| Fullilove v. Klutznick
(No. 78-1007)
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| Syllabus
| Opinion
[ Burger ] | Concurrence
[ Powell ] | Concurrence
[ Marshall ] | Dissent
[ Stewart ] | Dissent
[ Stevens ] |
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Fullilove v. Klutznick
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
MR. JUSTICE STEVENS dissenting.
The 10% set-aside contained in the Public Works Employment Act of 1977 (Act), 91 Stat. 116, creates monopoly privileges in a $400 million market for a class of investors defined solely by racial characteristics. The direct beneficiaries of these monopoly privileges are the relatively small number of persons within the racial classification who represent the entrepreneurial subclass -- those who have, or can borrow, working capital.
History teaches us that the costs associated with a sovereign's grant of exclusive privileges often encompass more [p533] than the high prices and shoddy workmanship that are familiar handmaidens of monopoly; they engender animosity and discontent, as well. The economic consequences of using noble birth as a basis for classification in 18th-century France, though disastrous, were nothing as compared with the terror that was engendered in the name of "egalite" and "fraternite." Grants of privilege on the basis of characteristics acquired at birth are far from an unmixed blessing.
Our historic aversion to titles of nobility [n1] is only one aspect of our commitment to the proposition that the sovereign has a fundamental duty to govern impartially. [n2] When government accords different treatment to different persons, there must be a reason for the difference. [n3] Because racial [p534] characteristics so seldom provide a relevant basis for disparate treatment, [n4] and because classifications based on race are potentially so harmful to the entire body politic, [n5] it is especially [p535] important that the reasons for any such classification be clearly identified and unquestionably legitimate.
The statutory definition of the preferred class includes "citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts." All aliens and all nonmembers of the racial class are excluded. No economic, social, geographical, or historical criteria are relevant for exclusion or inclusion. There is not one word in the remainder of the Act or in the legislative history that explains why any Congressman or Senator favored this particular definition over any other or that identifies the common characteristics that every member of the preferred class was believed to share. [n6] Nor does the Act or its history explain [p536] why 10% of the total appropriation was the proper amount to set aside for investors in each of the six racial subclasses. [n7]
Four different, though somewhat interrelated, justifications for the racial classification in this Act have been advanced: first, that the 10% set-aside is a form of reparation for past injuries to the entire membership of the class; second, that it is an appropriate remedy for past discrimination against minority business enterprises that have been denied access to public contracts; third, that the members of the favored class have a special entitlement to "a piece of the action" when government is distributing benefits; and, fourth, that the program is an appropriate method of fostering greater minority participation in a competitive economy. Each of these asserted justifications merits separate scrutiny. [p537]
I
Racial characteristics may serve to define a group of persons who have suffered a special wrong and who, therefore, are entitled to special reparations. Congress has recognized, for example, that the United States has treated some Indian tribes unjustly, and has created procedures for allowing members of the injured classes to obtain classwide relief. See, e.g., Delaware Tribal Business Committee v. Weeks, 430 U.S. 73. But, as I have formerly suggested, if Congress is to authorize a recovery for a class of similarly situated victims of a past wrong, it has an obligation to distribute that recovery among the members of the injured class in an evenhanded way. See id. at 97-98 (STEVENS, J., dissenting). Moreover, in such a case, the amount of the award should bear some rational relationship to the extent of the harm it is intended to cure.
In his eloquent separate opinion in University of California Regents v. Bakke, 438 U.S. 265, 387, MR. JUSTICE MARSHALL recounted the tragic class-based discrimination against Negroes that is an indelible part of America's history. I assume that the wrong committed against the Negro class is both so serious and so pervasive that it would constitutionally justify an appropriate class-wide recovery measured by a sum certain for every member of the injured class. Whether our resources are adequate to support a fair remedy of that character is a policy question I have neither the authority nor the wisdom to address. But that serious class-wide wrong cannot, in itself, justify the particular classification Congress has made in this Act. Racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification. Quite obviously, the history of discrimination against. black citizens in America cannot justify a grant of privileges to Eskimos or Indians.
Even if we assume that each of the six racial subclasses has suffered its own special injury at some time in our history, [p538] surely it does not necessarily follow that each of those subclasses suffered harm of identical magnitude. Although "the Negro was dragged to this country in chains to be sold in slavery," Bakke, supra, at 387 (opinion of MARSHALL, J.), the "Spanish-speaking" subclass came voluntarily, frequently without invitation, and the Indians, the Eskimos and the Aleuts had an opportunity to exploit America's resources before the ancestors of most American citizens arrived. There is no reason to assume, and nothing in the legislative history suggests, much less demonstrates, that each of the subclasses is equally entitled to reparations from the United States Government. [n8]
At best, the statutory preference is a somewhat perverse form of reparation for the members of the injured classes. For those who are the most disadvantaged within each class are the least likely to receive any benefit from the special privilege even though they are the persons most likely still to be suffering the consequences of the past wrong. [n9] A random [p539] distribution to a favored few is a poor form of compensation for an injury shared by many.
