After the U.S. Supreme Court's 1989 City of Richmond v. Croson decision held that local racial set-asides in public contracting must survive strict scrutiny, are North Carolina's minority-business participation provisions in G.S. 143-128, G.S. 136-28.4, G.S. 160A-17.1, the 1989 prison-construction appropriation, and Executive Order 77 still constitutional?

Plain-English summary

In the wake of City of Richmond v. J. A. Croson Co. (1989), public-contract MBE programs across the country had to be re-examined. The U.S. Supreme Court held in Croson that local governments cannot impose racial set-asides in public contracting without satisfying strict scrutiny: identifying specific past discrimination with a strong factual record, and narrowly tailoring the program to remedy that discrimination. Richmond's 30%-set-aside-on-each-prime-contract program failed both prongs.

North Carolina's Legislative Research Commission asked the AG to evaluate the state's MBE provisions in this new constitutional environment. The provisions in question:

• G.S. 143-128 (verifiable 10% goal for State construction, with cities and counties adopting their own appropriate goals)
• G.S. 136-28.4 (10% goal for participation in DOT highway/bridge contracts)
• G.S. 160A-17.1 (allows local compliance with federally mandated MBE set-asides)
• Chapter 8, § 3(b) of the 1989 Session Laws (verifiable 10% goal for prison construction funds)
• Executive Order 77 (Governor's program with a 4% purchasing objective)

The 1990 AG found all five facially constitutional.

The Croson framework. Croson applies strict scrutiny to local racial classifications. The government must show (i) a compelling interest in remedying identified past discrimination, with a strong factual basis; and (ii) narrow tailoring of the means to that end. Croson also recognized that race-neutral alternatives are available to local governments, including outreach, simplification of bidding, relaxation of bonding requirements, and training and financial assistance to disadvantaged entrepreneurs of all races.

Why North Carolina's "verifiable goals" pass facially. The key statutory definition is in G.S. 143-128(c)(3) and (c)(4). A "verifiable goal" for participation is not a percentage of dollars reserved for minority businesses. It is a written set of guidelines specifying the actions the awarding authority (under the separate-prime system) or the prime contractor (under the single-prime alternative) will take to ensure a good-faith effort in recruitment and selection. Documentation is required under the single-prime system. Crucially, G.S. 143-128(d) reinforces that contracts "shall be awarded . . . without regard to race, religion, color, creed, national origin, sex, age, or handicapping condition" and "nothing in this section shall be construed to require contractors or awarding authorities to award contracts or subcontracts . . . [to MBEs] who do not submit the lowest responsible bid or bids."

So the program does not deprive any non-minority bidder of the opportunity to win a contract. The actual award is race-neutral. The "goal" is an outreach and good-faith effort obligation, not a quota. That is what Croson sanctioned as a race-neutral device.

G.S. 136-28.4 follows the same pattern. The DOT statute uses the same "endeavor to award to minority businesses at least 10%, by value, of the contracts" language, paired with a written-procedures requirement, and an express race-neutral-award rule ("the Department shall give equal opportunity for contracts it lets without regard to race, religion, color, creed, national origin, sex, age or handicapping condition . . . to all contractors and businesses otherwise qualified"). Same constitutional analysis applies.

G.S. 160A-17.1 is different but also valid. That section allows local governments to accept federally-mandated MBE set-asides as a precondition of federal grant funds. The constitutional support comes not from local power (which Croson limited) but from Congress's enforcement power under Section 5 of the Fourteenth Amendment. Fullilove v. Klutznick, 448 U.S. 448 (1980), upheld the 10% set-aside Congress imposed under the Public Works Employment Act of 1977. The Croson Court itself preserved Fullilove, distinguishing Congress's broad remedial power from the narrower authority of state and local governments. G.S. 160A-17.1 piggybacks on Fullilove, not on local Croson authority.

The 1989 prison-construction provision (Chapter 8, § 3(b)). This appropriation uses the phrase "verifiable ten percent (10%) goal" without elaborating. The AG read it in pari materia with Chapter 480 of the same session (which amended G.S. 143-128 with the same phrase): same session, same subject matter, same defined term. Wilson v. Jordan, 124 N.C. 683 (1899), supports that in-pari-materia reading. So the 1989 prison "verifiable 10% goal" picks up the same race-neutral-award definition embedded in G.S. 143-128(c)(3) and (c)(4).

