|City of Richmond v. J. A. Croson Co.
[ O'Connor ]
[ Stevens ]
[ Kennedy ]
[ Scalia ]
[ Marshall ]
[ Blackmun ]
City of Richmond v. J. A. Croson Co.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE BLACKMUN join, dissenting.
It is a welcome symbol of racial progress when the former capital of the Confederacy acts forthrightly to confront the effects of racial discrimination in its midst. In my view, nothing in the Constitution can be construed to prevent Richmond, Virginia, from allocating a portion of its contracting dollars for businesses owned or controlled by members of minority groups. Indeed, Richmond's set-aside program is indistinguishable in all meaningful respects from -- and in fact was patterned upon -- the federal set-aside plan which this Court upheld in Fullilove v. Klutznick, 448 U.S. 448 (1980).
A majority of this Court holds today, however, that the Equal Protection Clause of the Fourteenth Amendment blocks Richmond's initiative. The essence of the majority's [p529] position [n1] is that Richmond has failed to catalog adequate findings to prove that past discrimination has impeded minorities from joining or participating fully in Richmond's construction contracting industry. I find deep irony in second-guessing Richmond's judgment on this point. As much as any municipality in the United States, Richmond knows what racial discrimination is; a century of decisions by this and other federal courts has richly documented the city's disgraceful history of public and private racial discrimination. In any event, the Richmond City Council has supported its determination that minorities have been wrongly excluded from local construction contracting. Its proof includes statistics showing that minority-owned businesses have received virtually no city contracting dollars, and rarely if ever belonged to area trade associations; testimony by municipal officials that discrimination has been widespread in the local construction industry; and the same exhaustive and widely publicized federal studies relied on in Fullilove, studies which showed that pervasive discrimination in the Nation's tight-knit construction industry had operated to exclude minorities from public contracting. These are precisely the types of statistical and testimonial evidence which, until today, this Court had credited in cases approving of race-conscious measures designed to remedy past discrimination.
More fundamentally, today's decision marks a deliberate and giant step backward in this Court's affirmative action jurisprudence. Cynical of one municipality's attempt to redress the effects of past racial discrimination in a particular industry, the majority launches a grapeshot attack on race-conscious remedies in general. The majority's unnecessary pronouncements will inevitably discourage or prevent governmental entities, particularly States and localities, from acting to rectify the scourge of past discrimination. This is [p530] the harsh reality of the majority's decision, but it is not the Constitution's command.
As an initial matter, the majority takes an exceedingly myopic view of the factual predicate on which the Richmond City Council relied when it passed the Minority Business Utilization Plan. The majority analyzes Richmond's initiative as if it were based solely upon the facts about local construction and contracting practices adduced during the city council session at which the measure was enacted. Ante at 479-481. In so doing, the majority downplays the fact that the city council had before it a rich trove of evidence that discrimination in the Nation's construction industry had seriously impaired the competitive position of businesses owned or controlled by members of minority groups. It is only against this backdrop of documented national discrimination, however, that the local evidence adduced by Richmond can be properly understood. The majority's refusal to recognize that Richmond has proved itself no exception to the dismaying pattern of national exclusion which Congress so painstakingly identified infects its entire analysis of this case.
Six years before Richmond acted, Congress passed, and the President signed, the Public Works Employment Act of 1977, Pub.L. 95-28, 91 Stat. 116, 42 U.S.C. § 6701 et seq. (Act), a measure which appropriated $4 billion in federal grants to state and local governments for use in public works projects. Section 103(f)(2) of the Act was a minority business set-aside provision. It required state or local grantees to use 10% of their federal grants to procure services or supplies from businesses owned or controlled by members of statutorily identified minority groups, absent an administrative waiver. In 1980, in Fullilove, supra, this Court upheld the validity of this federal set-aside. Chief Justice Burger's principal opinion noted the importance of overcoming those
criteria, methods, or practices thought by Congress to have the effect of defeating, or substantially impairing, access [p531] by the minority business community to public funds made available by congressional appropriations.
