Following are excerpts from the U.S. Supreme Court’s ruling in City of Richmond v. Croson. Justice O’Connor wrote for the majority in parts I, III-B, and IV (not excerpted) of her opinion. Part II (not excerpted) of her opinion was joined by Chief Justice Rehnquist and Justice White; parts III-A and V (not excerpted) were joined by the Chief Justice, Justice White, and Justice Kennedy.
Separate concurrences were filed by Justices Kennedy, Scalia, and Stevens. Justice Marshall wrote the dissent, in which Justices Brennan and Blackmun concurred. Justice Blackmun filed a separate dissent, in which Justice Brennan concurred.
In this case, we confront once again the tension between the 14th Amendment’s guarantee of equal treatment to all citizens, and the use of race-based measures to ameliorate the effects of past discrimination on the opportunities enjoyed by minority groups in our society. ...
... There was no direct evidence of race discrimination on the part of the city in letting contracts or any evidence that the city’s prime contractors had discriminated against minority-owned subcontractors.
The Equal Protection clause of the 14th Amendment provides that "[N]o state shall ... deny to any person within its jurisdiction the equal protection of the laws (emphasis added). As this Court has noted in the past, the “rights created by the first section of the 14th Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights.” The Richmond Plan denies certain citizens the opportunity to compete for a fixed percentage of public contracts based solely upon their race. To whatever racial group these citizens belong, their “personal rights” to be treated with equal dignity and respect are implicated by a rigid rule erecting race as the sole criterion in an aspect of public decisionmaking.
Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are “benign” or “remedial” and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. Indeed the 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. 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.
Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility. ...
Under the standard proposed by Justice Marshall’s dissent, "[r]ace-conscious classifications designed to further remedial goals,” are forthwith subject to a relaxed standard of review. How the dissent arrives at the legal conclusion that a racial4classification is “designed to further remedial goals,” without first engaging in an examination of the factual basis for its enactment and the nexus between its scope and that factual basis we are not told. However, once the “remedial” conclusion is reached, the dissent’s standard is singularly deferential, and bears little resemblance to the close examination of legislative purpose we have engaged in when reviewing classifications based either on race or gender. The dissent’s watered-down version of equal protection review effectively assures that race will always be relevant in American life, and that the “ultimate goal” of “eliminat[ing] entirely from governmental decisionmaking such irrelevant factors as a human being’s race,” will never be achieved.
Even were we to accept a reading of the guarantee of equal protection under which the level of scrutiny varies according to the ability of different groups to defend their interests in the representative process, heightened scrutiny would still be appropriate in the circumstances of this case. One of the central arguments for applying a less exacting standard to “benign” racial classifications is that such measures essentially involve a choice made by dominant racial groups to disadvantage themselves. If one aspect of the judiciary’s role under the Equal Protection Clause is to protect “discrete and insular minorities’’ from majoritarian prejudice or indifference, some maintain that these concerns are not implicated when the “white majority” places burdens upon itself.
In this case, blacks comprise approximately 50% of the population of the city of Richmond. Five of the nine seats on the City Council are held by blacks. The concern that a political majority will more easily act to the disadvantage of a minority based on unwarranted assumptions or incomplete facts would seem to militate for, not against, the application of heightened judicial scrutiny in this case.
In Bakke, the Court confronted a racial quota employed by the University of California at Davis Medical School. Under the plan, 16 out of 100 seats in each entering class at the school were reserved exclusively for certain minority groups. Among the justifications offered in support of the plan were the desire to “reduce the historic deficit of traditionally disfavored minorities in medical school and the medical profession” and the need to “counte[r] the effects of societal discrimination.” Five members of the Court determined that none of these interests could justify a plan that completely eliminated nonminorities from consideration for a specified percentage of opportunities.
Justice Powell’s opinion applied heightened scrutiny under the Equal Protection Clause to the racial classification at issue. His opinion decisively rejected the first justification for the racially segregated admission plan. The desire to have more black medical students or doctors, standing alone, was not merely insufficiently compelling to justify a racial classification, it was “discrimination for its own sake,” forbidden by the Constitution. Nor could the second concern, the history of discrimination in society at large, justify a racial quota in medical-school admissions. Justice Powell8contrasted the “focused” goal of remedying “wrongs worked by specific instances of racial discrimination” with “the remedying of the effects of ‘societal discrimination,’ an amorphous concept of injury that may be ageless in its reach into the past.” He indicated that for the governmental interest in remedying past discrimination to be triggered, “judicial, legislative, or administrative findings of constitutional or statutory violations” must be made. Only then does the government have a compelling interest in favoring one race over another.