My principal objection to the reparation justification for this legislation, however, cuts more deeply than my concern about its inequitable character. We can never either erase or ignore the history that MR. JUSTICE MARSHAL has recounted. But if that history can justify such a random distribution of benefits on racial lines as that embodied in this statutory scheme, it will serve not merely as a basis for remedial legislation, but rather as a permanent source of justification for grants of special privileges. For if there is no duty to attempt either to measure the recovery by the wrong or to distribute that recovery within the injured class in an evenhanded way, our history will adequately support a legislative preference for almost any ethnic, religious, or racial group with the political strength to negotiate "a piece of the action" for its members.
Although I do not dispute the validity of the assumption that each of the subclasses identified in the Act has suffered a severe wrong at some time in the past, I cannot accept this slapdash statute as a legitimate method of providing classwide relief.
II
The Act may also be viewed as a much narrower remedial measure -- one designed to grant relief to the specific minority business enterprises that have been denied access to public contracts by discriminatory practices.
The legislative history of the Act does not tell us when, or how often, any minority business enterprise was denied such access. Nevertheless, it is reasonable to infer that the number of such incidents has been relatively small in recent years. For, as noted by the Solicitor General, in the last 20 years, Congress has enacted numerous statutes designed to eliminate discrimination and its effects from federally funded [p540] programs. [n10] Title VI of the Civil Rights Act of 1964 unequivocally and comprehensively prohibits discrimination on the basis of race in any program or activity receiving federal financial assistance. In view of the scarcity of litigated claims on behalf of minority business enterprises during this period, and the lack of any contrary evidence in the legislative record, it is appropriate to presume that the law has generally been obeyed.
Assuming, however, that some firms have been denied public business for racial reasons, the instant statutory remedy is nevertheless demonstrably much broader than is necessary to right any such past wrong. For the statute grants the special preference to a class that includes (1) those minority-owned firms that have successfully obtained business in the past on a free competitive basis and undoubtedly are capable of doing so in the future as well; (2) firms that have never attempted to obtain any public business in the past; (3) firms that were initially formed after the Act was passed, including those that may have been organized simply to take advantage of its provisions; [n11] (4) firms that have tried to obtain public business but were unsuccessful for reasons that are unrelated to the racial characteristics of their stockholders; [p541] and (5) those firms that have been victimized by racial discrimination.
Since there is no reason to believe that any of the firms in the first four categories had been wrongfully excluded from the market for public contracts, the statutory preference for those firms cannot be justified as a remedial measure. And since a judicial remedy was already available for the firms in the fifth category, [n12] it seems inappropriate to regard the preference as a remedy designed to redress any specific wrongs. [n13] In any event, since it is highly unlikely that the composition of the fifth category is at all representative of the entire lass of firms to which the statute grants a valuable preference, it is ill-fitting to characterize this as a "narrowly tailored" remedial measure. [n14]
III
The legislative history of the Act discloses that there is a group of legislators in Congress identified as the "Black Caucus," and that members of that group argued that, if the Federal Government was going to provide $ 4 billion of new [p542] public contract business, their constituents were entitled to "a piece of the action."
It is neither unusual nor reprehensible for Congressmen to promote the authorization of public construction in their districts. The flow of capital and employment into a district inevitably has both direct and indirect consequences that are beneficial. As MR. JUSTICE BRENNAN noted in Elrod v. Burns, 427 U.S. 347, however, the award of such contracts may become a form of political patronage that is dispensed by the party in power. [n15] Although the practice of awarding such contracts to political allies may be as much a part of our history as the employment practices condemned in Elrod, it would surely be unconstitutional for the legislature to specify that all, or a certain portion, of the contracts authorized by a specific statute must be given to businesses controlled by members of one political party or another. That would be true even if the legislative majority was convinced that a grossly disproportionate share had been awarded to members of the opposite party in previous years.
In the short run, our political processes might benefit from legislation that enhanced the ability of representatives of minority groups to disseminate patronage to their political backers. But in the long run, any rule that authorized the award of public business on a racial basis would be just as objectionable as one that awarded such business on a purely partisan basis.
The legislators' interest in providing their constituents with favored access to benefits distributed by the Federal Government is, in my opinion, a plainly impermissible justification for this racial classification.
