When most people think about affirmative action, they think about college admissions. But race-conscious policies show up in other places too—like who gets hired, who keeps their job during layoffs, and which companies win government contracts.
In schools, the Supreme Court has said diversity is a compelling goal. But what about the workplace? Or the business world?
That’s where things get trickier.
When Race Is a Factor in Public Jobs
In the 1980s, a school district in Jackson, Michigan faced a dilemma: if it had to lay off teachers, could it protect minority teachers from being let go in greater proportion than they were hired?
This wasn’t about who got hired—it was about who got to stay.
In Wygant v. Jackson Board of Education (1986), the Supreme Court struck down the policy. The Court said you can't fire some employees to save others just because of race. That burden, they said, was too heavy—especially for teachers who had more seniority.
The justices made a few things clear:
Even policies that try to fix inequality must pass strict scrutiny—the toughest legal test.
It's not enough to say “society has been unfair.” You need specific evidence of past discrimination by the employer.
And the Court was especially wary of layoffs—because someone loses something real and immediate: their job.
Some justices dissented. They said this was exactly the kind of policy that should be allowed—a careful effort to keep diversity in schools and repair historic exclusion. But they were outvoted.
What About Minority-Owned Businesses?
Around the same time, Congress created a rule: 10% of public works funds should go to minority-owned companies. The idea was simple—minority firms had been excluded for decades, and this was one way to open doors.
In Fullilove v. Klutznick (1980), the Court upheld that rule—but just barely. There wasn’t a single majority opinion. Instead, the justices splintered:
Some said Congress had special powers to fix racial injustice in national policy.
Others agreed only because the program was limited in size and scope.
But a few justices strongly dissented. They said this was discrimination in disguise—giving out government money based on race, no matter the intent.
The case left one thing hanging: Was this kind of policy okay only because it came from Congress? What about local governments?
A City Tries Its Own Version—and Fails
Nine years later, the city of Richmond, Virginia tried to follow Congress’s lead. It set up a rule that 30% of city contracts should go to minority-owned businesses. The goal was to fix a clear problem: Black businesses were barely getting any of the city’s work.
But in City of Richmond v. J.A. Croson Co. (1989), the Supreme Court said no. The city’s plan was struck down.
Why?
The Court said local governments don’t have the same powers as Congress under the Constitution.
Richmond didn’t show enough specific evidence of past discrimination to justify a racial preference.
And the rule was too broad—it applied to many groups, regardless of whether they’d faced discrimination in that city.
Again, some justices dissented. They said the city had every reason to act—and waiting for perfect proof would mean doing nothing in the face of real inequality.
Then Came the Big One: Adarand
In Adarand Constructors, Inc. v. Peña (1995), the Court faced a federal program that gave incentives to hire minority subcontractors. A white-owned company with the lowest bid lost out to a higher bidder, simply because that firm was minority-owned.
The Court used this case to make a sweeping rule: all government uses of race—federal, state, or local—must pass strict scrutiny.
That meant:
No more special deference to Congress.
Every race-conscious policy, no matter how well-intentioned, has to be narrowly tailored and based on a compelling interest.
And vague goals like “fixing societal discrimination” wouldn’t cut it anymore. The government had to show concrete proof of past discrimination in the specific field it was trying to fix.
Justice O’Connor wrote the majority opinion and tried to strike a balance. She said strict scrutiny wasn’t fatal—it was just a high bar. But other justices, like Scalia and Thomas, went further. They said government should never use race—period.
What Does This All Mean?
The Court has made it harder and harder for the government to use race in hiring or contracting—even to correct long-standing exclusion. Unlike in education, where diversity has been recognized as a valid goal, the only acceptable reason for racial preferences in jobs or contracts is remedying past discrimination. And even then, the evidence must be very specific.
In short: the government can’t just say, “We want fairness.” It has to show its own history of unfairness—and be precise about how it's fixing it.
Where This Leaves Us
By the late 1990s, the Court had mostly closed the door on race-based affirmative action outside the classroom. Diversity as a justification might still fly in universities—but in employment and business, only narrow remedial measures backed by detailed evidence have any chance.
That’s the legal line the Court drew.
But the deeper question remains: Can we ever undo systemic exclusion without noticing race?
Doctrinal sum-up:
Wygant v. Jackson Board of Education (1986)
Standard of Review: Strict scrutiny
Compelling Government Interest (Rejected): Remedying societal discrimination; using race to maintain minority role models in teaching
City of Richmond v. J.A. Croson Co. (1989)
Standard of Review: Strict scrutiny (applies to state and local governments)
Compelling Government Interest (Accepted): Remedying specific, identified past discrimination by the government
Adarand Constructors, Inc. v. Peña (1995)
Standard of Review: Strict scrutiny (extended to federal government actions)
Compelling Government Interest (Accepted): Remedying identified past discrimination (same as Croson)