Executive Order 77. The Governor's program directs purchasing (4% objective), state construction (data gathering for future goals), and real-estate acquisition (acquisition-policy directives). Only the Purchase and Contract Division has a numerical objective, and the program purposes (reducing barriers, identifying prospective vendors, awareness promotion) are race-neutral outreach devices. The Order does not reserve any specific percentage of contracts for minorities to the exclusion of others.

Bottom line. None of the five provisions mandates a racial preference. Strict scrutiny is therefore not triggered. The provisions are facially constitutional. The AG was careful to note that this opinion addresses facial constitutionality only and does not opine on how any individual program might fare as applied.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. North Carolina's MBE participation framework has been amended many times since 1990. The U.S. Supreme Court's Adarand Constructors v. Peña, 515 U.S. 200 (1995), tightened strict scrutiny for federal programs as well, undercutting some of Fullilove's reasoning, and subsequent decisions (most notably Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023), in the higher-education context) have further constrained race-conscious government action. Anyone evaluating a current state or local MBE program should consult current statutes, current case law, and constitutional-law counsel.

Historical context: what the AG concluded

The opinion is North Carolina's main early post-Croson compliance check on its own MBE framework. The 1989 General Assembly had specifically rewritten G.S. 143-128 to add the verifiable-goal language alongside the new single-prime contracting alternative. The verifiable-goal framework was designed to do the opposite of a Richmond-style set-aside: to push public contracting agencies and prime contractors to actively look for minority subcontractors and document the effort, while leaving the final award to the lowest responsible bidder.

The AG's analysis is constitutionally conservative in the right way. He does not try to defend racial classifications under strict scrutiny (no state-specific factual record on past contracting discrimination is offered). He instead argues that the statutes do not impose racial classifications subject to strict scrutiny in the first place. The outreach-and-documentation model is, in his reading, exactly the kind of race-neutral device Croson expressly approved.

The G.S. 160A-17.1 analysis is interesting because it relies on Fullilove, which the Croson Court preserved but which subsequent cases (especially Adarand in 1995) eroded. In 1990, the Fullilove framework was still operative, and federal MBE set-asides could still be imposed on local recipients. North Carolina's local-government compliance authority was therefore safe under federal supremacy principles even though the same percentage imposed by a state or local body would not be.

The Executive Order 77 analysis is the lightest because the Order does the least. Without a numerical reservation, the constitutional analysis reduces to whether the outreach activities qualify as race-neutral. The AG read them as such.

For procurement officers across North Carolina in 1990, the operational takeaway was: keep doing what the statute requires. The verifiable goal is a process and documentation obligation. The award decision remains race-neutral, with the lowest responsible bidder winning. Maintain the outreach records. Be ready to show the good-faith effort. The statute is built to do Croson-compliant work.

Common questions

What did City of Richmond v. Croson hold?

The U.S. Supreme Court held that Richmond's 30% MBE set-aside violated equal protection. Local racial classifications in public contracting must survive strict scrutiny: identified past discrimination with a strong factual basis, and narrowly tailored remediation.

What is a "verifiable goal" in North Carolina?

Under G.S. 143-128(c)(3) and (c)(4), a verifiable goal is a written set of guidelines specifying the actions an awarding authority or prime contractor will take to ensure a good-faith effort to recruit and select minority businesses. It is a process obligation, not a contract-award reservation.

Could a North Carolina local government still impose a Richmond-style set-aside?

Not without a strong factual basis identifying past discrimination in its specific contracting market and a narrowly tailored remedy. The 1990 AG addressed only facial validity of the existing statutes, which avoid set-asides altogether.

What about MBE set-asides required by federal grant conditions?

G.S. 160A-17.1 expressly permits local governments to comply with federally mandated set-asides as a condition of federal funds. Fullilove v. Klutznick (1980) supported this, and the Croson Court preserved Fullilove. Later cases (especially Adarand in 1995) have changed the federal analysis; anyone facing a current federal set-aside should consult current federal law.

Does the opinion bind a court evaluating a specific awarded contract?

No. The opinion addresses facial constitutionality, not as-applied challenges. An individual contract awarded in a way that effectively created a racial preference could still be challenged.