IV
The interest in facilitating and encouraging the participation [p543] by minority business enterprises in the economy is unquestionably legitimate. Any barrier to such entry and growth -- whether grounded in the law or in irrational prejudice -- should be vigorously and thoroughly removed. Equality of economic and investment opportunity is a goal of no less importance than equality of employment opportunity. This statute, however, is not designed to remove any barriers to entry. Nor does its sparse legislative history detail any insuperable or even significant obstacles to entry into the competitive market.
Three difficulties encountered by minority business enterprises in seeking governmental business on a competitive basis are identified in the legislative history. There were references to (1) unfamiliarity with bidding procedures followed by procurement officers, (2) difficulties in obtaining financing, and (3) past discrimination in the construction industry.
The first concern is no doubt a real problem for all businesses seeking access to the public contract market for the first time. It justifies a thorough review of bidding practices to make sure that they are intelligible and accessible to all. It by no means justifies an assumption that minority business enterprises are any less able to prepare and submit bids in proper form than are any other businessmen. Consequently, that concern does not justify a statutory classification on racial grounds.
The second concern would justify legislation prohibiting private discrimination in lending practices or authorizing special public financing for firms that have been or are unable to borrow money for reasons unrelated to their credit rating. It would not be an adequate justification for a requirement that a fixed percentage of all loans made by national banks be made to Eskimos or Orientals regardless of their ability to repay the loans. Nor, it seems to me, does it provide a sufficient justification for granting a preference to a broad class that includes, at one extreme, firms that have no credit [p544] problem [n16] and, at the other extreme, firms whose unsatisfactory credit rating will prevent them from taking advantage of the statutory preference even though they are otherwise qualified to do the work. At best, the preference for minority business enterprises is a crude and inadequate response to the evils that flow from discriminatory lending practices.
The question whether the history of past discrimination has created barriers that can only be overcome by an unusual measure of this kind is more difficult to evaluate. In analyzing this question, I think it is essential to draw a distinction between obstacles placed in the path of minority business enterprises by others and characteristics of those firms that may impair their ability to compete.
It is unfortunately but unquestionably true that irrational racial prejudice persists today and continues to obstruct minority participation in a variety of economic pursuits, presumably including the construction industry. But there are two reasons why this legislation will not eliminate, or even tend to eliminate, such prejudice. First, prejudice is less likely to be a significant factor in the public sector of the economy than in the private sector because both federal and [p545] state laws have prohibited discrimination in the award of public contracts for many years. Second, and of greater importance, an absolute preference that is unrelated to a minority firm's ability to perform a contract inevitably will engender resentment on the part of competitors excluded from the market for a purely racial reason and skepticism on the part of customers and suppliers aware of the statutory classification. It thus seems clear to me that this Act cannot be defended as an appropriate method of reducing racial prejudice.
The argument that our history of discrimination has left the entire membership of each of the six racial classes identified in the Act less able to compete in a free market than others is more easily stated than proved. The reduction in prejudice that has occurred during the last generation has accomplished much less than was anticipated; it nevertheless remains true that increased opportunities have produced an ever-increasing number of demonstrations that members of disadvantaged races are entirely capable not merely of competing on an equal basis, but also of excelling in the most demanding professions. But, even though it is not the actual predicate for this legislation, a statute of this kind inevitably is perceived by many as resting on an assumption that those who are granted this special preference are less qualified in some respect that is identified purely by their race. [n17] Because that perception -- especially when fostered by the Congress of the United States -- can only exacerbate, rather than reduce, racial prejudice, it will delay the time when race will become a truly irrelevant, or at least insignificant, factor. Unless Congress clearly articulates the need and basis for a racial classification, and also tailors the classification to its justification, the Court should not uphold this kind of statute. [p546]
This Act has a character that is fundamentally different from a carefully drafted remedial measure like the Voting Rights Act of 1965. A consideration of some of the dramatic differences between these two legislative responses to racial injustice reveals not merely a difference in legislative craftsmanship, but a difference of constitutional significance. Whereas the enactment of the Voting Rights Act was preceded by exhaustive hearings and debates concerning discriminatory denial of access to the electoral process, and became effective in specific States only after specific findings were made, this statute authorizes an automatic nationwide preference for all members of a diverse racial class regardless of their possible interest in the particular geographic areas where the public contracts are to be performed. Just why a wealthy Negro or Spanish-speaking investor should have a preferred status in bidding on a construction contract in Alaska -- or a citizen of Eskimo ancestry should have a preference in Miami or Detroit -- is difficult to understand in light of either the asserted remedial character of the set-aside or the more basic purposes of the public works legislation.
The Voting Rights Act addressed the problem of denial of access to the electoral process. By outlawing specific practices, such as poll taxes and special tests, the statute removed old barriers to equal access; by requiring preclearance of changes in voting practices in covered States, it precluded the erection of new barriers. The Act before us today does not outlaw any existing barriers to access to the economic market, and does nothing to prevent the erection of new barriers. On the contrary, it adopts the fundamentally different approach of creating a new set of barriers of its own.
