City of Richmond, Appelant v. J.A. Croson Company No. 87-998 Supreme Court of The United States 488 U.S. 469; 109 S. Ct. 706; 1989

January 23, 1989, Decided

CORE TERMS: contractor, remedial, classification, ordinance, contracting, prime, Fourteenth Amendment, discriminatory, race-conscious, quota, dollar, joined, bid, racially, statistical, plurality, societal, disadvantaged, probative, inclusion, tailored, membership, subcontractor, narrowly, minority-owned, subcontracting, race-neutral, disparity, fixture, locality

DECISION: Fourteenth Amendment's equal protection clause held violated by Virginia city's requirement that non-minority-owned prime contractors on city construction contracts must provide at least 30 percent set-aside to minority subcontractors.


In 1983, a Virginia city council adopted, in an ordinance, a minority business utilization "set-aside" plan, which required non-minority-owned prime contractors awarded city construction contracts to subcontract at least 30 percent of the dollar amount of the contract to one or more minority business enterprises from anywhere in the United States, with each such enterprise being at least 51 percent owned and controlled by United States citizens who were blacks, Spanish-speaking persons, Orientals, Indians, Eskimos, or Aleuts. In the public hearing which preceded the ordinance's adoption, 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.

After the adoption of the ordinance, the city issued an invitation to bid on a project for the provision and installation of certain plumbing fixtures at the city jail, and the only bidder was a company, which, although having contacted some minority subcontractors, submitted a proposal that did not include sufficient minority subcontracting to satisfy the ordinance. The company requested a waiver of the set-aside requirement, but the city eventually (1) denied the company's request, and (2) informed the company that the city had decided to rebid the project. Shortly thereafter, the company brought an action against the city in the United States District Court for the Eastern District of Virginia, and included a claim, under 42 USCS 1983, that the ordinance was unconstitutional both on its face and as applied, under the equal protection clause of the Federal Constitution's Fourteenth Amendment. The District Court, however, upheld the plan in all respects. On appeal, the United States Court of Appeals for the Fourth Circuit initially affirmed the District Court's judgment (779 F2d 181). However, after the Court of Appeals' judgment had been vacated and remanded by the Supreme Court for further consideration (478 US 1016, 92 L Ed 2d 733, 106 S Ct 3327), the Court of Appeals reversed the District Court's judgment and ordered the case to be remanded, on the ground that the ordinance was invalid under the equal protection clause (822 F2d 1355).

On appeal, the United States Supreme Court affirmed. In an opinion by O'Connor, J., a portion of which (Parts I, III-B, and IV) was joined by Rehnquist, Ch. J., and White, Kennedy, and Stevens, JJ., and constituted the opinion of the court, it was held that the Fourteenth Amendment's equal protection clause was violated by the city's set-aside ordinance.. In another portion (Part II) of the opinion, O'Connor, J., joined by Rehnquist, Ch. J., and White, J., expressed the view that (1) there was a difference between the authority of Congress and the authority of states and their political subdivisions to identify and redress the effects of societywide racial discrimination, where 5 of the Fourteenth Amendment grants Congress a specific mandate to enforce its provisions, while 1 of the Fourteenth Amendment is a constraint on state power; but (2) a state--or local subdivision, if delegated the authority from the state--had the authority to eradicate the effects of private discrimination within its own legislative jurisdiction. Finally, in another portion (Parts III-A and V) of the opinion, O'Connor, J., joined by Rehnquist, Ch. J., and White and Kennedy, JJ., expressed the view racial classifications under the equal protection clause were subject to a strict scrutiny standard, especially given the specifics of this case.

Justice Stevens, concurred in part and in the judgment, joined Parts I, III-B, and IV of the opinion of O'Connor, J., but also expressed the view that (1) the approach of the opinion gave unwarranted deference to race-based legislative action that purported to serve a purely remedial goal.

Justice Kennedy concurred in part and in the judgment, joined Parts I, III-A, III-B, IV, and V of the opinion of O'Connor, J., but expressed the view that for the purposes of the ordinance at issue, it was sufficient to say that a state had the power to eradicate racial discrimination and its effects in both the public and private sectors, and that the state has an absolute duty to do so where those wrongs were caused intentionally by the state itself.

Justice Marshall joined by Brennan and Blackmun, JJ., dissented and expressed the view that the Supreme Court's decision marked a step backward in the court's affirmative action jurisprudence. Argued to more remedial actions.

Held: The judgment is affirmed.

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