant resolution issue one appropriate source information expertise congress acquires consideration enactment earlier legislation congress legislated repeatedly area national concern members gain experience may reduce need fresh hearings prolonged debate congress considers action area acceptance petitioners argument force congress make specific factual findings respect legislative action requirement mark unprecedented imposition adjudicatory procedures upon coordinate branch government neither constitution democratic tradition warrants constraint legislative process therefore conclude confined case examination legislative history alone rather properly may examine total contemporary record congressional action dealing problems racial discrimination minority business enterprises view legislative history demonstrates congress reasonably concluded private governmental discrimination contributed negligible percentage public contracts awarded minority contractors opinion chief justice provides careful overview relevant legislative history see ante words need added section originated amendment introduced floor house representatives representative mitchell congressman mitchell noted federal government already operating program small business act described proposal sensible way us begin develop viable economic system minorities country ultimate result going eventually able end certain programs merely support survival programs people contribute economy cong rec senator brooke introduced similar measure senate reminded senate special provisions previously enacted small business act railroad revitalization regulatory reform act stat stated demonstrated validity amendment cong rec section small business act provides small business administration may enter contracts federal government subcontract small businesses small business administration directed executive order employ aid socially economically disadvantaged persons ante operation program reviewed congressional committees house subcommittee minority small business enterprise found minority businessmen face economic difficulties result past social standards linger characteristics minorities group house subcommittee sba oversight minority enterprise concluded effect past inequities stemming racial prejudice remained past low participation minorities economy result past discriminatory practices pp house committee small business found years developed business system traditionally excluded measurable minority participation past present system conducting business transactions overtly precluded minority input currently often encounter business system racially neutral face past overt social economic discrimination presently operating effect perpetuate past inequities light legislative materials discussion legislative history contained chief justice opinion believe must accept established conclusion purposeful discrimination contributed significantly small percentage federal contracting funds minority business enterprises received refusals subcontract work minority contractors may depending upon identity discriminating party violate title vi civil rights act et fourteenth amendment although discriminatory activities identified exactitude expected judicial administrative adjudication must remembered congress may paint much broader brush may oregon mitchell stewart concurring part dissenting part iv established doctrine racial classification suspect subject strict judicial scrutiny noted part government may employ classification necessary accomplish compelling governmental purpose see bakke conclusion congress found compelling governmental interest redressing identified discrimination minority contractors therefore leads inquiry whether use constitutionally appropriate means serving interest past means test virtually impossible satisfy two modern cases held use racial classifications constitutional see korematsu hirabayshi indeed failure legislative action survive strict scrutiny led wonder whether review racial classifications strict theory fatal fact see gunther term foreword search evolving doctrine changing model newer equal protection harv rev application means test necessarily demands understanding type congressional action issue case congress employed racial classification solely means confer racial preference purpose plainly unconstitutional supra congress sought employ racially conscious means nonracial goal instances nonracial means available legitimate governmental purpose see bakke supra enactment designed serve compelling governmental interest redressing racial discrimination recognized implementation affirmative remedy redress racial discrimination likely affect persons differently depending upon race see north carolina board education swann although federal courts may order approve remedies exceed scope constitutional violation see milliken bradley dayton board education brinkman austin independent school district powell concurring required remedial plans limited least restrictive means implementation recognized choice remedies redress racial discrimination balancing process left within appropriate constitutional statutory limits sound discretion trial franks bowman transportation powell concurring part dissenting part believe enforcement clauses thirteenth fourteenth amendments give congress similar measure discretion choose suitable remedy redress racial discrimination legislative history fourteenth amendment particularly instructive senator howard member joint committee reconstruction introduced amendment senate described direct affirmative delegation power congress carry principles guarantees amendment cong globe furthermore stated casts upon congress responsibility seeing future sections amendment carried good faith state infringes rights persons property look upon clause indispensable reason thus imposes upon congress power duty although framers fourteenth amendment may contemplated congress rather federal courts prime force behind enforcement fourteenth amendment see fairman history reconstruction reunion part pp believe congressional action unreviewable several members congress emphasized primary purpose fourteenth amendment place provisions civil rights act eternal firmament constitution cong globe remarks garfield see remarks stevens remarks thayer remarks broomall members congress fully understood judicial review means action legislative executive branches required conform constitution see marbury madison cranch conclude therefore enforcement clauses thirteenth fourteenth amendments confer upon congress authority select reasonable remedies advance compelling state interest repairing effects discrimination authority must exercised manner erode guarantees amendments judicial branch special responsibility make searching inquiry justification employing remedy courts must sensitive possibility less intrusive means might serve compelling state interest equally well believe congress choice remedy upheld however means selected equitable reasonably necessary redress identified discrimination test allows congress exercise necessary discretion preserves essential safeguard judicial review racial classifications reviewing selection congress remedy instructive note factors upon courts appeals relied closely analogous area courts reviewing proper scope hiring remedies considered efficacy alternative remedies naacp allen vulcan society civil service ii planned duration remedy wood wire metal lathers local cert denied iii relationship percentage minority workers employed percentage minority group members relevant population work force association discrimination bridgeport boston chapter naacp beecher cert denied bridgeport guardians bridgeport civil service cert denied carter gallagher en banc cert denied iv availability waiver provisions hiring plan met associated general contractors altshuler cert denied time congress enacted knew remedies failed ameliorate effects racial discrimination construction industry although problem addressed antidiscrimination legislation executive action remedy employment discrimination construction industry federal aid minority businesses fact remained minority contractors receiving less federal contracts see cong rec remarks brooke congress also knew economic recession threatened construction industry whole section enacted part bill designed stimulate economy appropriating billion federal funds new public construction since emergency public construction funds distributed quickly remedial provision designed prevent funds perpetuating past discrimination also effective promptly moreover congress understood effective remedial program provide minority contractors experience necessary continued success without federal assistance congress knew ability minority group members gain experience frustrated difficulty entering construction trades program adopted part emergency legislation serves concerns takes effect soon funds expended pwea provides minority contractors experience enable compete without governmental assistance permanent part federal contracting requirements soon pwea program concludes program ends temporary nature remedy ensures program last longer discriminatory effects designed eliminate necessary congress need remedy extends percentage chosen within scope congressional