Fullilove, 448 U.S. at 480. Finding the set-aside provision properly tailored to this goal, the Chief Justice concluded that the program was valid under either strict or intermediate scrutiny. Id. at 492.
The congressional program upheld in Fullilove was based upon an array of congressional and agency studies which documented the powerful influence of racially exclusionary practices in the business world. A 1975 Report by the House Committee on Small Business concluded:
The effects of past inequities stemming from racial prejudice have not remained in the past. The Congress has recognized the reality that past discriminatory practices have, to some degree, adversely affected our present economic system.
While minority persons comprise about 16 percent of the Nation's population, of the 13 million businesses in the United States, only 382,000, or approximately 3.0 percent, are owned by minority individuals. The most recent data from the Department of Commerce also indicates that the gross receipts of all businesses in this country totals about $2,540.8 billion, and of this amount only $16.6 billion, or about 0.65 percent was realized by minority business concerns.
These statistics are not the result of random chance. The presumption must be made that past discriminatory systems have resulted in present economic inequities.
H.R.Rep. No. 94-468, pp. 1-2 (1975) (quoted in Fullilove, supra, at 465) (opinion of Burger, C.J.) (emphasis deleted and added). A 1977 Report by the same Committee concluded:
[O]ver the years, there has developed a business system which has traditionally excluded measurable minority participation. In the past more than the present, [p532] this system of conducting business transactions overtly precluded minority input. Currently, we more often encounter a business system which is racially neutral on its face, but because of past overt social and economic discrimination is presently operating, in effect, to perpetuate these past inequities. Minorities, until recently, have not participated to any measurable extent, in our total business system generally, or in the construction industry in particular.
H.R.Rep. No. 94-1791, p. 182 (1977), summarizing H.R.Rep. No. 94-468, p. 17 (1976) (quoted in Fullilove, supra, at 466, n. 48).
Congress further found that minorities seeking initial public contracting assignments often faced immense entry barriers which did not confront experienced nonminority contractors. A report submitted to Congress in 1975 by the United States Commission on Civil Rights, for example, described the way in which fledgling minority-owned businesses were hampered by
deficiencies in working capital, inability to meet bonding requirements, disabilities caused by an inadequate "track record," lack of awareness of bidding opportunities, unfamiliarity with bidding procedures, preselection before the formal advertising process, and the exercise of discretion by government procurement officers to disfavor minority businesses.
Fullilove, supra, at 467 (summarizing United States Comm'n on Civil Rights, Minorities and Women as Government Contractors (May 1975)).
Thus, as of 1977, there was "abundant evidence" in the public domain
that minority businesses ha[d] been denied effective participation in public contracting opportunities by procurement practices that perpetuated the effects of prior discrimination.
Fullilove, supra, at 477-478. [n2] Significantly, [p533] this evidence demonstrated that discrimination had prevented existing or nascent minority-owned businesses from obtaining not only federal contracting assignments, but state and local ones as well. See Fullilove, 448 U.S. at 478. [n3]
The members of the Richmond City Council were well aware of these exhaustive congressional findings, a point the [p534] majority, tellingly, elides. The transcript of the session at which the council enacted the local set-aside initiative contains numerous references to the 6-year-old congressional set-aside program, to the evidence of nationwide discrimination barriers described above, and to the Fullilove decision itself. See, e.g., App. 14-16, 24 (remarks of City Attorney William H. Hefty); id. at 14-15 (remarks of Councilmember William J. Leidinger); id. at 18 (remarks of minority community task force president Freddie Ray); id. at 25, 41 (remarks of Councilmember Henry L. Marsh III); id. at 42 (remarks of City Manager Manuel Deese).