Background and statutory framework

Federal constitutional anchor. City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) (strict scrutiny for local racial classifications in contracting). Fullilove v. Klutznick, 448 U.S. 448 (1980) (Congressional MBE set-asides upheld).

The general state construction statute. G.S. 143-128 (separate-prime and single-prime contracting; verifiable 10% goal at the State level; appropriate goals at the local level). G.S. 143-128(c)(3) and (c)(4) (defining "verifiable goal"). G.S. 143-128(d) (race-neutral award requirement).

The DOT statute. G.S. 136-28.4 (10% goal for highway/bridge construction). G.S. 136-28.4(b) (same race-neutral-award rule).

The federal-funds local authority. G.S. 160A-17.1 (local compliance with federally mandated MBE participation).

The 1989 prison-construction appropriation. Chapter 8, § 3(b) of the 1989 Session Laws (Senate Bill 38) (verifiable 10% goal for prison construction; same language read in pari materia with Chapter 480 (Senate Bill 308) amending G.S. 143-128).

The DOT 1989 amendment. Chapter 692 of the 1989 Session Laws (House Bill 399) (amending G.S. 136-28.4).

The Governor's program. Executive Order No. 77 (September 14, 1988) (Governor's Program to Encourage Business Enterprises Owned by Minority, Women and Handicapped Persons).

In pari materia rule. Wilson v. Jordan, 124 N.C. 683 (1899) (acts of the same legislative session on the same subject matter are construed as one).

Citations

• G.S. 143-128, G.S. 143-128(c)(3), G.S. 143-128(c)(4), G.S. 143-128(d)
• G.S. 136-28.4, G.S. 136-28.4(b)
• G.S. 160A-17.1
• G.S. 168A-3
• Chapter 8, § 3(b), 1989 Session Laws (Senate Bill 38)
• Chapter 480, 1989 Session Laws (Senate Bill 308)
• Chapter 692, 1989 Session Laws (House Bill 399)
• Executive Order No. 77 (September 14, 1988)
• City of Richmond v. J. A. Croson Co., 488 U.S. 469, 109 S.Ct. 706 (1989)
• Fullilove v. Klutznick, 448 U.S. 448 (1980)
• Wilson v. Jordan, 124 N.C. 683 (1899)

Source

• Landing page: https://ncdoj.gov/opinions/public-contracts-competitive-buidding-minority-business-participation-provisions/

Original opinion text

Requested by: Representative Thomas C. Hardaway, Co-Chairman; Senator Ralph Hunt, Co-Chairman, Legislative Research Commission Committee on Minority Business Contracts and Small Business Assistance

Question: In view of the principles recited by the United States Supreme Court in City of Richmond v. J. A. Croson Company, are the minority participation provisions in G.S. 143-128, G.S. 136-28.4, G.S. 160A-17.1, Chapter 8, Section 3(b) of the 1989 Session Laws (Senate Bill 38), and Executive Order 77 constitutional?

Conclusion: The referenced provisions appear to be facially constitutional under the principles established in Croson.

In City of Richmond v. J. A. Croson, Co., 109 S.Ct. 706 (1989), the United States Supreme Court addressed the issue of whether Richmond, Virginia's Minority Business Utilization Plan (the "Plan"), violated the Equal Protection Clause of the Fourteenth Amendment. In 1983, the Richmond City Council adopted the Plan which required non-minority prime contractors awarded construction contracts by the city to subcontract at least 30% of the dollar amount of the contract to one or more Minority Business Enterprises ("MBE"). Under the Plan an MBE was defined as a business at least 51% owned and controlled by minority group members. "Minority Group Members" were defined as "Blacks, Spanish-speaking, Orientals, Indians, Eskimos or Aleuts". The Plan's rules provided that waivers would only be granted under "exceptional circumstances".

The challenge by J. A. Croson Company, a mechanical, plumbing and heating contractor, resulted from Croson's attempts to obtain a contract for the installation of plumbing fixtures at the city jail. Due to problems encountered in hiring a minority subcontractor, as required under the Plan, Croson requested a waiver of the MBE requirements. In the alternative, Croson requested a price increase to cover the additional cost of hiring the only available MBE subcontractor. The City denied both requests and Croson subsequently responded by bringing an action under Title 42, Section 1983, of the United States Code, challenging the constitutionality of the Plan.

