Lead Opinion
announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-B, and IV, an opinion with respect to Part II, in which The Chief Justice and Justice White join, and an opinion with respect to Parts III-A and V, in which The Chief Justice, Justice White, and Justice Kennedy join.
In this case, we confront once again the tension between the Fourteenth Amendment’s guarantee of equal treatment to all citizens, and the use of race-based measures to amelio
I
On April 11, 1983, the Richmond City Council adopted the Minority Business Utilization Plan (the Plan). The Plan required prime contractors to whom the city awarded construction contracts to subcontract at least 30% of the dollar amount of the contract to one or more Minority Business Enterprises (MBE’s). Ordinance No. 83-69-59, codified in Richmond, Va., City Code, § 12-156(a) (1985). The 30% set-
The Plan defined an MBE as “[a] business at least fifty-one (51) percent of which is owned and controlled ... by minority group members.” §12-23, p. 941. “Minority group members” were defined as “[c]itizens of the United States who are Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts.” Ibid. There was no geographic limit to the Plan; an otherwise qualified MBE from anywhere in the United States could avail itself of the 30% set-aside. The Plan declared that it was “remedial” in nature, and enacted “for the purpose of promoting wider participation by minority business enterprises in the construction of public projects.” § 12-158(a). The Plan expired on June 30, 1988, and was in effect for approximately five years. Ibid.
The Plan authorized the Director of the Department of General Services to promulgate rules which “shall allow waivers in those individual situations where a contractor can prove to the satisfaction of the director that the requirements herein cannot be achieved.” §12-157. To this end, the Director promulgated Contract Clauses, Minority Business Utilization Plan (Contract Clauses). Paragraph D of these rules provided:
“No partial or complete waiver of the foregoing [30% set-aside] requirement shall be granted by the city other than in exceptional circumstances. To justify a waiver, it must be shown that every feasible attempt has been made to comply, and it must be demonstrated that sufficient, relevant, qualified Minority Business Enterprises . . . are unavailable or unwilling to participate in the*479 contract to enable meeting the 30% MBE goal.” ¶0, Record, Exh. 24, p. 1; see J. A. Croson Co. v. Richmond,779 F. 2d 181 , 197 (CA4 1985) (Croson I).
The Director also promulgated “purchasing procedures” to be followed in the letting of city contracts in accordance with the Plan. Id., at 194. Bidders on city construction contracts were provided with a “Minority Business Utilization Plan Commitment Form.” Record, Exh. 24, p. 3. Within 10 days of the opening of the bids, the lowest otherwise responsive bidder was required to submit a commitment form naming the MBE’s to be used on the contract and the percentage of the total contract price awarded to the minority firm or firms. The prime contractor’s commitment form or request for a waiver of the 30% set-aside was then referred to the city Human Relations Commission (HRC). The HRC verified that the MBE’s named in the commitment form were in fact minority owned, and then either approved the commitment form or made a recommendation regarding the prime contractor’s request for a partial or complete waiver of the 30% set-aside. Croson I,
The Plan was adopted by the Richmond City Council after a public hearing. App. 9-50. Seven members of the public spoke to the merits of the ordinance: five were in opposition, two in favor. Proponents of the set-aside provision relied on a study which indicated that, while the general population of Richmond was 50% black, only 0.67% of the city’s prime con
“There is some information, however, that I want to make sure that we put in the record. I have been practicing law in this community since 1961, and I am familiar with the practices in the construction industry in this area, in the State, and around the nation. And I can say without equivocation, that the general conduct of the construction industry in this area, and the State, and around the nation, is one in which race discrimination and exclusion on the basis of race is widespread.” Id., at 41.
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. See id., at 42 (statement of Councilperson Kemp) (“[The public witnesses] indicated that the minority contractors were just not available. There wasn’t a one that gave any indication that a minority contractor would not have an opportunity, if he were available”).
Opponents of the ordinance questioned both its wisdom and its legality. They argued that a disparity between minorities in the population of Richmond and the number of prime contracts awarded to MBE’s had little probative value in establishing discrimination in the construction industry. Id., at 30 (statement of Councilperson Wake). Representatives of various contractors’ associations questioned whether there
On September 6, 1983, the city of Richmond issued an invitation to bid on a project for the provision and installation of certain plumbing fixtures at the city jail. On September 30, 1983, Eugene Bonn, the regional manager of J. A. Croson Company (Croson), a mechanical plumbing and heating contractor, received the bid forms. The project involved the installation of stainless steel urinals and water closets in the city jail. Products of either of two manufacturers were specified, Acorn Engineering Company (Acorn) or Bradley Manufacturing Company (Bradley). Bonn determined that
On September 30, Bonn contacted five or six MBE’s that were potential suppliers of the fixtures, after contacting three local and state agencies that maintained lists of MBE’s. No MBE expressed interest in the project or tendered a quote. On October 12, 1983, the day the bids were due, Bonn again telephoned a group of MBE’s. This time, Melvin Brown, president of Continental Metal Hose (Continental), a local MBE, indicated that he wished to participate in the project. Brown subsequently contacted two sources of the specified fixtures in order to obtain a price quotation. One supplier, Ferguson Plumbing Supply, which is not an MBE, had already made a quotation directly to Croson, and refused to quote the same fixtures to Continental. Brown also contacted an agent of Bradley, one of the two manufacturers of the specified fixtures. The agent was not familiar with Brown or Continental, and indicated that a credit check was required which would take at least 30 days to complete.
On October 13, 1983, the sealed bids were opened. Croson turned out to be the only bidder, with a bid of $126,530. Brown and Bonn met personally at the bid opening, and Brown informed Bonn that his difficulty in obtaining credit approval had hindered his submission of a bid.
By October 19, 1983, Croson had still not received a bid from Continental. On that date it submitted a request for a waiver of the 30% set-aside. Croson’s waiver request indicated that Continental was “unqualified” and that the other MBE’s contacted had been unresponsive or unable to quote. Upon learning of Croson’s waiver request, Brown contacted an agent of Acorn, the other fixture manufacturer specified by the city. Based upon his discussions with Acorn, Brown subsequently submitted a bid on- the fixtures to Croson. Continental’s bid was $6,183.29 higher than the price Croson had included for the fixtures in its bid to the city. This
Croson wrote the city on November 8, 1983. In the letter, Bonn indicated that Continental was not an authorized supplier for either Acorn or Bradley fixtures. He also noted that Acorn’s quotation to Brown was subject to credit approval and in any case was substantially higher than any other quotation Croson had received. Finally, Bonn noted that Continental’s bid had been submitted some 21 days after the prime bids were due. In a second letter, Croson laid out the additional costs that using Continental to supply the fixtures would entail, and asked that it be allowed to raise the overall contract price accordingly. The city denied both Croson’s request for a waiver and its suggestion that the contract price be raised. The city informed Croson that it had decided to rebid the project. On December 9, 1983, counsel for Croson wrote the city asking for a review of the waiver denial. The city’s attorney responded that the city had elected to rebid the project, and that there is no appeal of such a decision. Shortly thereafter Croson brought this action under 42 U. S. C. § 1983 in the Federal District Court for the Eastern District of Virginia, arguing that the Richmond ordinance was unconstitutional on its face and as applied in this case.
The District Court upheld the Plan in all respects. See Supplemental App. to Juris. Statement 112-232 (Supp. App.). In its original opinion, a divided panel of the Fourth Circuit
“Unlike the review we make of a lower court decision, our task is not to determine if there was sufficient evidence to sustain the council majority’s position in any traditional sense of weighing the evidence. Rather, it is to determine whether ‘the legislative history. . . demonstrates that [the council] reasonably concluded that. . . private and governmental discrimination had contributed to the negligible percentage of public contracts awarded minority contractors.’”779 F. 2d, at 190 (quoting Fullilove, supra, at 503 (Powell, J., concurring)).
The majority found that national findings of discrimination in the construction industry, when considered in conjunction with the statistical study concerning the awarding of prime contracts in Richmond, rendered the city council’s conclusion that low minority participation in city contracts was due to past discrimination “reasonable.” Croson I,
Croson sought certiorari from this Court. We granted the writ, vacated the opinion of the Court of Appeals, and remanded the case for further consideration in light of our intervening decision in Wygant v. Jackson Board of Education,
On remand, a divided panel of the Court of Appeals struck down the Richmond set-aside program as violating both prongs of strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment. J. A. Croson Co. v. Richmond,
In this case, the debate at the city council meeting “revealed no record of prior discrimination by the city in awarding public contracts....” Croson II, supra, at 1358. Moreover, the statistics comparing the minority population of Richmond to the percentage of prime contracts awarded to minority firms had little or no probative value in establishing prior discrimination in the relevant market, and actually suggested “more of a political than a remedial basis for the racial preference.”