The city council's members also heard testimony that, although minority groups made up half of the city's population, only 0.67% of the $24.6 million which Richmond had dispensed in construction contracts during the five years ending in March 1983 had gone to minority-owned prime contractors. Id. at 43 (remarks of Councilmember Henry W. Richardson). They heard testimony that the major Richmond area construction trade associations had virtually no minorities among their hundreds of members. [n4] Finally, they heard testimony from city officials as to the exclusionary history of the local construction industry. [n5] As the District Court noted, not a [p535] single person who testified before the city council denied that discrimination in Richmond's construction industry had been widespread. Civ. Action No. 84-0021 (ED Va., Dec. 3, 1984) (reprinted in Supp.App. to Juris. Statement 164-165). [n6] So long as one views Richmond's local evidence of discrimination against the backdrop of systematic nationwide racial discrimination which Congress had so painstakingly identified in this very industry, this case is readily resolved.
Agreement upon a means for applying the Equal Protection Clause to an affirmative action program has eluded this Court every time the issue has come before us.
Wygant v. Jackson Bd. of Education, 476 U.S. 267, 301 (1986) (MARSHALL, J., dissenting). My view has long been that race-conscious classifications designed to further remedial goals "must serve important governmental objectives, and must be substantially related to achievement of those objectives" in order to withstand constitutional scrutiny. University of California Regents v. Bakke, 438 U.S. 265, 359 (1978) (joint opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.) (citations omitted); see also Wygant, supra, at 301-302 (MARSHALL, J., dissenting); Fullilove, 448 U.S. at 517-519 [p536] (MARSHALL, J., concurring in judgment). Analyzed in terms of this two-pronged standard, Richmond's set-aside, like the federal program on which it was modeled, is "plainly constitutional." Fullilove, supra, at 519 (MARSHALL, J., concurring in judgment).
Turning first to the governmental interest inquiry, Richmond has two powerful interests in setting aside a portion of public contracting funds for minority-owned enterprises. The first is the city's interest in eradicating the effects of past racial discrimination. It is far too late in the day to doubt that remedying such discrimination is a compelling, let alone an important, interest. In Fullilove, six Members of this Court deemed this interest sufficient to support a race-conscious set-aside program governing federal contract procurement. The decision, in holding that the federal set-aside provision satisfied the Equal Protection Clause under any level of scrutiny, recognized that the measure sought to remove
barriers to competitive access which had their roots in racial and ethnic discrimination, and which continue today, even absent any intentional discrimination or unlawful conduct.
448 U.S. at 478; see also id. at 502-506 (Powell, [p537] J., concurring); id. at 520 (MARSHALL, J., concurring in judgment). Indeed, we have repeatedly reaffirmed the government's interest in breaking down barriers erected by past racial discrimination, in cases involving access to public education, McDaniel v. Barresi, 402 U.S. 39, 41 (1971); University of California Regents v. Bakke, 438 U.S. at 320 (opinion of Powell, J.); id. at 362-364 (joint opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.), employment, United States v. Paradise, 480 U.S. 149, 167 (1987) (plurality opinion); id. at 186-189 (Powell, J., concurring), and valuable government contracts, Fullilove, supra, at 481-484 (opinion of Burger, C.J.); id. at 496-497 (Powell, J., concurring); id. at 521 (MARSHALL, J., concurring in judgment).
Richmond has a second compelling interest in setting aside, where possible, a portion of its contracting dollars. That interest is the prospective one of preventing the city's own spending decisions from reinforcing and perpetuating the exclusionary effects of past discrimination. See Fullilove, 448 U.S. at 475 (noting Congress' conclusion that "the subcontracting practices of prime contractors could perpetuate the prevailing impaired access by minority businesses to public contracting opportunities"); id. at 503 (Powell, J., concurring).
The majority pays only lipservice to this additional governmental interest. See ante at 491-493, 503-504. But our decisions have often emphasized the danger of the government tacitly adopting, encouraging, or furthering racial discrimination even by its own routine operations. In Shelley v. Kraemer, 334 U.S. 1 (1948), this Court recognized this interest as a constitutional command, holding unanimously that the Equal Protection Clause forbids courts to enforce racially restrictive covenants even where such covenants satisfied all requirements of state law, and where the State harbored no discriminatory intent. Similarly, in Norwood v. Harrison, 413 U.S. 455 (1973), we invalidated a program in which a State purchased textbooks and loaned them to students in public and private schools, including private schools with racially discriminatory policies. We stated that the Constitution requires a State
to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other invidious discrimination.
