Equal Protection: Race

Economic Affirmative Action

Fullilove v. Klutznick (1980)

448 U.S. 448 (1980)

Vote: 6-3
Decision: Affirmed
Plurality: Burger, joined by White and Powell
Concurrence: Marshall, joined by Brennan and Blackmun
Concurrence: Powell
Dissent: Stewart, joined by Rehnquist
Dissent: Stevens

Mr. Chief Justice Burger announced the judgment of the Court and delivered an opinion.

We granted certiorari to consider a facial constitutional challenge to a requirement in a congressional spending program that, absent an administrative waiver, 10% of the federal funds granted for local public works projects must be used by the state or local grantee to procure services or supplies from businesses owned and controlled by members of statutorily identified minority groups.

In May, 1977, Congress enacted the Public Works Employment Act of 1977 which amended the Local Public Works Capital Development and Investment Act of 1976. The 1977 amendments authorized an additional $4 billion appropriation for federal grants to be made by the Secretary of Commerce, acting through the Economic Development Administration (EDA), to state and local governmental entities for use in local public works projects. Among the changes made was the addition of the provision that has become the focus of this litigation. Section 103(f)(2) of the 1977 Act, referred to as the “minority business enterprise” or “MBE” provision, requires that:

“Except to the extent that the Secretary determines otherwise, no grant shall be made under this Act for any local public works project unless the applicant gives satisfactory assurance to the Secretary that at least 10 per centum of the amount of each grant shall be expended for minority business enterprises. For purposes of this paragraph, the term ‘minority business enterprise’ means a business at least 50 per centum of which is owned by minority group members or, in case of a publicly owned business, at least 51 per centum of the stock of which is owned by minority group members. For the purposes of the preceding sentence, minority group members are citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts.”

On November 30, 1977, petitioners filed a complaint in the United States District Court for the Southern District of New York seeking declaratory and injunctive relief to enjoin enforcement of the MBE provision. Named as defendants were the Secretary of Commerce, as the program administrator, and the State and City of New York, as actual and potential project grantees. Petitioners are several associations of construction contractors and subcontractors, and a firm engaged in heating, ventilation, and air conditioning work. Their complaint alleged that they had sustained economic injury due to enforcement of the 10% MBE requirement, and that the MBE provision, on its face, violated the Equal Protection Clause of the Fourteenth Amendment, the equal protection component of the Due Process Clause of the Fifth Amendment, and various statutory antidiscrimination provisions.

The MBE provision was enacted as part of the Public Works Employment Act of 1977, which made various amendments to Title I of the Local Public Works Capital Development and Investment Act of 1976. The 1976 Act was intended as a short-term measure to alleviate the problem of national unemployment and to stimulate the national economy by assisting state and local governments to build needed public facilities. To accomplish these objectives, the Congress authorized the Secretary of Commerce, acting through the EDA, to make grants to state and local governments for construction, renovation, repair, or other improvement of local public works projects …

The device of a 10% MBE participation requirement, subject to administrative waiver, was thought to be required to assure minority business participation; otherwise, it was thought that repetition of the prior experience could be expected, with participation by minority business accounting for an inordinately small percentage of government contracting. The causes of this disparity were perceived as involving the longstanding existence and maintenance of barriers impairing access by minority enterprises to public contracting opportunities, or sometimes as involving more direct discrimination … In the words of its sponsor, the MBE provision was “designed to begin to redress this grievance that has been extant for so long.”

The legislative objectives of the MBE provision must be considered against the background of ongoing efforts directed toward deliverance of the century-old promise of equality of economic opportunity. The sponsors of the MBE provision in the House and the Senate expressly linked the provision to the existing administrative programs promoting minority opportunity in government procurement …

Civil Rights Commission report discussed at some length the barriers encountered by minority businesses in gaining access to government contracting opportunities at the federal, state, and local levels …

Against this backdrop of legislative and administrative programs, it is inconceivable that Members of both Houses were not fully aware of the objectives of the MBE provision and of the reasons prompting its enactment.

Although the statutory MBE provision itself outlines only the bare bones of the federal program, it makes a number of critical determinations: the decision to initiate a limited racial and ethnic preference; the specification of a minimum level for minority business participation; the identification of the minority groups that are to be encompassed by the program; and the provision for an administrative waiver where application of the program is not feasible. Congress relied on the administrative agency to flesh out this skeleton, pursuant to delegated rulemaking authority, and to develop an administrative operation consistent with legislative intentions and objectives.

