Richmond v. J. A. Croson Co., 488 U.S. 469 (1989), argued 5 Oct. 1988, decided 23 Jan. 1989 by vote of 6 to 3; O'Connor for the Court, Stevens, Kennedy, and Scalia concurring, Marshall, Brennan, and Blackmun in dissent. In
Croson, a majority of the Supreme Court was finally assembled in support of the application of the
strict scrutiny standard to determine the constitutionality of
affirmative action plans based on race. However, it is still not possible to determine specifically the content of this standard as applied to affirmative action.
In 1983, the Richmond, Virginia, City Council enacted the Minority Business Utilization Plan requiring prime contractors to subcontract at least 30 percent of the dollar amount of the contract to minority business enterprises. The plan was to remain in effect for five years and contained waiver provisions for cases where every feasible attempt to comply failed.
The Supreme Court found the plan in violation of the
Equal Protection Clause of the
Fourteenth Amendment. It rejected Richmond's argument that it was legitimately copying an earlier federal minority business set‐aside law that had been upheld in
Fullilove v. Klutznick (1980).
Fullilove was distinguishable, Justice Sandra Day
O'Connor wrote, because section 5 of the
Fourteenth Amendment granted Congress a unique mandate to enforce its dictates. States, however, are not equally empowered by the Constitution. Justice Antonin
Scalia's dissent went even further, declaring that the Constitution is colorblind and that race‐conscious plans, presumably even federal ones, are unacceptable.
Because of
Croson, most state or local affirmative action plans will now be judged by the strict scrutiny standard. When combined with two earlier cases,
Wygant v. Jackson Board of Education (1986) and
United States v. Paradise (1987),
Croson seems to require that these plans demonstrate a compelling interest that requires a showing of past discrimination, not mere reliance on societal discrimination for their justification. They must also choose means that are narrowly tailored to vindicate that interest and must take into account factors such as the necessity of the relief and the efficiency of alternative remedies, the duration of the remedy, the flexibility of the remedy and or the availability of waivers, the relationship of the numerical goals to minorities within the relevant labor market, and the likely effect on innocent parties. It is uncertain how many of these factors, and in what combination and circumstances, a majority of the Court will require in future cases.
In
Adarand Constructors, Inc. v. Peña (1995), a majority of the Supreme Court, reversing an earlier decision in
Metro Broadcasting, Inc. v. FCC, held that the “strict scrutiny” standard of
Croson applied to all racial classifications (federal, state or local), reviewable under the Equal Protection Clause. The principle was reiterated in
Grutter v. Bollinger (2003), the University of Michigan Law School affirmative action case where the Court upheld the law school's use of race in its admissions process. It seems unlikely that the core issue of
Croson, strict scrutiny as applied to state and local government programs, will be revisited in the near term even with a change in the court's makeup. The
Adarand extension of
Croson might be more subject to change.
See also
Equal Protection.
James E. Jones, Jr.
