Fullilove v. Klutznick Primary Source eText

Primary Source

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Supreme Court decision

By: Warren Burger

Date: July 2, 1980

Source: Burger, Warren. Fullilove v. Klutznick, 448 U.S. 448. Available online at http://laws.findlaw.com/us/448/448.html; website home page: http://laws.findlaw.com (accessed April 17, 2003).

About the Author: Warren Burger (1907–1995) was born in St. Paul, Minnesota. He practiced law until President Dwight Eisenhower (served 1953–1960) appointed him assistant attorney general, then to bench in the U.S. Court of Appeals. In 1969, President Richard Nixon (served 1969–1974) appointed him chief justice of the U.S. Supreme Court, where he served until 1986. His judicial record reflected his belief in "strict constructionism," meaning that justices are obligated to construe the Constitution narrowly. タ


After slavery was ended by the Thirteenth Amendment to the Constitution, the Fourteenth Amendment in 1868 required "equal protection of the laws" regardless of race. Individual states, however, passed laws that effectively denied people equal protection and equal opportunities based on race. This state of affairs continued for nearly a century, with the Supreme Court ruling that separate but equal facilities for different races were legal. Not until the 1954 Brown v. Board of Education case did the Court recognize that separate facilities are inherently unequal . Congress followed up in 1964 with the passage of the Civil Rights Act. At this point, equality of treatment was the law of the land.

Implementing civil rights, however, proved to be difficult. One problem was that whites had numerous builtin advantages, such as previously established business contacts, more experience because of past preferences, and positions of power in most labor unions. African Americans often did not even have the opportunity to compete equally. To remedy this, some federal programs began to require that a certain percentage of federal grants had to be given to minority owned businesses, regardless of whether or not they submitted the lowest bids. Then in 1977 the federal government passed the Public Works Employment Act to create local works projects and relieve unemployment. One requirement under the act was that 10 percent of the funds had to be given to minority businesses. This act came under challenge in Fullilove.


Fullilove was an early test of the federal government's affirmative action programs. In its decision, written by Chief Justice Warren Burger, the Court upheld this program, holding that the federal government had demonstrated a compelling rationale for it, as it was needed to redress past discrimination. The Court also held, importantly, that the act allowed for a waiver of the 10 percent provision if it could be proved that there were no minority-owned businesses in the area, or if the minority-owned businesses were charging unreasonable fees. The flexibility of this program was a key reason it was upheld, and the Court stated that racial preferences were subject to "a most searching examination." After Fullilove, few federal programs adopted broad affirmative action guidelines.

State, college, and business affirmative action programs, though, were frequently the subject of challenges. When the federal courts imposed hiring quotas and goals on companies and city agencies that had discriminated in the past, these quotas were upheld. Similarly, voluntary affirmative action programs by cities to consider race as one factor in promotions were upheld at first. In 1989, however, a program in Richmond, Virginia, requiring that 30 percent of contracts be given to minority-owned businesses was struck down. The Court found that Richmond had not demonstrated past discrimination in city contracts and that there was no rational basis for the 30 percent figure. Since 1989, the Court has become more conservative, generally striking down or restricting many affirmative action programs. The public has turned against them as well, with several states passing referendums preventing affirmative action in higher education, among other places.

Primary Source: Fullilove v. Klutznick [excerpt]

SYNOPSIS: Writing for the Court majority, Burger first outlines the 10 percent set-aside program under the minority business enterprise (MBE) provision of the Public Works Employment Act of 1977 and argues that the program is within the bounds of Congress's power. He then states that Congress has the power under the Fourteenth Amendment to remedy past discrimination, that the program is within Congress's rights, and that the program is narrowly tailored to accomplish its goal, allowing for waivers and exemptions where necessary.

Mr. Chief Justice Burger announced the judgment of the Court.…

We granted certiorari to consider a facial constitutional challenge to a requirement in a congressional spending program that, absent an administrative waiver, 10% of the federal funds granted for local public works projects must be used by the state or local grantee to procure services or supplies from businesses owned and controlled by members of statutorily identified minority groups.…

When we are required to pass on the constitutionality of an Act of Congress, we assume "the gravest and most delicate duty that this Court is called on to perform." …A program that employs racial or ethnic criteria, even in a remedial context, calls for close examination; yet we are bound to approach our task with appropriate deference to the Congress, a co-equal branch charged by the Constitution with the power to "provide for the …general Welfare of the United States" and "to enforce, by appropriate legislation," the equal protection guarantees of the Fourteenth Amendment.…

Here we pass, not on a choice made by a single judge or a school board, but on a considered decision of the Congress and the President. However, in no sense does that render it immune from judicial scrutiny, and it "is not to say we 'defer' to the judgment of the Congress …on a constitutional question," or that we would hesitate to invoke the Constitution should we determine that Congress has overstepped the bounds of its constitutional power.…