… A program that employs racial or ethnic criteria, even in a remedial context, calls for close examination; yet we are bound to approach our task with appropriate deference to the Congress, a coequal 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. In Columbia Broadcasting System, Inc. v. Democratic National Committee, (1973), we accorded “great weight to the decisions of Congress” even though the legislation implicated fundamental constitutional rights guaranteed by the First Amendment. The rule is not different when a congressional program raises equal protection concerns.

Our analysis proceeds in two steps. At the outset, we must inquire whether the objectives of this legislation are within the power of Congress. If so, we must go on to decide whether the limited use of racial and ethnic criteria, in the context presented, is a constitutionally permissible means for achieving the congressional objectives and does not violate the equal protection component of the Due Process Clause of the Fifth Amendment.

In enacting the MBE provision, it is clear that Congress employed an amalgam of its specifically delegated powers. The Public Works Employment Act of 1977, by its very nature, is primarily an exercise of the Spending Power. U.S. Const., Art. I, 8, cl. 1. This Court has recognized that the power to “provide for the … general Welfare” is an independent grant of legislative authority, distinct from other broad congressional powers. Buckley v. Valeo, (1976); United States v. Butler, (1936). Congress has frequently employed the Spending Power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives. This Court has repeatedly upheld against constitutional challenge the use of this technique to induce governments and private parties to cooperate voluntarily with federal policy …

… Insofar as the MBE program pertains to the actions of private prime contractors, the Congress could have achieved its objectives under the Commerce Clause. We conclude that, in this respect, the objectives of the MBE provision are within the scope of the Spending Power.

With respect to the MBE provision, Congress had abundant evidence from which it could conclude that minority businesses have been denied effective participation in public contracting opportunities by procurement practices that perpetuated the effects of prior discrimination. Congress, of course, may legislate without compiling the kind of “record” appropriate with respect to judicial or administrative proceedings. Congress had before it, among other data, evidence of a long history of marked disparity in the percentage of public contracts awarded to minority business enterprises. This disparity was considered to result not from any lack of capable and qualified minority businesses, but from the existence and maintenance of barriers to competitive access which had their roots in racial and ethnic discrimination, and which continue today, even absent any intentional discrimination or other unlawful conduct. Although much of this history related to the experience of minority businesses in the area of federal procurement, there was direct evidence before the Congress that this pattern of disadvantage and discrimination existed with respect to state and local construction contracting as well. In relation to the MBE provision, Congress acted within its competence to determine that the problem was national in scope.

Although the Act recites no preambulary “findings” on the subject, we are satisfied 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. Accordingly, Congress reasonably determined that the prospective elimination of these barriers to minority firm access to public contracting opportunities generated by the 1977 Act was appropriate to ensure that those businesses were not denied equal opportunity to participate in federal grants to state and local governments, which is one aspect of the equal protection of the laws.

We now turn to the question whether, as a means to accomplish these plainly constitutional objectives, Congress may use racial and ethnic criteria, in this limited way, as a condition attached to a federal grant … Congress may employ racial or ethnic classifications in exercising its Spending or other legislative powers only if those classifications do not violate the equal protection component of the Due Process Clause of the Fifth Amendment. We recognize the need for careful judicial evaluation to assure that any congressional program that employs racial or ethnic criteria to accomplish the objective of remedying the present effects of past discrimination is narrowly tailored to the achievement of that goal.

Our review of the regulations and guidelines governing administration of the MBE provision reveals that Congress enacted the program as a strictly remedial measure; moreover, it is a remedy that functions prospectively, in the manner of an injunctive decree. Pursuant to the administrative program, grantees and their prime contractors are required to seek out all available, qualified, bona fide MBE’s; they are required to provide technical assistance as needed, to lower or waive bonding requirements where feasible, to solicit the aid of the Office of Minority Business Enterprise, the SBA, or other sources for assisting MBE’s to obtain required working capital, and to give guidance through the intricacies of the bidding process … There is available to the grantee a provision authorized by Congress for administrative waiver on a case-by-case basis should there be a demonstration that, despite affirmative efforts, this level of participation cannot be achieved without departing from the objectives of the program. Supra at 448 U. S. 469-470. There is also an administrative mechanism, including a complaint procedure, to ensure that only bona fide MBE’s are encompassed by the remedial program, and to prevent unjust participation in the program by those minority firms whose access to public contracting opportunities is not impaired by the effects of prior discrimination.

