| City of Richmond v. J. A. Croson Co.
(No. 87-998)
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| Syllabus
| Opinion
[ O'Connor ] | Concurrence
[ Stevens ] | Concurrence
[ Kennedy ] | Concurrence
[ Scalia ] | Dissent
[ Marshall ] | Dissent
[ Blackmun ] |
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City of Richmond v. J. A. Croson Co.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
JUSTICE SCALIA, concurring in the judgment.
I agree with much of the Court's opinion, and, in particular, with JUSTICE O'CONNOR's conclusion that strict scrutiny must be applied to all governmental classification by race, whether or not its asserted purpose is "remedial" or "benign." Ante at 493, 495. I do not agree, however, with JUSTICE O'CONNOR's dictum suggesting that, despite the Fourteenth Amendment, state and local governments may in some circumstances discriminate on the basis of race in order (in a broad sense) "to ameliorate the effects of past discrimination." Ante at 476-477. The benign purpose of compensating for social disadvantages, whether they have been acquired by reason of prior discrimination or otherwise, can no more be pursued by the illegitimate means of racial discrimination than can other assertedly benign purposes we have repeatedly rejected. See, e.g., Wygant v. Jackson Board of Education, 476 U.S. 267, 274-276 (1986) (plurality opinion) (discrimination in teacher assignments to provide "role models" for minority students); Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (awarding custody of child to father, after divorced mother entered an interracial remarriage, in order to spare child social "pressures and stresses"); Lee v. Washington, 390 U.S. 333 (1968) (per curiam) (permanent racial segregation of all prison inmates, presumably to reduce possibility of racial conflict). The difficulty of overcoming the effects of past discrimination is as nothing compared with the difficulty of eradicating from our society the source of those effects, which is the tendency -- fatal to a Nation such as ours -- to classify and judge men and women on the basis of their country of origin or the color of their skin. A solution [p521] to the first problem that aggravates the second is no solution at all. I share the view expressed by Alexander Bickel that
[t]he 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.
A. Bickel, The Morality of Consent 133 (1975). At least where state or local action is at issue, only a social emergency rising to the level of imminent danger to life and limb -- for example, a prison race riot, requiring temporary segregation of inmates, cf. Lee v. Washington, supra -- can justify an exception to the principle embodied in the Fourteenth Amendment that "[o]ur Constitution is colorblind, and neither knows nor tolerates classes among citizens," Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting); accord, Ex parte Virginia, 100 U.S. 339, 345 (1880); 2 J. Story, Commentaries on the Constitution § 1961, p. 677 (T. Cooley ed. 1873); T. Cooley, Constitutional Limitations 439 (2d ed. 1871).
We have in some contexts approved the use of racial classifications by the Federal Government to remedy the effects of past discrimination. I do not believe that we must or should extend those holdings to the States. In Fullilove v. Klutznick, 448 U.S. 448 (1980), we upheld legislative action by Congress similar in its asserted purpose to that at issue here. And we have permitted federal courts to prescribe quite severe, race-conscious remedies when confronted with egregious and persistent unlawful discrimination, see, e.g., United States v. Paradise, 480 U.S. 149 (1987); Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986). As JUSTICE O'CONNOR acknowledges, however, ante at 486-491, it is one thing to permit racially based conduct by the Federal Government -- whose legislative powers concerning matters of race were explicitly enhanced by the Fourteenth Amendment, see U.S.Const., Amdt. 14, § 5 -- and quite another to permit it by the precise entities against whose conduct in [p522] matters of race that Amendment was specifically directed, see Amdt. 14, § 1. As we said in Ex parte Virginia, supra, at 345, the Civil War Amendments were designed to "take away all possibility of oppression by law because of race or color" and "to be . . . limitations on the power of the States and enlargements of the power of Congress." Thus, without revisiting what we held in Fullilove (or trying to derive a rationale from the three separate opinions supporting the judgment, none of which commanded more than three votes, compare 448 U.S. at 453-495 (opinion of Burger, C.J., joined by WHITE and Powell, JJ.), with id. at 495-517 (opinion of Powell, J.), and id. at 517 -- 522 (opinion of MARSHALL, J., joined by BRENNAN and BLACKMUN, JJ.)), I do not believe our decision in that case controls the one before us here.
