The Supreme Court's fragmentation in REGENTS OF UNIVERSITY OF CALIFORNIA V. BAKKE (1978) left open the question of the constitutionality of government-imposed RACIAL QUOTAS or preferences. The following year, in UNITED STEELWORKERS V. WEBER, the Court held that a voluntary AFFIRMATIVE ACTION plan, calling for a racial quota in hiring by a private employer and approved by a union, did not violate Title VII of the CIVIL RIGHTS OF 1964. Fullilove reopened Bakke 's question: Can government impose a racial quota to remedy the effects of past discrimination?
Congress, in a public works statute aimed at reducing unemployment, provided that ten percent of the funds distributed to each state should be set aside for contracts with "minority business enterprises" (MBE). An MBE was defined as a business at least half owned by persons who are "Negroes, Spanish-speaking, Orientals, Indians, Eskimos and Aleuts." Nonminority contractors challenged this limitation as a denial of the Fifth Amendment's guarantee of EQUAL PROTECTION, as recognized in BOLLING V. SHARPE (1954) and later cases.
The Supreme Court held, 6?3, that the MBE limitation was valid. Three Justices, speaking through Chief Justice WARREN E. BURGER, paid great deference to Congress's judgment that the racial quota was a "limited and properly tailored remedy to cure the effects of past RACIAL DISCRIMINATION." Emphasizing the flexibility provided for the law's administration, they said that the funds could be limited to MBEs that were in fact disadvantaged because of race. The other three majority Justices, speaking through Justice THURGOOD MARSHALL, took the position they had taken in Bakke, concluding that the racial quota was "substantially related to ? the important and...