As a threshold matter, we reject the contention that, in the remedial context, the Congress must act in a wholly “color-blind” fashion …

Here we deal, as we noted earlier, 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. 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.

A more specific challenge to the MBE program is the charge that it impermissibly deprives nonminority businesses of access to at least some portion of the government contracting opportunities generated by the Act. It must be conceded that, by its objective of remedying the historical impairment of access, the MBE provision can have the effect of awarding some contracts to MBE’s which otherwise might be awarded to other businesses, who may themselves be innocent of any prior discriminatory actions. Failure of nonminority firms to receive certain contracts is, of course, an incidental consequence of the program, not part of its objective; similarly, past impairment of minority-firm access to public contracting opportunities may have been an incidental consequence of “business as usual” by public contracting agencies and among prime contractors.

It is not a constitutional defect in this program that it may disappoint the expectations of nonminority firms. When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such “a sharing of the burden” by innocent parties is not impermissible. Franks, supra … The actual “burden” shouldered by nonminority firms is relatively light in this connection when we consider the scope of this public works program as compared with overall construction contracting opportunities. Moreover, although we may assume that the complaining parties are innocent of any discriminatory conduct, it was within congressional power to act on the assumption that in the past some nonminority businesses may have reaped competitive benefit over the years from the virtual exclusion of minority firms from these contracting opportunities.

Another challenge to the validity of the MBE program is the assertion that it is underinclusive — that it limits its benefit to specified minority groups, rather than extending its remedial objectives to all businesses whose access to government contracting is impaired by the effects of disadvantage or discrimination. Such an extension would, of course, be appropriate for Congress to provide; it is not a function for the courts.

It is also contended that the MBE program is overinclusive — that it bestows a benefit on businesses identified by racial or ethnic criteria which cannot be justified on the basis of competitive criteria or as a remedy for the present effects of identified prior discrimination. It is conceivable that a particular application of the program may have this effect; however, the peculiarities of specific applications are not before us in this case. We are not presented here with a challenge involving a specific award of a construction contract or the denial of a waiver request; such questions of specific application must await future cases.

That the use of racial and ethnic criteria is premised on assumptions rebuttable in the administrative process gives reasonable assurance that application of the MBE program will be limited to accomplishing the remedial objectives contemplated by Congress, and that misapplications of the racial and ethnic criteria can be remedied. In dealing with this facial challenge to the statute, doubts must be resolved in support of the congressional judgment that this limited program is a necessary step to effectuate the constitutional mandate for equality of economic opportunity. The MBE provision may be viewed as a pilot project, appropriately limited in extent and duration, and subject to reassessment and reevaluation by the Congress prior to any extension or reenactment. Miscarriages of administration could have only a transitory economic impact on businesses not encompassed by the program, and would not be irremediable.

Any preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees. This case is one which requires, and which has received, that kind of examination. This opinion does not adopt, either expressly or implicitly, the formulas of analysis articulated in such cases as University of California Regents v. Bakke, (1978). However, our analysis demonstrates that the MBE provision would survive judicial review under either “test” articulated in the several Bakke opinions. The MBE provision of the Public Works Employment Act of 1977 does not violate the Constitution.


Wygant v. Jackson Board of Ed. (1986)

476 U.S. 267 (1986)

Vote: 5-4
Decision: Reversed
Plurality: Powell, joined by Burger, Rehnquist, O’Connor (all but part IV)
Concurrence: White (in judgment)
Concurrence: O’Connor (in part, in judgment)
Dissent: Marshall, joined by Brennan, and Blackmun
Dissent: Stevens

Justice Powell announced the judgment of the Court and delivered an opinion.

This case presents the question whether a school board, consistent with the Equal Protection Clause, may extend preferential protection against layoffs to some of its employees because of their race or national origin.

