Pre-Croson

(1) Not clear whether strict or intermediate scrutiny

(2) Governmental unit generally--but not always--needed to have engaged in past discrimination

(3) Generally unacceptable to deprive people of existing benefits; rather burdens needed to be broadly diffused

(4) Affirmative action programs should be temporary and have waiver provisions

(5) Set asides disfavored, but could be justified in face of recalcitrance or light burdens on the majority

(6) Numerical goals had to be tied to the percentage of minorities in the workplace or other relevant population

(7) Congress given greater leeway than other governmental units

Croson

"[A] generalized assertion that there has been past discrimination in an entire industry provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy. It ‘has no logical stopping point.’"

p.560

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Croson

"Second, the 30% quota cannot be said to be narrowly tailored to any goal, except perhaps outright racial balancing. It rests upon the ‘completely unrealistic’ assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population."

pp.562-563

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Post-Adarand

(1) Clearly strict scrutiny, but maybe not "fatal in fact" (Ginsburg, p.585: goal is to distinguish truly legitimate uses of race)

(2) Governmental unit can remedy its own discrimination or private discrimination in which it would be a passive participant (?diversity or role modeling)

(3) Generally unacceptable to deprive people of existing benefits; rather burdens need to be broadly diffused

(4) Affirmative action programs should be temporary and have waiver provisions

(5) Set asides disfavored, but maybe still justifiable in face of recalcitrance or light burdens on the majority

(6) Numerical goals (esp. quotas) might need to reflect extent of discrimination, or the "relevant population" is narrower now

(7) Congress held to same standard as state and local governments

(8) Try race-neutral methods first

(9) Better if beneficiaries have suffered harm