Court Bars City ‘Set-Aside’ Policy Based on Race: Set Stringent Test for Discrimination Remedies

By Tom Mirga — February 01, 1989 7 min read

Washington--The U.S. Supreme Court voted 6 to 3 last week to limit the ability of school districts and state and local governments to require that minority-owned businesses receive a set percentage of their construction contracts.

Also in its Jan. 23 decision striking down a Richmond, Va., public-works policy, a majority of the Court’s members agreed for the first time to hold state and local rules that give minority groups preferential treatment over whites to the same standard of “strict scrutiny” used to judge policies that favor whites over minorities.

Legal experts differed last week on the ramifications of the decision for public schools. While most agreed that the ruling in City of Richmond v. J.A. Croson Company (Case No. 87-998) will directly affect contract “set asides” for minority-owned businesses, there was less consensus on its probable effects on racially motivated hiring, transfer, and promotion policies.

The Court’s holding on the strict-scrutiny issue is significant because in prior affirmative-action cases, the Justices were unable to agree whether programs benefiting racial minorities should be judged under a less-stringent “intermediate” standard, or under the harsher rule used to strike down laws that mandated segregation.

Under the Court’s ruling in Richmond, governments now will have to demonstrate that an affirmative-action policy is required to achieve a compelling interest, and that the policy is “narrowly tailored” to preserve the rights of whites to the greatest extent possible.

Many legal observers said last week that the ruling casts doubt on a wide variety of affirmative-action programs because the Court has upheld only one governmental policy that treated members of one race differently than others after viewing it through the lens of strict scrutiny. That was in 1943, when the Court approved the forced relocation of Japanese Americans during World War II.

‘Smoke Out’ Discrimination

"[T]he purpose of strict scrutiny is to ‘smoke out’ illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool,” wrote Associate Justice Sandra Day O’Connor in a portion of her opinion that was joined only by Chief Justice William H. Rehnquist and Associate Justices Byron H. White and Anthony M. Kennedy.

“The test also ensures that the means chosen ‘fit’ this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype,” she added.

In a separate concurring opinion, Justice Kennedy agreed with “the proposition that any racial preference must face the most rigorous scrutiny by the courts.”

“The moral imperative of racial neutrality is the driving force” of the 14th Amendment’s equal-protection clause, he wrote.

Associate Justice Antonin Scalia went even further in an opinion that no other Justices joined, saying that states may adopt race-conscious remedies for discrimination only when it “is necessary to eliminate their own maintenance of a system of unlawful racial classification.” The other members of the majority agreed that states also could take such steps to address discrimination in the private sector.

Although Associate Justice John Paul Stevens provided a sixth vote to strike down the Richmond set-aside program, he wrote a separate opinion disagreeing with the majority’s stance “that a governmental decision that rests on a racial classification is never permissible except as a remedy for a past wrong.”

In 1986, Justice Stevens dissented from the Court’s decision to strike down a program that gave preferential treatment to black teachers in Jackson, Mich., when layoffs were required.

In that case, he wrote last week, “I thought it quite obvious that the school board had reasonably concluded that an integrated faculty4could provide educational benefits to the entire student body that could not be provided by an all-white or nearly all-white faculty.”

“As I pointed out in my dissent in that case,” he continued, “even if we completely disregard our history of racial injustice, race is not always irrelevant to sound governmental decisionmaking.”

Marshall’s Dissent

Associate Justice Thurgood Marshall echoed that theme in a dissent joined by Justices William J. Brennan Jr. and Harry A. Blackmun.

“In concluding that remedial classifications warrant no different standard of review under the Constitution than the most brute and repugnant forms of state-sponsored racism, a majority of this Court signals that it regards racial discrimination largely as a phenomenon of the past, and that government bodies need no longer preoccupy themselves with rectifying racial injustice,” Justice Marshall wrote.

“In constitutionalizing its wishful thinking,” the Justice wrote, ''the majority today does a grave disservice ... to those victims of past and present racial discrimination.”

According to Justice Marshall, the city of Richmond “has witnessed decades of publicly sanctioned racial discrimination in virtually all walks of life.”

“The majority today sounds a full-scale retreat from the Court’s longstanding solicitude to race-conscious remedial efforts,” he concluded. “The new and restrictive tests it applies scuttle one city’s effort to surmount its discriminatory past, and imperils those of dozens more localities.”

Effects on Set-Asides

School-law experts interviewed last week predicted that the effect of the Court’s ruling on public schools would be most pronounced in the area of contract set-asides. (See related story on page 1.)

In her majority opinion, Justice O’Connor listed several reasons why the Richmond plan failed to satisfy the two-pronged strict-scrutiny test.

First, she said, city officials did not demonstrate there was a compelling interest for the policy’s adoption because they failed to prove there was a history of discrimination in Richmond in the awarding of city contracts.

"[A]n amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota,” she wrote. “Racial classifications are suspect, and that means that simple legislative assurances of good intentions cannot suffice.”

Second, Justice O’Connor continued, “it is almost impossible to assess whether the Richmond plan is narrowly tailored to remedy prior discrimination since it was not8linked to identified discrimination in any way.”

In addition, she noted, “there does not appear to have been any consideration of race-neutral means” to increase minority business participation in city contracting. Such methods, the Justice said, might include “simplification of bidding procedures, relaxation of bonding requirements, and training and financial aid for disadvantaged entrepreneurs of all races.”

Effects on Employment Unclear

Education-law specialists said the Richmond decision’s implications for school district affirmative-action policies involving employment are less certain. Most agreed that the situation would not be fully resolved until a new education-specific case or set of cases works its way through the courts.

According to one line of reasoning, the rationale that the High Court’s majority applied to the contract set-aside issue applies equally well in the realm of employment.

In other words, before a district can practice affirmative action in hiring, transfers, or promotions, it must first prove that minority teachers have been discriminated against. In addition, the district must consider and exhaust all race-neutral options available to it before it can seek approval for a quota system.

Other experts noted, however, that it appears that at least four members of the Court and perhaps a fifth would vote to support the argument that the educational benefit of an integrated faculty is a sufficiently “compelling interest” to justify affirmative action in the absence of a history of discrimination.

According to these experts, Justices Marshall, Brennan, Blackmun, and Stevens adopted this stance in the 1986 teacher-layoff case, Wygant v. Jackson Board of Education, and Justice Stevens restated it in his concurring opinion in Richmond.

In addition, they pointed out, Justice O’Connor indicated in a footnote in her concurring opinion in Wygant that she would at least be willing to consider that argument.

The experts said it was also unclear how the Richmond ruling might affect lower-court orders or voluntary programs, arising in school-desegregation cases, that apportion teachers, students, or resources on the basis of race. (See related story, page 1.)

A version of this article appeared in the February 01, 1989 edition of Education Week as Court Bars City ‘Set-Aside’ Policy Based on Race: Set Stringent Test for Discrimination Remedies