dissenting.
Because I disagree with both major premises of the majority opinion, I must respectfully dissent.
I.
The majority reads Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986), as if it changed all the previously accepted standards for judging the validity of affirmative action programs of governments and governmental units. That is not a fair appraisal of the purport or effect of Wygant.
In Wygant itself the Court noted that it is necessary in some cases to take race into account, and emphasized the difference in *596consequences flowing from a program such as the one involved in this case and one that requires layoffs, as the plan in Wy-gant did. This emphasis was made by contrasting the minority set-aside program that the Court had approved in Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), with the plan under consideration in Wygant, which did require layoffs:
We have recognized, however, that in order to remedy the effects of prior discrimination, it may be necessary to take race into account. As part of this Nation’s dedication to eradicating racial discrimination, innocent persons may be called upon to bear some of the burden of the remedy. “When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such a ‘sharing of the burden’ by innocent parties is not impermissible.” Id. [Fullilove, 448 U.S.] at 484, 100 S.Ct. at 2778, quoting Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). In Fullilove, the challenged statute required at least 10 percent of federal public works funds to be used in contracts with minority-owned business enterprises. This requirement was found to be within the remedial powers of Congress in part because the “actual burden shouldered by nonminority firms is relatively light.” 448 U.S. at 484, 100 S.Ct. at 2778.
Significantly, none of the cases discussed above involved layoffs. Here, by contrast, the means chosen to achieve the Board’s asserted purposes is that of laying off nonminority teachers with greater seniority in order to retain minority teachers with less seniority. We have previously expressed concern over the burden that a preferential layoffs scheme imposes on innocent parties. See Firefighters v. Stotts, 467 U.S. 561, 574-576, 578-579, 104 S.Ct. 2576 [2585-2586, 2587-2588], 81 L.Ed.2d 483 (1984); see also [Steelworkers v.] Weber, n. 9, supra this page, 443 U.S. [193] at 208, 99 S.Ct. [2721] at 2730 [61 L.Ed.2d 480 (1979)] (“The plan does not require the discharge of white workers and their replacement with new black hirees”). In cases involving valid hiring goals, the burden to be borne by innocent individuals is diffused to a considerable extent among society generally. Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose. Denial of a future employment opportunity is not as intrusive as loss of an existing job.
106 S.Ct. at 1850-51 (footnotes omitted).
The Michigan program is similar to the federal MBE program in Fullilove. At most, nonminority owned businesses will be required to share the state’s contracts with minority owned businesses; no white owned business will be removed from a previously awarded contract. I believe this case is controlled by Fullilove and Ohio Contractors Ass’n v. Keip, 713 F.2d 167 (6th Cir.1983), rather than by Wygant.
The Supreme Court has been unable to agree on the precise level of scrutiny required when considering race conscious programs to assist minorities. While there is a consensus that race conscious programs demand an elevated level of scrutiny, the Court has not defined that level. This is clear from an examination of the plurality opinions from Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), to United States v. Paradise, — U.S. —, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987). In fact a plurality of the Court in Paradise, a case subsequent to Wygant, noted it has “yet to reach consensus on the appropriate constitutional analysis.” Id. 107 S.Ct. at 1064.
Despite this uncertainty, at least two prerequisites for a constitutionally acceptable race conscious program are clearly established. The program must be in response to a compelling state goal and it must be narrowly tailored to achieve that goal. The majority concedes, as it must, that the State of Michigan has a compelling interest in eliminating race and gender discrimination from its procedures for awarding public contracts. I believe the Michigan program also satisfies the second requirement in that it is narrowly tailored. Given the *597subject matter involved — public contracting — it is hard to conceive of a different approach that would achieve the state’s legitimate goals in a less intrusive way. In my opinion the plan chosen by Michigan to correct a system that virtually excluded minority contractors in the past “fits” the situation better than any alternative means. See Wygant, 106 S.Ct. at 1850 n. 6, where the Court discusses the meaning of “narrowly tailored,” and quotes Professor Ely’s definition: “the classification at issue must ‘fit’ with greater precision than any alternative means.”
II.
I also disagree with the majority’s conclusion that the State of Michigan did not develop material evidence that established the existence of past discrimination or the need for a program to increase minority participation. An examination of the record totally refutes this conclusion. The district court found that the Michigan legislature considered the following evidence before finally adopting P.A. 428 in 1981:
1. An Executive Memorandum concerning House Bill No. 4394 (1971). The bill was to help small businesses receive government contracts; MBEs considered to fall within the classification of a small business. Bill and Memorandum indicate early concern for plight of minorities. 571 F.Supp. 178-79.
2. A study commissioned by the state in 1974 to explore the state’s procurement policies and its effects upon minorities (the Urban Markets Unlimited Study). Report issued in 1974 examined the procurement opportunities that were available to minority businesses, concluding that opportunities were not great, and that purchasing agents expressed negative attitudes toward minority vendors. Id. at 179-81.