II
The parties and their supporting amici fight an initial battle over the scope of the city’s power to adopt legislation designed to address the effects of past discrimination. Relying on our decision in Wygant, appellee argues that the city must limit any race-based remedial efforts to eradicating the effects of its own prior discrimination. This is essentially the position'taken by the Court of Appeals below. Appellant argues that our decision in Fullilove is controlling, and that as a result the city of Richmond enjoys sweeping legislative power to define and attack the effects of prior discrimination in its local construction industry. We find that neither of these two rather stark alternatives can withstand analysis.
In Fullilove, we upheld the minority set-aside contained in § 103(f)(2) of the Public Works Employment Act of 1977, Pub. L. 95-28, 91 Stat. 116, 42 U. S. C. § 6701 et seq. (Act) against a challenge based on the equal protection component of the Due Process Clause. The Act authorized a $4 billion appropriation for federal grants to state and local governments for use in public works projects. The primary purpose of the Act was to give the national economy a quick boost in a recessionary period; funds had to be committed to state or local grantees by September 30, 1977. The Act also contained the following requirement: “ ‘Except to the extent the Secretary
The principal opinion in Fullilove, written by Chief Justice Burger, did not employ “strict scrutiny” or any other traditional standard of equal protection review. The Chief Justice noted at the outset that although racial classifications call for close examination, the Court was at the same time “bound to approach [its] task with appropriate deference to the Congress, a co-equal branch charged by the Constitution with the power to ‘provide for the . . . general Welfare of the United States’ and ‘to enforce by appropriate legislation,’ the equal protection guarantees of the Fourteenth Amendment.”
On the issue of congressional power, the Chief Justice found that Congress’ commerce power was sufficiently broad to allow it to reach the practices of prime contractors on federally funded local construction projects. Id., at 475-476. Congress could mandate state and local government compliance with the set-aside program under its §5 power to enforce the Fourteenth Amendment. Id., at 476 (citing Katzenbach v. Morgan,
The Chief Justice next turned to the constraints on Congress’ power to employ race-conscious remedial relief. His opinion stressed two factors in upholding the MBE set-aside.
“Here we deal. . . not with the limited remedial powers of a federal court, for example, but with the broad remedial powers of Congress. It is fundamental that in no organ of government, state or federal, does there repose a more comprehensive remedial power than in the Congress, expressly charged by the Constitution with competence and authority to enforce equal protection guarantees.”448 U. S., at 483 (principal opinion) (emphasis added).
Because of these unique powers, the Chief Justice concluded that “Congress not only may induce voluntary action to assure compliance with existing federal statutory or constitutional antidiscrimination provisions, but also, where Congress has authority to declare certain conduct unlawful, it may, as here, authorize and induce state action to avoid such conduct.” Id., at 483-484 (emphasis added).
In reviewing the legislative history behind the Act, the principal opinion focused on the evidence before Congress that a nationwide history of past discrimination had reduced minority participation in federal construction grants. Id., at 458-467. The Chief Justice also noted that Congress drew on its experience under § 8(a) of the Small Business Act of 1953, which had extended aid to minority businesses. Id., at 463-467. The Chief Justice concluded that “Congress had abundant historical basis from which it could conclude that traditional procurement practices, when applied to minority businesses, could perpetuate the effects of prior discrimination.” Id., at 478.
The second factor emphasized by the principal opinion in Fullilove was the flexible nature of the 10% set-aside. Two “congressional assumptions” underlay the MBE program: first, that the effects of past discrimination had impaired the competitive position of minority businesses, and second, that “adjustment for the effects of past discrimination” would as
In his concurring opinion, Justice Powell relied on the legislative history adduced by the principal opinion in finding that “Congress reasonably concluded that private and governmental discrimination had contributed to the negligible percentage of public contracts awarded minority contractors.” Id., at 503. Justice Powell also found that the means chosen by Congress, particularly in light of the flexible waiver provisions, were “reasonably necessary” to address the problem identified. Id., at 514-515. Justice Powell made it clear that other governmental entities might have to show more than Congress before undertaking race-conscious measures: “The degree of specificity required in the findings of discrimination and the breadth of discretion in the choice of remedies may vary with the nature and authority of the governmental body.” Id., at 515-516, n. 14.
Appellant and its supporting amici rely heavily on Fullilove for the proposition that a city council, like Congress, need not make specific findings of discrimination to engage in race-conscious relief. Thus, appellant argues “[i]t would be a perversion of federalism to hold that the federal government has a compelling interest in remedying the effects of racial discrimination in its own public works program, but a city government does not.” Brief for Appellant 32 (footnote omitted).
That Congress may identify and redress the effects of society-wide discrimination does not mean that, a fortiori, the States and their political subdivisions are free to decide that such remedies are appropriate. Section 1 of the Fourteenth Amendment is an explicit constraint on state power, and the States must undertake any remedial efforts in accordance with that provision. To hold otherwise would be to cede control over the content of the Equal Protection Clause to the 50 state legislatures and their myriad political subdivisions. The mere recitation of a benign or compensatory purpose for the use of a racial classification would essentially entitle the States to exercise the full power of Congress under § 5 of the Fourteenth Amendment and insulate any racial classification from judicial scrutiny under § 1. We believe that such a result would be contrary to the intentions of
We do not, as Justice Marshall’s dissent suggests, see post, at 557-560, find in §5 of the Fourteenth Amendment some form of federal pre-emption in matters of race. We simply note what should be apparent to all — § 1 of the Fourteenth Amendment stemmed from a distrust of state legislative enactments based on race; § 5 is, as the dissent notes, “ ‘a positive grant of legislative power’” to Congress. Post, at 557, quoting Katzenbach v. Morgan, supra, at 651 (emphasis in dissent). Thus, our treatment of an exercise of congressional power in Fullilove cannot be dispositive here. In the Slaughter-House Cases,
It would seem equally clear, however, that a state or local subdivision (if delegated the authority from the State) has the authority to eradicate the effects of private discrimina
Thus, if the city could show that it had essentially become a “passive participant” in a system of racial exclusion practiced by elements of the local construction industry, we think it clear that the city could take affirmative steps to dismantle such a system. It is beyond dispute that any public entity, state or federal, has a compelling interest in assuring that public dollars, drawn from the tax contributions of all citizens, do not serve to finance the evil of private prejudice. Cf. Norwood v. Harrison,
Ill
A
The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall. . . deny to any person within its jurisdiction the equal protection of the laws.” (Emphasis added.) As this Coúrt'has noted in;the past, the “rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights. ” Shelley v. Kraemer,
.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. See University of
Our continued adherence to the standard of review employed in Wygant does not, as Justice Marshall’s dissent suggests, see post, at 552, indicate that we view “racial discrimination as largely a phenomenon of the past” or that “government bodies need no longer preoccupy themselves with rectifying raeial injustice.” As we indicate, see infra, at 509-510, States and their local subdivisions have many legislative weapons at their disposal both to punish and prevent present discrimination and to remove arbitrary barriers to minority advancement. Rather, our interpretation of § 1 stems from our agreement with the view expressed by Justice Powell in Bakke that “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.” Bakke, supra, at 289-290.
Under the standard proposed by Justice Marshall’s dissent, “race-conscious classifications designed to further remedial goals,’’ post, at 535, are forthwith subject to a relaxed standard of review. How the dissent arrives at the legal conclusion that a racial classification is “designed to further remedial goals,” without first engaging in an examination of
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, see United States v. Carolene Products Co.,
In this case, blacks constitute 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 mi
In Bakke, supra, 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. Id., at 288-289. Among the justifications offered in support of the plan were the desire to “reduc[e] 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.” Id., at 306 (citations omitted). 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. Id., at 271-272 (Powell, J.) (addressing constitutionality of Davis plan); id., at 408 (Stevens, J., joined by Burger, C. J. and Stewart and Rehnquist, JJ. concurring in judgment in part and dissenting in part) (addressing only legality of Davis admissions plan under Title VI of the Civil Rights Act of 1964).
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 admissions 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. Id., at 307. Nor could the second concern, the history of discrimination in society at large, justify a racial quota in medical school admissions. Justice Powell contrasted the “focused” goal of remedying “wrongs
In Wygant,
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-based relief.