The clear objective of the MBE provision is disclosed by our necessarily extended review of its legislative and administrative background. The program was designed to ensure that, to the extent federal funds were granted under the Public Works Employment Act of 1977, grantees who elect to participate would not employ procurement practices that Congress had decided might result in perpetuation of the effects of prior discrimination which had impaired or foreclosed access by minority businesses to public contracting opportunities. The MBE program does not mandate the allocation of federal funds according to inflexible percentages solely based on race or ethnicity.…

In enacting the MBE provision, it is clear that Congress employed an amalgam of its specifically delegated powers. The Public Works Employment Act of 1977, by its very nature, is primarily an exercise of the Spending Power.… This Court has recognized that the power to "provide for the …general Welfare" is an independent grant of legislative authority, distinct from other broad congressional powers. Buckley v. Valeo …Congress has frequently employed the Spending Power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives. This Court has repeatedly upheld against constitutional challenge the use of this technique to induce governments and private parties to cooperate voluntarily with federal policy.…

The legislative history of the MBE provision shows that there was a rational basis for Congress to conclude that the subcontracting practices of prime contractors could perpetuate the prevailing impaired access by minority businesses to public contracting opportunities, and that this inequity has an effect on interstate commerce. Thus Congress could take necessary and proper action to remedy the situation.…

It is not necessary that these prime contractors be shown responsible for any violation of antidiscrimination laws. Our cases dealing with application of Title VII of the Civil Rights Act of 1964, …express no doubt of the congressional authority to prohibit practices "challenged as perpetuating the effects of [not unlawful] discrimination occurring prior to the effective date of the Act." …Insofar as the MBE program pertains to the actions of private prime contractors, the Congress could have achieved its objectives under the Commerce Clause. We conclude that in this respect the objectives of the MBE provision are within the scope of the Spending Power.

In certain contexts, there are limitations on the reach of the Commerce Power to regulate the actions of state and local governments.… To avoid such complications, we look to 5 of the Fourteenth Amendment for the power to regulate the procurement practices of state and local grantees of federal funds.… A review of our cases persuades us that the objectives of the MBE program are within the power of Congress under 5 "to enforce, by appropriate legislation," the equal protection guarantees of the Fourteenth Amendment.…

With respect to the MBE provision, Congress had abundant evidence from which it could conclude that minority businesses have been denied effective participation in public contracting opportunities by procurement practices that perpetuated the effects of prior discrimination.…

We now turn to the question whether, as a means to accomplish these plainly constitutional objectives, Congress may use racial and ethnic criteria, in this limited way, as a condition attached to a federal grant. We are mindful that "[i]n no matter should we pay more deference to the opinion of Congress than in its choice of instrumentalities to perform a function that is within its power," …However, Congress may employ racial or ethnic classifications in exercising its Spending or other legislative powers only if those classifications do not violate the equal protection component of the Due Process Clause of the Fifth Amendment. We recognize the need for careful judicial evaluation to assure that any congressional program that employs racial or ethnic criteria to accomplish the objective of remedying the present effects of past discrimination is narrowly tailored to the achievement of that goal.…

Our review of the regulations and guidelines governing administration of the MBE provision reveals that Congress enacted the program as a strictly remedial measure; moreover, it is a remedy that functions prospectively, in the manner of an injunctive decree.…

As a threshold matter, we reject the contention that in the remedial context the Congress must act in a wholly "color-blind" fashion. In Swann v. Charlotte-Mecklenburg Board of Education … we rejected this argument in considering a court-formulated school desegregation remedy on the basis that examination of the racial composition of student bodies was an unavoidable starting point and that racially based attendance assignments were permissible so long as no absolute racial balance of each school was required.… Here we deal, as we noted earlier, not with the limited remedial powers of a federal court, for example, but with the broad remedial powers of Congress. It is fundamental that in no organ of government, state or federal, does there repose a more comprehensive remedial power than in the Congress, expressly charged by the Constitution with competence and authority to enforce equal protection guarantees. Congress not only may induce voluntary action to assure compliance with existing federal statutory or constitutional antidiscrimination provisions, but also, where Congress has authority to declare certain conduct unlawful, it may, as here, authorize and induce state action to avoid such conduct.…

