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Abstract

Within the realm of affirmative action, there is disagreement on the means selected to reach the ultimate goal. For example, some programs have involved preferential treatment for members of disadvantaged groups at the expense of those individuals who are not in the minority. Such programs have been challenged on equal protection grounds as "reverse discrimination." In New York City, mayors have implemented executive orders prescribing minority hiring goals and other preferential treatment. Order No. 71, for example, conditioned the awarding of city construction contracts upon submission by the bidder of an affirmative action program. Executive Order No. 53 attempted to satisfy the court's objections to the city's earlier affirmative action efforts under Executive No. 71 by proposing a plan for preferential treatment that did not involve racial or ethnic classification, but rather relied on social and economic criteria. This Note argues that Order No. 53 should withstand judicial review because it is socially and economically based and, thus, does not trigger strict scrutiny under the Equal Protection Clause. The "LBE " (set forth in Order No. 53) effectively increases the participation in city contracts of small businesses and residents from economically underdeveloped areas, while avoiding many of the adverse consequences of the set-aside programs. New York City mayors have the power to issue such orders to further policy goals and to aid locally based enterprises, provided they have independent authority to take such action.

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