City of Richmond v. J. A. Croson Co.

Justice Stevens agreed that Richmond’s ordinance could not be justified as a remedy for past discrimination, but he did not accept the premise that race-based governmental action is permissible only as a remedy for a past wrong. In his view, race may occasionally be relevant to sound policymaking when it produces concrete future public benefits, though public contracting presented no such justification.

He distinguished legislative remedies from judicial remedies. Courts that have found actual discrimination may have broad equitable authority to remedy it, but a legislature generally is less suited to identify particular past wrongdoers and victims. A legislative set-aside therefore risks requiring innocent private parties to compensate others for unproven injuries.

The ordinance rested on stereotypes about both its beneficiaries and those it disadvantaged. It benefited minority businesses that may never have suffered discrimination in Richmond, including firms from outside the city, while burdening all nonminority contractors, including those who had never discriminated. That mismatch made the ordinance an impermissible racial classification rather than a carefully targeted remedy.

Justice Kennedy joined the Court except for its discussion of Congress’s special authority under § 5 of the Fourteenth Amendment. He regarded the proposition that a measure unconstitutional when enacted by a state may become constitutionally valid when enacted by Congress as difficult, and believed that question should await a case directly presenting it.

He agreed that states have power—and sometimes a duty—to eradicate discrimination in public and private life. But racial preferences must undergo the most rigorous scrutiny, and they may be used only as a last resort consistent with the Constitution’s commitment to racial neutrality.

Richmond had not investigated the nature, causes, scope, or duration of the alleged injury; its own role in the problem; the necessity of the remedy; or the relation between the 30% quota and any proven exclusion. The sparse record left the ordinance open to the conclusion that it was a political preference rather than a genuine remedy.

Justice Scalia agreed that strict scrutiny applies to all governmental racial classifications, but he would have adopted a more categorical rule for state and local governments. In his view, a benign purpose does not make racial discrimination constitutionally permissible, because using race to cure social disadvantage perpetuates the race-based thinking that produced the disadvantage.

He would allow a state or locality to use race only when necessary to eliminate its own continuing system of unlawful racial classification, such as correcting an explicitly discriminatory state pay scale or dismantling a still-existing dual school system. That is different, he argued, from granting preferences based on broad claims about the lingering effects of private or societal discrimination.

A locality may assist actual victims of discrimination and may adopt race-neutral programs benefiting disadvantaged or new businesses. Once actual victims are identified, however, race-based classifications are less necessary, not more. Croson was entitled to have its bid evaluated through a process free from racial bias.

Justice Marshall argued that Richmond had a compelling interest in remedying the effects of past racial discrimination and in preventing city contracting dollars from reinforcing a construction market shaped by discrimination. He viewed the city’s program as materially indistinguishable from the federal set-aside upheld in Fullilove.

In his view, Richmond had an adequate factual basis: national congressional and executive findings documenting pervasive discrimination in construction, the minuscule share of Richmond contract dollars awarded to minority firms, near-total exclusion of minorities from local trade associations, and testimony from city officials familiar with local conditions. The majority improperly isolated and discounted each item instead of considering the evidence together.

Justice Marshall believed the majority demanded an unduly exacting and unnecessary form of local proof. A city should be able to rely on relevant national findings as well as its own evidence; it should not have to duplicate Congress’s extensive studies before confronting a well-documented form of discrimination.

He would have applied intermediate rather than strict scrutiny to remedial racial classifications. In his view, classifications designed to remedy racial exclusion should be sustained when they serve important governmental objectives and are substantially related to those objectives, because they differ fundamentally from classifications based on racial inferiority or hostility.

Richmond’s plan was sufficiently tailored, Justice Marshall concluded. It lasted only five years, operated prospectively, contained waivers, burdened only a small portion of the overall local contracting market, and set a target roughly midway between existing minority participation and minorities’ share of the city population. Race-neutral measures had already proved inadequate in the construction industry, so Richmond was not required to repeat them before acting.

Justice Blackmun joined Justice Marshall’s dissent and emphasized the historical irony of the Court invalidating Richmond’s attempt to reduce entrenched economic discrimination. Richmond’s history of racial exclusion, he believed, made its effort to address discrimination especially deserving of respect rather than judicial disbelief.

He maintained that the Court’s decision treated discrimination as though it either had not existed or had not been adequately shown, despite the historical record and the evidence discussed by Justice Marshall. In his view, the decision marked a regression from the Constitution’s promise of equality.