Affirmative action’s goal was to remove nonmerit barriers.

Affirmative action’s goal was to remove nonmerit barriers to upward social and economic mobility. Executive Order 11,246 requires that a federal contractor "will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin."

Exec. Order No. 11,256, C.F.R. 339 (1964-1965 Comp.), reprinted as amended in 42 U.S.C. § 2000e-5(g)(1) (1993). These requirements were implemented through regulations promulgated by the Nixon-Ford administration, found at 41 C.F.R. Part 60.That was less than 30 years ago.

It is now well established that state and local initiatives that seek to employ "race conscious" measures of ensuring equal opportunity must satisfy the most exacting standards, in order to comply with prevailing interpretations of constitutional requirements. Even though the prevous 350 plus years of overt government enforced discrimination did not have to meet any standards except the color of your skin.

These standards were applied and closely examined by the Supreme Court in City of Richmond v. J.A. Croson Company, 488 U.S. 469 (1989), 709 S.Ct. 706, and their applicability extended in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097 (1995). In many respects the Supreme Court's 1989 decision, City of Richmond v. J.A. Croson Co., was the most significant civil rights case of the nineteen eighties. It set new standards of review in equal protection cases and quickly became a decisive precedent in the areas of public employment, higher education, and voting rights laws.

Ref:http://straylight.law.cornell.edu/supct/html/historics/USSC_CR_0488_0469_ZS.html

The Croson decision represents the definitive legal precedent that established "strict scrutiny" as the standard of review by which state and local programs that grant or limit government opportunities on the basis of race are evaluated.

The Adarand decision subsequently extended the "strict scrutiny" standard of review to race conscious programs enacted by the federal government.

The Croson decision exempted federally administered programs, although many of them demanded that local governments create MBE requirements for locally administered, federally-funded programs. See, e.g., 49 C.F.R. § 23.45 (1996) (requiring recipients of Department of Transportation contracts to establish certain MBE procedures).

However, in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), the Supreme Court required that the same strict scrutiny standard be applied to federal programs as Croson applied to state and local programs.

In view of the position taken by the Court in Croson, states, municipalities, and otherlocal governments must satisfy the narrow tailoring prong, and in doing so, the following factors must be analyzed: Whether the MBE program covers minorities or women for which there is evidenceof discrimination (i.e. statistical disparity, anecdotal evidence, etc.),

1. Whether the size of the MBE participation goal is flexible and contains waiver provisions for prime contractors who make a "good faith" effort to satisfy MBE utilization goals, but are unsuccessful in finding any qualified, willing and able MBEs;

2. Whether there is a reasonable relationship between the numerical goals set and the relevant labor pool of MBEs capable of performing the work in the marketplace;

3. Whether race-neutral alternatives were considered before race-conscious remedies were enacted; and

4. Whether the MBE program contains sunset provisions or other mechanisms for periodic review to assess the program's continued need.