, et al.: Judicial Enforcement of Affirmative Action set Asides - Overcoming the Economic Remnants of Slavery (1981)

THE BLACK LAW JOURNAL MITCHELL P. FREEMAN, ET. AL.: JUDICIAL ENFORCEMENT OF AFFIRMATIVE ACTION SET ASIDES-OVERCOMING THE ECONOMIC REMNANTS OF SLAVERY I. INTRODUCTION On July 21, 1980 Congressman Parren J. Mitchell filed a lawsuit' against the administrator and assistant administrator for Acquisition Policy of the General Services Administration (GSA) that promises to be an impor- tant sequel to the recent United States Supreme Court decision in Fullilove v. Kutznick. 2 In Fullilove, the Court by a 6-3 vote held that it is constitu- tionally permissible for Congress to set-aside a portion of federal expendi- tures for minority-owned businesses 3 and, thereby, provide the political means through which federal contracting dollars can be used to remedy the historic exclusion of minorities from the economic mainstream. Congress- man Mitchell's suit begins where Fullilove ended. It asks the court whether, after obtaining the political means to direct federal contracting opportunities to minority-owned businesses, legal redress is available against unsympa- thetic government officials who fail to implement statutorily-mandated af- firmative action set-asides. This lawsuit is significant because its outcome will dramatically affect the economic well-being of the minority community, and bear heavily upon the future significance of Fullilove. If the court declines jurisdiction over Congressman Mitchell's action or accepts jurisdiction but denies the reme- dies he seeks, billions of dollars in potential contracting opportunities may be lost to the minority business community; and the Ful/ilove decision, which has so much potential to bring minorities into the economic main- stream, will be vitiated of any practical importance. To date, the defendants have not answered Congressman Mitchell's complaint. Nevertheless, because of its potential significance, this Note will analyze the legal issues the complaint raises and address the defendants' probable responses to them. Part II will outline the facts alleged by Con- gressman Mitchell, and offer additional information which supports his alle- gations. Part III is a legal analysis of the lawsuit, and will discuss whether a private cause of action exists, or is necessary to enforce affirmative action set-asides. It also will determine whether the action should be barred by the doctrine of sovereign immunity. Finally, part IV will examine the historic and continuing exclusion of minorities from the economic mainstream and 1. CA 80-1801 Congressman Mitchell is a Democrat representing Maryland's Seventh Con- gressional District. 2. 584 F.2d 600 (2d Cir. 1978). 3. In Fu1io~ve, the Second Circuit and the Supreme Court affirmed the district court's finding that the Minority Business Enterprise provision of the Public Works Employment Act of 1977, which requires that at least ten percent of any public works grant be set aside for minority business, does not violate the fifth and fourteenth amendments to the Constitution. The court ruled that this provision was constitutional because Congress had intended it to remedy past discrimination against minorities in the construction industry. 584 F.2d at 603.