explaining that ejusdem generis applies to “pattern such as ‘[specific], [specific], or [general]’ or '[general], including [specific] and [specific]’ ” (alterations in original) (emphasis added)
How later courts described this case
- explaining that ejusdem generis applies to “pattern such as ‘[specific], [specific], or [general]’ or '[general], including [specific] and [specific]’ ” (alterations in original) (emphasis added)
- MBE participation goal of 11% set at slightly less than county's minority population held reasonable
- ‘The burden on nonminority male dominated firms is still relatively light, as they may still compete for 88% of the subcontracting business’
- ‘The key factor, and the one emphasized by Chief Justice Burger [in Fulli-love ] is the existence of a flexible waiver scheme’
Written by the judges who cited it.
The opinion
*130 Rosellini, J.
(concurring) — I concur in the result reached by the majority. I write separately, however, only because I do not agree with the majority's reliance upon past discrimination to justify present affirmative action programs. I believe this rationale is unwise for two reasons.
First, relying upon past discrimination to justify current programs of necessity involves the always difficult and frequently impossible task of substantiating the claim of past discrimination. Here, the majority must resort to vague references to documents and meetings to establish past discrimination. The majority does not nor can it cite specific cases of past discrimination. Thus, the test it adopts locks it into a meaningless search of stale records for some evidence of past discrimination.
I find the test disturbing for a second reason. Although I recognize that the past discrimination perpetuating under-representation test has been explicitly recognized and sanctioned by the United States Supreme Court, see Fullilove v. Klutznick, 448 U.S. 448 , 65 L. Ed. 2d 902 , 100 S. Ct. 2758 (1980), I cannot help but feel that in so doing, the court engaged in a bit of self-deception and legal fiction. In each affirmative action case, the courts are relegated to sanctioning a form of relief that is potentially unpopular. Affirmative action programs and quotas frequently generate hostility and ill will among those white workers who are affected by them. On the other hand, courts recognize the need "to persuade the next generation of minorities that they do have a chance to succeed in this complicated and competitive world." Schatzki, United Steelworkers of America v. Weber: An Exercise in Understandable Indecision, 56 Wash. L. Rev. 51 , 60 (1980).
Affirmative action programs, such as that implemented by Pierce County, attempt to achieve that goal by providing present opportunities to minorities in current programs. Past discrimination plays little part in that remedial goal, except as an example of past mistakes to be avoided.
Thus, I suggest that, for the sake of judicial honesty and simplicity, the test be only whether the program is designed *131 to remedy current underrepresentation. Here, the record disclosed such underrepresentation, which Pierce County had a valid interest in curing. I therefore agree with the result of the majority.