discretion courts appeals approved temporary hiring remedies insuring percentage minority group workers business governmental agency reasonably related percentage minority group members relevant population boston chapter naacp beecher bridgeport guardians bridgeport carter gallagher contractors members minority groups see fullilove kreps although minority group members constitute national population see constructors association western pennsylvania kreps supp wd aff choice thus falls roughly halfway present percentage minority contractors percentage minority group members nation although pegged reasonable figure effect might unfair applied rigidly areas country minority group members constitute small percentage population meet concern congress enacted waiver provision factors governing issuance waiver include availability qualified minority contractors particular geographic area size locale minority population efforts made find minority contractors dept commerce local public works program round ii guidelines minority business participation lpw grants app told waivers granted september brief secretary commerce remedy approved without consideration additional crucial factor effect upon innocent third parties see teamsters case petitioners contend force asked bear burden even though innocent wrongdoing believe however burden great must disapproved noted congress knew minority contractors receiving federal contracts time enacted pwea appropriated billion public work projects expected approximately million go minority contractors appeals calculated reserve funds expended yearly construction work approximately nation contractors members minority group effect ability remaining contractors compete construction funds view effect limited widely dispersed use consistent fundamental fairness consideration factors persuades reasonably necessary means furthering compelling governmental interest redressing discrimination affects minority contractors marginal unfairness innocent nonminority contractors sufficiently significant sufficiently identifiable outweigh governmental interest served congress acts remedy identified discrimination may exercise discretion choosing remedy reasonably necessary accomplish purpose whatever exact breadth discretion believe encompasses selection case history country questions divisive arising governmental action taken basis race indeed decisions played small part tragic legacy government sanctioned discrimination see plessy ferguson dred scott sandford least since decision brown board education resolute dedication principle constitution envisions nation race irrelevant time come soon governmental decision based upon immutable characteristics pigmentation origin quest achieve society free racial classification ignore claims still suffer effects identifiable discrimination distinguishing rights citizens free racial classifications rights citizens made whole perplexing necessary judicial task first confronted issue bakke concluded regents university california competent make made findings sufficient uphold use remedy adopted opinion made clear believe use racial classifications fundamentally odds ideals democratic society implicit due process equal protection clauses imposed simply serve transient social political goals however worthy may issue turns scope congressional power congress given unique constitutional role enforcement war amendments case congress determined minority contractors victims purposeful discrimination congress chose reasonably necessary means effectuate purpose find constitutional reason invalidate although racial classifications require strict judicial scrutiny agree constitution prohibits racial classification justice stewart recognizes principle believe applicable constitution official action treats person differently account race ethnic origin inherently suspect presumptively invalid post narrowly defined circumstances presumption may rebutted cf lee washington black harlan stewart concurring section thirteenth amendment abolished slavery provides congress shall power enforce article appropriate legislation virtually identical language fourteenth amendment fifteenth amendment give congress power enforce provisions amendments among remedies approved south carolina katzenbach temporary suspension literacy tests jurisdictions voting rights act amendments et temporarily banned use literacy tests jurisdictions oregon mitchell speaking five separate opinions unanimously upheld action proper exercise congress authority war amendments see black douglas harlan brennan white marshall jj stewart burger blackmun concurred justice stewart said congress required make findings concerning actual impact literacy requirements negro citizen access ballot box interests uniformity congress may paint much broader brush may must confine judicial function deciding individual cases controversies upon individual records findings congress made enacted voting rights act supported nationwide ban literacy tests citation omitted accept suggestion appeals must viewed serving compelling state interest reviewing perceive basis legislative action fullilove kreps quoting katzenbach morgan perceive basis standard refers congressional authority act distinct question whether action violates due process clause fifth amendment view uphold reasonable congressional finding discrimination stringent standard review impinge upon congress ability address problems discrimination see supra standard requiring perceive basis essentially meaningless context test might allow justify legislative action even absence affirmative evidence congressional findings subsequent debate house representative conyers emphasized minority businesses fault simply able get foot door cong rec see remarks biaggi president issued executive orders directing federal aid minority business enterprises see exec order cfr comp exec order cfr comp exec order cfr president noted members certain minority groups fault denied full opportunity participate free enterprise system exec order cfr comp opportunity full participation free enterprise system socially economically disadvantaged persons essential obtain social economic justice exec order cfr assistance minority business enterprises program designed promote goals executive orders ray baillie trash hauling kleppe cert denied two sections railroad revitalization regulatory reform act also reflect congress recognition need remedial steps behalf minority businesses section prohibits discrimination activity funded act establishes minority resource center assist minority businessmen obtain contracts business opportunities related maintenance rehabilitation railroads provisions enacted congress recognized established national policy since least passage civil rights act encourage assist development minority business enterprise commerce committee january department transportation issued regulations pursuant require contractors formulate programs ensure minority businesses receive fair proportion contract opportunities see cfr see also nn infra although record suffices support congressional judgment minority contractors suffered identifiable discrimination congress need content findings merely meet constitutional standards remedies popularly referred programs almost invariably affect innocent persons see infra respect support law especially area sensitive depend large measure upon public perception fairness see bakke wilkinson brown bakke perry modern equal protection conceptualization appraisal colum rev therefore important legislative record supporting remedies contain evidence satisfies fairminded people congressional action see also jones alfred mayer quoting cong globe remarks trumbull congress authority thirteenth amendment pwea provides federal moneys committed state local grantees september supp ii action applications funds taken within days receipt application work begin within days project approval congressional oversight committee addressed complex problem achieve economic prosperity despite long history racial bias see select committee small business committee explained effects discrimination translate economic barriers attempting increase participation entrepreneurs economy minority businessman usually encounters several major problems problems economic nature result past social standards linger characteristics minorities group minority entrepreneur faced initially lack capital serious problem beginning minorities entrepreneurs minorities group traditionally holders large amounts capital entrepreneur must go outside community order obtain needed capital lending firms require substantial security track record order lend funds security minority businessmen usually provide produce either often turned functional expertise necessity successful operation enterprise minorities traditionally assumed role labor force business gaining access positions whereby learn physical operation enterprise also internal functions management senator brooke introduced pwea senate stated aid minority businesses also help alleviate problems minority unemployment cong rec congress considered need remedy employment discrimination construction industry refused override philadelphia plan philadelphia plan promulgated department labor required federal contractors