A comparable approach in the electoral context would support a rule requiring that at least 10% of the candidates elected to the legislature be members of specified racial minorities. Surely that would be an effective way of ensuring black citizens the representation that has long been their due. [p547] Quite obviously, however, such a measure would merely create the kind of inequality that an impartial sovereign cannot tolerate. Yet that is precisely the kind of "remedy" that this Act authorizes. In both political and economic contexts, we have a legitimate interest in seeing that those who were disadvantaged in the past may succeed in the future. But neither an election nor a market can be equally accessible to all if race provides a basis for placing a special value on votes or dollars.
The ultimate goal must be to eliminate entirely from governmental decisionmaking such irrelevant factors as a human being's race. The removal of barriers to access to political and economic processes serves that goal. [n18] But the creation of new barriers can only frustrate true progress. For as MR. JUSTICE POWELL [n19] and Mr. Justice Douglas [n20] have perceptively observed, such protective barriers reinforce habitual ways of thinking in terms of classes, instead of individuals. Preferences based on characteristics acquired at birth foster intolerance and antagonism against the entire membership of the favored classes. [n21] For this reason, I am firmly convinced [p548] that this "temporary measure" will disserve the goal of equal opportunity.
V
A judge's opinion that a statute reflects a profoundly unwise policy determination is an insufficient reason for concluding that it is unconstitutional. Congress has broad power to spend money to provide for the "general Welfare of the United States," to "regulate Commerce . . . among the several States," to enforce the Civil War Amendments, and to discriminate between aliens and citizens. See Hampton v. Mow Sun Won, 426 U.S. 88, 101-102, n. 21. [n22] But the exercise of these broad powers is subject to the constraints imposed by the Due Process Clause of the Fifth Amendment. That Clause has both substantive and procedural components; it performs the office of both the Due Process and Equal Protection Clauses of the Fourteenth Amendment in requiring that the federal sovereign act impartially.
Unlike MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST, however, I am not convinced that the Clause contains an absolute prohibition against any statutory classification based on race. I am nonetheless persuaded that it does impose a special obligation to scrutinize any governmental decisionmaking process that draws nationwide distinctions between citizens on the basis of their race and incidentally also discriminates against noncitizens in the preferred racial classes. [n23] [p549] For just as procedural safeguards are necessary to guarantee impartial decisionmaking in the judicial process, so can they play a vital part in preserving the impartial character of the legislative process. [n24]
In both its substantive and procedural aspects, this Act is markedly different from the normal product of the legislative decisionmaking process. The very fact that Congress, for the first time in the Nation's history, has created a broad legislative classification for entitlement to benefits based solely on racial characteristics identifies a dramatic difference between this Act and the thousands of statutes that preceded it. This dramatic point of departure is not even mentioned in the statement of purpose of the Act or in the Reports of either the House or the Senate Committee that processed the legislation, [n25] and was not the subject of any testimony or inquiry [p550] in any legislative hearing on the bill that was enacted. It is true that there was a brief discussion on the floor of the House, as well as in the Senate, on two different days, but only a handful of legislators spoke, and there was virtually no debate. This kind of perfunctory consideration of an unprecedented policy decision of profound constitutional importance to the Nation is comparable to the accidental malfunction of the legislative process that led to what I regarded as a totally unjustified discrimination in Delaware Tribal Business Committee v. Weeks, 430 U.S. at 97.
Although it is traditional for judges to accord the same presumption of regularity to the legislative process no matter how obvious it may be that a busy Congress has acted precipitately, I see no reason why the character of their procedures may not be considered relevant to the decision whether the legislative product has caused a deprivation of liberty or property without due process of law. [n26] Whenever [p551] Congress creates a classification that would be subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment if it had been fashioned by a state legislature, it seems to me that judicial review should include a consideration of the procedural character of the decisionmaking process. [n27] A holding that the classification was not adequately preceded by a consideration of less drastic alternatives or adequately explained by a statement of legislative purpose would be far less intrusive than a final determination that the substance of the decision is not "narrowly tailored to the achievement of that goal." [n28] Cf. THE CHIEF JUSTICE's opinion, ante at 480; MR. JUSTICE MARSHALL's opinion concurring in the judgment, ante at 521. If the general language of the Due Process Clause of the Fifth Amendment [p552] authorizes this Court to review Acts of Congress under the standards of the Equal Protection Clause of the Fourteenth Amendment -- a clause that cannot be found in the Fifth Amendment -- there can be no separation of powers objection to a more tentative holding of unconstitutionality based on a failure to follow procedures that guarantee the kind of deliberation that a fundamental constitutional issue of this kind obviously merits. [n29]
In all events, rather than take the substantive position expressed in MR. JUSTICE STEWART's dissenting opinion, I would hold this statute unconstitutional on a narrower ground. It cannot fairly be characterized as a "narrowly tailored" racial classification, because it simply raises too many serious questions that Congress failed to answer or even to address in a responsible way. [n30] The risk that habitual attitudes toward [p553] classes of persons, rather than analysis of the relevant characteristics of the class, will serve as a basis for a legislative classification is present when benefits are distributed, as well as when burdens are imposed. In the past, traditional attitudes too often provided the only explanation for discrimination against women, aliens, illegitimates, and black citizens. Today, there is a danger that awareness of past injustice will lead to automatic acceptance of new classifications that are not, in fact, justified by attributes characteristic of the class as a whole.