In 1972, the Jackson Board of Education, because of racial tension in the community that extended to its schools, considered adding a layoff provision to the Collective Bargaining Agreement (CBA) between the Board and the Jackson Education Association (Union) that would protect employees who were members of certain minority groups against layoffs. The Board and the Union eventually approved a new provision, Article XII of the CBA, covering layoffs. It stated:

“In the event that it becomes necessary to reduce the number of teachers through layoff from employment by the Board, teachers with the most seniority in the district shall be retained, except that at no time will there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff. In no event will the number given notice of possible layoff be greater than the number of positions to be eliminated. Each teacher so affected will be called back in reverse order for position for which he is certificated maintaining the above minority balance.”

When layoffs became necessary in 1974, it was evident that adherence to the CBA would result in the layoff of tenured nonminority teachers while minority teachers on probationary status were retained. Rather than complying with Article XII, the Board retained the tenured teachers and laid off probationary minority teachers, thus failing to maintain the percentage of minority personnel that existed at the time of the layoff. The Union, together with two minority teachers who had been laid off, brought suit in federal court, id. at 30 (Jackson Education Assn. v. Board of Education (Jackson I) (mem. op.)), claiming that the Board’s failure to adhere to the layoff provision violated the Equal Protection Clause of the Fourteenth Amendment … Following trial, the District Court sua sponte concluded that it lacked jurisdiction over the case …

Rather than taking an appeal, the plaintiffs instituted a suit in state court, Jackson Education Assn. v. Board of Education, No. 77-011484CZ (Jackson Cty. Cir. Ct.1979) (Jackson II), raising in essence the same claims that had been raised in Jackson I … In entering judgment for the plaintiffs, the state court found that the Board had breached its contract with the plaintiffs …

… As a result, during the 1976-1977 and 1981-1982 school years, nonminority teachers were laid off, while minority teachers with less seniority were retained. The displaced nonminority teachers, petitioners here, brought suit in Federal District Court, alleging violations of the Equal Protection Clause …

With respect to the equal protection claim, the District Court held that the racial preferences granted by the Board need not be grounded on a finding of prior discrimination. Instead, the court decided that the racial preferences were permissible under the Equal Protection Clause as an attempt to remedy societal discrimination by providing “role models” for minority schoolchildren, and upheld the constitutionality of the layoff provision.

The Court of Appeals for the Sixth Circuit affirmed, largely adopting the reasoning and language of the District Court. 746 F.2d 1152 (1984). We granted certiorari, 471 U.S. 1014 (1985), to resolve the important issue of the constitutionality of race-based layoffs by public employers. We now reverse.

Petitioners’ central claim is that they were laid off because of their race in violation of the Equal Protection Clause of the Fourteenth Amendment. Decisions by faculties and administrators of public schools based on race or ethnic origin are reviewable under the Fourteenth Amendment.

The Court has recognized that the level of scrutiny does not change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination. Mississippi University for Women v. Hogan, (1982); Bakke, suprasee Shelley v. Kraemer, (1948) …

“Any preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees.” Fullilove v. Klutznick,  (1980) (opinion of BURGER, C.J.). There are two prongs to this examination. First, any racial classification “must be justified by a compelling governmental interest.” Palmore v. Sidoti, (1984); see Loving v. Virginia, supra, cf. Graham v. Richardson, (1971) (alienage). Second, the means chosen by the State to effectuate its purpose must be “narrowly tailored to the achievement of that goal.” Fullilove, supra. We must decide whether the layoff provision is supported by a compelling state purpose and whether the means chosen to accomplish that purpose are narrowly tailored.

This Court never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination …

Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy … No one doubts that there has been serious racial discrimination in this country. But as the basis for imposing discriminatory legal remedies that work against innocent people, societal discrimination is insufficient and overexpansive. In the absence of particularized findings, a court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future.

Respondents also now argue that their purpose in adopting the layoff provision was to remedy prior discrimination against minorities by the Jackson School District in hiring teachers.

Evidentiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees. In this case, for example, petitioners contended at trial that the remedial program — Article XII — had the purpose and effect of instituting a racial classification that was not justified by a remedial purpose. 546 F. Supp. at 1199. In such a case, 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 ultimate burden remains with the employees to demonstrate the unconstitutionality of an affirmative action program. But unless such a determination is made, an appellate court reviewing a challenge by nonminority employees to remedial action cannot determine whether the race-based action is justified as a remedy for prior discrimination.