B
We think it clear that the factual predicate offered in support of the Richmond Plan suffers from the same two defects identified as fatal in Wygant. The District Court found the city council’s “findings sufficient to ensure that, in adopting the Plan, it was remedying the present effects of past discrimination in the construction industry.” Supp. App. 163 (emphasis added). Like the “role model” theory employed in Wygant, a generalized assertion that there has been past discrimination in an entire industry provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy. It “has no logical stopping point.” Wygant, supra, at 275 (plurality opinion). “Relief” for such' an ill-defined wrong could extend until the percentage of public contracts awarded to MBE’s in Richmond mirrored the percentage of minorities in the population as a whole.
Appellant argues that it is attempting to remedy various forms of past discrimination that are alleged to be responsible for the small number of minority businesses in the local contracting industry. Among these the city cites the exclusion of blacks from skilled construction trade unions and training programs. This past discrimination has prevented them “from following the traditional path from laborer to entrepreneur.” Brief for Appellant 23-24. The city also lists a host of nonracial factors which would seem to face a member of any racial group attempting to establish a new business enterprise, such as deficiencies in working capital, inability to meet bonding requirements, unfamiliarity with bidding pro
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 schooling 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.
It is sheer speculation how many minority firms there would be in Richmond absent past societal discrimination, just as it was sheer speculation how many minority medical students would have been admitted to the medical school at Davis absent past discrimination in educational opportunities. Defining these sorts of injuries as “identified discrimination” would give local governments license to create a patchwork of racial preferences based on statistical generalizations about any particular field of endeavor.
These defects are readily apparent in this case. The 30% quota cannot in any realistic sense be tied to any injury suffered by anyone. The District Court relied upon five predicate “facts” in reaching its conclusion that there was an adequate basis for the 30% quota: (1) the ordinance declares itself to be remedial; (2) several proponents of the measure stated their views that there had been past discrimination in the construction industry; (3) minority businesses received 0.67% of prime contracts from the city while minorities constituted 50% of the city’s population; (4) there were very few minority contractors in local and state contractors’ associations; and (5) in 1977, Congress made a determination that the effects of past discrimination had stifled minority participation in the construction industry nationally. Supp. App. 163-167.
The District Court accorded great weight to the fact that the city council designated the Plan as “remedial.” But the mere recitation of a “benign” or legitimate purpose for a racial classification is entitled to little or no weight. See Weinberger v. Wiesenfeld,
The District Court also relied on the highly conclusionary statement of a proponent of the Plan that there was racial discrimination in the construction industry “in this area, and the State, and around the nation.” App. 41 (statement of Councilperson Marsh). It also noted that the city manager had related his view that racial discrimination still plagued the construction industry in his home city of Pittsburgh. Id., at 42 (statement of Mr. Deese). These statements are of little probative value in establishing identified discrimination in the Richmond construction industry. The factfinding process of legislative bodies is generally entitled to a presumption of regularity and deferential review by the judiciary. See Williamson v. Lee Optical of Oklahoma, Inc.,
Reliance on the disparity between the number of prime contracts awarded to minority firms and the minority population of the city of Richmond is similarly misplaced. There is no doubt that “[wjhere gross statistical disparities can be shown, they alone in a proper case may constitute prima facie proof of a pattern or practice of discrimination” under Title VII. Hazelwood School Dist. v. United States,
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 work force to the racial composition of the relevant population may be probative of a pattern of discrimination. See Teamsters v. United States,
In this case, the city does not even know how many MBE’s in the relevant market are qualified to undertake prime or subcontracting work in public construction projects. Cf. Ohio Contractors Assn. v. Keip,
To a large extent, the set-aside of subcontracting dollars seems to rest on the unsupported assumption that white prime contractors simply will not hire minority firms. See Associated General Contractors of Cal. v. City and Cty. of San Francisco,
The city and the District Court also relied on evidence that MBE membership in local contractors’ associations was extremely low. Again, standing alone this evidence is not probative of any discrimination in the local construction industry. There are numerous explanations for this dearth of minority participation, including past societal discrimination in education and economic opportunities as well as both black and white career and entrepreneurial choices. Blacks may be disproportionately attracted to industries other than construction. See The State of Small Business: A Report of the President 201 (1986) (“Relative to the distribution of all businesses, black-owned businesses are more than proportionally represented in the transportation industry, but considerably less than proportionally represented in the wholesale trade, manufacturing, and finance industries”). The mere fact that black membership in these trade organizations is low, standing alone, cannot establish a prima facie case of discrimination. Cf. Bazemore v. Friday,
For low minority membership in these associations to be relevant, the city would have to link it to the number of local MBE’s eligible for membership. If the statistical disparity between eligible MBE’s and MBE membership were great enough, an inference of discriminatory exclusion could arise. In such a case, the city would have a compelling interest in preventing its tax dollars from assisting these organizations in maintaining a racially segregated construction market. See Norwood,
Finally, the city and the District Court relied on Congress’ finding in connection with the set-aside approved in Fullilove that there had been nationwide discrimination in the construction industry. The probative value of these findings for demonstrating the existence of discrimination in Richmond is extremely limited. By its inclusion of a waiver procedure in the national program addressed in Fullilove, Congress explicitly recognized that the scope of the problem would vary from market area to market area. See Fullilove,
Moreover, as noted above, Congress was exercising its powers under § 5 of the Fourteenth Amendment in making a finding that past discrimination would cause federal funds to be distributed in a manner which reinforced prior patterns of discrimination. 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. See Days 480-481 (“[I]t 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”).
apparently views the requirement that Richmond identify the discrimination it seeks to remedy in its own jurisdiction as a mere administrative headache, an
Moreover, Justice Marshall’s suggestion that findings of discrimination may be “shared” from jurisdiction to jurisdiction in the same manner as information concerning zoning and property values is unprecedented. See post, at 547, quoting Renton v. Playtime Theatres, Inc.,
In sum, none of the evidence presented by the city points to any identified discrimination in the Richmond construction industry. We, therefore, hold that the city has failed to demonstrate a compelling interest in apportioning public contracting opportunities on the basis of race. 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
The foregoing analysis applies only to the inclusion of blacks within the Richmond set-aside program. There is absolutely no evidence of past discrimination against Spanish-speaking, Oriental, Indian, Eskimo, or Aleut persons in any aspect of the Richmond construction industry. The District Court took judicial notice of the fact that the vast majority of “minority” persons in Richmond were black. Supp. App. 207. It may well be that Richmond has never had an Aleut or Eskimo citizen. The random inclusion of racial groups that, as a practical matter, may never have suffered from discrimination in the construction industry in Richmond suggests that perhaps the city’s purpose was not in fact to remedy past discrimination.
If a 30% set-aside was “narrowly tailored” to compensate black contractors for past discrimination, one may legitimately ask why they are forced to share this “remedial relief” with an Aleut citizen who moves to Richmond tomorrow? The gross overinclusiveness of Richmond’s racial preference strongly impugns the city’s claim of remedial motivation. See Wygant,
As noted by the court below, it is almost impossible to assess whether the Richmond Plan is narrowly tailored to remedy prior discrimination since it is not linked to identified discrimination in any way. We limit ourselves to two observations in this regard.
First, there does not appear to have been any consideration of the use of race-neutral means to increase minority business participation in city contracting. See United States v. Paradise,
Second, the 30% quota cannot be said to be narrowly tailored to any goal, except perhaps outright racial balancing. It rests upon the “completely unrealistic” assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population. See Sheet Metal Workers v. EEOC,
Since the city must already consider bids and waivers on a case-by-case basis, it is difficult to see the need for a rigid numerical quota. As noted above, the congressional scheme upheld in Fullilove allowed for a waiver of the set-aside provision where an MBE’s higher price was not attributable to the effects of past discrimination. Based upon proper findings, such programs are less problematic from an equal protection standpoint because they treat all candidates individually, rather than making the color of an applicant’s skin the sole relevant consideration. Unlike the program upheld in Fullilove, the Richmond Plan’s waiver system focuses solely on the availability of MBE’s; there is no inquiry into whether or not the particular MBE seeking a racial preference has suffered from the effects of past discrimination by the city or prime contractors.