When Congress creates a special preference, or a special disability, for a class of persons, it should identify the characteristic that justifies the special treatment. [n31] When the classification is defined in racial terms, I believe that such particular identification is imperative.
In this case, only two conceivable bases for differentiating the preferred classes from society as a whole have occurred to me: (1) that they were the victims of unfair treatment in the past and (2) that they are less able to compete in the future. Although the first of these factors would justify an appropriate remedy for past wrongs, for reasons that I have already stated, this statute is not such a remedial measure. The second factor is simply not true. Nothing in the record of this case, the legislative history of the Act, or experience that we [p554] may notice judicially provides any support for such a proposition. It is up to Congress to demonstrate that its unique statutory preference is justified by a relevant characteristic that is shared by the members of the preferred class. In my opinion, because it has failed to make that demonstration, it has also failed to discharge its duty to govern impartially embodied in the Fifth Amendment to the United States Constitution.
I respectfully dissent.
Such pure discrimination is most certainly not a "legitimate purpose" for our Federal Government, which should be especially sensitive to discrimination on grounds of birth.
Distinctions between citizens solely because of their ancestry are, by their very nature, odious to a free people whose institutions are founded upon the doctrine of equality.
Hirabayashi v. United States, 320 U.S. 81, 100. From its inception, the Federal Government has been directed to treat all its citizens as having been "created equal" in the eyes of the law. The Declaration of Independence states:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
And the rationale behind the prohibition against the grant of any title of nobility by the United States, see U.S.Const., Art. I, § 9, cl. 8, equally would prohibit the United States from attaching any badge of ignobility to a citizen at birth.
Mathews v. Lucas, 427 U.S. 495, 520-521, n. 3 (STEVENS, J., dissenting).
The federal sovereign, like the States, must govern impartially. The concept of equal justice under law is served by the Fifth Amendment's guarantee of due process, as well as by the Equal Protection Clause of the Fourteenth Amendment.
Hampton v. Mow Sun Wong, 426 U.S. 88, 100. See also Harris v. McRae, ante at 349, 356-357 (STEVENS, J., dissenting); 426 U.S. 88, 100. See also Harris v. McRae, ante at 349, 356-357 (STEVENS, J., dissenting); Craig v. Boren, 429 U.S. 190, 211 (STEVENS, J., concurring).
As a matter of principle, and in view of my attitude toward the equal protection clause, I do not think differences of treatment under law should be approved on classification because of differences unrelated to the legislative purposes. The equal protection clause ceases to assure either equality or protection if it is avoided by any conceivable difference that can be pointed out between those bound and those left free. This Court has often announced the principle that the differentiation must have an appropriate relation to the object of the legislation or ordinance.
Railway Express Agency, Inc. v. New York, 336 U.S. 106, 115 (Jackson, J., concurring) .
Habit, rather than analysis, makes it seem acceptable and natural to distinguish between male and female, alien and citizens, legitimate and illegitimate; for too much of our history, there was the same inertia in distinguishing between black and white. But that sort of stereotyped reaction may have no rational relationship -- other than pure prejudicial discrimination -- to the stated purpose for which the classification is being made.
Mathews v. Lucas, supra at 520-521 (STEVENS, J., dissenting) (footnote omitted).
5. Indeed, the very attempt to define with precision a beneficiary's qualifying racial characteristics is repugnant to our constitutional ideals. The so-called guidelines developed by the Economic Development Administration, see the appendix to the opinion of THE CHIEF JUSTICE, p. 3, ante at 494-495, are so general as to be fairly innocuous; as a consequence, they are too vague to be useful. For example, it is unclear whether the firm described in n. 16, infra, would be eligible for the 10% set-aside. If the National Government is to make a serious effort to define racial classes by criteria that can be administered objectively, it must study precedents such as the First Regulation to the Reichs Citizenship Law of November 14, 1935, translated in 4 Nazi Conspiracy and Aggression, Document No. 1417-PS, pp. 8-9 (1946):
On the basis of Article 3, Reichs Citizenship Law, of 15 Sept. 1935 (RGB1. I, page 146) the following is ordered:
* * * *
Article 5
1. A Jew is anyone who descended from at least three grandparents who were racially full Jews. Article 2, par. 2, second sentence will apply.
