The impact of Croson on equal protection law and policy.

• Author: La Noue, George R.

1. Introduction

   In many respects the Supreme Court's 1989 decision, City of Richmond v. J.A Croson Co.,(1) was the most significant civil rights case of the nineteen eighties. It set new standards of review in equal protection cases and quickly became a decisive precedent in the areas of public employment, higher education, and voting rights laws. Ironically, for the first four years after the decision, Croson had little direct influence in the area of public contracting law where the case originated, though that has now changed dramatically Most importantly, Croson has changed the terms of the debate on affirmative action policy in the United States. What follows is a discussion of the various impacts of Croson in the eight year period since the Supreme Court decision.

2. The Croson Legal Principles

   The Croson case, like so many landmark decisions, began over a mundane, almost trivial, incident. Richmond needed to instar new urinals in the city jail.(2) The J.A. Croson firm was the only bidder at $126,530.(3) When it sought a minority subcontractor to comply with the 30% "goal" in the city's Minority Business Enterprise (MBE) program, the only responding subcontractor quoted a price that would have made the project unprofitable for Croson.(4) Croson asked the city for a waiver, and when that was refused, began the lawsuit in 1984 that resulted in victory in 1989.(5)

   The Croson decision was the culmination of a trend in the Supreme Court and appellate courts toward tightening standards for the use of racial classifications. In Wygant v. Jackson Board of Education,(6) decided in 1986, the Supreme Court announced two clear principles for evaluating the use of racial classifications.(7) First, there had to be a compelling state purpose, and second, the remedy had to be narrowly tailored.(8) After the Fourth Circuit rather reluctantly upheld Richmond's MBE goals in J.A. Croson Co. v. City of Richmond,(9) decided in 1985, the Supreme Court remanded the case asking the circuit to take a second look at the city's MBE program "in light of Wygant.(10)

   By 1989, when the Supreme Court considered the Croson case again, the Justices were the beneficiaries of more extensive reviews of MBE programs in circuits court decisions and in law review articles. Two years earlier, in 1987, the Sixth and Ninth Circuits had struck down MBE programs,(11) and the Fourth Circuit had concluded on remand of Croson that Richmond's program could not survive strict scrutiny.(12) That same year, Drew S. Days, III, the former Assistant Attorney General in the Carter administration, who had argued and won Fullilove v. Klutznick,(13) in which a deeply divided Supreme Court upheld a federal MBE program, wrote in the Yale Law Journal:

   Specifically, I find myself asking whether Congress and the

   Supreme Court, in enacting and approving the Public Works

   Employment Act, established standards for the formulation

   and judicial review of minority set-aside program-9 that,

   constitutionality aside, fall below those we ought to employ,

   given our justifiable national sensitivity to racial

   classifications. These concerns multiply at the prospect of the

   proliferation of minority set-aside programs at the state and local

   levels even though they, too, may be fully explicable and

   constitutionally permissible responses to patterns of

   discrimination against minority contractors.(14)

   Later in the article, Days foreshadowed the Croson decision when he wrote that, "it is essential that state and local agencies also establish the presence of discrimination in their own bailiwicks, based either upon their own fact-finding processes or upon determinations made by other competent institutions, such as courts and administrative agencies.,(15)

   Consequently, by 1989, the constitutionality of MBE programs was a mature issue, attracting not only the focused attention of the Court but scores of amicus briefs from interested parties in the legal, governmental, civil rights, and business communities.(16) Croson, therefore, was decided with an eye toward creating enduring legal principles. This intent was one reason the three dissenters were so biting in their criticisms.(17) First, the Court repeated that the standard for evaluating any use of racial classifications was strict scrutiny, whether the intended beneficiary was a member of a group in the majority or a minority.(18) Second, the Court addressed the obligation of a local jurisdiction to establish prior discrimination before it could employ a suspect racial classification.(19) Justice O'Connor, writing for the plurality, stated that it was necessary for a government to make:

   [p]roper findings ... to define both the scope of the injury and

   the extent of the remedy necessary to cure its effects. Such

   findings also serve to assure all citizens that the deviation

   from the norm of equal treatment of all racial and ethnic

   groups is a temporary matter, a measure taken in the service

   of the goal of equality itself.(20)

   Justice O'Connor went on to say that the judiciary would have a responsibility to examine those findings because "[a]bsent 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.(21)

   No longer were rhetorical statements or sweeping generalizations sufficient to establish racial classifications. Croson, quoting the plurality opinion in Wygant, affirmed that "[i]n the absence of particularized findings, a court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future."'(22)

   Croson further admonished against the use of "a generalized assertion that there has been past discrimination in an entire industry' because such a declaration provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy."(23)) Again, referring to Wygant, the Croson Court reiterated 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.(24)

   Other legal principles articulated by the Croson Court include:

   1. State and local governments may act to remedy direct as

      well as indirect contract discrimination for which they are

      responsible;(25)

   2. Evidence of general societal discrimination or of

      discrimination by an entire industry in the past is not enough to

      justify racial classifications;(27)

   3. Finding discrimination in one market does not permit an

      assumption that discrimination exists in all markets;(28)

   4. Finding discrimination against one minority group does

      not permit an assumption that discrimination exists against

      all such groups;(29)

   5. The proper prima facie test of contract discrimination is

      whether qualified, willing, and able minority firms are

      underutilized statistically by state and local governments or their

      prime contractors;(30)

   6. If discrimination is identified, race-neutral remedies must

      be utilized first;(31)

   7. If race conscious programs are necessary in extreme cases,

      they must be narrowly tailored.(32)

      These principles made it clear that not only were most of the MBE programs in the country vulnerable, but many other forms of affirmative action, if tested by Croson standards, would not survive. Few MBE or other affirmative action programs, founded as they generally were on the basis of broad generalizations about American history and contemporary societal discrimination, and implemented on the basis of political bargains, were consistent with Croson's demands for proper findings and narrow tailoring.

      Nevertheless, these programs had powerful political and bureaucratic support. At least 234 MBE program existed in state and local governments, often interrelated with more than 100 federal programs.(34) No one knows how many affirmative action programs in public employment, admissions, and scholarships were in place throughout the country, but, like other entitlements, each of these programs was supported by local political coalitions and by bureaucracies whose livelihoods depended on their continuation. Groups advocating preferences often insisted that prospective organizational leaders be screened for their support of affirmative action. Indeed, the existence of racial preferences became so widespread that few incumbent politicians, administrators, or academic officers had not, at some time, at least passively supported them. Repudiating one's previous positions is always awkward. Thus, there were not many persons in the leadership class in a position to advocate dismantling the edifice of preferences.

3. The Era of Frustration in Public Contracting Cases

   After Croson was decided, commentators immediately seized on its potential significance. David M. O'Brien, a University of Virginia professor of government, remarked that "the 190 cities and 36 states that presently have racial affirmative action programs must immediately re-examine them in light of the court's new stance.(35)

   The National League of Cities said in its newspaper:

   The decision cast a pall of uncertainty over state or local

   programs which use a numerical quota or any other form of

   racial preference. It is likely to lead to the reassessment of

   affirmative action plan,,; and other race preferences in many

   communities and could well lead to a rash of lawsuits alleging

   reverse discrimination against cities.(36)

   Perhaps the most telling statement about the potential significance of Croson came in the form of a manifesto by thirty distinguished law school dean.,. and professors.(37) The document, released by participants in a conference convened by Professor Laurence Tribe, sought to limit the interpretation of the decision and to "permit local governments adequate time...