Given the existence of an individualized procedure, the city’s only interest in maintaining a quota system rather than investigating the need for remedial action in particular cases would seem to be simple administrative convenience. But the interest in avoiding the bureaucratic effort necessary to tailor remedial relief to those who truly have suffered the effects of prior discrimination cannot justify a rigid line drawn on the basis of a suspect classification. See Frontiero v. Richardson,
Nothing we say today precludes a state or local entity from taking action to rectify the effects of identified discrimination within its jurisdiction. If the city of Richmond had evidence before it that nonminority contractors were systematically excluding minority businesses from subcontracting opportunities, it could take action to end the discriminatory exclusion. Where there is a significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually engaged by the locality or the locality’s prime contractors, an inference of discriminatory exclusion could arise. See Bazemore v. Friday,
Nor is local government powerless to deal with individual instances of racially motivated refusals to employ minority contractors. Where such discrimination occurs, a city would be justified in penalizing the discriminator and providing appropriate relief to the victim of such discrimination. See generally McDonnell Douglas Corp. v. Green,
Even in the absence of evidence of discrimination, the city has at its disposal a whole array of race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races. Simplification of bidding
In the case at hand, the city has not ascertained how many minority enterprises are present in the local construction market nor the level of their participation in city construction projects. The city points to no evidence that qualified minority contractors have been passed over for city contracts or subcontracts, either as a group or in any individual case. Under such circumstances, it is simply impossible to say that the city has demonstrated “a strong basis in evidence for its conclusion that remedial action was necessary.” Wygant,
Proper findings in this regard are necessary 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. Absent such findings, there is a danger that a racial classification is merely the product of unthinking stereotypes or a form of racial politics. “[I]f there is no duty to attempt either to measure the recovery by the wrong or to distribute that re
Affirmed.
Notes
The expiration of the ordinance has not rendered the controversy between the city and appellee moot. There remains a live controversy between the parties over whether Richmond’s refusal to award appellee a contract pursuant to the ordinance was unlawful and thus entitles appellee to damages. See Memphis Light, Gas & Water Div. v. Craft,
In its original panel opinion, the Court of Appeals held that under Virginia law the city had the legal authority to enact the set-aside program. Croson I,
Since 1975 the city of Richmond has had an ordinance on the books prohibiting both discrimination in the award of public contracts and employment discrimination by public contractors. See Reply Brief for Appellant 18, n. 42 (citing Richmond, Va., City Code, § 17.2 et seq. (1985)). The city points to no evidence that its prime contractors have been violating the ordinance in either their employment or subcontracting practices. The complete silence of the record concerning enforcement of the city’s own antidiscrimination ordinance flies in the face of, the dissent’s vision of a “tight-knit industry” which has prevented blacks from obtaining the experience necessary to participate in construction contracting. See post, at 542-543.
Concurrence Opinion
concurring in part and concurring in the judgment.
A central purpose of the Fourteenth 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 their 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,
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. The constitutional prohibitions against the enactment of ex post facto laws and bills of attainder reflect a valid concern about the use of the political process to punish or characterize past conduct of private citizens.
Third, instead of engaging in a debate over the proper standard of review to apply in affirmative-action litigation,
The justification for the ordinance is the fact that in the past white contractors — and presumably other white citizens in Richmond — have discriminated against black contractors. The class of persons benefited by the ordinance is not, however, limited to victims of such discrimination — it encompasses persons who have never been in business in Richmond as well as minority contractors who may have been guilty of discriminating against members of other minority groups. Indeed, for all the record shows, all of the minority-business enterprises that have benefited from the ordinance may be firms that have prospered notwithstanding the discriminatory conduct that may have harmed other minority firms years ago. Ironically, minority firms that have survived in the competitive struggle, rather than those that have perished, are most likely to benefit from an ordinance of this kind.
The ordinance is equally vulnerable because of its failure to identify the characteristics of the disadvantaged class of
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
“[E]ven though it is not the actual predicate for this legislation, a statute of this kind inevitably is perceived by many as resting on an assumption that those who are granted this special preference are less qualified in some respect that is identified purely by their race.” Id., at 545.
“The risk that habitual attitudes toward classes of persons, rather than analysis of the relevant characteristics of the class, will serve as a basis for a legislative classification is present when benefits are distributed as well as when burdens are imposed. In the past, traditional attitudes too often provided the only explanation for discrimination against women, aliens, illegitimates, and black citizens. Today there is a danger that awareness of past injustice will lead to automatic acceptance of new classifications that are not in fact justified by attributes characteristic of the class as a whole.
“When [government] creates a special preference, or a special disability, for a class of persons, it should identify the characteristic that justifies the special treatment. When the classification is defined in racial terms, I believe that such particular identification is imperative.
“In this case, only two conceivable bases for differentiating the preferred classes from society as a whole have occurred to me: (1) that they were the victims of unfair treatment in the past and (2) that they are less able to compete in the future. Although the first of these factors would justify an appropriate remedy for past wrongs, for reasons that I have already stated, this statute is not such a remedial measure. The second factor is simply not true. Nothing in the record of this case, the legislative history of the Act, or experience that we may notice judicially provides any support for such a proposition.” Id., at 552-554 (footnote omitted).
In my view the Court’s approach to this case gives unwarranted deference to race-based legislative action that purports to serve a purely remedial goal, and overlooks the potential value of race-based determinations that may serve other valid purposes. With regard to the former point —as I explained at some length in Fullilove v. Klutznick,
“Rather than analyzing a case of this kind by asking whether minority teachers have some sort of special entitlement to jobs as a remedy for sins that were committed in the past, I believe that we should first ask whether the Board’s action advances the public interest in educating children for the future.
“[I]n our present society, race is not always irrelevant to sound governmental decisionmaking. To take the most obvious example, in law enforcement, if an undercover agent is needed to infiltrate a group suspected of ongoing criminal behavior — and if the members of the group are all of the same race — it would seem perfectly rational to employ an agent of that race rather than a member of a different racial class. Similarly, in a city
“In the context of public education, it is quite obvious that a school board may reasonably conclude that an integrated faculty will be able to provide benefits to the student body that could not be provided by an all-white, or nearly all-white, faculty. For one of the most important lessons that the American public schools teach is that the diverse ethnic, cultural, and national backgrounds that have been brought together in our famous ‘melting pot’ do not identify essential differences among the human beings that inhabit our land. It is one thing for a white child to be taught by a white teacher that color, like beauty, is only ‘skin deep’; it is far more convincing to experience that truth on a day-to-day basis during the routine, ongoing learning process.” Wygant v. Jackson Board of Education,
See U. S. Const., Art. I, §9, cl. 3, § 10, cl. 1. Of course, legislatures frequently appropriate funds to compensate victims of past governmental misconduct for which there is no judicial remedy. See, e. g., Pub. L. 100-383, 102 Stat. 903 (provision of restitution to interned Japanese-Americans during World War II). Thus, it would have been consistent with normal practice for the city of Richmond to provide direct monetary compensation to any minority-business enterprise that the city might have injured in the past. Such a voluntary decision by a public body is, however, quite different from a decision to require one private party to compensate another for an unproven injury.
As I pointed out in my separate opinion concurring in the judgment in United States v. Paradise,
“A party who has been found guilty of repeated and persistent violations of the law bears the burden of demonstrating that the chancellor’s efforts to fashion effective relief exceed the bounds of ‘reasonableness.’ The burden of proof in a case like this is precisely the opposite of that in cases such as Wygant v. Jackson Board of Education,476 U. S. 267 (1986), and Fullilove v. Klutznick,448 U. S. 448 (1980), which did not involve any proven violations of law. In such cases the governmental decisionmaker who would make race-conscious decisions must overcome a strong presumption against them. No such burden rests on a federal district judge who has found that the governmental unit before him is guilty of racially discriminatory conduct that violates the Constitution.”
“There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the courts to apply one standard of review in some cases and a different standard in other eases.” Craig v. Boren,
“I have always asked myself whether I could find a ‘rational basis’ for the classification at issue. The term ‘rational,’ of course, includes a requirement that an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class. Thus, the word ‘rational’ — for me at least — includes elements of legitimacy and neutrality
“In every equal protection case, we have to ask certain basic questions. What class is harmed by the legislation, and has it been subjected to a ‘tradition of disfavor’ by our laws? What is the public purpose that is being served by the law? What is the characteristic of the disadvantaged class that justifies the disparate treatment? In most cases the answer to these questions will tell us whether the statute has a ‘rational basis.’” Cleburne v. Cleburne Living Center, Inc.,
See ante, at 502, n. 3.
There is surely some question about the power of a legislature to impose a statutory burden on private citizens for engaging in discriminatory practices at a time when such practices were not unlawful. Cf. Teamsters v. United States,
There is, of course, another possibility that should not be overlooked. The ordinance might be nothing more than a form of patronage. But racial patronage, like a racial gerrymander, is no more defensible than political patronage or a political gerrymander. Cf. Karcher v. Daggett,
Concurrence Opinion
concurring in part and concurring in the judgment.
I join all but Part II of Justice O’Connor’s opinion and give this further explanation.