2. A Jew is also one who descended from two full Jewish parents, if: (a) he belonged to the Jewish religious community at the time this law was issued, or who joined the community later; (b) he was married to a Jewish person, at the time the law was issued, or married one subsequently; (c) he is the offspring from a marriage with a Jew, in the sense of Section 1, which was contracted after the Law for the protection of German blood and German honor became effective (RGB1. I, page 1146 of 15 Sept. 1935); (d) he is the offspring of an extramarital relationship, with a Jew, according to Section 1, and will be born out of wedlock after July 31, 1936.
6. In 1968, almost 10 years before the Act was passed, the Small Business Administration had developed a program to assist small business concerns owned or controlled by "socially or economically disadvantaged persons." The agency's description of persons eligible for such assistance stated that such
persons include, but are not limited to, black Americans, American Indians, Spanish-Americans, oriental Americans, Eskimos and Aleuts. . . .
See opinion of THE CHIEF JUSTICE, ante at 448 U.S. 463"]463-464. This may be the source of the definition of the class at issue in this case. See also ante at 487-488, n. 73. But the SBA's class of socially or economically disadvantaged persons neither included all persons in the racial class nor excluded all nonmembers of the racial class. Race was used as no more than a factor in identifying the class of the disadvantaged. The difference between the statutory quota involved in this case and the SBA's 1968 description of those whose businesses were to be assisted under § 8(a) of the Small Business Act is thus at least as great as the difference between the University of California's racial quota and the Harvard admissions system that MR. JUSTICE POWELL regarded as critical in 463-464. This may be the source of the definition of the class at issue in this case. See also ante at 487-488, n. 73. But the SBA's class of socially or economically disadvantaged persons neither included all persons in the racial class nor excluded all nonmembers of the racial class. Race was used as no more than a factor in identifying the class of the disadvantaged. The difference between the statutory quota involved in this case and the SBA's 1968 description of those whose businesses were to be assisted under § 8(a) of the Small Business Act is thus at least as great as the difference between the University of California's racial quota and the Harvard admissions system that MR. JUSTICE POWELL regarded as critical in University of California Regents v. Bakke, 438 U.S. 265, 315-318.
7. It was noted that the value of the federal contracts awarded to minority business firms in prior years had amounted to less than 1% of the total; since the statutory set-aside of 10% may be satisfied by subcontracts to minority business enterprises, it is possible that compliance with the statute would not change the 1% figure.
The legislative history also revealed that minority business enterprises represented about 3 or 4% of all eligible firms; the history does not indicate, however, whether the 10% figure was intended to provide the existing firms with three times as much business as they could expect to receive on a random basis, or to encourage members of the class to acquire or form new firms. An Economic Development Administration guideline arguably implies that new investments made in order to take advantage of the 10% set-aside would not be considered "bona fide." See appendix to the opinion of THE CHIEF JUSTICE, ante at 492.
The 10% figure bears no special relationship to the relative size of the entire racial class, to any of the six subclasses, or to the population of the subclasses in the areas where they primarily reside. The Aleuts and the Eskimos, for example, respectively represent less than 1% and 7% of the population of Alaska, see The New Columbia Encyclopedia 47, 59, 891 (4th ed.1975), while Spanish-speaking or Negro citizens represent a majority or almost a majority in a large number of urban areas.
8. Ironically, the Aleuts appear to have been ruthlessly exploited at some point in their history by Russian fur traders. See The New Columbia Encyclopedia, supra at 59.
9. For a similar reason, the discrimination against males condemned in Califano v. Goldfarb, 430 U.S. 199, could not be justified as a remedy for past discrimination against females. That case involved a statutory provision which relieved widows from the obligation of proving dependency on their deceased spouses in order to obtain benefits, but did not similarly relieve widowers.
The widows who benefit from the disparate treatment are those who were sufficiently successful in the job market to become nondependent on their husbands. Such a widow is the least likely to need special benefits. The widow most in need is the one who is "suddenly forced into a job market with which she is unfamiliar, and in which, because of her former economic dependency, she will have fewer skills to offer." [Kahn v. Shevin, 416 U.S. 351,] 354. To accept the Kahn justification, we must presume that Congress deliberately gave a special benefit to those females least likely to have been victims of the historic discrimination discussed in Kahn.
Id. at 221 (STEVENS, J., concurring in judgment).
