Richmond v. J.A. Croson Co. eText - Primary Source

Primary Source

Supreme Court Associate Justice Sandra Day O'Connor delivered the majority opinion of the Court for Richmond v. J.A. Croson Co. THE LIBRARY OF CONGRESS. Supreme Court Associate Justice Sandra Day O'Connor delivered the majority opinion of the Court for Richmond v. J.A. Croson Co.. THE LIBRARY OF CONGRESS Published by Gale Cengage THE LIBRARY OF CONGRESS

Supreme Court decision

By: Sandra Day O'Connor, John Paul Stevens, Antonin Scalia, Thurgood Marshall, and Harry Blackmun

Date: January 23, 1989

Source: O'Connor, Sandra Day, John Paul Stevens, Antonin Scalia, Thurgood Marshall, and Harry Blackmun. Richmond v. J.A. Croson Co., 488 U.S. 469. Available online at http://laws.findlaw.com/us/488/469.html; website home page: http://laws.findlaw.com (accessed April 21, 2003).

About the Authors: Sandra Day O'Connor (1930–) in 1981 became the first woman appointed to the U.S. Supreme Court. John Paul Stevens (1920–) was appointed to the Supreme Court by President Gerald Ford in 1975. Antonin Scalia (1936–) graduated from Harvard in 1961 and was appointed to the Supreme Court in 1986. Thurgood Marshall (1908–1993) was the first African American appointed to the Supreme Court, serving from 1967 to 1991. Harry Blackmun (1908–1999), was appointed to the Court in 1970 and served until 1994.

Introduction

In the 1960s, the federal government began to take action to end racial discrimination in the United States. In theory, such behavior had been outlawed by the Fourteenth Amendment to the Constitution in 1868. In practice, many states passed laws that denied African Americans and other minorities equal rights with white Americans, largely excluding them from white society. Not until the 1954 Supreme Court decision in Brown v. Board of Education did the federal government begin to intervene to secure the rights of minorities . Congress followed up in 1964 with the passage of the Civil Rights Act, the 1965 Voting Rights Act, and the 1968 Civil Rights Act. At this point, equality of treatment was the law of the land.

Implementing civil rights, however, proved to be difficult. One problem was that whites had numerous builtin advantages, such as previously established business contacts, more experience because of past preferences, and positions of power and leadership in most labor unions. African Americans often did not even have the opportunity to compete equally. To remedy this, some federal programs began to require that a certain percentage of federal grants had to be given to minority owned businesses, regardless of whether they submitted the lowest bid. A program of this sort was upheld in 1980 in the case of Fullilove v. Klutznick. The city of Richmond, Virginia, passed a similar affirmative action program, requiring that 30 percent of contracts had to be given to businesses owned primarily by members of various minority groups. A construction company brought suit, alleging that the plan was unconstitutional, and the case made its way to the U.S. Supreme Court.

Significance

This is one of the first U.S. Supreme Court decisions to strike down an affirmative action program. For such a program to be constitutional, the Court applied in this case a more demanding test than the one it had applied in Fullilove. The earlier case had required a "most searching examination" to determine if the government's remedy for past discrimination was constitutional; in Richmond, the Court required a "strict scrutiny" analysis, meaning that the program in question had to be the least restrictive means to accomplish a compelling state interest. On this basis, the Richmond plan was unconstitutional. The Court majority also objected to the program because Richmond had not established that it was guilty of past discrimination and hence needed remedial programs. In addition, the Court objected to a 30 percent quota as being overly rigid.

For those cities wishing to enact affirmative action programs, Richmond v. Croson set a high bar. Federal affirmative action programs had a lower bar, in part because proving discrimination on a nationwide scale was an easier undertaking. In 1995, however, federal programs were subjected to the same "strict scrutiny" standard that state and local programs had been since Richmond. Increasingly, in the eyes of the courts and much of the public, affirmative action programs were no longer an effective and fair way to solve the problem of past discrimination.

Primary Source: Richmond v. J.A. Croson Co. [excerpt]

SYNOPSIS: Justice O'Connor notes that affirmative action is allowable only where it has been shown that the city or state discriminated. She next holds that Richmond's plan is not narrowly tailored to counteract past discrimination and that past discrimination was not demonstrated, making the plan unconstitutional. Stevens concurs, arguing that affirmative action stigmatizes its beneficiaries. Scalia concurs in the judgment but argues that all affirmative action is unconstitutional because it establishes classifications based on race. Marshall dissents, arguing that Richmond has a right and a reason to adopt affirmative action and that affirmative action is allowable. Blackmun also dissents, suggesting that the majority is not true to the Constitution.