use hiring goals order redress past discrimination see contractors association eastern pennsylvania secretary labor cert denied later year house representatives refused adopt amendment appropriations bill effect overruling labor department order cong rec senate approved amendment voted recede position senate debate several legislators argued implementation philadelphia plan necessary ensure equal opportunity see remarks scott remarks griffith remarks bayh senator percy argued plan needed redress discrimination blacks construction industry day following senate vote recede earlier position senator kennedy noted exceptionally blatant racial discrimination construction trades commended senate decision philadelphia plan useful necessary tool insuring equitable employment minorities although believe burden placed upon nonminority contractors unconstitutional reject suggestion legally irrelevant apparently theory congress enacted provided million less funding secretary commerce argues onminorities lost right legitimate expectation addition section act brief secretary commerce may employ unconstitutional classifications base decision upon unconstitutional considerations provides benefit recipient legally entitled cf califano goldfarb opinion brennan richardson belcher characterize act congress conferring public benefit course immunize scrutiny fifth amendment petitioners suggested variety alternative programs used order aid minority business enterprises construction industry view within discretion congress imply methods unavailable congress conclude use always appropriate remedy selection governmental body constitutional see bakke degree specificity required findings discrimination breadth discretion choice remedies may vary nature authority governmental body petitioners also contend violates title vi civil rights act et seq believe constitutional also conclude program violate title vi see bakke opinion powell opinion brennan white marshall blackmun justice marshall justice brennan justice blackmun join concurring judgment resolution constitutional issue case governed separate opinion coauthored university california regents bakke view minority provision public works employment act passes constitutional muster standard announced opinion bakke joined brothers brennan white blackmun articulating view racial classifications per se invalid equal protection clause fourteenth amendment opinion concurring judgment part dissenting part hereinafter cited joint separate opinion acknowledged government practice statute contains suspect classifications subjected strict scrutiny justified furthers compelling government purpose even less restrictive alternative available thus reiterated traditional view racial classifications prohibited irrelevant ibid addition firmly adhered cardinal principle racial classifications stigmatize drawn presumption one race inferior another put weight government behind racial hatred separatism invalid without recognized however principles outlawing irrelevant pernicious use race inapposite racial classifications provide benefits minorities purpose remedying present effects past racial discrimination classifications may disadvantage whites whites class lack traditional indicia suspectness class saddled disabilities subjected history purposeful unequal treatment relegated position political powerlessness command extraordinary protection majoritarian political process quoting san antonio independent school district rodriguez see also carolene products consideration race relevant remedying continuing effects past racial discrimination governmental programs employing racial classifications remedial purposes crafted avoid stigmatization concluded programs subjected conventional strict scrutiny scrutiny strict theory fatal fact bakke supra joint separate opinion determine programs analyzed minimally rigorous standard review recognized race often used stigmatize politically powerless segments society efforts ameliorate effects past discrimination based paternalistic stereotyping careful consideration modern social conditions addition acknowledged governmental classification immutable characteristic race runs counter deep national belief benefits burdens bear relationship individual merit responsibility concluded therefore racial classification ostensibly designed remedial purposes susceptible misuse may justified showing important articulated purpose use addition statute must stricken stigmatizes group singles least well represented political process bear brunt benign program ibid view proper inquiry whether racial classifications designed remedial purposes serve important governmental objectives substantially related achievement objectives ii judged standard minority provision issue case plainly constitutional indeed question even close one chief justice burger demonstrates see ante indisputable congress articulated purpose enacting provision remedy present effects past racial discrimination see also concurring opinion brother powell ante congress sound basis concluding construction enterprises though capable qualified ready willing work received disproportionately small amount public contracting business continuing effects past discrimination bakke joint separate opinion minority substantial chronic handicap past discrimination impeding access minorities benefits governmental program circumstances remedying present effects past racial discrimination sufficiently important governmental interest justify use racial classification ibid see generally means chosen congress implement provision substantially related achievement remedial purpose provision also meets second prong bakke test congress reasonably determined means necessary break barriers confronting participation minority enterprises federally funded public works projects creates quota favor qualified available minority business enterprises necessarily indicate stigmatizes opinion stated bakke purposes constitutional adjudication difference setting aside predetermined number places qualified minority applicants rather using minority status positive factor considered evaluating applications disadvantaged minority applicants enacted congress implemented secretary commerce carefully tailored remedy racial discrimination time avoiding stigmatization penalizing least able protect political process see ante cf concurring opinion brother powell ante since provision contract may awarded minority enterprise qualified work provision stigmatizes inferior neither minority firm benefits nonminority firm burdened establish quota invidious sense ceiling bakke supra joint separate opinion number minority firms awarded public works contracts addition affects miniscule amount funds annually expended construction work see ante sum clear racial classifications employed provision substantially related achievement important congressionally articulated goal remedying present effects past racial discrimination provision therefore passes muster equal protection standard adopted bakke iii separate opinion bakke recounted ingenious pervasive forms discrimination negro long condoned constitution concluded position negro today america tragic inevitable consequence centuries unequal treatment stated legacy unequal treatment must permit institutions society give consideration race making decisions hold positions influence affluence prestige america far long doors positions shut negroes ever become fully integrated society one color person skin determine opportunities available must willing take steps open doors congress recognized realities enacted minority provision issue case today upholding remedy accords congress authority necessary undertake task moving society toward state meaningful equality opportunity abstract version equality effects past discrimination forever frozen social fabric applaud result accordingly concur judgment authority bakke also clear provision violate title vi civil rights act et seq bakke five members view prohibitions title vi outlaws racial discrimination program activity receiving federal financial assistance coextensive equal protection guarantee fourteenth amendment see opinion brennan white marshall blackmun jj opinion powell bakke issue whether special minority admissions program state medical school violated equal protection clause fourteenth amendment present case issue whether minority provision violates equal protection component due process clause fifth amendment noted bakke qual protection analysis fifth amendment area fourteenth amendment joint separate opinion quoting buckley valeo per curiam bakke medical school university california davis adopted special admissions program places entering class reserved disadvantaged minorities major purpose program ameliorate present effects past racial discrimination see joint separate opinion opinion powell petitioners argue invalid congress create sufficient legislative record support conclusion racial classifications required ameliorate present effects past racial discrimination petitioners view congress must make particularized findings past violations equal protection clause antidiscrimination statutes current effect construction industry approach fundamentally misguided unlike courts congress engaged broad mission framing