Part II examines our case law upholding congressional power to grant preferences based on overt and explicit classification by race. See Fullilove v. Klutznick,
The moral imperative of racial neutrality is the driving force of the Equal Protection Clause. Justice Scalia’s opinion underscores that proposition, quite properly in my view. The rule suggested in his opinion, which would strike down all preferences which are not necessary remedies to victims of unlawful discrimination, would serve important structural goals, as it would eliminate the necessity for courts to pass upon each racial preference that is enacted. Structural protections may be necessities if moral imperatives are to be obeyed. His opinion would make it crystal clear to the
Nevertheless, given that a rule of automatic invalidity for racial preferences in almost every case would be a significant break with our precedents that require a case-by-case test, I am not convinced we need adopt it at this point. On the assumption that it will vindicate the principle of race neutrality found in the Equal Protection Clause, I accept the less absolute rule contained in Justice O’Connor’s opinion, a rule based on the proposition that any racial preference must face the most rigorous scrutiny by the courts. My reasons for doing so are as follows. First, I am confident that, in application, the strict scrutiny standard will operate in a manner generally consistent with the imperative of race neutrality, because it forbids the use even of narrowly drawn racial classifications except as a last resort. Second, the rule against race-conscious remedies is already less than an absolute one, for that relief may be the only adequate remedy after a judicial determination that a State or its instrumentality has violated the Equal Protection Clause. I note, in this connection, that evidence which would support a judicial finding of intentional discrimination may suffice also to justify remedial legislative action, for it diminishes the constitutional responsibilities of the political branches to say they must wait to act until ordered to do so by a court. Third, the strict scrutiny rule is consistent with our precedents, as Justice O’Connor’s opinion demonstrates.
The ordinance before us falls far short of the standard we adopt. The nature and scope of the injury that existed; its historical or antecedent causes; the extent to which the city contributed to it, either by intentional acts or by passive complicity in acts of discrimination by the private sector; the necessity for the response adopted, its duration in relation to the wrong, and the precision with which it otherwise bore on whatever injury in fact was addressed, were all matters unmeasured, unexplored, and unexplained by the city council. We
Concurrence Opinion
concurring in the judgment.
I agree with much of the Court’s opinion, and, in particular, with Justice O’Connor’s conclusion that strict scrutiny must be applied to all governmental classification by race, whether or not its asserted purpose is “remedial” or “benign.” Ante, at 493, 495. I do not agree, however, with Justice O’Connor’s dictum suggesting that, despite the Fourteenth Amendment, state and local governments may in some circumstances discriminate on the basis of race in order (in a broad sense) “to ameliorate the effects of past discrimination.” Ante, at 476-477. The benign purpose of compensating for social disadvantages, whether they have been acquired by reason of prior discrimination or otherwise, can no more be pursued by the illegitimate means of racial discrimination than can other assertedly benign purposes we have repeatedly rejected. See, e. g., Wygant v. Jackson Board of Education,
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 Fullilove v. Klutznick,
A sound distinction between federal and state (or local) action based on race rests not only upon the substance of the Civil War Amendments, but upon social reality and governmental theory. It is a simple fact that what Justice Stewart described in Fullilove as “the dispassionate objectivity [and] the flexibility that are needed to mold a race-conscious remedy around the single objective of eliminating the effects of past or present discrimination” — political qualities already to be doubted in a national legislature, Fullilove, supra, at 527 (Stewart, J., with whom Rehnquist, J., joined, dissenting) — are substantially less likely to exist at the state or local level. The struggle for racial justice has historically been a struggle by the national society against oppression in the individual States. See, e. g., Ex parte Virginia, supra (denying writ of habeas corpus to a state judge in custody under federal indictment for excluding jurors on the basis of race); H. Hyman & W. Wiecek, Equal Justice Under Law, 1835-1875, pp. 312-334 (1982); Logan, Judicial Federalism in the Court of History, 66 Ore. L. Rev. 454, 494-515 (1988). And the struggle retains that character in modern times. See, e. g., Brown v. Board of Education,
“The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plan of oppression. Extend the sphere and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other.” The Federalist No. 10, pp. 82-84 (C. Rossiter ed. 1961).
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% less than their nonblack counterparts, it may assuredly promulgate an order raising the salaries of “all black employees” to eliminate the differential. Cf. Bazemore v. Friday,
Our analysis in Bazemore v. Friday, supra, reflected our unwillingness to conclude, outside the context of school assignment, that the continuing effects of prior discrimination can be equated with state maintenance of a discriminatory system. There we found both that the government’s adoption of “wholly neutral admissions” policies for 4-H and Homemaker Clubs sufficed to remedy its prior constitutional violation of maintaining segregated admissions, and that there was no further obligation to use racial reassignments to eliminate continuing effects — that is, any remaining all-black and all-white clubs.
I agree with the Court’s dictum that a fundamental distinction must be drawn between the effects of “societal” discrimination and the effects of “identified” discrimination, and that the situation would be different if Richmond’s plan were “tailored” to identify those particular bidders who “suffered from the effects of past discrimination by the city or prime contractors.” Ante, at 507-508. In my view, however, the reason that would make a difference is not, as the Court states, that it would justify race-conscious action — see, e. g., ante, at 504-506, 507-508 — but rather that it would enable race-neutral remediation. Nothing prevents Richmond from according a contracting preference to identified victims of discrimination. While most of the beneficiaries might be black, neither the beneficiaries nor those disadvantaged by the preference would be identified on the basis of their race. In other words, far from justifying racial classification, iden
In his final book, Professor Bickel wrote:
“[A] racial quota derogates the human dignity and individuality of all to whom it is applied; it is invidious in principle as well as in practice. Moreover, it can easily be turned against those it purports to help. The history of the racial quota is a history of subjugation, not beneficence. Its evil lies not in its name, but in its effects: a quota is a divider of society, a creator of castes, and it is all the worse for its racial base, especially in a society desperately striving for an equality that will make race irrelevant.” Bickel, The Morality of Consent, at 133.
Those statements are true and increasingly prophetic. Apart from their societal effects, however, which are “in the aggregate disastrous,” id., at 134, it is important not to lose sight of the fact that even “benign” racial quotas have individual victims, whose very real injustice'we ignore whenever we deny them enforcement of their right not to be disadvantaged on the basis of race. Johnson v. Transportation Agency, Santa Clara County,
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 to “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
Since I believe that the appellee here had a constitutional right to have its bid succeed or fail under a decisionmaking process uninfected with racial bias, I concur in the judgment of the Court.
Dissenting Opinion
with whom
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. . Indeed, Richmond’s set-aside program is indistinguishable in all meaningful respects from — and in fact was patterned upon — the federal set-aside plan which this Court upheld in Fullilove v. Klutznick,
A majority of this Court holds today, however, that the Equal Protection Clause of the Fourteenth Amendment blocks Richmond’s initiative. The essence of the majority’s
More fundamentally, today’s decision marks a deliberate and giant step backward in this Court’s affirmative-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
I
As an initial matter, the majority takes an exceedingly myopic view of the factual predicate on which the Richmond City Council relied when it passed the Minority Business Utilization Plan. The majority analyzes Richmond’s initiative as if it were based solely upon the facts about local construction and contracting practices adduced during the city council session at which the measure was enacted. Ante, at 479-481. In so doing, the majority downplays the fact that the city council had before it a rich trove of evidence that discrimination in the Nation’s construction industry had seriously impaired the competitive position of businesses owned or controlled by members of minority groups. It is only against this backdrop of documented national discrimination, however, that the local evidence adduced by Richmond can be properly understood. The majority’s refusal to recognize that Richmond has proved itself no exception to the dismaying pattern of national exclusion which Congress so painstakingly identified infects its entire analysis of this case.
Six years before Richmond acted, Congress passed, and the President signed, the Public Works Employment Act of 1977, Pub. L. 95-28, 91 Stat. 116, 42 U. S. C. §6701 et seq. (Act), a measure which appropriated $4 billion in federal grants to state and local governments for use in public works projects. Section 103(f)(2) of the Act was a minority business set-aside provision. It required state or local grantees to usé 10% of their federal grants to procure services or supplies from businesses owned or controlled by members of statutorily identified minority groups, absent an administrative waiver. In 1980, in Fullilove, supra, this Court upheld the validity of this federal set-aside. Chief Justice Burger’s principal opinion noted the importance of overcoming those “criteria, methods, or practices thought by Congress to have the effect of defeating, or substantially impairing, ac
The congressional program upheld in Fidlilove was based upon an array of congressional and agency studies which documented the powerful influence of racially exclusionary practices in the business world. A 1975 Report by the House Committee on Small Business concluded:
“The effects of past inequities stemming from racial prejudice have not remained in the past. The Congress has recognized the reality that past discriminatory practices have, to some degree, adversely affected our present economic system.