Despite the fact that Article XII has spawned years of litigation and three separate lawsuits, no such determination ever has been made. Although its litigation position was different, the Board in Jackson I and Jackson II denied the existence of prior discriminatory hiring practices. App. 33. This precise issue was litigated in both those suits. Both courts concluded that any statistical disparities were the result of general societal discrimination, not of prior discrimination by the Board. The Board now contends that, given another opportunity, it could establish the existence of prior discrimination. Although this argument seems belated at this point in the proceedings, we need not consider the question, since we conclude below that the layoff provision was not a legally appropriate means of achieving even a compelling purpose.

While hiring goals impose a diffuse burden, often foreclosing only one of several opportunities,  layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives. That burden is too intrusive. We therefore hold that, as a means of accomplishing purposes that otherwise may be legitimate, the Board’s layoff plan is not sufficiently narrowly tailored. Other less intrusive means of accomplishing similar purposes — such as the adoption of hiring goals — are available. For these reasons, the Board’s selection of layoffs as the means to accomplish even a valid purpose cannot satisfy the demands of the Equal Protection Clause.

We accordingly reverse the judgment of the Court of Appeals for the Sixth Circuit.

It is so ordered.

City of Richmond v. J.A. Croson Co (1989)

488 U.S. 469 (1989)

Vote: 6-3
Decision: Affirmed
Majority: O’Connor (Parts I, III-B, and IV), joined by Rehnquist, White, Stevens and Kennedy
Plurality: O’Connor (Part II), joined by Rehnquist and White
Plurality: O’Connor (Parts III-A and V), joined by Rehnquist, White and Kennedy
Concurrence: Stevens (in part)
Concurrence: Kennedy (in part)
Concurrence: Scalia (in judgment)
Dissent: Marshall, joined by Brennan and Blackmun
Dissent: Blackmun, joined by Brennan

Justice O’Connor delivered the opinion of the Court.

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 ameliorate the effects of past discrimination on the opportunities enjoyed by members of minority groups in our society.

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-aside did not apply to city contracts awarded to minority-owned prime contractors.

… The Plan expired on June 30, 1988, and was in effect for approximately five years.

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.” …

The Director also promulgated “purchasing procedures” to be followed in the letting of city contracts in accordance with the Plan. Bidders on city construction contracts were provided with a “Minority Business Utilization Plan Commitment Form.” 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 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.

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.” …

Because of [Congress’s] 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.”

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. 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. 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.”

The second factor emphasized by the principal opinion in Fullilove was the flexible nature of the 10% set-aside. […]The Chief Justice indicated that without this fine tuning to remedial purpose, the statute would not have “pass[ed] muster.”

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 …

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 … The mere recitation of a benign or compensatory purpose for the use of a racial classification would essentially entitle the States to … insulate any racial classification from judicial scrutiny … We believe that such a result would be contrary to the intentions of the Framers of the Fourteenth Amendment, who desired to place clear limits on the States’ use of race as a criterion for legislative action, and to have the federal courts enforce those limitations …

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 discrimination within its own legislative jurisdiction. This authority must, of course, be exercised within the constraints of 1 of the Fourteenth Amendment …

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.

The Richmond Plan denies certain citizens the opportunity to compete for a fixed percentage of public contracts based solely upon their race. To whatever racial group these citizens belong, their “personal rights” to be treated with equal dignity and respect are implicated by a rigid rule erecting race as the sole criterion in an aspect of public decision-making.

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.

Classification 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. We thus reaffirm the view expressed by the plurality in Wygant that the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification.

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 … 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. Nor could the second concern, the history of discrimination in society at large, justify a racial quota in medical school admissions.

Justice Powell’s opinion applied heightened scrutiny under the Equal Protection Clause to the racial classification at issue …

In Wygant, (1986), four Members of the Court applied heightened scrutiny to a race-based system of employee layoffs. Justice Powell, writing for the plurality, again drew the distinction between “societal discrimination” which is an inadequate basis for race-conscious classifications, and the type of identified discrimination that can support and define the scope of race-based relief …

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.” 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 (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 …

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 …

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 and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs. We think such a result would be contrary to both the letter and spirit of a constitutional provision whose central command is equality.

