When Does Private Discrimination Justify Public Affirmative Action?

Columbia Law Review, November 1998

Posted: 1 May 1998

See all articles by Ian Ayres

Ian Ayres

Yale University - Yale Law School; Yale University - Yale School of Management

Fredrick E. Vars

University of Alabama - School of Law

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Abstract

Commentators and courts alike have ignored the Supreme Court's forthright assertion in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), that government can use its spending power to eradicate the effects of private discrimination. Croson makes it clear that private discrimination can be a constitutionally sufficient justification for government affirmative action, but provided little explanation. Filling out the contours of a private discrimination justification will largely decide the fate of affirmative action in government procurement. This is true because in some markets there is little evidence of current public discrimination, whereas private discrimination remains pervasive. Building on key language from Croson, this Article offers three private discrimination rationales: (1) to ensure that government spending does not directly or indirectly facilitate private discrimination (causal); (2) to correct for the depressive effect of private discrimination on the capacity of minority-owned firms (but-for); and, most radically, (3) to correct for discrimination in parallel private markets (single-market). An example helps to illustrate the less familiar single-market justification: If private purchasers discriminate against minority pencil sellers, the government should be able to buy more pencils from minorities to make up for this shortfall. Finally, we suggest possible applications of the private discrimination justifications to education and employment.

JEL Classification: K10, K31

Suggested Citation

Ayres, Ian and Vars, Fredrick E., When Does Private Discrimination Justify Public Affirmative Action?. Columbia Law Review, November 1998. Available at SSRN: https://ssrn.com/abstract=82272

Ian Ayres (Contact Author)

Yale University - Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-7101 (Phone)
203-432-2592 (Fax)

Yale University - Yale School of Management

135 Prospect Street
P.O. Box 208200
New Haven, CT 06520-8200
United States

Fredrick E. Vars

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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