Justice O'Connor announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-B, and IV, an opinion with respect to Part II, in which The Chief Justice and Justice White join, and an opinion with respect to Parts III-A and V, in which The Chief Justice, Justice White, and Justice Kennedy join.

On April 11, 1983, the Richmond City Council adopted the Minority Business Utilization Plan (the Plan). The Plan required prime contractors to whom the city awarded construction contracts to subcon-tract at least 30% of the dollar amount of the contract to one or more Minority Business Enterprises (MBE's).…

… In Fullilove, we upheld the minority set-aside …against a challenge based on the equal protection component of the Due Process Clause.…

That Congress may identify and redress the effects of society-wide discrimination does not mean that, a fortiori, the States and their political subdivisions are free to decide that such remedies are appropriate.…

It would seem equally clear, however, that a state or local subdivision (if delegated the authority from the State) has the authority to eradicate the effects of private discrimination within its own legislative jurisdiction.…

Thus, if the city could show that it had essentially become a "passive participant" in a system of racial exclusion practiced by elements of the local construction industry, we think it clear that the city could take affirmative steps to dismantle such a system.…

While there is no doubt that the sorry history of both private and public discrimination in this country has contributed to a lack of opportunities for black entrepreneurs, this observation, standing alone, cannot justify a rigid racial quota in the awarding of public contracts in Richmond, Virginia. Like the claim that discrimination in primary and secondary schooling justifies a rigid racial preference in medical school admissions, an amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota.…

In sum, none of the evidence presented by the city points to any identified discrimination in the Richmond construction industry. We, therefore, hold that the city has failed to demonstrate a compelling interest in apportioning public contracting opportunities on the basis of race.…

As noted by the court below, it is almost impossible to assess whether the Richmond Plan is narrowly tailored to remedy prior discrimination since it is not linked to identified discrimination in any way. We limit ourselves to two observations in this regard.

First, there does not appear to have been any consideration of the use of race-neutral means to increase minority business participation in city contracting.…

Second, the 30% quota cannot be said to be narrowly tailored to any goal, except perhaps outright racial balancing. It rests upon the "completely unrealistic" assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population.…

We think it obvious that such a program is not narrowly tailored to remedy the effects of prior discrimination.…

Because the city of Richmond has failed to identify the need for remedial action in the awarding of its public construction contracts, its treatment of its citizens on a racial basis violates the dictates of the Equal Protection Clause. Accordingly, the judgment of the Court of Appeals for the Fourth Circuit is.

Affirmed.

Justice Stevens, concurring in part and concurring in the judgment.…

There is a special irony in the stereotypical thinking that prompts legislation of this kind. Although it stigmatizes the disadvantaged class with the unproven charge of past racial discrimination, it actually imposes a greater stigma on its supposed beneficiaries. For, as I explained in my opinion in Fullilove:

[E]ven though it is not the actual predicate for this legislation, a statute of this kind inevitably is perceived by many as resting on an assumption that those who are granted this special preference are less qualified in some respect that is identified purely by their race.…

Accordingly, I concur in Parts I, III-B, and IV of the Court's opinion, and in the judgment.…

Justice Scalia, concurring in the judgment.…

I do not agree, however, with Justice O'Connor's dictum suggesting that, despite the Fourteenth Amendment, state and local governments may in some circumstances discriminate on the basis of race in order (in a broad sense) "to ameliorate the effects of past discrimination." …The benign purpose of compensating for social disadvantages, whether they have been acquired by reason of prior discrimination or otherwise, can no more be pursued by the illegitimate means of racial discrimination than can other assertedly benign purposes we have repeatedly rejected.… The difficulty of overcoming the effects of past discrimination is as nothing compared with the difficulty of eradicating from our society the source of those effects, which is the tendency—fatal to a Nation such as ours—to classify and judge men and women on the basis of their country of origin or the color of their skin. A solution to the first problem that aggravates the second is no solution at all.… At least where state or local ac tion is at issue, only a social emergency rising to the level of imminent danger to life and limb—for example, a prison race riot, requiring temporary segregation of inmates …can justify an exception to the principle embodied in the Fourteenth Amendment that "[o]ur Constitution is colorblind, and neither knows nor tolerates classes among citizens". . .