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 … The principal opinion in Fullilove found that Congress had carefully examined and rejected race-neutral alternatives before enacting the MBE set-aside. There is no evidence in this record that the Richmond City Council has considered any alternatives to a race-based quota.

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.

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. 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. Under Richmond’s scheme, a successful black, Hispanic, or Oriental entrepreneur from anywhere in the country enjoys an absolute preference over other citizens based solely on their race. We think it obvious that such a program is not narrowly tailored to remedy the effects of prior discrimination.

Nothing we say today precludes a state or local entity from taking action to rectify the effects of identified discrimination within its jurisdiction …

Because the city of Richmond has failed to identify the need for remedial action in the awarding of its public construction contracts, its treatment of its citizens on a racial basis violates the dictates of the Equal Protection Clause. Accordingly, the judgment of the Court of Appeals for the Fourth Circuit is


Adarand Constructors, Inc. v. Pena (1995)

515 U.S. 200 (1995)

Vote: 5-4
Decision: Vacated and remanded
Majority: O’Connor, joined by Kennedy, Rehnquist, Thomas (all but Part II-C) and Scalia (in part)
Concurrence: Scalia (in part)
Concurrence: Thomas (in part)
Dissent: Stevens, joined by Ginsburg
Dissent: Souter, joined by Ginsberg and Breyer
Dissent: Ginsburg, joined by Breyer

Justice O’Connor announced the judgment of the Court and delivered an opinion with respect to Parts I, II, III-A, III-B, III-D, and IV, which is for the Court except insofar as it might be inconsistent with the views expressed in JUSTICE SCALIA’S concurrence, and an opinion with respect to Part III-C in which JUSTICE KENNEDY joins.

Petitioner Adarand Constructors, Inc., claims that the Federal Government’s practice of giving general contractors on government projects a financial incentive to hire subcontractors controlled by “socially and economically disadvantaged individuals,” and, in particular, the Government’s use of race-based presumptions in identifying such individuals, violates the equal protection component of the Fifth Amendment’s Due Process Clause …

In 1989, the Central Federal Lands Highway Division (CFLHD), which is part of the United States Department of Transportation (DOT), awarded the prime contract for a highway construction project in Colorado to Mountain Gravel & Construction Company. Mountain Gravel then solicited bids from subcontractors for the guardrail portion of the contract. Adarand, a Colorado-based highway construction company specializing in guardrail work, submitted the low bid. Gonzales Construction Company also submitted a bid.

The prime contract’s terms provide that Mountain Gravel would receive additional compensation if it hired subcontractors certified as small businesses controlled by “socially and economically disadvantaged individuals.” Gonzales is certified as such a business; Adarand is not. Mountain Gravel awarded the subcontract to Gonzales, despite Adarand’s low bid, and Mountain Gravel’s Chief Estimator has submitted an affidavit stating that Mountain Gravel would have accepted Adarand’s bid had it not been for the additional payment it received by hiring Gonzales instead. Federal law requires that a subcontracting clause similar to the one used here must appear in most federal agency contracts, and it also requires the clause to state that [t]he contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities, or any other individual found to be disadvantaged by the [Small Business] Administration pursuant to section 8(a) of the Small Business Act.15 U.S.C. §§ 637(d)(2), (3). Adarand claims that the presumption set forth in that statute discriminates on the basis of race in violation of the Federal Government’s Fifth Amendment obligation not to deny anyone equal protection of the laws.

Adarand’s claim arises under the Fifth Amendment to the Constitution, which provides that “No person shall … be deprived of life, liberty, or property, without due process of law.” Although this Court has always understood that Clause to provide some measure of protection against arbitrary treatment by the Federal Government, it is not as explicit a guarantee of equal treatment as the Fourteenth Amendment, which provides that “No State shall … deny to any person within its jurisdiction the equal protection of the laws” (emphasis added). Our cases have accorded varying degrees of significance to the difference in the language of those two Clauses. We think it necessary to revisit the issue here.

In Bolling v. Sharpe,  (1954), the Court for the first time explicitly questioned the existence of any difference between the obligations of the Federal Government and the States to avoid racial classifications. Bolling did note that “[t]he ‘equal protection of the laws’ is a more explicit safeguard of prohibited unfairness than ‘due process of law,'” id., at 499. But Bolling then concluded that, “[i]n view of [the] decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.” Id.