“While minority persons comprise about 16 percent of the Nation’s population, of the 13 million businesses in the United States, only 382,000, or approximately 3.0 percent, are owned by minority individuals. The most recent data from the Department of Commerce also indicates that the gross receipts of all businesses in this country totals about $2,540.8 billion, and of this amount only $16.6 billion, or about 0.65 percent was realized by minority business concerns.
“These statistics are not the result of random chance. The presumption must be made that past discriminatory systems have residted in present economic inequities.” H. R. Rep. No. 94-468, pp. 1-2 (1975) (quoted in Fidlilove, supra, at 465) (opinion of Burger, C. J.) (emphasis deleted and added).
A 1977 Report by the same Committee concluded:
“[Ojver the years, there has developed a business system which has traditionally excluded measurable minority participation. In the past more than the present,*532 this system of conducting business transactions overtb precluded minority input. Currently, we more often en counter a business system which is racially neutral on it: face, but because of past overt social and economic dis crimination is presently operating, in effect, to perpetu ate these past inequities. Minorities, until recently have not participated to any measurable extent, in ou: total business system generally, or in the constructioi industry in particular.” H. R. Rep. No. 94-1791, p. 181 (1977), summarizing H. R. Rep. No. 94-468, p. 17 (1976 (quoted in Fullilove, supra, at 466, n. 48).
Congress further found that minorities seeking initial pub lie contracting assignments often faced immense entry barri ers which did not confront experienced nonminority contrac tors. A report submitted to Congress in 1975 by the Unitec States Commission on Civil Rights, for example, describee the way in which fledgling minority-owned businesses were hampered by “deficiencies in working capital, inability tc meet bonding requirements, disabilities caused by an inadequate ‘track record,’ lack of awareness of bidding opportunities, unfamiliarity with bidding procedures, preselection before the formal advertising process, and the exercise o: discretion by government procurement officers to disfavoi minority businesses.” Fullilove, supra, at 467 (summarizing United States Comm’n on Civil Rights, Minorities anc Women as Government Contractors (May 1975)).
Thus, as of 1977, there was “abundant evidence” in the public domain “that minority businesses ha[d] been denied effective participation in public contracting opportunities bj procurement practices that perpetuated the effects of prioi discrimination.” Fullilove, supra, at 477-478.
The members of the Richmond City Council were well aware of these exhaustive congressional findings, a point the
The city council’s members also heard testimony that, although minority groups made up half of the city’s population, only 0.67% of the $24.6 million which Richmond had dispensed in construction contracts during the five years ending in March 1983 had gone to minority-owned prime contractors. Id., at 43 (remarks of Councilmember Henry W. Richardson). They heard testimony that the major Richmond area construction trade associations had virtually no minorities among their hundreds of members.
II
“Agreement upon a means for applying the Equal Protection Clause to an affirmative-action program has eluded this Court every time the issue has come before us.” Wygant v. Jackson Bd. of Education,
A
1
Turning first to the governmental interest inquiry, Richmond has two powerful interests in setting aside a portion of public contracting funds for minority-owned enterprises. The first is the city’s interest in eradicating the effects of past racial discrimination. It is far too late in the day to doubt that remedying such discrimination is a compelling, let alone an important, interest. In Fullilove, six Members of this Court deemed this interest sufficient to support a race-conscious set-aside program governing federal contract procurement. The decision, in holding that the federal set-aside provision satisfied the equal protection principles under any level of scrutiny, recognized that the measure sought to remove “barriers to competitive access which had their roots in racial and ethnic discrimination, and which continue today, even absent any intentional discrimination or unlawful conduct.”
Richmond has a second compelling interest in setting aside, where possible, a portion of its contracting dollars. That interest is the prospective one of preventing the city’s own spending decisions from reinforcing and perpetuating the exclusionary effects of past discrimination. See Fullilove,
The majority pays only lipservice to this additional governmental interest. See ante, at 491-493, 503-504. But our decisions have often emphasized the danger of the government tacitly adopting, encouraging, or furthering racial discrimination even by its own routine operations. In Shelley v. Kraemer,
2
The remaining question with respect to the “governmental interest” prong of equal protection analysis is whether Richmond has proffered satisfactory proof of past racial discrimination to support its twin interests in remediation and in governmental nonperpetuation. Although the Members of this Court have differed on the appropriate standard of review for race-conscious remedial measures, see United States v. Paradise,
The separate opinions issued in Wygant v. Jackson Bd. of Education, a case involving a school board’s race-conscious layoff provision, reflect this shared understanding. Justice Powell’s opinion for a plurality of four Justices stated that “the trial court must make a factual determination that the employer had a strong basis in evidence for its conclusion that remedial action was necessary.”
The varied body of evidence on which Richmond relied provides a “strong,” “firm,” and “unquestionably legitimate” basis upon which the city council could determine that the effects of past racial discrimination warranted a remedial and prophylactic governmental response. As I have noted, supra, at 530-534, Richmond acted against a backdrop of congressional and Executive Branch studies which demonstrated with such force the nationwide pervasiveness of prior discrimination that Congress presumed that “ ‘present economic inequities’ ” in construction contracting resulted from “ ‘past discriminatory systems.’” Supra, at 531 (quoting H. R. Rep. No. 94-468, pp. 1-2 (1975)). The city’s local evidence confirmed that Richmond’s construction industry did not deviate from this pernicious national pattern. The fact that just 0.67% of public construction expenditures over the previous five years had gone to minority-owned prime contractors, despite the city’s racially mixed population, strongly suggests that construction contracting in the area was rife with “present economic inequities.” To the extent this enormous disparity did not itself demonstrate that discrimination had occurred, the descriptive testimony of Richmond’s elected and appointed leaders drew the necessary link between the pitifully small presence of minorities in construction contracting and past exclusionary practices. That no one who testified challenged this depiction of widespread racial discrimination in area construction contracting lent significant weight to these accounts. The fact that area trade associations had virtually no minority members dramatized the extent of present
Richmond’s reliance on localized, industry-specific findings is a far cry from the reliance on generalized “societal discrimination” which the majority decries.as a basis for remedial action. Ante, at 496, 499, 505. But characterizing the plight of Richmond’s minority contractors as mere “societal discrimination” is not the only respect in which the majority’s critique shows an unwillingness to come to grips with why construction-contracting in Richmond is essentially a whites-only enterprise. The majority also takes the disingenuous approach of disaggregating Richmond’s local evidence, attacking it piecemeal, and thereby concluding that no single piece of evidence adduced by the city, “standing alone,” see, e. g., ante, at 503, suffices to prove past discrimination. But items of evidence do not, of course, “stan[d] alone” or exist in alien juxtaposition; they necessarily work together, reinforcing or contradicting each other.
In any event, the majority’s criticisms of individual items of Richmond’s evidence rest on flimsy foundations. The majority states, for example, that reliance on the disparity between the share of city contracts awarded to minority firms (0.67%) and the minority population of Richmond (approximately 50%) is “misplaced.” Ante, at 501. It is true that, when the factual predicate needed to be proved is one of present discrimination, we have generally credited statistical contrasts between the racial composition of a work force and the general population as proving discrimination only where this contrast revealed “gross statistical disparities.” Hazelwood School Dist. v. United States,
Second, and more fundamentally, where the issue is not present discrimination but rather whether past discrimination has resulted in the continuing exclusion of minorities from a historically tight-knit industry, a contrast between population and work force is entirely appropriate to help gauge the degree of the exclusion. In Johnson v. Transportation Agency, Santa Clara County, supra, Justice O’Con-nor specifically observed that, when it is alleged that discrimination has prevented blacks from “obtaining th[e] experience” needed to qualify for a position, the “relevant comparison” is not to the percentage of blacks in the pool of qualified candidates, but to “the total percentage of blacks in the labor force.” Id., at 651; see also Steelworkers v. Weber,
The majority’s perfunctory dismissal of the testimony of Richmond’s appointed and elected leaders is also deeply disturbing. These officials — including councilmembers, a former mayor, and the present city manager — asserted that race discrimination in area contracting had been widespread, and that the set-aside ordinance was a sincere and necessary attempt to eradicate the effects of this discrimination. The majority, however, states that where racial classifications are concerned, “simple legislative assurances of good intention cannot suffice.” Ante, at 500. It similarly discounts as minimally probative the city council’s designation of its set-aside plan as remedial. “[Bjlind judicial deference to legislative or executive pronouncements,” the majority explains, “has no place in equal protection analysis.” Ante, at 501.
