When does private discrimination justify public affirmative action?

At a moment when judicial tolerance of race-conscious government action see ms to be waning, this Article develops a new set of constitutionally viable justifications for affirmative action. Rather than enter the familiar deba te over the legitimacy of the Court's application of strict scrutiny to rem edial affirmative action, Ayres & Vars excavate widely overlooked language in, the Supreme Court decision in City of Richmond v. J.A. Croson Co., whic h notes the ability of government to eradicate the effects of private, not just governmental or "public, " discrimination. The authors develop three j ustifications for remedying private discrimination through public affirmati ve action, each of which produces non-arbitrary goals that do not unduly bu rden "innocent" third parties-making them narrowly tailored to a compelling governmental interest. Thus, the authors re-cast Croson, an opinion routin ely understood as the death knell for affirmative action, into a model for its redirection, and possible expansion. Beginning with the story of Marian Anderson's 1939 concert at the Lincoln M emorial, the authors demonstrate how public affirmative action used to reme dy private discrimination is neither counter-intuitive nor unprecedented in our historical memory. They then focus on affirmative action in government procurement, and demonstrate how the larger size of private markets and th e stronger evidence of private discrimination suggest that the future of af firmative action in procurement may turn largely on private discrimination justifications. Three private discrimination rationales follow: (1) to ensu re that government spending does not directly or indirectly facilitate priv ate discrimination (the "causal" justification); (2) to correct for the dep ressive effect of private discrimination on the capacity of minority-owned firms (the "but-for" justification); and most radically, (3) to compensate for shortfalls in private sales caused by purely private discrimination, so long as the scope of the government remedy is restricted to that particula r market (the "single-market " justification). The Article applies the just ifications it offers to the related context of employment and argues that p ublic remedies for private discrimination in employment can be narrowly tai lored. Thus, a position which at first appears to be incompatible with the Supreme Court's present unwillingness to uphold affirmative action programs emerges as a remarkably compelling and constitutionally grounded argument in support of the government's ability to remedy private discrimination in a wide array of settings.