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. It is a simple fact that what Justice Stewart described in Fullilove as
the dispassionate objectivity [and] the flexibility that are needed to mold a race-conscious remedy around the single objective of eliminating the effects of past or present discrimination
-- political qualities already to be doubted in a national legislature, Fullilove, supra, at 527 (Stewart, J., with whom REHNQUIST, J., joined, dissenting) -- 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 States. See, e.g., Ex parte Virginia, supra, (denying writ of habeas corpus to a state judge in custody under federal indictment for excluding jurors on the basis of race); H. Hyman & W. Wiecek, Equal Justice Under Law, 1835-1875, pp. 312-334 (1982); Logan, Judicial Federalism in the Court of History, 66 Ore.L.Rev. 454, 494-515 (1988). And the struggle retains that character in modern times. See, e.g., Brown v. Board of Education, 349 U.S. 294 (1955) (Brown II); United States v. Montgomery Board of Education, [p523] 395 U.S. 225 (1969); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971); Griffin v. Prince Edward County School Board, 377 U.S. 218 (1964); Cooper v. Aaron, 358 U.S. 1 (1958). Not all of that struggle has involved discrimination against blacks, see, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886) (Chinese); Hernandez v. Texas, 347 U.S. 475 (1954) (Hispanics), and not all of it has been in the Old South, see, e.g., Columbus Board of Education v. Penick, 443 U.S. 449 (1979); Keyes v. School Dist. No. 1, Denver, Colorado, 413 U.S. 189 (1973). What the record shows, in other words, is that racial discrimination against any group finds a more ready expression at the state and local than at the federal level. To the children of the Founding Fathers, this should come as no surprise. An acute awareness of the heightened danger of oppression from political factions in small, rather than large, political units dates to the very beginning of our national history. See G. Wood, The Creation of the American Republic, 1776-1787, pp. 499-506 (1969). As James Madison observed in support of the proposed Constitution's enhancement of national powers:
The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plan of oppression. 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 Federalist No. 10, pp. 82-84 (C. Rossiter ed.1961). [p524] The prophesy of these words came to fruition in Richmond in the enactment of a set-aside clearly and directly beneficial to the dominant political group, which happens also to be the dominant racial group. The same thing has no doubt happened before in other cities (though the racial basis of the preference has rarely been made textually explicit) -- and blacks have often been on the receiving end of the injustice. Where injustice is the game, however, turnabout is not fair play.
In my view, there is only one circumstance in which the States may act by race to "undo the effects of past discrimination:" where that is necessary to eliminate their own maintenance of a system of unlawful racial classification. If, for example, a state agency has a discriminatory pay scale compensating black employees in all positions at 20% less than their nonblack counterparts, it may assuredly promulgate an order raising the salaries of "all black employees" to eliminate the differential. Cf. Bazemore v. Friday, 478 U.S. 385, 395-396 (1986). This distinction explains our school desegregation cases, in which we have made plain that States and localities sometimes have an obligation to adopt race-conscious remedies. While there is no doubt that those cases have taken into account the continuing "effects" of previously mandated racial school assignment, we have held those effects to justify a race-conscious remedy only because we have concluded, in that context, that they perpetuate a "dual school system." We have stressed each school district's constitutional "duty to dismantle its dual system," and have found that "[e]ach instance of a failure or refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment." Columbus Board of Education v. Penick, supra, at 458-459 (emphasis added). Concluding in this context that race-neutral efforts at "dismantling the state-imposed dual system" were so ineffective that they might "indicate a lack of good faith," Green v. New Kent County School Board, 391 U.S. 430, 439 (1968); see also [p525] Raney v. Board of Education of Gould School Dist., 391 U.S. 443 (1968), we have permitted, as part of the local authorities' "affirmative duty to disestablish the dual school system[s]," such voluntary (that is, non-court-ordered) measures as attendance zones drawn to achieve greater racial balance, and out-of-zone assignment by race for the same purpose. McDaniel v. Barresi, 402 U.S. 39, 40-41 (1971). While thus permitting the use of race to declassify racially classified students, teachers, and educational resources, however, we have also made it clear that the remedial power extends no further than the scope of the continuing constitutional violation. See, e.g., Columbus Board of Education v. Penick, supra, at 465; Dayton Board of Education v. Brinkman, 433 U.S. 406, 420 (1977); Milliken v. Bradley, 418 U.S. 717, 744 (1974); Keyes v. School Dist. No. 1, Denver, Colorado, 413 U.S. at 213. And it is implicit in our cases that after the dual school system has been completely disestablished, the States may no longer assign students by race. Cf. Pasadena City Board of Education v. Spangler, 427 U.S. 424 (1976) (federal court may not require racial assignment in such circumstances).
