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City of Richmond v. J. A. Croson Co., 488 U.S. 469 

Supreme Court of the United States






Equality and the Constitution




Heightened Scrutiny and the Problem of Race

Quick Notes

Appellant city council adopted a plan that required prime contractors to whom the city awarded construction contracts to subcontract at least 30 percent of the dollar amount of the contract to one or more Minority Business Enterprises. The purpose of the plan was to promote wider participation by minority business enterprises in the construction of public projects. Appellee contractor brought an action under 42 U.S.C.S. 1983, arguing that the ordinance was unconstitutional on its face. The appellate court found the ordinance to be unconstitutional. The Court affirmed that decision. Applying the two prongs of the strict scrutiny standard, the Court found that the evidence did not point to any identified discrimination in the construction industry. Appellant had failed to demonstrate a compelling governmental interest in apportioning public contracting opportunities on the basis of race or that its remedy had been narrowly tailored to the achievement of that interest. The Court found the ordinance to be unconstitutional.


Two Prongs of Strict Scrutiny

1.     The Plan was not justified by a compelling governmental interest, since the record revealed no prior discrimination by the city itself in awarding contracts, and

2.     The 30% set-aside was NOT narrowly tailored to accomplish a remedial purpose.

Book Name

Constitutional Law : Stone, Seidman, Sunstein, Tushnet.  ISBN:  978-0-7355-7719-0



o         Did the Richmond law violate the Equal Protection Clause of the Fourteenth Amendment?  Yes.

o         The Court held that "generalized assertions" of past racial discrimination could not justify "rigid" racial quotas for the awarding of public contracts. Justice O'Connor's opinion noted that the 30 percent quota could not be tied to "any injury suffered by anyone," and was an impermissible employment of a suspect classification. O'Connor further held that allowing claims of past discrimination to serve as the basis for racial quotas would actually subvert constitutional values: "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."




o         United States Court of Appeals for the Fourth Circuit, which reversed a trial court decision that struck down a minority set-aside program based on a city ordinance upon the grounds that it violated both prongs of strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment.


o         Affirmed.




Key Phrases



Df -  Croson



o          Richmond Virginia had adopted a set-aside program, requiring prime contractors on city projects to subcontract at least 30% of the time of the contract to MINORITY business enterprises (MBEs).

Minority groups defined

o         The City Council defined minority groups members as Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts.

Croson brought suit

o         Croson was a contractor bidding on a renovation job at the city jail.

o         He challenged the program on equal protection grounds.

Rejected Fullilove

o         Rejected the argument that required deference to the citys conclusion that race-conscious affirmative action was required.



o         Congress has a specific constitutional mandate to enforce the dictates of the Fourteenth Amendment.

o         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 situations.

o         At State is not free to decide which remedies are appropriate when Congress identifies the effect of society wide discrimination.


Fullilove v. Klutznick

o    Upheld the set-aside program, but the court didnt employ the strict scrutiny test in the analysis.  Two reasons for upholding in this case:

o    Congress is better abled under the constitution to remediate discrimination.

o    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

o    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. 


Justice Scalia

o    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.

o    Political qualities already to be doubted in a national legislature are substantially less likely to exist at the state or local level.

o    The struggle for racial justice has historically been a struggle by the national society against oppression in the individual States.

o    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.


Justice OConnor


Richmond Plan

o         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 "remedial"

o         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

o         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 MEANS of the test needs to fit a compelling goal [the ENDS]

o         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

o         Classifications based on race carry a danger of stigmatic harm.

Promote notions of racial inferiority

o         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

o         The standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification


Justice OConnor Concluded Fails both Prongs

o         The program failed both prongs of the strict scrutiny inquiry.


Whether Richmonds plan was justified by a compelling governmental interest?

1.     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.

o    The history of discrimination standing alone cannot justify a rigid quota in the awarding of public contracts.

o    Example:  Past discrimination in particular industry cannot justify the use of an unyielding racial quota.

o    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 interest?

2.      There does not appear to have been any consideration of the use of race-neutral means to increase minority business participation in city contracting.

o    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.


Dissent Justice Brennan, Marshall, Blackmun

o    Richmond had two power interests justifying its set-aside program.

1.     The first is the citys interest in eradicating the effects of past racial discrimination.

2.     A second compelling interest consisted in the prospective one of preventing the citys own spending decisions from reinforcing and perpetuating the exclusionary effects of past discrimination.




In order to pass a strict scrutiny review, a law must:

o    Be justified by a compelling governmental interest.

o    Be narrowly tailored to achieve that interest.

o    Use least restrictive means to achieve that interest


Class Notes