In Wygant, four members of the Court applied heightened scrutiny to a race-based system of employee layoffs. Justice Powell, writing for the plurality, again drew the distinction between “societal discrimination” which is an inadequate basis for race-conscious classifications, and the type of identified discrimination that can support and define the scope of race-based relief. The challenged classification in that case tied the layoff of minority teachers to the percentage of minority students enrolled in the school district. The lower courts had upheld the scheme, based on the theory that minority students were in need of “role models” to alleviate the effects of prior discrimination in society. This Court reversed, with a plurality of four Justices reiterating the view expressed by Justice Powell in Bakke that "[s]ocietal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy.”
The role-model theory employed by the lower courts failed for two reasons. First, the statistical disparity between students and teachers had no probative value in demonstrating the kind of prior discrimination in hiring or promotion that would justify race-conscious relief. Second, because the role-model theory had no relation to some basis for believing a constitutional or statutory violation had occurred, it could be used to “justify” race-based decisionmaking essentially limitless in scope and duration. ...
... 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 school 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.
... ... Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice.
... In the employment context, we have recognized that for certain entry-level positions or positions requiring minimal training, statistical comparisons of the racial composition of an employer’s workforce to the racial composition of the relevant population may be probative of a pattern of discrimination. But where special qualifications are necessary, the relevant statistical pool for purposes of demonstrating discriminatory exclusion must be the number of minorities qualified to undertake the particular task.
... ... While the states and their subdivisions may take remedial action when they possess evidence that their own spending practices are exacerbating a pattern of prior discrimination, they must identify that discrimination, public or private, with some specificity before they may use race-conscious relief. Congress has made national findings that there has been societal discrimination in a host of fields. If all a state or local government need do is find a congressional report on the subject to enact a set-aside program, the constraints of the Equal Protection Clause will, in effect, have been rendered a nullity.
... ... To accept Richmond’s claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for “remedial relief” for every disadvantaged group. The dream of a nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs. We think such a result would be contrary to both the letter and the spirit of a constitutional provision whose central command is equality.
We have in some contexts approved the use of racial classifications by the federal government to remedy the effects of past discrimination. I do not believe that we must or should extend those holdings to the states. ...
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. If, for example, a state agency has a discriminatory pay scale compensating black employees in all positions at 20 percent less than their nonblack counterparts, it may assuredly promulgate an order raising the salaries of “all black employees” by 20 percent.
This distinction explains our school-desegregation cases, in which we have made plain that states and localities sometimes have an obligation to adopt race-conscious remedies. While there is no doubt that those cases have taken into account the continuing “effects” of previously mandated racial school assignment, we have held those effects to justify a race-conscious remedy only because we have concluded, in that context, that they perpetuate a “dual school system.” We have stressed each school district’s constitutional “duty to dismantle its dual system,” and have found that "[e]ach instance of a failure or refusal to fulfill this affirmative duty continues the violation of the 14th Amendment.” Concluding in this context that race-neutral efforts at “dismantling the state-imposed dual system” were so ineffective that they might “indicate a lack of good faith,” we have permitted, as part of the local authorities’ “affirmative duty to disestablish the dual school systems,” such voluntary (that is, noncourt-ordered) measures as attendance zones drawn to achieve greater racial balance, and out-of-zone assignment by race for the same purpose.
While thus permitting the use of race to declassify racially classified students, teachers, and educational resources, however, we have also made it clear that the remedial power extends no further than the scope of the continuing constitutional violation. And it is implicit in our cases that after the dual school system has been completely disestablished, the states may no longer assign students by race.
... It is plainly true that in our society blacks have suffered discrimination immeasurably greater than any directed at other racial groups. But those who believe that racial preferences can help “even the score” display, and reinforce, a manner of thinking by race that was the source of the injustice and that will, if it endures within our society, be the source of more injustice still. ... Racial preferences appear to “even the score” (in some small degree) only if one embraces the proposition that our society is appropriately viewed as divided into races, making it right that an injustice rendered in the past to a black man should be compensated by discriminating against a white. Nothing is worth that embrace. Since blacks have been disproportionately disadvantaged by racial discrimination, any race-neutral remedial program aimed at the disadvantaged as such will have a disproportionately beneficial impact on blacks. Only such a program, and not one that operates on the basis of race, is in accord with the letter and the spirit of our Constitution.
