Summary of Richmond v. J.A. Croson Co.
Plan required city contractors to subcontract 30% of their work to minority-owed businesses. Waivers are given when a contractor can show that the requirement can’t be satisfied. There was no evidence prior to the Plan’s enactment that there was racial discrimination on the part of the contractors.
Questioned whether there were enough minority owned businesses in the city to satisfy the 30% requirement. Could lead to two problems: only a few minority businesses getting the windfall of the Plan, or more work being given to non-local minority businesses to satisfy the requirement.
Court of Appeals struck down the set-aside program saying that it violated both prongs of the strict scrutiny test.
Does the set-aside program violate the EPC?
Yes, even benign discrimination (those that favor minorities) are subject to strict scrutiny.
Fullilove v. Klutznick:
Upheld the set-aside program, but the court didn’t employ the strict scrutiny test in the analysis. Two reasons for upholding in this case:
- congress is better abled under the constitution to remediate discrimination.
- because exceptions are granted to the set-aside requirement, it would fix the problem if there weren’t enough minority businesses to fulfill the requirement or if minority businesses upped their prices
- The city says that in Fullilove since the Congress didn’t need to make specific findings of discrimination, neither did the city counsel. But what this ignores is that the congress is specifically empowered to enforce the 14th amendment. The city counsel can only remedy discrimination if it finds specific instances of it.
The Plan denies certain citizen the opportunity to compete for a percentage of contracts based solely on their race. Even though the city says this is benign/remedial, we have no way of truly knowing that. Indeed, that’s what the strict scrutiny test is for.
On the first prong: legitimate state interest. There is none here because the city is only aiming at remedying societal discrimination (impermissible). A permissible state interest would be one which wanted to remedy specific past instances of discrimination.
On using statistics to show discrimination: You can use statistics to show that there is discrimination in an industry, but if special qualifications are necessary for the industry, you cant just compare their minority numbers against the minority numbers in the entire population. You must compare their numbers with the number of qualified minorities in the entire population to gauge discrimination.
On the second prong: necessity. There was no consideration given to using race-neutral means to increase minority business participation.
- Stevens concur: I don’t agree with the premise that it is only permissible if it is to remedy a specific past wrong. But I agree that in this case its unconstitutional because the city doesn’t specify some public interest that will be served by the Plan.
- Kennedy concur: I don’t agree that we need to make a sweeping statement that all racial classifications are invalid. Let’s stick with the case-by-case strict scrutiny test.
- Scalia concur: The state can only use racial classifications to undo past discrimination when they’re undoing their own discriminatory system (like school desegregation cases)—not just to undo social discrimination.
- Marshall dissent: Wants to change the test to important government objective/substantially related. (the standard used for gender classifications). There are two powerful public interests here: (1) city’s interest in eradicating the effect of past discrimination and (2) ensuring that in dispensing contracts the city doesn’t perpetuate the old system. Also, the city did prove the necessity prong: They tried non-racial classifications to fix the problem, but it didn’t work.