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City of Richmond v J.A. Croson Co.' was the first Supreme Court case in twelve years in which a majority agreed on a single standard of equal protection review for a race-specific preference program. The Court employed the strict scrutiny standard and signalled a departure from the prelapsarian era when all affirmative action programs were accorded constitutional latitude.2 But the import of Croson is not limited to the invocation of strict scrutiny: it was the first time that a majority required a stringent factual record of explicit past discrimination to justify an affirmative action program.3 Croson has had a mesmeric effect on conservative judges; though the decision was specifically directed at programs for racial minorities, these judges have interpreted the opinion to require the strict scrutiny standard for gender-based preference programs. 4 Other courts have applied the law as they found it: they appropriately continue to use the traditional intermediate scrutiny test. 5

The Law as They Found It: Disentangling Gender-Based Affirmative Action Programs from Croson