Our analysis in Bazemore v. Friday, supra, reflected our unwillingness to conclude, outside the context of school assignment, that the continuing effects of prior discrimination can be equated with state maintenance of a discriminatory system. There we found both that the government's adoption of "wholly neutral admissions" policies for 4-H and Homemaker Clubs sufficed to remedy its prior constitutional violation of maintaining segregated admissions, and that there was no further obligation to use racial reassignments to eliminate continuing effects -- that is, any remaining all-black and all-white clubs. 478 U.S. at 407-408. "[H]owever sound Green [v. New Kent County School Board, supra] may have been in the context of the public schools," we said, "it has no application to this wholly different milieu." Id. at 408. The same is so here. [p526]
A State can, of course, act "to undo the effects of past discrimination" in many permissible ways that do not involve classification by race. In the particular field of state contracting, for example, it may adopt a preference for small businesses, or even for new businesses -- which would make it easier for those previously excluded by discrimination to enter the field. Such programs may well have racially disproportionate impact, but they are not based on race. And, of course, a State may "undo the effects of past discrimination" in the sense of giving the identified victim of state discrimination that which it wrongfully denied him -- for example, giving to a previously rejected black applicant the job that, by reason of discrimination, had been awarded to a white applicant, even if this means terminating the latter's employment. In such a context, the white jobholder is not being selected for disadvantageous treatment because of his race, but because he was wrongfully awarded a job to which another is entitled. That is worlds apart from the system here, in which those to be disadvantaged are identified solely by race.
I agree with the Court's dictum that a fundamental distinction must be drawn between the effects of "societal" discrimination and the effects of "identified" discrimination, and that the situation would be different if Richmond's plan were "tailored" to identify those particular bidders who "suffered from the effects of past discrimination by the city or prime contractors." Ante at 507-508. In my view, however, the reason that would make a difference is not, as the Court states, that it would justify race-conscious action -- see, e.g., ante at 504-506, 507-508 -- but rather that it would enable race-neutral remediation. Nothing prevents Richmond from according a contracting preference to identified victims of discrimination. While most of the beneficiaries might be black, neither the beneficiaries nor those disadvantaged by the preference would be identified on the basis of their race. In other words, far from justifying racial classification, identification [p527] of actual victims of discrimination makes it less supportable than ever, because more obviously unneeded.
In his final book, Professor Bickel wrote:
[A] racial quota derogates the human dignity and individuality of all to whom it is applied; it is invidious in principle as well as in practice. Moreover, it can easily be turned against those it purports to help. The history of the racial quota is a history of subjugation, not beneficence. Its evil lies not in its name, but in its effects: a quota is a divider of society, a creator of castes, and it is all the worse for its racial base, especially in a society desperately striving for an equality that will make race irrelevant.
Bickel, The Morality of Consent, at 133. Those statements are true and increasingly prophetic. Apart from their societal effects, however, which are "in the aggregate disastrous," id. at 134, it is important not to lose sight of the fact that even "benign" racial quotas have individual victims, whose very real injustice we ignore whenever we deny them enforcement of their right not to be disadvantaged on the basis of race. Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 677 (1987) (SCALIA, J., dissenting). As Justice Douglas observed:
A DeFunis who is white is entitled to no advantage by virtue of that fact; nor is he subject to any disability, no matter what his race or color. Whatever his race, he had a constitutional right to have his application considered on its individual merits in a racially neutral manner.
DeFunis v. Odegaard, 416 U.S. 312, 337 (1974) (dissenting opinion). When we depart from this American principle, we play with fire, and much more than an occasional DeFunis, Johnson, or Croson burns.
It is plainly true that, in our society, blacks have suffered discrimination immeasurably greater than any directed at other racial groups. But those who believe that racial preferences can help to "even the score" display, and reinforce, a manner of thinking by race that was the source of the injustice and that will, if it endures within our society, be the [p528] source of more injustice still. The relevant proposition is not that it was blacks, or Jews, or Irish who were discriminated against, but that it was individual men and women, "created equal," who were discriminated against. And the relevant resolve is that that should never happen again. Racial preferences appear to "even the score" (in some small degree) only if one embraces the proposition that our society is appropriately viewed as divided into races, making it right that an injustice rendered in the past to a black man should be compensated for by discriminating against a white. Nothing is worth that embrace. Since blacks have been disproportionately disadvantaged by racial discrimination, any race-neutral remedial program aimed at the disadvantaged as such will have a disproportionately beneficial impact on blacks. Only such a program, and not one that operates on the basis of race, is in accord with the letter and the spirit of our Constitution.
Since I believe that the appellee here had a constitutional right to have its bid succeed or fail under a decisionmaking process uninfected with racial bias, I concur in the judgment of the Court.
