In the 1989 case of Richmond v. Croson, the United States Supreme Court issued a decision which has had a tremendous impact on subsequent judicial evaluations of other public sector affirmative action efforts, and hence also on the adoption and structuring of state and local affirmative action programs. One significant factor about the Croson decision was that it was the first time a majority of the Court set strict scrutiny as the standard of review for assessing the constitutionality of state and local race-based affirmative action endeavors. Despite this agreement as to the proper standard of review, however, there was no majority agreement as to what exactly is necessary for an affirmative action program to pass muster under the strict scrutiny standard. This uncertainty has produced various apparently inconsistent outcomes in subsequent constitutional challenges of different types of state and local affirmative action programs.
Janice R. Franke,
Defining the Parameters of Permissible State and Local Affirmative Action Programs, 24 Golden Gate U. L. Rev.