The statute with the most comprehensive coverage is Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., which broadly prohibits discrimination on the basis of race, color, or national origin in any program or activity receiving federal financial assistance. Since the passage of Title VI, many other specific federal grant statutes have contained similar prohibitions against discrimination in particular funded activities. See, e.g., State and Local Fiscal Assistance Amendments of 1976, 31 U.S.C. 1242; Energy Conservation and Production Act, 42 U.S.C. 6870; Housing and Community Development Act of 1974, 42 U.S.C. 5309; Comprehensive Employment and Training Act of 1973, 29 U.S.C. 991.
Brief for Secretary of Commerce 21, n. 7.
11. Although the plain language of the statute appears to include such firms, as I have already noted, n. 7, supra, the EDA guidelines may consider such newly formed firms ineligible for the statutory set-aside.
12. See University of California Regents v. Bakke, 438 U.S. at 418-421 (opinion of STEVENS, J.). See also § 207(d) of the Public Works Employment Act of 1976, 90 Stat. 1008, 42 U.S.C. § 6727(d).
13. I recognize that the EDA has issued a Technical Bulletin, relied on heavily by THE CHIEF JUSTICE, ante at 469-472, which distinguishes between higher bids quoted by minority subcontractors which are attributable to the effects of disadvantage or discrimination and those which are not. That is, according to the Bulletin, if it is determined that a subcontractor's uncompetitive high price is not attributable to the effects of discrimination, a contractor may be entitled to relief from the 10% set-aside requirement. But even assuming that the Technical Bulletin accurately reflects Congress' intent in enacting the set-aside, it is not easy to envision how one could realistically demonstrate with any degree of precision, if at all, the extent to which a bid has been inflated by the effects of disadvantage or past discrimination. Consequently, while THE CHIEF JUSTICE describes the set-aside as a remedial measure, it plainly operates as a flat quota.
14. See THE CHIEF JUSTICE's opinion, ante at 480.
15. "Non-officeholders may be the beneficiaries of lucrative government contracts for highway construction, buildings, and supplies." 427 U.S. at 353
16. An example of such a firm was disclosed in the record of a recent case involving a claimed preference for a firm controlled by Indian shareholders:
Based on the facts that were developed in the District Court, . . . the Indian community in general does not benefit from the [Bureau of Indian Affairs'] interpretation of [the Buy Indian Act].
The facts that were developed in the District Court show that the beneficiaries of this interpretation were the owners of Indian Nations Construction Company. The president of that company is a one-fourth degree Indian who is an administrative law judge for the Department of Health, Education, and Welfare by occupation. The vice-president of that company was a one-quarter blood Choctaw who is a self-employed rancher and who states his net worth at just under a half million dollars. The treasurer and general manager of that corporation is a non-Indian and he states his net worth at $ 1.3 million.
Tr of Oral Arg. in Andrus v. Glover Construction Co., O.T. 1979, No. 798, pp. 227.
17. See United Jewish Organizations v. Carey, 430 U.S. 144, 173-174 (BRENNAN, J., concurring in part):
[E]ven preferential treatment may act to stigmatize its recipient groups, for although intended to correct systemic or institutional inequities, such a policy may imply to some the recipients' inferiority and especial need for protection.
The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized.
DeFunis v. Odegaard, 416 U.S. 312, 342 (Douglas, J., dissenting).
19. See University of California Regents v. Bakke, 438 U.S. at 298.
20. DeFunis v. Odegaard, supra at 343 (dissenting opinion).
21. In his Bakke opinion, supra, MR JUSTICE POWELL stated:
It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others.
438 U.S. at 295. In support of that proposition, he quoted Professor Bickel's comment on the self-contradiction of that argument:
"The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society."
Id. at 295, n. 35.
22. This preferential set-aside specifically discriminates in favor of citizens of the United States. See supra at 535.
When the Federal Government asserts an overriding national interest as justification for a discriminatory rule which would violate the Equal Protection Clause if adopted by a State, due process requires that there be a legitimate basis for presuming that the rule was actually intended to serve that interest.
Hampton v. Mow Sun Wong, 426 U.S. 88, 103.
It is perfectly clear that neither the Congress nor the President has ever required the Civil Service Commission to adopt the citizenship requirement as a condition of eligibility for employment in the federal civil service. On the other hand, in view of the fact that the policy has been in effect since the Commission was created in 1883, it is fair to infer that both the Legislature and the Executive have been aware of the policy and have acquiesced in it. In order to decide whether such acquiescence should give the Commission rule the same support as an express statutory or Presidential command, it is appropriate to review the extent to which the policy has been given consideration by Congress or the President, and the nature of the authority specifically delegated to the Commission.
Id. at 105.
