RICHMOND (CITY OF) v. J. A. CROSON CO. 488 U.S. 469 (1989)

In fullilove v. klutznick (1980) the Supreme Court upheld an act of Congress requiring that ten percent of certain federal subsidies to local governments be set aside for contractors that were minority-owned business enterprises (MBE). In Croson the Court invalidated a similar affirmative action ordinance adopted by a city. The ordinance, adopted for a five-year term, required a prime contractor to allocate thirty percent of the dollar amount of the contract to MBE subcontractors. A waiver was authorized in the event that MBE were not available. The Court held, 6–3, that this scheme denied nonminority businesses the equal protection of the laws.

Justice sandra day o'connor wrote an opinion that was in part the opinion of the court and in part a plurality opinion. A majority concurred in the opinion's basic building blocks: that the appropriate standard of review for a state and local affirmative action program was strict scrutiny; that the city had not offered sufficient evidence of "identified discrimination" that could justify a race-conscious remedy; and that the city's program, even if it were remedial, was not sufficiently narrowly tailored to such discrimination. In addition, she spoke for a plurality in concluding that Congress's remedial powers, unlike those of the states, could extend to remedying past societal discrimination. (See fourteenth amendment, section 5 (judicial construction). ) Justice anthony m. kennedy, concurring, dissociated himself from the latter position, and Justice antonin scalia, also concurring, argued that the city had power to use race-conscious remedies only for its own discrimination. Justice john paul stevens concurred only in the view that Richmond's plan was not justified by sufficient evidence of past discrimination and was not narrowly tailored.

Justice O'Connor concluded that Richmond could constitutionally provide a race-conscious remedy not only for its own past discrimination but also for past discrimination by private contractors or trade associations in the Richmond area. She also concluded that such discrimination might be proved by statistics showing a serious disparity between the percentage of qualified MBE in the area and the percentage of contracts awarded to MBE. Here, however, the city had shown only that the MBE contracts were extremely low in comparison with the percentage of minorities in Richmond's general population. To achieve a "narrowly tailored" program, she said, Richmond would have to show that race-neutral alternatives were unworkable, and to peg its MBE set-aside percentage at a figure that bore a clearly stated relation to the percentage of qualified MBE.

Justice thurgood marshall wrote a sharply worded opinion for the three dissenters. He argued that strict scrutiny was inappropriate and that Richmond's ordinance served the important purposes of remedying the effects of a pattern of past discrimination and keeping the city from reinforcing that pattern. He found the Richmond council's conclusions about past discrimination, both by the city and by private contractors, to be soundly based. Justice harry a. blackmun also dissented.

Although many civil rights advocates regarded Croson as a serious setback for affirmative action, it may turn out, like regents of university of california v. bakke (1978), to be a blessing in disguise for their cause. Certainly, Croson 's standards for affirmative action in state and local government contracting will, in some communities, prevent any effective affirmative action. One of the legacies of racial discrimination is the paucity of minority businesses in many of the fields in which governments offer contracts. However, Justice O'Connor's explicit approval of statistical proof of past discrimination offers considerable opportunity, particularly for states and for large cities, to satisfy the Court's requirements. More important, six Justices not only reaffirmed the Fullilove precedent, which had seemed vulnerable, but also issued to Congress a sweeping invitation to engage in broad-scale affirmative action of its own aimed at remedying the effects of past societal discrimination.

Kenneth L. Karst
(1992)

Bibliography

Constitutional Scholars' Statement on Affirmative Action After City of Richmond v. J. A. Croson Co. 1989 Yale Law Journal 98:1711–1716.

Fried, Charles 1989 Affirmative Action After City of Richmond v. J. A. Croson Co., A Response to the Scholars' Statement. Yale Law Journal 99:155–161.

Scholars' Reply to Professor Fried 1989 Yale Law Journal 99: 163–168.