No one, of course, advocates “blind judicial deference” to the findings of the city council or the testimony of city leaders. The majority’s suggestion that wholesale deference is what Richmond seeks is a classic straw-man argument. But the majority’s trivialization of the testimony of Richmond’s leaders is dismaying in a far more serious respect. By disregarding the testimony of local leaders and the judgment of local government, the majority does violence to the very principles of comity within our federal system which this
Had the majority paused for a moment on the facts of the Richmond experience, it would have discovered that the city’s leadership is deeply familiar with what racial discrimination is. The members of the Richmond City Council have spent long years witnessing multifarious acts of discrimination, including, but not limited to, the deliberate diminution of black residents’ voting rights, resistance to school desegregation, and publicly sanctioned housing discrimination. Numerous decisions of federal courts chronicle this disgraceful recent history. In Richmond v. United States,
In Bradley v. School Bd. of Richmond,
“The sordid history of Virginia’s, and Richmond’s attempts to circumvent, defeat, and nullify the holding of Brown I has been recorded in the opinions of this and other courts, and need not be repeated in detail here. It suffices to say that there was massive resistance and every state resource, including the services of the legal officers of the state, the services of private counsel (costing the State hundreds of thousands of dollars), the State police, and the power and prestige of the Governor, was employed to defeat Brown I. In Richmond, as has been mentioned, not even freedom of choice became actually effective until 1966, twelve years after the decision of Brown462 F. 2d, at 1075 (Winter, J.) (emphasis in original) (footnotes and citations omitted).
The Court of Appeals majority in Bradley used equally pungent words in describing public and private housing discrimination in Richmond. Though rejecting the black plaintiffs’ request that it consolidate Richmond’s school district with those of two neighboring counties, the majority nonetheless agreed with the plaintiffs’ assertion that “within the City of Richmond there has been state (also federal) action tending to perpetuate apartheid of the races in ghetto patterns throughout the city.” Id., at 1065 (citing numerous public and private acts of discrimination).
“[M]any other instances of state and private action contribut[ed] to the concentration of black citizens within Richmond and white citizens without. These were principally in the area of residential development. Racially restrictive eonvenants were freely employed. Racially discriminatory*546 practices in the prospective purchase of county property by black purchasers were followed. Urban renewal, subsidized public housing and government-sponsored home mortgage insurance had been undertaken on a racially discriminatory basis. [The neighboring counties] provided schools, roads, zoning and development approval for the rapid growth of the white population in each county at the expense of the city, without making any attempt to assure that the development that they made possible was integrated. Superimposed on the pattern of government-aided residential segregation . . . had been a discriminatory policy of school construction, i. e., the selection of school construction sites in the center of racially identifiable neighborhoods manifestly to serve the educational needs of students of a single race.
“The majority does not question the accuracy of these facts.”462 P. 2d, at 1075-1076 (Winter, J.) (emphasis in original) (footnote omitted).
When the legislatures and leaders of cities with histories of pervasive discrimination testify that past discrimination has infected one of their industries, armchair cynicism like that exercised by the majority has no place. It may well be that “the autonomy of a State is an essential component of federalism,” Garcia v. San Antonio Metropolitan Transit Authority,
Finally, I vehemently disagree with the majority’s dismissal of the congressional and Executive Branch findings
No principle of federalism or of federal power, however, forbids a state or local government to draw upon a nationally relevant historical record prepared by the Federal Government. See Renton v. Playtime Theatres, Inc.,
B
In my judgment, Richmond’s set-aside plan also comports with the second prong of the equal protection inquiry, for it is substantially related to the interests it seeks to serve in remedying past discrimination and in ensuring that municipal contract procurement does not perpetuate that discrimination. The most striking aspect of the city’s ordinance is the similarity it bears to the “appropriately limited” federal set-aside provision upheld in Fullilove.
Finally, like the federal provision, Richmond’s does not interfere with any vested right of a contractor to a particular contract; instead it operates entirely prospectively.
These factors, far from “justifying] a preference of any size or duration,” ante, at 505, are precisely the factors to which this Court looked in Fullilove. The majority takes issue, however, with two aspects of Richmond’s tailoring: the city’s refusal to explore the use of race-neutral measures to increase minority business participation in contracting, ante, at 507, and the selection of a 30% set-aside figure. Ante, at 507-508. The majority’s first criticism is flawed in two respects. First, the majority overlooks the fact that since 1975, Richmond has barred both discrimination by the city in awarding public contracts and discrimination by public contractors. See Richmond, Ya., City Code § 17.1 et seq. (1985). The virtual absence of minority businesses from the city’s contracting rolls, indicated by the fact that such businesses have received less than 1% of public contracting dollars,
Ill
I would ordinarily end my analysis at this point and conclude that Richmond’s ordinance satisfies both the governmental interest and substantial relationship prongs of our Equal Protection Clause analysis. However, I am compelled to add more, for the majority has gone beyond the facts of this case to announce a set of principles which unnecessarily restricts the power of governmental entities to take race-conscious measures to redress the effects of prior discrimination.
A
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. Ante, at 493-494; ante, at 520 (Scalia, J., concurring in judgment). This is an unwelcome development. A profound difference separates governmental actions that themselves are racist,
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. Id., at 357-358. 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. As I stated in Fullilove: “Because the consideration of race is relevant to remedying the continuing effects of past racial discrimination, and because governmental programs employing racial classifications for remedial purposes can be crafted to avoid stigmatization, . . . such programs should not be subjected to conventional ‘strict scrutiny’ — scrutiny that is strict in theory, but fatal in fact.” Fullilove, supra, at 518-519 (citation omitted).
In concluding that remedial classifications warrant no different standard of review under the Constitution than the most brutal 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 discrimination or its vestiges. In constitutionalizing its wishful think
B
I am also troubled by the majority’s assertion that, even if it did not believe generally in strict scrutiny of race-based remedial measures, “the circumstances of this case” require this Court to look upon the Richmond City Council’s measure with the strictest scrutiny. Ante, at 495. The sole such circumstance which the majority cites, however, is the fact that blacks in Richmond are a “dominant racial grou[p]” in the city. Ibid. In support of this characterization of dominance, the majority observes that “blacks constitute approximately 50% of the population of the city of Richmond” and that “[f ]ive of the nine seats on the City Council are held by blacks.” Ibid.
While I agree that the numerical and political supremacy of a given racial group is a factor bearing upon the level of scrutiny to be applied, this Court has never held that numerical inferiority, standing alone, makes a racial group “suspect” and thus entitled to strict scrutiny review. Rather, we have identified other “traditional indicia of suspectness”: whether a group has been “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” San Antonio Independent School Dist. v. Rodriguez,
It cannot seriously be suggested that nonminorities in Richmond have any “history of purposeful unequal treatment.” Ibid. Nor is there any indication that they have any of the disabilities that have characteristically afflicted those groups this Court has deemed suspect. Indeed, the numerical and political dominance of nonminorities within
In my view, the “circumstances of this case,” ante, at 495, underscore the importance of not subjecting to a strict scrutiny straitjacket the increasing number of cities which have recently come under minority leadership and are eager to rectify, or at least prevent the perpetuation of, past racial discrimination. In many cases, these cities will be the ones with the most in the way of prior discrimination to rectify. Richmond’s leaders had just witnessed decades of publicly sanctioned racial discrimination in virtually all walks of life— discrimination amply documented in the decisions of the federal judiciary. See supra, at 544-546. This history of “purposefully unequal treatment” forced upon minorities, not imposed by them, should raise an inference that minorities in Richmond had much to remedy — and that the 1983 set-aside was undertaken with sincere remedial goals in mind, not “simple racial politics.” Ante, at 493.
Richmond’s own recent political history underscores the facile nature of the majority’s assumption that elected officials’ voting decisions are based on the color of their skins. In recent years, white and black councilmembers in Richmond have increasingly joined hands on controversial matters. When the Richmond City Council elected a black man mayor in 1982, for example, his victory was won with the
C
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 discrimination 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.” Ante, at 500. In so doing, the majority calls into question the validity of the business set-asides which dozens of municipalities across this Nation have adopted on the authority of Fullilove.
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 in which a prima facie case of a constitutional or statutory violation can be made out. By its very terms, the majority’s standard effectively cedes' control of a large component of the content of that constitutional provision to Congress and to state legislatures. If an antecedent Virginia or Richmond law had defined as unlawful the award to nonminorities of an overwhelming share of a city’s contracting dollars, for example, Richmond’s subsequent set-aside initiative would then satisfy
Similar flaws would inhere in the majority’s standard even if it incorporated only federal antidiscrimination statutes. If Congress tomorrow dramatically expanded Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq.— or alternatively, if it repealed that legislation altogether — the meaning of equal protection would change precipitately along with it. Whatever the Framers of the Fourteenth Amendment had in mind in 1868, it certainly was not that the content of their Amendment would turn on the amendments to or the evolving interpretations of a federal statute passed nearly a century later.