Later cases in contexts other than school desegregation did not distinguish between the duties of the States and the Federal Government to avoid racial classifications …

Most of the cases discussed above involved classifications burdening groups that have suffered discrimination in our society. In 1978, the Court confronted the question whether race-based governmental action designed to benefit such groups should also be subject to “the most rigid scrutiny.” Regents of Univ. of Cal. v. Bakke, involved an equal protection challenge to a state-run medical school’s practice of reserving a number of spaces in its entering class for minority students … In a passage joined by Justice White, Justice Powell wrote 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.” 438 U. S., at 289-290. He concluded that “[r]acial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.” Id …

Two years after Bakke, the Court faced another challenge to remedial race-based action, this time involving action undertaken by the Federal Government. In Fullilove v. Klutznick,  (1980), the Court upheld Congress’ inclusion of a 10% set-aside for minority-owned businesses in the Public Works Employment Act of 1977. As in Bakke, there was no opinion for the Court. Chief Justice Burger, in an opinion joined by Justices White and Powell, observed that “[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees.” Id. That opinion, however, “d[id] not adopt, either expressly or implicitly, the formulas of analysis articulated in such cases as [Bakke].” Id. It employed instead a two-part test which asked, first, “whether the objectives of thee] legislation are within the power of Congress,” and second, “whether the limited use of racial and ethnic criteria, in the context presented, is a constitutionally permissible means for achieving the congressional objectives.” Id …

In Wygant v. Jackson Bd. of Ed., (1986), the Court considered a Fourteenth Amendment challenge to another form of remedial racial classification …”racial classifications of any sort must be subjected to ‘strict scrutiny.'” Id …

The Court’s failure to produce a majority opinion in Bakke, Fullilove, and Wygant left unresolved the proper analysis for remedial race-based governmental action …

With Croson, the Court finally agreed that the Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments. But Croson of course had no occasion to declare what standard of review the Fifth Amendment requires for such action taken by the Federal Government …

Despite lingering uncertainty in the details, however, the Court’s cases through Croson had established three general propositions with respect to governmental racial classifications. First, skepticism: “‘[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination,’” Wygant … Second, consistency: “the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification,” Croson … And third, congruence: “[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment,” Buckley v. Valeo, (1976) … Taken together, these three propositions lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny …

A year later [after Croson], however, the Court took a surprising turn. Metro Broadcasting, Inc. v. FCC (1990), involved a Fifth Amendment challenge to two race-based policies of the Federal Communications Commission. In Metro Broadcasting, the Court repudiated the long-held notion that “it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government” than it does on a State to afford equal protection of the laws, Bolling. It did so by holding that “benign” federal racial classifications need only satisfy intermediate scrutiny, even though Croson had recently concluded that such classifications enacted by a State must satisfy strict scrutiny.”[B]enign” federal racial classifications, the Court said,

—even if those measures are not “remedial” in the sense of being designed to compensate victims of past governmental or societal discrimination—are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives. The Court did not explain how to tell whether a racial classification should be deemed “benign,” other than to express confiden[ce] that an “examination of the legislative scheme and its history” will separate benign measures from other types of racial classifications.

The three propositions undermined by Metro Broadcasting all derive from the basic principle that the Fifth and Fourteenth Amendments to the Constitution protect persons, not groups. It follows from that principle that all governmental action based on race – – – a group classification long recognized as “in most circumstances irrelevant and therefore prohibited,” Hirabayashi [v. US, (1943)] – – – should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed. These ideas have long been central to this Court’s understanding of equal protection, and holding “benign” state and federal racial classifications to different standards does not square with them … Accordingly, we hold today that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.

Finally, we wish to dispel the notion that strict scrutiny is “strict in theory, but fatal in fact.” Fullilove (Marshall, J., concurring in judgment). The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it … When race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the “narrow tailoring” test this Court has set out in previous cases.

Because our decision today alters the playing field in some important respects, we think it best to remand the case to the lower courts for further consideration in light of the principles we have announced …

The question whether any of the ways in which the Government uses subcontractor compensation clauses can survive strict scrutiny, and any relevance distinctions such as these may have to that question, should be addressed in the first instance by the lower courts.

Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.


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