general social rules adjudicating individual disputes prior decisions recognize congress authority require authorize preferential treatment likely disadvantaged societal racial discrimination legislation sustained even without requirement findings intentional racial discrimination required authorized accord preferential treatment determination benefited suffered racial discrimination bakke joint separate opinion see also ante concurring opinion brother powell ante justice stewart justice rehnquist joins dissenting constitution neither knows tolerates classes among citizens law regards man man takes account surroundings color words written member years ago plessy ferguson harlan dissenting colleagues disagreed held statute required separation people basis race constitutionally valid reasonable exercise legislative power enacted good faith promotion public good today upholds statute accords preference citizens negroes orientals indians eskimos aleuts much reasons think today decision wrong reason plessy ferguson wrong respectfully dissent equal protection standard constitution one clear central meaning absolutely prohibits invidious discrimination government standard must met every state equal protection clause fourteenth amendment loving virginia hill texas strauder west virginia cases wall standard must met due process clause fifth amendment washington davis bolling sharpe constitution official action treats person differently account race ethnic origin inherently suspect presumptively invalid mclaughlin florida bolling sharpe supra korematsu hostility constitution racial classifications government manifested many cases decided see loving virginia supra mclaughlin florida supra brown board education missouri ex rel gaines canada cases made clear constitution wholly neutral forbidding racial discrimination whatever race may victims anderson martin instance dealt state law required race candidate election public office designated nomination papers ballots although law applied equally candidates whatever race held nonetheless violated constitutional standard equal protection see relevance said state pointing race candidate bearing upon qualifications office emphasis added similarly loving virginia supra mclaughlin florida supra held statutes outlawing miscegenation interracial cohabitation constitutionally invalid even though laws penalized violators equally laws unconstitutional simple reason penalized individuals solely race whatever race might see also goss board education buchanan warley history contains one clear lesson constitution government may never act detriment person solely person race color person skin country origin immutable facts bear relation ability disadvantage moral culpability characteristics constitutionally permissible interest government distinctions citizens solely ancestry nature odious free people whose institutions founded upon doctrine equality hirabayashi quoted loving virginia supra short racial discrimination definition individious discrimination rule different persons injured racially biased law members racial minority guarantee equal protection universal application persons without regard differences race color nationality yick wo hopkins see griffiths hernandez texas truax raich strauder west virginia command equal protection guarantee simple unequivocal words fourteenth amendment state shall deny person equal protection laws nothing language singles persons equal treatment others rather made clear shelley kraemer benefits afforded equal protection clause terms guaranteed individual personal rights perspective person detrimentally affected racially discriminatory law arbitrariness unfairness entirely whatever skin color whatever law purpose purportedly promotion public good otherwise one disputes proposition congress broad discretion spending power disburse revenues deems best set conditions receipt funds disbursed one disputes congress authority commerce clause regulate contracting practices federally funded public works projects enjoys broad powers fourteenth amendment enforce appropriate legislation provisions amendment truisms begin answer question us case exercise powers congress must obey constitution legislatures must obey constitution exercise powers law unconstitutional less unconstitutional product congress face minority business enterprise mbe provision issue case denies equal protection law public works employment act directs project construction shall performed private contractors submit lowest competitive bids meet established criteria responsibility supp ii one class contracting firms defined solely according racial ethnic attributes owners however excepted full rigor requirements respect percentage federal grant statute face effect thus bars class petitioners belong opportunity receive government benefit bars members class solely basis race ethnic background precisely kind law guarantee equal protection forbids attempt characterize law proper remedial measure counteract effects past present racial discrimination remarkably unconvincing legislative branch government equity neither dispassionate objectivity flexibility needed mold remedy around single objective eliminating effects past present discrimination even assuming congress power fourteenth amendment constitutional provision remedy previous illegal racial discrimination evidence congress past engaged racial discrimination disbursement federal contracting funds mbe provision thus pushes limits justification far beyond equal protection standard constitution certainly nothing constitution gives congress greater authority impose detriments basis race afforded judicial branch judicial decree imposes burdens basis race upheld sole purpose eradicate actual effects illegal race discrimination see pasadena city board education spangler provision issue satisfy condition legislative history suggests least two objectives addition counteracting effects past present racial discrimination public works construction industry one purpose appears assure minority contractors certain percentage federally funded public works contracts since guarantee equal protection immunizes capricious governmental treatment persons races never countenance laws seek racial balance goal preferring members one group reason race ethnic origin discrimination sake constitution forbids university california regents bakke opinion powell second indications mbe provision may enacted compensate effects social educational economic disadvantage race however monopoly social educational economic disadvantage law indulges presumption clearly violates constitutional guarantee equal protection since mbe provision whole part designed effectuate objectives elimination effects racial discrimination stand remedy comports strictures equal protection even otherwise fourteenth amendment adopted ensure every person must treated equally state regardless color skin amendment promised carry necessary conclusion fundamental principle upon nation founded law honor preference based lineage tragically promise immediately fulfilled decades passed federal government finally directed eliminate detrimental classifications based race today derails achievement places imprimatur creation government privileges based birth moreover takes drastic step without opinion seriously considering ramifications decision laws operate basis race require definitions race decision today statute books contain laws reflect odious practice delineating qualities make one person negro make another white moreover racial discrimination even good faith racial discrimination inevitably sword referential programs may reinforce common stereotypes holding certain groups unable achieve success without special protection based factor relationship individual worth university california regents bakke supra opinion powell importantly making race relevant criterion affairs government implicitly teaches public apportionment rewards penalties legitimately made according race rather according merit ability people perhaps view others terms racial characteristics notions racial entitlement fostered private discrimination necessarily encouraged see hughes superior eastland bennett counting race van alstyne rites passage race constitution chi rev think need new constitution views may someday prevail constitution one practice government may never engage practice racism even temporarily even experiment reasons reverse judgment appeals equal protection analysis fifth amendment area fourteenth amendment buckley valeo contrast nothing constitution prohibits private person discriminating basis race personal business affairs see steelworkers weber fourteenth amendment limits actions fifth amendment limits actions national government university california regents bakke jewish organizations carey suggest different rule bakke invalidated racially preferential admissions program deprived bakke equal access place medical school state university jewish organizations carey state legislature apportioned certain voting districts awareness racial composition since plaintiffs failed show legislative reapportionment plan either purpose effect discriminating basis race constitutional violation occurred concurring opinion person case deprived electoral franchise years ago second