In Croson, the United States Supreme Court held that the Plan violated the right of all persons to the equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution. Under the Court's analysis, the program enacted by the City constituted a clear racial preference whereby non-minority contractors were excluded from the right to compete for a fixed percentage of construction contracts. Under the first prong of strict scrutiny analysis the City was required to demonstrate a compelling governmental interest in creating the racial preference. While recognizing the broad remedial powers of Congress to use certain racial and ethnic criteria with the objective of curing the effects of past discriminatory practices, the Court held that the City was required to have a strong factual basis for its conclusion that remedial action was necessary. Upon reviewing the evidence, the Court concluded that none of the factors relied on by the City proved that identifiable discrimination existed in the Richmond construction industry. The City therefore failed to demonstrate a compelling interest in apportioning public contracting opportunities on the basis of race.

The Court also considered the second prong of the strict scrutiny test and determined that it was essentially impossible to determine whether the Plan was "narrowly tailored" to address a specific problem inasmuch as there was no evidence that the 30% quota was linked to race in any way. Observations were made that the City Council appeared to have made no attempts to use benign, race-neutral methods of increasing participation by minority businesses in public contracting and that the 30% quota had no rational relationship to any identifiable goal. Therefore, due to the City's failure to identify prior discrimination requiring remedial action, the disparate treatment of citizens on a racial basis was held to violate the Equal Protection Clause.

As a result of the Croson decision, numerous State and local minority participation programs have been challenged. In most instances, the basis for the challenge is that the state or local body has failed to develop a sufficient factual history of past discrimination prior to enacting set-aside programs based on racial preferences. The issue posed here is the question of the constitutionality of four North Carolina statutes and one Executive Order establishing minority participation programs, in light of the Croson opinion.

The first provision inquired about is G.S. 143-128, as amended by Chapter 480 of the 1989 Session Laws (Senate Bill 308). This amendment added an alternative procedure for the award of public construction contracts whereby public bodies may now elect to award a single prime contract as opposed to the separate prime contracts previously required. Under the amendment the State is also required to have a ". . . verifiable ten percent (10%) goal for participation by minority businesses . . ." in State construction projects. Cities, counties, and other public bodies are required to adopt ". . . appropriate verifiable percentage goal(s) for participation by minority businesses . . ." in their construction projects. The term "minority business" is defined as a business which is at least 51% owned by one or more minority persons and which is managed by one or more minority persons who own the business. The term "minority person" is defined to include citizens and lawful permanent residents of the United States who are Black, Hispanic, Asian-American, American-Indian, Alaskan Native or female.

A key factor which distinguishes this provision from the Richmond Plan is that the verifiable 10% goal for participation by minority businesses does not mandate that a specific portion of the project funds be actually awarded as a racial preference. G.S. 143-128(c)(3) states:

"The term 'verifiable goal' means for purposes of the separate contract system, that the awarding authority has adopted written guidelines specifying the actions that will be taken to ensure a good faith effort in the recruitment and selection of minority businesses for participation in contracts awarded under this section . . .".

In regard to contracts awarded under the new single-prime alternative, G.S. 143-128(c)(4) states:

"The term 'verifiable goal' means for purposes of the single-prime contract system, that the awarding authority has adopted written guidelines specifying the actions that the prime contractor must take to insure a good faith effort in the recruitment and selection of minority businesses for participation in contracts awarded under this section; the required actions must be documented in writing by the contractor to the appropriate awarding authority."

The program mandated under this provision therefore only requires the creation of written guidelines designed to insure that efforts will be made to increase the amount of participation in public construction contract work by minority businesses. Absent a mandatory racial preference, North Carolina's program is not required to satisfy the strict standards imposed on the City of Richmond.

The program contemplated by the Legislature in amending G.S. 143-128 is essentially a benign attempt to break down artificial barriers which may have precluded participation in public contracting by many otherwise qualified businesses owned by members of various minority groups and women. Unlike the rigid 30% set-aside requirement under the Richmond Plan, however, the requirements of G.S. 143-128 do not mandate that any public contract or subcontract be awarded strictly on the basis of race. Crucial to this analysis is the following statement in G.S. 143-128(d):

"The State and its political subdivisions shall award public contracts pursuant to this section without regard to race, religion, color, creed, national origin, sex, age, or handicapping condition as defined in G.S. 168A-3. Nothing in this section shall be construed to require contractors or awarding authorities to award contracts or subcontracts or to make purchases of materials or equipment from minority-business contractors or minority-business subcontractors who do not submit the lowest responsible bid or bids."

