This Article analyzes sixteen decisions in an effort to assist governmental entities in achieving the noble goal of “confront[ing] the effects of racial discrimination”8 in government contracting. Part I summarizes the Supreme Court’s decisions in Adarand and Croson, focusing primarily on the Court’s definition of strict scrutiny in those decisions. It also includes a brief description of the historical development of affirmative action in government contracting. Part II explores the impact of the Adarand decision on federal programs and considers not only the statutory revisions prompted by that decision but also the subsequent appellate decisions that evaluated these federal programs under the strictest scrutiny. Part III examines those programs adopted by state and local governments and unfortunately concludes that appellate courts have largely invalidated such programs, just as the Supreme Court invalidated the City of Richmond’s program in Croson. This Article concludes by encouraging states and local governments to follow the lead of the federal government by revising their programs to ensure their programs survive the rigors of strict scrutiny, rather than abandoning them.
21 NAT’L BLACK L.J. 1 (2009)