A central purpose of the 14th Amendment is to further the national goal of equal opportunity for all our citizens. In order to achieve that goal we must learn from our past mistakes, but I believe the Constitution requires us to evaluate our policy decisions--including those that govern the relationships among different racial and ethnic groups--primarily by studying the probable impact on the future. I therefore do not agree with the premise that seems to underlie today’s decision, as well as the decision in Wygant v. Jackson Board of Education (1986), that a governmental decision that rests on a racial classification is never permissible except as a remedy for a past wrong. I do, however, agree with the Court’s explanation of why the Richmond ordinance cannot be justified as a remedy for past discrimination ... I write separately to emphasize three aspects of the case that are of special importance to me.
First, the city makes no claim that the public interest in the efficient performance of its construction contracts will be served by granting a preference to minority-business enterprises. This case is therefore completely unlike Wygant, in which I thought it quite obvious that the school board had reasonably concluded that an integrated faculty could 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, even if we completely disregard our history of racial injustice, race is not always irrelevant to sound governmental decisionmaking. ...
Second, this litigation involves an attempt by a legislative body, rather than a court, to fashion a remedy for a past wrong. Legislatures are primarily policymaking bodies that promulgate rules to govern future conduct. ... It is the judicial system, rather than the legislative process, that is best equipped to identify past wrongdoers and to fashion remedies that will create the conditions that presumably would have existed had no wrong been committed. Thus, in cases involving the review of judicial remedies imposed against persons who have been proved guilty of violations of law, I would allow the courts in racial discrimination cases the same broad discretion that chancellors enjoy in other areas of the law.
Third, instead of engaging in a debate over the proper standard of review to apply in affirmative-action litigation, I believe it is more constructive to try to identify the characteristics of the advantaged and disadvantaged classes that may justify their disparate treatment. In this case that approach convinces me that, instead of carefully identifying the characteristics of the two classes of contractors that are respectively favored and disfavored by its ordinance, the Richmond City Council has merely engaged in the type of stereotypical analysis that is a hallmark of violations of the Equal Protection Clause. Whether we look at the class of persons benefited by the ordinance or at the disadvantaged class, the same conclusion emerges.
... 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.
It is a welcome symbol of racial progress when the former capital of the Confederacy acts forthrightly to confront the effects of racial discrimination in its midst. In my view, nothing in the Constitution can be construed to prevent Richmond, Virginia, from allocating a portion of its contracting dollars for businesses owned or controlled by members of minority groups. ... The essence of the majority’s position is that Richmond has failed to catalogue adequate findings to prove that past discrimination has impeded minorities from joining or participating fully in Richmond’s construction contracting industry. I find deep irony in second-guessing Richmond’s judgment on this point. As much as any municipality in the United States, Richmond knows what racial discrimination is; a century of decisions by this and other federal courts has richly documented the city’s disgraceful history of public and private racial discrimination. In any event, the Richmond City Council has supported its determination that minorities have been wrongly excluded from local con4struction contracting [with] precisely the types of statistical and testimonial evidence which, until today, this Court had credited in cases approving of race-conscious measures designed to remedy past discrimination.
More fundamentally, today’s decision marks a deliberate and giant step backward in this Court’s affir-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.
... My view has long been that race-conscious classifications designed to further remedial goals “must serve important governmental objectives and must be substantially related to achievement of those objectives” in order to withstand constitutional scrutiny. Analyzed in terms of the two-prong standard, Richmond’s set-aside, like the federal program on which it was modeled, is “plainly constitutional.”
... 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 brute 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 descrimination 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.
Today’s decision, finally, is particularly noteworthy for the daunting standard it imposes upon states and localities contemplating the use of race-conscious measures to eradicate the present effects of prior dis8crimination and prevent its perpetuation. The majority restricts the use of such measures to situations in which a state or locality can put forth “a prima facie case of a constitutional or statutory violation.” ...
Nothing in the Constitution or in the prior decisions of this Court supports limiting state authority to confront the effects of past discrimination to those situations ...
... 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 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 tod 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.
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.
A version of this article appeared in the February 01, 1989 edition of Education Week as Excerpts From Ruling in Richmond v. J.A. Croson Company