3. Three Senate bills introduced in 1975-77 (Senate Bills 885 (1975), 1461 (1976), and 10 (1977)). These bills addressed set-asides for small businesses, but were also designed to address the problems facing minority businesses. Id. at 181.
4. Testimony of Norton L. Berman, Director of Office of Economic Expansion, Michigan Department of Commerce, concerning Senate Bill 1461 and encouraging legislature to enact set-asides. Id. at 181-82.
5. The Governor’s Executive Directive 1975-4 (1975), creating a Task Force on Small Business Participation in State Purchasing. Directive emphasized minority businesses and the difficulty they have had getting into the mainstream of business. Id. at 182.
6. Two public hearings of the Task Force, where views were expressed concerning the difficulties of minority businesses. Id. at 183.
7. The Task Force’s Final Report (March 1976), recommending, inter alia, that goals be established for the participation of MBEs in state procurement. Id. at 183.
8. The Governor’s Executive Directive 1976-4 (1976), stating that it is the executive branch’s policy to ensure that MBEs get a fair portion of business with the state and creating the Small and Minority Business Procurement Council. Id. at 183.
9. The First Annual Report of the Council (1977), noting that the commitment for MBEs was reached in the first year. Id. at 183-84.
10. The Governor’s Executive Directive 1975-6 (1975), directing the Michigan Department of Civil Rights to, inter alia, establish standards to assure nondiscrimination in state contracting. Id. at 184.
11. The May 15, 1978 Report of the Department of Civil Rights, expressing concern over limited progress that had been made under Directive 1975-6. Id. at 184.
12. Proposed House Bill 4335, initiated March 15, 1979, which provided for MBE set-asides, and later, WBE set-asides. Id. at 184-85.
House Bill 4335 was adopted by the legislature two years after it was introduced, and became P.A. 428, the Act at issue in this case. The district court concluded that *598this evidence was sufficient for “the Legislature to make a finding of past intentional discrimination.” Id. at 187. This is a finding of fact that is fully supported by the record and is not clearly erroneous.
The majority’s conclusion that the evidence in this case at best suggested “that societal discrimination had afforded the obstacle to the development of MBEs in their business relationship with the State of Michigan” has no support in the record. The Supreme Court has determined that societal discrimination in and of itself is not sufficient justification for enactment of an affirmative action plan. Wygant, 106 S.Ct. at 1847. As the Court noted in Bakke, it has never “approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations.” 438 U.S. at 307, 98 S.Ct. at 2757. Societal discrimination is best exemplified in Wygant. The school board extended preferential protection against layoffs to minority employees in order to provide minority students with minority role models. In holding this was an insufficient justification, the Court noted there must be some showing of prior discrimination by the governmental unit and that the plan must have a remedial purpose.
The legislative record in this case clearly shows that the plan enacted by the State of Michigan was not designed solely to aid persons perceived as members of “relatively victimized groups” or to create “role models” for minorities. As noted, the Michigan Legislature began in 1971 to review the problem of limited participation of minority and woman owned businesses in the state's procurement of goods and services. The plan that was adopted approximately nine years later was the culmination of numerous studies, hearings and proposals to rectify the situation. Any acceptable understanding of the concept of federalism requires us to accord the same degree of deference to the findings of a state legislature following years of study and investigation that we give to findings of Congress. The majority’s rejection of the legislative showing of prior discrimination is improper, not only because it fails to give the deference that a federal court should give to a state legislature’s findings, but because the level of findings which the majority would exact from the legislature has not heretofore been required.
The Supreme Court noted in Fullilove that “Congress, of course, may legislate without compiling the kind of ‘record’ appropriate with respect to judicial or administrative proceedings.” 448 U.S. at 478, 100 S.Ct. at 2774. The Court determined that “Congress had abundant evidence from which it could conclude that minority businesses have been denied effective participation in public contracting opportunities by procurement practices that perpetuated the effects of prior discrimination.” Id. at 477-78, 100 S.Ct. at 2774. There is sufficient evidence in the legislative record of Michigan Public Act 428 to support a determination that the state’s procurement practices did perpetuate the effects of prior discrimination, resulting in an extremely small percentage of contracts being awarded to minority and woman owned businesses.
As we stated in Ohio Contractors Ass’n v. Keip, 713 F.2d at 173:
The state has chosen to remedy the effects of its own past discriminatory practices by means of a program which imposes relatively light burdens on the majority group which was in position to benefit from those practices.
(Emphasis in original). Michigan did the same thing for the same reasons.
Finally, in my opinion the majority places entirely too much emphasis on semantics. The district court’s use of “significant” as opposed to “compelling” in describing the state’s interest is immaterial, given that the state clearly did have a compelling interest in eliminating discriminatory practices from its contracting and procurement procedures. Although the district court referred to a “reasonableness” test in reviewing the means chosen by Michigan to deal with the state’s interest, in actually testing the MBE program the district judge ex*599pressly analyzed all of the factors that the plurality of the Supreme Court analyzed in applying the “narrowly tailored” standard in Fullilove. 571 F.Supp. at 188.
I would affirm the judgment of the district court.