A more specific challenge to the MBE program is the charge that it impermissibly deprives nonminority businesses of access to at least some portion of the government contracting opportunities generated by the Act. It must be conceded that by its objective of remedying the historical impairment of access, the MBE provision can have the effect of awarding some contracts to MBE's which otherwise might be awarded to other businesses, who may themselves be innocent of any prior discriminatory actions. Failure of nonminority firms to receive certain contracts is, of course, an incidental consequence of the program, not part of its objective; similarly, past impairment of minority-firm access to public contracting opportunities may have been an incidental consequence of "business as usual" by public contracting agencies and among prime contractors. It is not a constitutional defect in this program that it may disappoint the expectations of nonminority firms. When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such "a sharing of the burden" by innocent parties is not impermissible.… The actual "burden" shouldered by nonminority firms is relatively light in this connection when we consider the scope of this public works program as compared with overall construction contracting opportunities. Moreover, although we may assume that the complaining parties are innocent of any discriminatory conduct, it was within congressional power to act on the assumption that in the past some nonminority businesses may have reaped competitive benefit over the years from the virtual exclusion of minority firms from these contracting opportunities.…

The history of governmental tolerance of practices using racial or ethnic criteria for the purpose or with the effect of imposing an invidious discrimination must alert us to the deleterious effects of even benign racial or ethnic classifications when they stray from narrow remedial justifications. Even in the context of a facial challenge such as is presented in this case, the MBE provision cannot pass muster unless, with due account for its administrative program, it provides a reasonable assurance that application of racial or ethnic criteria will be limited to accomplishing the remedial objectives of Congress and that misapplications of the program will be promptly and adequately remedied administratively.

It is significant that the administrative scheme provides for waiver and exemption. Two fundamental congressional assumptions underlie the MBE program: (1) that the present effects of past discrimination have impaired the competitive position of businesses owned and controlled by members of minority groups; and (2) that affirmative efforts to

eliminate barriers to minority-firm access, and to evaluate bids with adjustment for the present effects of past discrimination, would assure that at least 10% of the federal funds granted under the Public Works Employment Act of 1977 would be accounted for by contracts with available, qualified, bona fide minority business enterprises. Each of these assumptions may be rebutted in the administrative process.

The administrative program contains measures to effectuate the congressional objective of assuring legitimate participation by disadvantaged MBEs. Administrative definition has tightened some less definite aspects of the statutory identification of the minority groups encompassed by the program. There is administrative scrutiny to identify and eliminate from participation in the program MBEs who are not "bona fide" within the regulations and guidelines; for example, spurious minority-front entities can be exposed. A significant aspect of this surveillance is the complaint procedure available for reporting "unjust participation by an enterprise or individuals in the MBE program." …And even as to specific contract awards, waiver is available to avoid dealing with an MBE who is attempting to exploit the remedial aspects of the program by charging an unreasonable price, i. e., a price not attributable to the present effects of past discrimination.… We must assume that Congress intended close scrutiny of false claims and prompt action on them.

Grantees are given the opportunity to demonstrate that their best efforts will not succeed or have not succeeded in achieving the statutory 10% target for minority firm participation within the limitations of the program's remedial objectives. In these circumstances a waiver or partial waiver is available once compliance has been demonstrated. A waiver may be sought and granted at any time during the contracting process, or even prior to letting contracts if the facts warrant.…

That the use of racial and ethnic criteria is premised on assumptions rebuttable in the administrative process gives reasonable assurance that application of the MBE program will be limited to accomplishing the remedial objectives contemplated by Congress and that misapplications of the racial and ethnic criteria can be remedied.… Any preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees. This case is one which requires, and which has received, that kind of examination. This opinion does not adopt, either expressly or implicitly, the formulas of analysis articulated in such cases as University of California Regents v. Bakke.… However, our analysis demonstrates that the MBE provision would survive judicial review under either "test" articulated in the several Bakke opinions. The MBE provision of the Public Works Employment Act of 1977 does not violate the Constitution.

Further Resources


Curry, George E., and Cornel West, The Affirmative Action Debate. Reading, Mass.: Addison-Wesley, 1996.

Galub, Arthur L. The Burger Court, 1968–1984. Danbury, Conn.: Grolier, 1995.

Maltz, Earl M. The Chief Justiceship of Warren Burger, 1969–1986. Columbia, S.C.: University of South Carolina Press, 2000.

Raza, M. Ali, A. Janell Anderson, and Harry Glynn Custred. The Ups and Downs of Affirmative Action Preferences. Westport, Conn.: Praeger, 1999.

Spann, Girardeau A. The Law of Affirmative Action: Twenty-Five Years of Supreme Court Decisions on Race and Remedies. New York: New York University Press, 2000.

Urofsky, Melvin I. A Conflict of Rights: The Supreme Court and Affirmative Action. New York: Scribner's, 1991.

Yarbrough, Tinsley E. The Burger Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-CLIO, 2000.


Race-Conscious Remedies Resource Site. Available online at ; website home page: http://www.law.ucla.edu (accessed February 13, 2003).