24. See Linde, Due Process of Lawmaking, 55 Neb.L.Rev.197, 255 (1976):
For the last few years have reawakened our appreciation of the primacy of process over product in a free society, the knowledge that no ends can be better than the means of their achievement. "The highest morality is almost always the morality of process," Professor Bickel wrote about Watergate a few months before his untimely death. If this republic is remembered in the distant history of law, it is likely to be for its enduring adherence to legitimate institutions and processes, not for its perfection of unique principles of justice and certainly not for the rationality of its laws. This recognition now may well take our attention beyond the processes of adjudication and of executive government to a new concern with the due process of lawmaking.
(Footnote omitted.)
25. The only reference to any minority business enterprises in the Senate Report was a suggestion that Indians had been receiving too great a share of the public contracts. The Report stated:
Some concern was expressed that Indian with exceptionally high structural unemployment levels -- were awarded projects at a per capita value far in excess of non-Indian communities.
S.Rep. No. 938, p. 3 (1977).
The Court quotes three paragraphs from a lengthy Report issued by the House Committee on Small Business in 1977, ante at 465-466, implying that the contents of that Report were considered by Congress when it enacted the 10% minority set-aside. But that Report was not mentioned by anyone during the very brief discussion of the set-aside amendment. When one considers the vast quantity of written material turned out by the dozens of congressional committees and subcommittees these days, it is unrealistic to assume that a significant number of legislators read, or even were aware of, that Report. Even if they did, the Report does not contain an explanation of this 10% set-aside for six racial subclasses.
Indeed, the broad racial classification in this Act is totally unexplained. Although the legislative history discussed by THE CHIEF JUSTICE and by MR. JUSTICE POWELL explains why Negro citizens are included within the preferred class, there is absolutely no discussion of why Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts were also included. See n. 6, supra.
It is not a new thought that "to guarantee the democratic legitimacy of political decisions by establishing essential rules for the political process" is the central function of judicial review, as Dean Rostow and Professor Strong, among others, have argued.
Linde, supra, 55 Neb.L.Rev. at 251
27. See Sandalow, Judicial Protection of Minorities, 75 Mich.L.Rev. 1162, 1188 (1977):
[I]f governmental action trenches upon values that may reasonably be regarded as fundamental, that action should be the product of a deliberate and broadly based political judgment. The stronger the argument that governmental action does encroach upon such values, the greater the need to assure that it is the product of a process that is entitled to speak for the society. Legislation that has failed to engage the attention of Congress, like the decisions of subordinate governmental institutions, does not meet that test, for it is likely to be the product of partial political pressures that are not broadly reflective of the society as a whole.
Fear of legislative resentment at judicial interference is not borne out by experience where procedural review exists, any more than it was after the Supreme Court told Congress that it had used faulty procedure in unseating Representative Adam Clayton Powell. It is far more cause for resentment to invalidate the substance of a policy that the politically accountable branches and their constituents support than to invalidate a lawmaking procedure that can be repeated correctly, yet we take substantive judicial review for granted. Strikingly, the reverse view of propriety prevails in a number of nations where courts have never been empowered to set aside policies legitimately enacted into law but do have power to test the process of legitimate enactment.
Linde, supra, 55 Neb.L.Rev. at 243 (footnotes omitted).
29. The conclusion to THE CHIEF JUSTICE's opinion states:
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.
Ante at 491 (emphasis added). I agree with this statement, but it seems to me that due process requires that the "most searching examination" be conducted in the first instance by Congress, rather than by a federal court.
30. For example, why were these six racial classifications, and no others, included in the preferred class? Why are aliens excluded from the preference although they are not otherwise ineligible for public contracts? What percentage of Oriental blood or what degree of Spanish-speaking skill is required for membership in the preferred class? How does the legacy of slavery and the history of discrimination against the descendants of its victims support a preference for Spanish-speaking citizens who may be directly competing with black citizens in some overpopulated communities? Why is a preference given only to owners of business enterprises, and why is that preference unaccompanied by any requirement concerning the employment of disadvantaged persons? Is the preference limited to a subclass of persons who can prove that they are subject to a special disability caused by past discrimination, as the Court's opinion indicates? Or is every member of the racial class entitled to a preference, as the statutory language seems plainly to indicate? Are businesses formed just to take advantage of the preference eligible?
Of course, a general rule may not define the benefited class by reference to a distinction which irrationally differentiates between identically situated persons. Differences in race, religion, or political affiliation could not rationally justify a difference in eligibility for social security benefits, for such differences are totally irrelevant to the question whether one person is economically dependent on another. But a distinction between married persons and unmarried persons is of a different character.
Califano v. Jobst, 434 U.S. 47, 53.
If there is no group characteristic that explains the discrimination, one can only conclude that it is without any justification that has not already been rejected by the Court.
Foley v. Connelie, 435 U.S. 291, 312 (STEVENS, J., dissenting).