Where injustice is the game, however, turnabout is not fair play.

In my view there is only one circumstance in which the States may act by race to "undo the effects of past discrimination": where that is necessary to eliminate their own maintenance of a system of unlawful racial classification.…

Apart from their societal effects, however, which are "in the aggregate disastrous," …it is important not to lose sight of the fact that even "benign" racial quotas have individual victims, whose very real injustice we ignore whenever we deny them enforcement of their right not to be disadvantaged on the basis of race.… When we depart from this American principle we play with fire, and much more than an occasional DeFunis, Johnson, or Croson burns.…

Since I believe that the appellee here had a constitutional right to have its bid succeed or fail under a decisionmaking process uninfected with racial bias, I concur in the judgment of the Court.

Justice Marshall, with whom Justice Brennan and Justice Blackmun join, dissenting.…

More fundamentally, today's decision marks a deliberate and giant step backward in this Court's affirmative-action jurisprudence. Cynical of one municipality's attempt to redress the effects of past racial discrimination in a particular industry, the majority launches a grapeshot attack on race-conscious remedies in general. The majority's unnecessary pronouncements will inevitably discourage or prevent governmental entities, particularly States and localities, from acting to rectify the scourge of past discrimination. This is the harsh reality of the majority's decision, but it is not the Constitution's command.…

Richmond has two powerful interests in setting aside a portion of public contracting funds for minority-owned enterprises. The first is the city's interest in eradicating the effects of past racial discrimination.…

Richmond has a second compelling interest in setting aside, where possible, a portion of its contracting dollars. That interest is the prospective one of preventing the city's own spending decisions from reinforcing and perpetuating the exclusionary effects of past discrimination.…

The majority pays only lipservice to this additional governmental interest.… But our decisions have often emphasized the danger of the government tacitly adopting, encouraging, or furthering racial discrimination even by its own routine operations.…

The more government bestows its rewards on those persons or businesses that were positioned to thrive during a period of private racial discrimination, the tighter the deadhand grip of prior discrimination becomes on the present and future. Cities like Richmond may not be constitutionally required to adopt setaside plans.… But there can be no doubt that when Richmond acted affirmatively to stem the perpetuation of patterns of discrimination through its own decisionmaking, it served an interest of the highest order.…

In sum, to suggest that the facts on which Richmond has relied do not provide a sound basis for its finding of past racial discrimination simply blinks credibility.…

In any event, the majority's criticisms of individual items of Richmond's evidence rest on flimsy foundations.…

No one, of course, advocates "blind judicial deference" to the findings of the city council or the testimony of city leaders.… By disregarding the testimony of local leaders and the judgment of local government, the majority does violence to the very principles of comity within our federal system which this Court has long championed.…

When the legislatures and leaders of cities with histories of pervasive discrimination testify that past discrimination has infected one of their industries, armchair cynicism like that exercised by the majority has no place.…

Finally, I vehemently disagree with the majority's dismissal of the congressional and Executive Branch findings noted in Fullilove as having "extremely limited" probative value in this case.…

Of course, Richmond could have built an even more compendious record of past discrimination, one including additional stark statistics and additional individual accounts of past discrimination. But nothing in the Fourteenth Amendment imposes such onerous documentary obligations upon States and localities once the reality of past discrimination is apparent.…

Today, for the first time, a majority of this Court has adopted strict scrutiny as its standard of Equal Protection Clause review of race-conscious remedial measures.… This is an unwelcome development. A profound difference separates governmental actions that themselves are racist, and governmental actions that seek to remedy the effects of prior racism or to prevent neutral governmental activity from perpetuating the effects of such racism.…

Racial classifications "drawn on the presumption that one race is inferior to another or because they put the weight of government behind racial hatred and separatism" warrant the strictest judicial scrutiny because of the very irrelevance of these rationales.… By contrast, racial classifications drawn for the purpose of remedying the effects of discrimination that itself was race based have a highly pertinent basis: the tragic and indelible fact that discrimination against blacks and other racial minorities in this Nation has pervaded our Nation's history and continues to scar our society.…