world war find constitutional governmental program imposing injury basis race see korematsu hirabayashi significantly cases decided time war also era held due process clause fifth amendment imposes equal protection standard upon federal government fourteenth amendment imposes upon see bolling sharpe equity may course take race account devising remedial decree undo violation law prohibiting discrimination basis race see teamsters franks bowman transportation swann board education judicial decree following litigation violation law determined wholly different generalized legislation awards benefits imposes detriments dependent upon race recipients see text part infra justice murphy wrote dissenting opinion judgment korematsu supra racial discrimination form degree justifiable part whatever democratic way life unattractive setting utterly revolting among free people embraced principles set forth constitution see also defunis odegaard douglas dissenting bickel morality consent see supra mcdaniel barresi approved county voluntary redrafting public school pupil assignment system order eliminate effects past unconstitutional racial segregation pupils pupil deprived public school education result section thirteenth amendment gives congress authority enforce provisions amendment fourteenth amendment provides congress shall power enforce appropriate legislation provisions article neither section grants congress authority require flout obligation fourteenth amendment afford equal protection laws power enact legislation violates equal protection component fifth amendment legislative history mbe provision contains one mention racial discrimination need provide mechanism correct effects discrimination context act however reasonable infer program enacted least part remedy perceived past present racial discrimination congress knew many minority business enterprises historically suffered racial discrimination economy whole construction industry particular see pp pp amend extend local public works capital development investment act hearings related bills subcommittee economic development house committee public works transportation statement conyers discrimination may well fact violated one state federal antidiscrimination laws see cong rec mitchell mbe provision attempts provide minority businesses get fair share action public works legislation emphasis supplied moreover sponsors legislation repeatedly referred low participation rate minority businesses federal procurement programs see biaggi mitchell mitchell brooke see conyers minority contractors businessmen trying enter bidding process get works almost every time bidding process one whose intricacies defy imaginations us elimination disadvantage one program objectives inference finds support agency interpretation statute see dept commerce economic development administration eda minority business enterprise technical bulletin additional assistance information available grantees contractors meeting mbe requirement technical bulletin minority subcontractor price considered unreasonable merely trying cover costs price results disadvantage affects mbe costs business results discrimination emphasis added instance persons age completed high school white see dept commerce bureau census statistical abstract households annual incomes less white see moreover even properly based judicial decree struck scope remedy provides carefully tailored fit nature extent violation see dayton board education brinkman milliken bradley assuming mbe provision intended solely remedy past present racial discrimination sweeps far broadly directs every state local government covered program set aside grant minority business enterprises waivers requirement permitted insufficient numbers minority businesses capable work nonexorbitant prices located relevant contracting area waiver provided governmental entity prove history free racial discrimination exemption permitted nonminority contractors able demonstrate engaged racially discriminatory behavior finally statute makes attempt direct aid provides solely toward minority contracting firms arguably still suffer effects past present discrimination characteristics racially conscious remedial decree closely tailored evil corrected today society constitutes far gross oversimplification assume every single negro citizen oriental indian eskimo aleut potentially interested construction contracting currently suffers effects past present racial discrimination since mbe must viewed resting upon assumption necessarily paints broad brush except make whole identified victims racial discrimination guarantee equal protection prohibits government taking detrimental action innocent people basis sins others race framers constitution lived time old world still operated shadow ancient feudal traditions products age enlightenment set establish society recognized distinctions among white men account birth see art cl title nobility shall granted words thomas jefferson wrote declaration independence however contained seeds far broader principle hold truths men created equal see technical bulletin supra cf code tex penal code art vernon government potent omnipresent teacher good ill teaches whole people example olmstead brandeis dissenting justice stevens dissenting contained public works employment act act stat creates monopoly privileges million market class investors defined solely racial characteristics direct beneficiaries monopoly privileges relatively small number persons within racial classification represent entrepreneurial subclass borrow working capital history teaches us costs associated sovereign grant exclusive privileges often encompass high prices shoddy workmanship familiar handmaidens monopoly engender animosity discontent well economic consequences using noble birth basis classification france though disastrous nothing compared terror engendered name egalite fraternite grants privilege basis characteristics acquired birth far unmixed blessing historic aversion titles nobility one aspect commitment proposition sovereign fundamental duty govern impartially government accords different treatment different persons must reason difference racial characteristics seldom provide relevant basis disparate treatment classifications based race potentially harmful entire body politic especially important reasons classification clearly identified unquestionably legitimate statutory definition preferred class includes citizens negroes orientals indians eskimos aleuts aliens nonmembers racial class excluded economic social geographical historical criteria relevant exclusion inclusion one word remainder act legislative history explains congressman senator favored particular definition identifies common characteristics every member preferred class believed share act history explain total appropriation proper amount set aside investors six racial subclasses four different though somewhat interrelated justifications racial classification act advanced first form reparation past injuries entire membership class second appropriate remedy past discrimination minority business enterprises denied access public contracts third members favored class special entitlement piece action government distributing benefits fourth program appropriate method fostering greater minority participation competitive economy asserted justifications merits separate scrutiny racial characteristics may serve define group persons suffered special wrong therefore entitled special reparations congress recognized example treated indian tribes unjustly created procedures allowing members injured classes obtain classwide relief see delaware tribal business committee weeks formerly suggested congress authorize recovery class similarly situated victims past wrong obligation distribute recovery among members injured class evenhanded way see stevens dissenting moreover case amount award bear rational relationship extent harm intended cure eloquent separate opinion university california regents bakke justice marshall recounted tragic discrimination negroes indelible part america history assume wrong committed negro class serious pervasive constitutionally justify appropriate classwide recovery measured sum certain every member injured class whether resources adequate support fair remedy character policy question neither authority wisdom address serious classwide wrong justify particular classification congress made act racial classifications simply pernicious permit exact connection justification classification quite obviously history discrimination black citizens america justify grant privileges eskimos indians even assume six racial subclasses suffered special injury time history surely necessarily follow subclasses suffered harm identical magnitude although negro dragged country chains sold slavery bakke supra opinion marshall subclass came voluntarily frequently without invitation indians eskimos aleuts opportunity exploit america resources ancestors american citizens arrived reason assume nothing legislative history suggests much less demonstrates subclasses equally entitled reparations government best statutory preference somewhat perverse form reparation members injured classes disadvantaged within class least likely receive benefit special privilege