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The Supreme Court has long held that the government cannot use affirmative action to remedy societal discrimination, and this restriction has severely limited the efficacy of governmental affirmative action programs. Indeed, it is not too much to suggest that most affirmative action programs that have been invalidated over the last decade would have been upheld if the government were permitted to remedy societal discrimination. This article develops an argument for how the court can - and in fact does - use its spending power to remedy societal discrimination. The argument is based largely on a series of cases involving government funding, where the Court has provided broad discretion for the government to use its financial resources to pursue various political policies that would otherwise not be permitted if federal funds were not involved. These cases should be applied in the affirmative action area, and if applied, would lead to upholding racially motivated affirmative action programs so long as those programs did not involve racial quotas. This article also discusses ways in which contract set-aside programs can be restructured to satisfy the constitutional test articulated in the funding cases, and how the funding cases might legitimate disparate impact claims under Title VI of the Civil Rights Act of 1964.

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GWU Law School, Public Law Research Paper No. 10

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