In concluding that remedial classifications warrant no different standard of review under the Constitution than the most brutal and repugnant forms of state-sponsored racism, a majority of this Court signals that it regards racial discrimination as largely a phenomenon of the past, and that government bodies need no longer preoccupy themselves with rectifying racial injustice. I, however, do not believe this Nation is anywhere close to eradicating racial discrimination or its vestiges. In constitutionalizing its wishful thinking, the majority today does a grave disservice not only to those victims of past and present racial discrimination in this Nation whom government has sought to assist, but also to this Court's long tradition of approaching issues of race with the utmost sensitivity.

…it is too late in the day to assert seriously that the Equal Protection Clause prohibits States—or for that matter, the Federal Government, to whom the equal protection guarantee has largely been applied …from enacting race-conscious remedies. Our cases in the areas of school desegregation, voting rights, and affirmative action have demonstrated time and again that race is constitutionally germane, precisely because race remains dismayingly relevant in American life.…

The fact is that Congress' concern in passing the Reconstruction Amendments, and particularly their congressional authorization provisions, was that States would not adequately respond to racial violence or discrimination against newly freed slaves. To interpret any aspect of these Amendments as proscribing state remedial responses to these very problems turns the Amendments on their heads.…

In short, there is simply no credible evidence that the Framers of the Fourteenth Amendment sought "to transfer the security and protection of all the civil rights …from the States to the Federal government." …But nothing in the Amendments themselves, or in our long history of interpreting or applying those momentous charters, suggests that States, exercising their police power, are in any way constitutionally inhibited from working alongside the Federal Government in the fight against discrimination and its effects.

The majority today sounds a full-scale retreat from the Court's longstanding solicitude to race-conscious remedial efforts "directed toward deliverance of the century-old promise of equality of economic opportunity." …The new and restrictive tests it applies scuttle one city's effort to surmount its discriminatory past, and imperil those of dozens more localities. I, however, profoundly disagree with the cramped vision of the Equal Protection Clause which the majority offers today and with its application of that vision to Richmond, Virginia's, laudable set-aside plan. The battle against pernicious racial discrimination or its effects is nowhere near won. I must dissent.…

Justice Blackmun, with whom Justice Brennan joins, dissenting.

I join Justice Marshall's perceptive and incisive opinion revealing great sensitivity toward those who have suffered the pains of economic discrimination in the construction trades for so long.

I never thought that I would live to see the day when the city of Richmond, Virginia, the cradle of the Old Confederacy, sought on its own, within a narrow confine, to lessen the stark impact of persistent discrimination. But Richmond, to its great credit, acted. Yet this Court, the supposed bastion of equality, strikes down Richmond's efforts as though discrimination had never existed or was not demonstrated in this particular litigation. Justice Marshall convincingly discloses the fallacy and the shallowness of that approach. History is irrefutable, even though one might sympathize with those who—though possibly innocent in themselves—benefit from the wrongs of past decades.

So the Court today regresses. I am confident, however, that, given time, it one day again will do its best to fulfill the great promises of the Constitution's Preamble and of the guarantees embodied in the Bill of Rights—a fulfillment that would make this Nation very special.

Further Resources

BOOKS

Brisbin, Richard A. Justice Antonin Scalia and the Conservative Revival. Baltimore, Md.: Johns Hopkins University Press, 1997.

Curry, George E., and Cornel West, The Affirmative Action Debate. Reading, Mass.: Addison-Wesley, 1996.

Van Sickel, Robert W. Not a Particularly Different Voice: The Jurisprudence of Sandra Day O'Connor. New York: P. Lang, 1998.

PERIODICALS

Joyce Holmes Benjamin. "The Supreme Court Decision [City of Richmond v. J.A. Croson Co.] and the Future of Race-conscious Remedies." Government Finance Review 5, no. 2, April 1989, 21–24.

"Constitutional Scholars' Statement on Affirmative Action after City of Richmond v. J.A. Croson Co." Yale Law Journal 98, no. 8, July 1989, 1711–1716.

WEBSITES

Affirmative Action Defended by W.B. Allen. Available online at http://www.msu.edu/~allenwi/essays_and_misc/Affirmative_Act... ; website home page: http://www.msu.edu (accessed February 11, 2003).