even though persons likely still suffering consequences past wrong random distribution favored poor form compensation injury shared many principal objection reparation justification legislation however cuts deeply concern inequitable character never either erase ignore history justice marshall recounted history justify random distribution benefits racial lines embodied statutory scheme serve merely basis remedial legislation rather permanent source justification grants special privileges duty attempt either measure recovery wrong distribute recovery within injured class evenhanded way history adequately support legislative preference almost ethnic religious racial group political strength negotiate piece action members although dispute validity assumption subclasses identified act suffered severe wrong time past accept slapdash statute legitimate method providing classwide relief ii act may also viewed much narrower remedial measure one designed grant relief specific minority business enterprises denied access public contracts discriminatory practices legislative history act tell us often minority business enterprise denied access nevertheless reasonable infer number incidents relatively small recent years noted solicitor general last years congress enacted numerous statutes designed eliminate discrimination effects federally funded programs title vi civil rights act unequivocally comprehensively prohibits discrimination basis race program activity receiving federal financial assistance view scarcity litigated claims behalf minority business enterprises period lack contrary evidence legislative record appropriate presume law generally obeyed assuming however firms denied public business racial reasons instant statutory remedy nevertheless demonstrably much broader necessary right past wrong statute grants special preference class includes firms successfully obtained business past free competitive basis undoubtedly capable future well firms never attempted obtain public business past firms initially formed act passed including may organized simply take advantage provisions firms tried obtain public business unsuccessful reasons unrelated racial characteristics stockholders firms victimized racial discrimination since reason believe firms first four categories wrongfully excluded market public contracts statutory preference firms justified remedial measure since judicial remedy already available firms fifth category seems inappropriate regard preference remedy designed redress specific wrongs event since highly unlikely composition fifth category representative entire class firms statute grants valuable preference characterize narrowly tailored remedial measure iii legislative history act discloses group legislators congress identified black caucus members group argued federal government going provide billion new public contract business constituents entitled piece action neither unusual reprehensible congressmen promote authorization public construction districts flow capital employment district inevitably direct indirect consequences beneficial justice brennan noted elrod burns however award contracts may become form political patronage dispensed party power although practice awarding contracts political allies may much part history employment practices condemned elrod surely unconstitutional legislature specify certain portion contracts authorized specific statute must given businesses controlled members one political party another true even legislative majority convinced grossly disproportionate share awarded members opposite party previous years short run political processes might benefit legislation enhanced ability representatives minority groups disseminate patronage political backers long run rule authorized award public business racial basis objectionable one awarded business purely partisan basis legislators interest providing constituents favored access benefits distributed federal government opinion plainly impermissible justification racial classification iv interest facilitating encouraging participation minority business enterprises economy unquestionably legitimate barrier entry growth whether grounded law irrational prejudice vigorously thoroughly removed equality economic investment opportunity goal less importance equality employment opportunity statute however designed remove barriers entry sparse legislative history detail insuperable even significant obstacles entry competitive market three difficulties encountered minority business enterprises seeking governmental business competitive basis identified legislative history references unfamiliarity bidding procedures followed procurement officers difficulties obtaining financing past discrimination construction industry first concern doubt real problem businesses seeking access public contract market first time justifies thorough review bidding practices make sure intelligible accessible means justifies assumption minority business enterprises less able prepare submit bids proper form businessmen consequently concern justify statutory classification racial grounds second concern justify legislation prohibiting private discrimination lending practices authorizing special public financing firms unable borrow money reasons unrelated credit rating adequate justification requirement fixed percentage loans made national banks made eskimos orientals regardless ability repay loans seems provide sufficient justification granting preference broad class includes one extreme firms credit problem extreme firms whose unsatisfactory credit rating prevent taking advantage statutory preference even though otherwise qualified work best preference minority business enterprises crude inadequate response evils flow discriminatory lending practices question whether history past discrimination created barriers overcome unusual measure kind difficult evaluate analyzing question think essential draw distinction obstacles placed path minority business enterprises others characteristics firms may impair ability compete unfortunately unquestionably true irrational racial prejudice persists today continues obstruct minority participation variety economic pursuits presumably including construction industry two reasons legislation eliminate even tend eliminate prejudice first prejudice less likely significant factor public sector economy private sector federal state laws prohibited discrimination award public contracts many years second greater importance absolute preference unrelated minority firm ability perform contract inevitably engender resentment part competitors excluded market purely racial reason skepticism part customers suppliers aware statutory classification thus seems clear act defended appropriate method reducing racial prejudice argument history discrimination left entire membership six racial classes identified act less able compete free market others easily stated proved reduction prejudice occurred last generation accomplished much less anticipated nevertheless remains true increased opportunities produced number demonstrations members disadvantaged races entirely capable merely competing equal basis also excelling demanding professions even though actual predicate legislation statute kind inevitably perceived many resting assumption granted special preference less qualified respect identified purely race perception especially fostered congress exacerbate rather reduce racial prejudice delay time race become truly irrelevant least insignificant factor unless congress clearly articulates need basis racial classification also tailors classification justification uphold kind statute act character fundamentally different carefully drafted remedial measure like voting rights act consideration dramatic differences two legislative responses racial injustice reveals merely difference legislative craftsmanship difference constitutional significance whereas enactment voting rights act preceded exhaustive hearings debates concerning discriminatory denial access electoral process became effective specific specific findings made statute authorizes automatic nationwide preference members diverse racial class regardless possible interest particular geographic areas public contracts performed wealthy negro investor preferred status bidding construction contract alaska citizen eskimo ancestry preference miami detroit difficult understand light either asserted remedial character basic purposes public works legislation voting rights act addressed problem denial access electoral process outlawing specific practices poll taxes special tests statute removed old barriers equal access requiring preclearance changes voting practices covered precluded erection new barriers act us today outlaw existing barriers access economic market nothing prevent erection new barriers contrary adopts fundamentally different approach creating new set barriers comparable approach electoral context support rule requiring least candidates elected legislature members specified racial minorities surely effective way ensuring black citizens representation long due quite obviously however measure merely create kind inequality impartial sovereign tolerate yet precisely kind remedy act authorizes political economic contexts legitimate