As for § 1, it is too late in the day to assert seriously that the Equal Protection Clause prohibits States — or for that matter, the Federal Government, to whom the equal protection guarantee has largely been applied, see Bolling v. Sharpe,
In adopting its prima facie standard for States and localities, the majority closes its eyes to this constitutional history and social reality. So, too, does Justice Scalia. He would further limit consideration of race to those cases in which States find it “necessary to eliminate their own maintenance of a system of unlawful racial classification” — a “distinction” which, he states, “explains our school desegregation cases.” Ante, at 524 (Scalia, J., concurring in judgment). But this Court’s remedy-stage school desegregation decisions cannot so conveniently be cordoned off. These decisions (like those involving voting rights and affirmative action)
The fact is that Congress’ concern in passing the Reconstruction Amendments, and particularly their congressional authorization provisions, was that States would not adequately respond to racial violence or discrimination against newly freed slaves. To interpret any aspect of these Amendments as proscribing state remedial responses to these very problems turns the Amendments on their heads. As four Justices, of whom I was one, stated in University of California Regents v. Bakke:
“[There is] no reason to conclude that the States cannot voluntarily accomplish under § 1 of the Fourteenth Amendment what Congress under §5 of the Fourteenth Amendment validly may authorize or compel either the States or private persons to do. A contrary position would conflict with the traditional understanding recognizing the competence of the States to initiate measures consistent with federal policy in the absence of congressional pre-emption of the subject matter. Nothing*560 whatever in the legislative history of either the Fourteenth Amendment or the Civil Rights Acts even remotely suggests that the States are foreclosed from furthering the fundamental purpose of equal opportunity to which the Amendment and those Acts are addressed. Indeed, voluntary initiatives by the States to achieve the national goal of equal opportunity have been recognized to be essential to its attainment. ‘To use the Fourteenth Amendment as a sword against such State power would stultify that Amendment.’ Railway Mail Assn. v. Corsi,326 U. S. 88 , 98 (Frankfurter, J., concurring).”438 U. S., at 368 (footnote omitted; emphasis added).
In short, there is simply no credible evidence that the Framers of the Fourteenth Amendment sought “to transfer the security and protection of all the civil rights . . . from the States to the Federal government.” The Slaughter-House Cases,
IV
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.” Fullilove,
In the interest of convenience, I refer to the opinion in this case authored by Justice O’Connor as “the majority,” recognizing that certain portions of that opinion have been joined by only a plurality of the Court.
Other Reports indicating the dearth of minority-owned businesses include H. R. Rep. No. 92-1615, p. 3 (1972) (Report of the Subcommittee on Minority Small Business Enterprise, finding that the “long history of racial bias” has created “major problems” for minority businessmen); H. R. Doc. No. 92-194, p. 1 (1972) (text of message from President Nixon to Con
Numerous congressional studies undertaken after 1977 and issued before the Richmond City Council convened in April 1983 found that the exclusion of minorities had continued virtually unabated — and that, because of this legacy of discrimination, minority businesses across the Nation had still failed, as of 1983, to gain a real toehold in the business world. See, e. g., H. R. Rep. No. 95-949, pp. 2, 8 (1978) (Report of House Committee on Small Business, finding that minority businesses “are severely under-capitalized” and that many minorities are disadvantaged “because they are identified as members of certain racial categories”); S. Rep. No. 95-1070, pp. 14-15 (1978); (Report of Senate Select Committee on Small Business, finding that the federal effort “has fallen far short of its goal to develop strong and growing disadvantaged small businesses,” and “recogniz[ing] the pattern of social and economic discrimination that continues to deprive racial and ethnic minorities, and others, of the opportunity to participate fully in the free enterprise system”); S. Rep. No. 96-31, pp. IX, 107 (1979) (Report of Senate Select Committee on Small Business, finding that many minorities have “suffered the effects of discriminatory practices or similar invidious circumstances over which they have no control”); S. Rep. No. 96-974, p. 3 (1980) (Report of Senate Select Committee on Small Business, finding that government aid must be “significantly increased” if minority-owned businesses are to “have the maximum practical opportunity to develop into viable small businesses”); H. R. Rep. No. 97-956, p. 35 (1982) (Report of House Committee on Small Business, finding that federal programs to aid minority businesses have had “limited success” to date, but concluding that success could be “greatly expanded” with “appropriate corrective actions”); H. R. Rep. No. 98-3, p. 1 (1983) (Report of House Committee on Small Business, finding that “the small business share of Federal contracts continues to be inadequate”).
According to testimony by trade association representatives, the Associated General Contractors of Virginia had no blacks among its 130 Richmond-area members, App. 27-28 (remarks of Stephen Watts); the American Subcontractors Association had no blacks among its 80 Richmond members, id., at 36 (remarks of Patrick Murphy); the Professional Contractors Estimators Association had 1 black member among its 60 Richmond members, id., at 39 (remarks of A1 Shuman); the Central Virginia Electrical Contractors Association had 1 black member among its 45 members, id., at 40 (remarks of A1 Shuman); and the National Electrical Contractors Association had 2 black members among its 81 Virginia members. Id., at 34 (remarks of Mark Singer).
Among those testifying to the discriminatory practices of Richmond’s construction industry was Councilmember Henry Marsh, who had served as mayor of Richmond from 1977 to 1982. Marsh stated:
“I have been practicing law in this community since 1961, and I am familiar with the practices in the construction industry in this area, in the State,*535 and around the nation. And I can say without equivocation, that the general conduct in the construction industry in this area, and the State and around the nation, is one in which race discrimination and exclusion on the basis of race is widespread.
“I think the situation involved in the City of Richmond is the same .... I think the question of whether or not remedial action is required is not open to question.’’ Id., at 41.
Manuel Deese, who in his capacity as City Manager had oversight responsibility for city procurement matters, stated that he fully agreed with Marsh’s analysis. Id., at 42.
The representatives of several trade associations did, however, deny that their particular organizations engaged in discrimination. See, e. g., id., at 38 (remarks of A1 Shuman, on behalf of the Central Virginia Electrical Contractors Association).
For a disturbing description of the lengths to which some Richmond white officials went during recent decades to hold in check growing black political power, see J. Moeser & R. Dennis, The Politics of Annexation-Oligarchic Power in a Southern City 50-188 (1982).
Again the dissenting judge — who would have consolidated the school districts —elaborated:
Cf. Fullilove v. Klutznick,
Although the majority sharply criticizes Richmond for using data which it did not itself develop, it is noteworthy that the federal set-aside program upheld in Fullilove was adopted as a floor amendment “without any congressional hearings or investigation whatsoever.” L. Tribe, American Constitutional Law 345 (2d ed. 1988). The principal opinion in Fullilove
The majority also faults Richmond’s ordinance for including within its definition of “minority group members” not only black citizens, but also citizens who are “Spanish-speaking, Oriental, Indian, Eskimo, or Aleut persons.” Ante, at 506. This is, of course, precisely the same definition Congress adopted in its set-aside legislation. Fullilove, supra, at 454. Even accepting the majority’s view that Richmond’s ordinance is over-broad because it includes groups, such as Eskimos or Aleuts, about whom no evidence of local discrimination has been proffered, it does not necessarily follow that the balance of Richmond’s ordinance should be invalidated.
Although the majority purports to “adher[e] to the standard of review employed in Wygant, ” ante, at 494, the “prima facie case” standard it adopts marks an implicit rejection of the more generally framed “strong basis in evidence” test endorsed by the Wygant v. Jackson Bd. of Education,
The rhetoric of today’s majority opinion departs from Wygant in another significant respect. In Wygant, a majority of this Court rejected as unduly inhibiting and constitutionally unsupported a requirement that a municipality demonstrate that its remedial plan is designed only to benefit specific victims of discrimination. See
Tellingly, the sole support the majority offers for its view that the Framers of the Fourteenth Amendment intended such a result are two law review articles analyzing this Court’s recent affirmative-action decisions, and a Court of Appeals decision which relies upon statements by James Madison. Ante, at 491. Madison, of course, had been dead for 32 years when the Fourteenth Amendment was enacted.
Dissenting Opinion
with whom
I join Justice Marshall’s perceptive and incisive opinion revealing great sensitivity toward those who have suffered the pains of economic discrimination in the construction trades for so long.
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.