The statute therefore mandates that the actual contract award be made on a race-neutral basis to the lowest responsible bidder.

The Supreme Court in Croson sanctioned the use of race-neutral means of increasing minority participation in public contracting, stating:

"Even in the absence of evidence of discrimination, the city has at its disposal a whole array of race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races. Simplification of bidding procedures, relaxation of bonding requirements, and training and financial aid for disadvantaged entrepreneurs of all races would open the public contracting market to all those whose have suffered the effects of past societal discrimination."

There is no suggestion by the Court that all programs designed to increase minority participation in public contracting, even if they disproportionately benefit certain minority groups, necessarily violate the dictates of the Equal Protection Clause. It is only where certain citizens are denied the opportunity to compete for a fixed percentage of public contracts based solely on their race that the constitutional right of each person to be treated with equal dignity and respect demands that a program be strictly scrutinized, as was the case with the Richmond Plan.

Our analysis of G.S. 143-128 does not lend to a conclusion that any person would be denied the opportunity to compete for a public contract solely on the basis of race. As noted, the previously referenced language of G.S. 143-128(d) specifically precludes an award on a preferential basis. It is therefore our opinion that G.S. 143-128 does not, on its face, create an impermissible racial classification in violation of the Equal Protection Clause.

The second provision in question is G.S. 136-28.4, as amended by Chapter 692 of the 1989 Session Laws (House Bill 399). This provision of the Highway Trust Fund Bill establishes a 10% "goal" for participation by minority businesses in highway and bridge construction and maintenance. G.S. 136-28.4(b) states:

"A ten percent (10%) goal for participation by minority businesses in road and bridge construction, alteration, or maintenance projects is established. The Department of Transportation shall endeavor to award to minority businesses at least ten percent (10%), by value, of the contracts that it lets for the construction, alteration or maintenance of roads and bridges. The Department shall adopt written procedures specifying the steps it will take to achieve this goal, provided that the Department shall give equal opportunity for contracts it lets without regard to race, religion, color, creed, national origin, sex, age or handicapping condition, as defined in G.S. 168A-3, to all contractors and businesses otherwise qualified."

Here again the legislative intent appears to have been the encouragement of minority participation in contracts awarded by the Department of Transportation, without the necessity of creating racially based quotas or set-asides. The statute is clear, however, that the actual contract awards must be made on a race-neutral basis.

Under a Croson analysis, this provision does not establish a fixed percentage of public contracts or public contract funds for which certain groups of persons may not compete. Without such a deprivation of personal rights it is our opinion that the provisions of G.S. 136-28.4 do not violate the Equal Protection Clause.

G.S. 160A-17.1 allows cities and counties to agree to and comply with minority business enterprise participation requirements established by the federal government as a precondition to receipt of federal funds. The purpose of this provision was to allow local governments to comply with federally mandated minority set-aside requirements without being in direct violation of state bid laws requiring award to the lowest responsible bidder without regard to race. In many cases, a precondition to federal funding is a requirement that 10% of the grant amount be awarded to minority business enterprises.

In Fullilove v. Klutznick, 448 U.S. 448 (1980), the Supreme Court upheld the minority set-aside program required under the Public Works Employment Act of 1977. The Act required state and local governments to expend at least 10% of the amount of each grant on minority business enterprises. In addressing the validity of this requirement, the Court stressed the broad remedial powers of Congress under Section 5 of the Fourteenth Amendment to enforce constitutional equal protection guarantees. Based upon this power, the Court held that Congress could mandate state and local government compliance with a federal set-aside program.

In Croson the City attempted to rely on Fullilove for its position that the City of Richmond enjoyed broad legislative power to cure the effects of discrimination in the construction industry. This reliance was rejected by the Court, emphasizing the distinction between the broad powers of Congress in carrying out its responsibility for enforcement of the Fourteenth Amendment as opposed to the narrow authority of state and local governments. In addressing this distinction, the Court affirmed the power of Congress, as discussed in Fullilove, to impose minority set-aside requirements on state and local governments which themselves may not be able to establish the requisite compelling need to establish such programs in non-federally funded projects. It is therefore our opinion that both Fullilove and Croson support the validity of G.S. 160A-17.1.

