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Copyright (c) 1990 Michigan Law Review
Michigan Law Review


+ 1990 Copyright, Girardeau A. Spann.

June, 1990

Michigan Law Review

88 Mich. L. Rev. 1971


Girardeau A. Spann *


The present Supreme Court has been noticeably unreceptive to legal claims asserted by racial minorities. Although it is always possible to articulate nonracial motives for the Court's civil rights decisions, the popular perception is that a politically conservative majority wishing to cut back on the protection minority interests receive at majority expense now dominates the Supreme Court. In reviewing the work of the Court during its 1988 Term, The United States Law Week reported that "[a] series of civil rights decisions by a conservative majority of the U.S. Supreme Court making it easier to challenge affirmative action programs and more difficult to establish claims of employment discrimination highlighted the 1988-89 term's labor and employment cases." 1 U.S. Law Week went on to cite seven decisions handed down that Term that adversely affected minority interests. 2

During the 1988 Term, the Court invalidated a minority set-aside program for government contractors and imposed the heavy burden of proving past discrimination as a prerequisite to the use of affirmative action remedies; 3 it permitted an affirmative action consent decree to be attacked collaterally by white workers who had chosen not to intervene in the Title VII action giving rise to the consent decree despite their knowledge that the Title VII action was pending; 4 it increased the burden of proof imposed on minorities who assert Title VII claims by requiring minority employees both to focus their challenges on specific rather than aggregate employment practices and to disprove employer assertions of legitimate ...
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