Richmond (City of) v. J. A. Croson Co. 488 U.S. 469 (1989)

• Author: Kenneth L. Karst
• Pages: 2230-2231

Page 2230

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,

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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...