The fourth provision in question was included in Chapter 8, Section 3(b) of the 1989 Session Laws (Senate Bill 38). This Act, making emergency appropriations for improvement to the prison system, includes the following provision in Subsection 3(b):

"Of the funds appropriated in Subsection (a) of this section for the purpose of construction of prison facilities, the Office of State Budget and Management shall have a verifiable ten percent (10%) goal for participation by minority business . . .".

The provision provides no direct guidance as to the nature of the minority participation program contemplated other than the use of the phrase "verifiable ten percent (10%) goal", which is the same language adopted in the previously referenced 1989 amendments to G.S. 143-128.

We are aware, however, that both Chapter 8 (Senate Bill 38) and Chapter 480 (Senate Bill 308) were enacted by the 1989 Session of the 1989 General Assembly. As an established principle of statutory construction, all acts of the same session of the legislature upon the same subject matter are considered as one act and must be construed together under the doctrine of "in pari materia". See Wilson v. Jordan, 124 N.C. 683 (1899). It is therefore appropriate to consider the phrase "verifiable ten percent (10%) goal" used in Chapter 8, dealing with prison construction, in the context of the identical phrase used in Chapter 480 in regard to other building projects. As such, the phrase "verifiable ten percent (10%) goal" included in Chapter 8 may be interpreted to require written guidelines to insure a good faith effort to recruit minority business participation as specifically defined by G.S. 143-128(c)(3)(4). It may also be assumed that, based upon the prohibition against contract awards on the basis of race in general public building projects, the legislature intended that contracts for prison construction awarded under Chapter 8 be made on a race-neutral basis. We therefore find no constitutional impediment to the minority participation provisions of Chapter 8, § 3(b) of the 1989 Session Laws.

The final inquiry is in regard to Executive Order No. 77, issued September 14, 1988, establishing the "Governor's Program to Encourage Business Enterprises Owned by Minority, Women and Handicapped Persons". This Order established a program for the purpose of increasing the participation of businesses owned and controlled by minorities, women and handicapped persons in State purchasing, State construction projects, and the acquisition of real property by the State. Specifically in regard to purchasing, the Order established a "program objective" for fiscal year 1988-1989 to purchase a minimum of four percent of the State's purchases of goods and services from businesses owned and controlled by minorities, women and handicapped persons. No percentage goals were established in regard to State construction contracts, although the Division of State Construction was directed to accumulate data to support the future establishment of percentage goals. In regard to the acquisition of real estate, the State Property Office was given a general directive to establish acquisition policies which would further the purposes of the Order.

Under the Order neither the Division of State Construction nor the State Property Office is required to attempt to meet a percentage goal for minority participation. It is only the Purchase and Contract Division of the Department of Administration that is directed to attempt to meet the goal of four percent minority participation.

In regard to this objective, the Order includes among the program purposes an intent to increase the amount of goods and services acquired from businesses owned by minorities, women and handicapped persons; the reduction of barriers that reduce the participation of minorities, women and handicapped persons; the identification of prospective minorities, women and handicapped vendors and service providers, and; the general promotion of awareness among minorities, women and handicapped persons of opportunities to do business with state government. We find these to be the type of race-neutral devices sanctioned in Croson for the purpose of attempting to increase the accessibility of public contracting opportunities by minorities and other entrepreneurs of all races. We find no directive in the Order to actually reserve a specific percentage of contracting opportunities for minorities to the exclusion of other persons. We therefore are of the opinion that Executive Order No. 77 is a valid exercise of the executive powers of the Governor.

In conclusion, none of the provisions in question mandate a racial preference which would result in a deprivation of personal rights guaranteed to all persons by the Equal Protection Clause of the Fourteenth Amendment. Absent such a preference, the "strict scrutiny" test applied to the Richmond Plan by the Supreme Court in Croson is not required to be passed by state and local entities in North Carolina attempting to achieve the goals referenced in the provisions discussed above. You have not requested, and we express no opinion, on the constitutionality of these provisions as applied under any individual program. It is our opinion, however, that the provisions referenced facially meet the constitutional standards established in Croson.

Lacy H. Thornburg, Attorney General