Rejected the argument that required deference to the citys
conclusion that race-conscious affirmative action was required.
Congress has a specific constitutional mandate to enforce the
dictates of the Fourteenth Amendment.
The power to enforce may at ties also include the power to
define situation which Congress determines threaten principles
of equality and to adopt prophylactic rules to deal with those
At State is not free to decide which remedies are appropriate
when Congress identifies the effect of society wide
Fullilove v. Klutznick
Upheld the set-aside program, but the court didnt employ the
strict scrutiny test in the analysis. Two reasons for upholding
in this case:
Congress is better abled under the constitution to remediate
Because exceptions are granted to the set-aside requirement, it
would fix the problem if there werent enough minority
businesses to fulfill the requirement or if minority businesses
upped their prices
The city says that in Fullilove since the Congress didnt need
to make specific findings of discrimination, neither did the
city counsel. But what this ignores is that the congress is
specifically empowered to enforce the 14th amendment. The city
counsel can only remedy discrimination if it finds specific
instances of it.
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.
Political qualities already to be doubted in a national
legislature 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
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 Richmond Plan denies certain citizens the opportunity to
compete for a fixed percentage of public contracts based solely
upon their race.
No way of determining what classifications are "benign" or
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.
Purpose of Strict Scrutiny
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
of the test needs to fit a compelling goal [the
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
Classifications based on race carry a danger of stigmatic harm.
Promote notions of racial inferiority
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.
Standard of review not dependent on race
The standard of review under the Equal Protection Clause is not
dependent on the race of those burdened or benefited by a
Justice OConnor Concluded Fails both Prongs
The program failed both prongs of the strict scrutiny inquiry.
Whether Richmonds plan was justified by a compelling
Although remedying the citys own prior unconstitutional
discrimination might serve as a compelling state purpose;
remedying the effects of past societal discrimination could
serve as a compelling State interest.
The history of discrimination standing alone cannot justify a
rigid quota in the awarding of public contracts.
Example: Past discrimination in particular industry cannot
justify the use of an unyielding racial quota.
Its sheer speculation how many minority firms there would be in
Richmond absent past societal discrimination.
Whether Richmonds plan was narrowly tailored to achieve that
There does not appear to have been any consideration of the use
of race-neutral means to increase minority business
participation in city contracting.
Many of the barrier to minority participation in the
construction industry relied upon by the city to justify a
racial classification appear to be race neutral.
Justice Brennan, Marshall, Blackmun
Richmond had two power interests justifying its set-aside
The first is the citys interest in eradicating the effects of
past racial discrimination.
second compelling interest consisted in the prospective one of
preventing the citys own spending decisions from reinforcing
and perpetuating the exclusionary effects of past