interest seeing disadvantaged past may succeed future neither election market equally accessible race provides basis placing special value votes dollars ultimate goal must eliminate entirely governmental decisionmaking irrelevant factors human race removal barriers access political economic processes serves goal creation new barriers frustrate true progress justice powell justice douglas perceptively observed protective barriers reinforce habitual ways thinking terms classes instead individuals preferences based characteristics acquired birth foster intolerance antagonism entire membership favored classes reason firmly convinced temporary measure disserve goal equal opportunity judge opinion statute reflects profoundly unwise policy determination insufficient reason concluding unconstitutional congress broad power spend money provide general welfare regulate commerce among several enforce civil war amendments discriminate aliens citizens see hampton mow sun wong exercise broad powers subject constraints imposed due process clause fifth amendment clause substantive procedural components performs office due process equal protection clauses fourteenth amendment requiring federal sovereign act impartially unlike justice stewart justice rehnquist however convinced clause contains absolute prohibition statutory classification based race nonetheless persuaded impose special obligation scrutinize governmental decisionmaking process draws nationwide distinctions citizens basis race incidentally also discriminates noncitizens preferred racial classes procedural safeguards necessary guarantee impartial decisionmaking judicial process play vital part preserving impartial character legislative process substantive procedural aspects act markedly different normal product legislative decisionmaking process fact congress first time nation history created broad legislative classification entitlement benefits based solely racial characteristics identifies dramatic difference act thousands statutes preceded dramatic point departure even mentioned statement purpose act reports either house senate committee processed legislation subject testimony inquiry legislative hearing bill enacted true brief discussion floor house well senate two different days handful legislators spoke virtually debate kind perfunctory consideration unprecedented policy decision profound constitutional importance nation comparable accidental malfunction legislative process led regarded totally unjustified discrimination delaware tribal business committee weeks although traditional judges accord presumption regularity legislative process matter obvious may busy congress acted precipitately see reason character procedures may considered relevant decision whether legislative product caused deprivation liberty property without due process law whenever congress creates classification subject strict scrutiny equal protection clause fourteenth amendment fashioned state legislature seems judicial review include consideration procedural character decisionmaking process holding classification adequately preceded consideration less drastic alternatives adequately explained statement legislative purpose far less intrusive final determination substance decision narrowly tailored achievement goal cf chief justice opinion ante justice marshall opinion concurring judgment ante general language due process clause fifth amendment authorizes review acts congress standards equal protection clause fourteenth amendment clause found fifth amendment objection tentative holding unconstitutionality based failure follow procedures guarantee kind deliberation fundamental constitutional issue kind obviously merits events rather take substantive position expressed justice stewart dissenting opinion hold statute unconstitutional narrower ground fairly characterized narrowly tailored racial classification simply raises many serious questions congress failed answer even address responsible way risk habitual attitudes toward classes persons rather analysis relevant characteristics class serve basis legislative classification present benefits distributed well burdens imposed past traditional attitudes often provided explanation discrimination women aliens illegitimates black citizens today danger awareness past injustice lead automatic acceptance new classifications fact justified attributes characteristic class whole congress creates special preference special disability class persons identify characteristic justifies special treatment classification defined racial terms believe particular identification imperative case two conceivable bases differentiating preferred classes society whole occurred victims unfair treatment past less able compete future although first factors justify appropriate remedy past wrongs reasons already stated statute remedial measure second factor simply true nothing record case legislative history act experience may notice judicially provides support proposition congress demonstrate unique statutory preference justified relevant characteristic shared members preferred class opinion failed make demonstration also failed discharge duty govern impartially embodied fifth amendment constitution respectfully dissent pure discrimination certainly legitimate purpose federal government especially sensitive discrimination grounds birth distinctions citizens solely ancestry nature odious free people whose institutions founded upon doctrine equality hirabayashi inception federal government directed treat citizens created equal eyes law declaration independence hold truths men created equal endowed creator certain unalienable rights among life liberty pursuit happiness rationale behind prohibition grant title nobility see art cl equally prohibit attaching badge ignobility citizen birth mathews lucas stevens dissenting federal sovereign like must govern impartially concept equal justice law served fifth amendment guarantee due process well equal protection clause fourteenth amendment hampton mow sun wong see also harris mcrae ante stevens dissenting craig boren stevens concurring matter principle view attitude toward equal protection clause think differences treatment law approved classification differences unrelated legislative purposes equal protection clause ceases assure either equality protection avoided conceivable difference pointed bound left free often announced principle differentiation must appropriate relation object legislation ordinance railway express agency new york jackson concurring habit rather analysis makes seem acceptable natural distinguish male female alien citizens legitimate illegitimate much history inertia distinguishing black white sort stereotyped reaction may rational relationship pure prejudicial discrimination stated purpose classification made mathews lucas supra stevens dissenting omitted indeed attempt define precision beneficiary qualifying racial characteristics repugnant constitutional ideals guidelines developed economic development administration see appendix opinion chief justice ante general fairly innocuous consequence vague useful example unclear whether firm described infra eligible national government make serious effort define racial classes criteria administered objectively must study precedents first regulation reichs citizenship law november translated nazi conspiracy aggression document pp basis article reichs citizenship law page following ordered article jew anyone descended least three grandparents racially full jews article par second sentence apply jew also one descended two full jewish parents belonged jewish religious community time law issued joined community later married jewish person time law issued married one subsequently offspring marriage jew sense section contracted law protection german blood german honor became effective page offspring extramarital relationship jew according section born wedlock july almost years act passed small business administration developed program assist small business concerns owned controlled socially economically disadvantaged persons agency description persons eligible assistance stated persons include limited black americans american indians oriental americans eskimos aleuts see opinion chief justice ante may source definition class issue case see also ante sba class socially economically disadvantaged persons neither included persons racial class excluded nonmembers racial class race used factor identifying class disadvantaged difference statutory quota involved case sba description whose businesses assisted small business act thus least great difference university california racial quota harvard admissions system justice powell regarded critical university california regents bakke noted value federal contracts awarded minority business firms prior years amounted less total since statutory may satisfied subcontracts minority business enterprises possible compliance statute change figure legislative history also revealed minority business enterprises represented eligible firms history indicate however whether figure intended provide existing firms three times much business expect receive random basis encourage members class acquire form new firms economic development administration guideline arguably implies new