Fighting Minority Underrepresentation in Publicly Funded Construction Project After Croson : A Title VI Litigation Strategy.

case City of Richmond v. J.A. Croson Co., 1 the Supreme Court held that minority business set-aside program 2 established by state and local governments are subject to strict judicial scruty and so are constitutionally permissible only in limited circumstances. 3 Croson's impact has been devastating. Lower courts have already declared invalid the set-aside plans of a number of cities, counties, and states. May other state and local governments have abandoned their plans rather attempt to defend or restructure them. 4 Civil rights advocates fear this trend will leave minority business enterprises (MBE's) and minority workers even more severely underrepresented among those benefiting from public works spending, thus exacerbating two already critical problems: underemployment among people of color and slow MBE business development. 5 Most experts believe that with appropriate studies documenting the past incidence and present persistence of discrimination in the construction trades, in most parts of the country set-aside programs can still be fashioned in accordance with the dictates of Croson . 6 Still, states and municipalities are now less likely to act voluntarily to ensure greater minority participation in public contracting, and so advocates must search for alternative strategies to combat this underrepresentation. This Note argues that Title VI of the 1964 Civil Rights Act 7 provides a basis for challenging in court many government practices that hamper greater minority participation in public contracting. The argument is this: Title VI -- the provision of the 1964 Civil Rights Act banning racial discrimination in federally funded ...