investments made order take advantage considered bona fide see appendix opinion chief justice ante figure bears special relationship relative size entire racial class six subclasses population subclasses areas primarily reside aleuts eskimos example respectively represent less population alaska see new columbia encyclopedia ed negro citizens represent majority almost majority large number urban areas ironically aleuts appear ruthlessly exploited point history russian fur traders see new columbia encyclopedia supra similar reason discrimination males condemned califano goldfarb justified remedy past discrimination females case involved statutory provision relieved windows obligation proving dependency deceased spouses order obtain benefits similarly relieve widowers widows benefit disparate treatment sufficiently successful job market become nondependent husbands widow least likely need special benefits widow need one suddenly forced job market unfamiliar former economic dependency fewer skills offer kahn shevin accept kahn justification must presume congress deliberately gave special benefit females least likely victims historic discrimination discussed kahn stevens concurring judgment statute comprehensive coverage title vi civil rights act et broadly prohibits discrimination basis race color national origin program activity receiving federal financial assistance since passage title vi many specific federal grant statutes contained similar prohibitions discrimination particular funded activities see state local fiscal assistance amendments energy conservation production act housing community development act comprehensive employment training act brief secretary commerce although plain language statute appears include firms already noted supra eda guidelines may consider newly formed firms ineligible statutory see university california regents bakke opinion stevens see also public works employment act stat recognize eda issued technical bulletin relied heavily chief justice ante distinguishes higher bids quoted minority subcontractors attributable effects disadvantage discrimination according bulletin determined subcontractor uncompetitive high price attributable effects discrimination contractor may entitled relief requirement even assuming technical bulletin accurately reflects congress intent enacting easy envision one realistically demonstrate degree precision extent bid inflated effects disadvantage past discrimination consequently chief justice describes remedial measure plainly operates flat quota see chief justice opinion ante nonofficeholders may beneficiaries lucrative government contracts highway construction buildings supplies example firm disclosed record recent case involving claimed preference firm controlled indian shareholders based facts developed district indian community general benefit bureau indian affairs interpretation buy indian act facts developed district show beneficiaries interpretation owners indian nations construction company president company degree indian administrative law judge department health education welfare occupation vice president company blood choctaw rancher net worth half million dollars treasurer general manager corporation net worth million tr oral arg andrus glover construction pp see jewish organizations carey brennan concurring part ven preferential treatment may act stigmatize recipient groups although intended correct systemic institutional inequities policy may imply recipients inferiority especial need protection equal protection clause commands elimination racial barriers creation order satisfy theory society organized defunis odegaard douglas dissenting see university california regents bakke defunis odegaard supra dissenting opinion bakke opinion supra justice powell stated far late argue guarantee equal protection persons permits recognition special wards entitled degree protection greater accorded others support proposition quoted professor bickel comment argument lesson great decisions lesson contemporary history least generation discrimination basis race illegal immoral unconstitutional inherently wrong destructive democratic society preferential specifically discriminates favor citizens see supra federal government asserts overriding national interest justification discriminatory rule violate equal protection clause adopted state due process requires legitimate basis presuming rule actually intended serve interest hampton mow sun wong perfectly clear neither congress president ever required civil service commission adopt citizenship requirement condition eligibility employment federal civil service hand view fact policy effect since commission created fair infer legislature executive aware policy acquiesced order decide whether acquiescence give commission rule support express statutory presidential command appropriate review extent policy given consideration congress president nature authority specifically delegated commission see linde due process lawmaking neb rev last years reawakened appreciation primacy process product free society knowledge ends better means achievement highest morality almost always morality process professor bickel wrote watergate months untimely death republic remembered distant history law likely enduring adherence legitimate institutions processes perfection unique principles justice certainly rationality laws recognition may well take attention beyond processes adjudication executive government new concern due process lawmaking omitted reference minority business enterprises senate report suggestion indians receiving great share public contracts report stated concern expressed indians exceptionally high structural unemployment levels awarded projects per capita value far excess communities quotes three paragraphs lengthy report issued house committee small business ante implying contents report considered congress enacted minority report mentioned anyone brief discussion amendment one considers vast quantity written material turned dozens congressional committees subcommittees days unrealistic assume significant number legislators read even aware report even report contain explanation six racial subclasses indeed broad racial classification act totally unexplained although legislative history discussed chief justice justice powell explains negro citizens included within preferred class absolutely discussion orientals indians eskimos aleuts also included see supra new thought guarantee democratic legitimacy political decisions establishing essential rules political process central function judicial review dean rostow professor strong among others argued linde supra neb rev see sandalow judicial protection minorities rev governmental action trenches upon values may reasonably regarded fundamental action product deliberate broadly based political judgment stronger argument governmental action encroach upon values greater need assure product process entitled speak society legislation failed engage attention congress like decisions subordinate governmental institutions meet test likely product partial political pressures broadly reflective society whole fear legislative resentment judicial interference borne experience procedural review exists told congress used faulty procedure unseating representative adam clayton powell far cause resentment invalidate substance policy politically accountable branches constituents support invalidate lawmaking procedure repeated correctly yet take substantive judicial review granted strikingly reverse view propriety prevails number nations courts never empowered set aside policies legitimately enacted law power test process legitimate enactment linde supra neb footnotes omitted conclusion chief justice opinion preference based racial ethnic criteria must necessarily receive searching examination make sure conflict constitutional guarantees ante emphasis added agree statement seems due process requires searching examination conducted first instance congress rather federal example six racial classifications others included preferred class aliens excluded preference although otherwise ineligible public contracts percentage oriental blood degree skill required membership preferred class legacy slavery history discrimination descendants victims support preference citizens may directly competing black citizens overpopulated communities preference given owners business enterprises preference unaccompanied requirement concerning employment disadvantaged persons preference limited persons prove subject special disability caused past discrimination opinion indicates every member racial class entitled preference statutory language seems plainly indicate businesses formed take advantage preference eligible course general rule may define benefited class reference distinction irrationally differentiates identically situated persons differences race religion political affiliation rationally justify difference eligibility social security benefits differences totally irrelevant question whether one person economically dependent another distinction married persons unmarried persons different character califano jobst group characteristic explains discrimination one conclude without justification already rejected foley connelie stevens dissenting