Id. at 467; see also Gilmore v. City of Montgomery, 417 U.S. 556 (1974) (upholding federal court order forbidding city to allow private segregated schools which allegedly discriminated on the basis of race to use public parks). [p538]
The majority is wrong to trivialize the continuing impact of government acceptance or use of private institutions or structures once wrought by discrimination. When government channels all its contracting funds to a white-dominated community of established contractors whose racial homogeneity is the product of private discrimination, it does more than place its imprimatur on the practices which forged and which continue to define that community. It also provides a measurable boost to those economic entities that have thrived within it, while denying important economic benefits to those entities which, but for prior discrimination, might well be better qualified to receive valuable government contracts. In my view, the interest in ensuring that the government does not reflect and reinforce prior private discrimination in dispensing public contracts is every bit as strong as the interest in eliminating private discrimination -- an interest which this Court has repeatedly deemed compelling. See, e.g., New York State Club Assn. v. New York City, 487 U.S. 1, 14, n. 5 (1988); Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984); Bob Jones University v. United States, 461 U.S. 574, 604 (1983); Runyon v. McCrary, 427 U.S. 160, 179 (1976). The more government bestows its rewards on those persons or businesses that were positioned to thrive during a period of private racial discrimination, the tighter the dead-hand grip of prior discrimination becomes on the present and future. Cities like Richmond may not be constitutionally required to adopt set-aside plans. But see North Carolina State Bd. of Education v. Swann, 402 U.S. 43, 46 (1971) (Constitution may require consideration of race in remedying state-sponsored school segregation); McDaniel, supra, at 41 (same, and stating that "[a]ny other approach would freeze the status quo that is the very target of all desegregation processes"). But there can be no doubt that, when Richmond acted affirmatively to stem the perpetuation of patterns of discrimination through [p539] its own decisionmaking, it served an interest of the highest order.2
The remaining question with respect to the "governmental interest" prong of equal protection analysis is whether Richmond has proffered satisfactory proof of past racial discrimination to support its twin interests in remediation and in governmental nonperpetuation. Although the Members of this Court have differed on the appropriate standard of review for race-conscious remedial measures, see United States v. Paradise, 480 U.S. at 166, and 166-167, n. 17 (plurality opinion); Sheet Metal Workers v. EEOC, 478 U.S. 421, 480 (1986) (plurality opinion), we have always regarded this factual inquiry as a practical one. Thus, the Court has eschewed rigid tests which require the provision of particular species of evidence, statistical or otherwise. At the same time, we have required that government adduce evidence that, taken as a whole, is sufficient to support its claimed interest and to dispel the natural concern that it acted out of mere "paternalistic stereotyping, not on a careful consideration of modern social conditions." Fullilove v. Klutznick, 448 U.S. at 519 (MARSHALL, J., concurring in judgment).
The separate opinions issued in Wygant v. Jackson Bd. of Education, a case involving a school board's race-conscious layoff provision, reflect this shared understanding. Justice Powell's opinion for a plurality of four Justices stated that
the trial court must make a factual determination that the employer had a strong basis in evidence for its conclusion that remedial action was necessary.
476 U.S. at 277. JUSTICE O'CONNOR's separate concurrence required "a firm basis for concluding that remedial action was appropriate." Id. at 293. The dissenting opinion I authored, joined by JUSTICES BRENNAN and BLACKMUN, required a government body to present a "legitimate factual predicate" and a reviewing court to "genuinely consider the circumstances of the provision at issue." Id. at 297, 303. Finally, JUSTICE [p540] STEVENS' separate dissent sought and found "a rational and unquestionably legitimate basis" for the school board's action. Id. at 315-316. Our unwillingness to go beyond these generalized standards to require specific types of proof in all circumstances reflects, in my view, an understanding that discrimination takes a myriad of "ingenious and pervasive forms." University of California Regents v. Bakke, 438 U.S. at 387 (separate opinion of MARSHALL, J.).
The varied body of evidence on which Richmond relied provides a "strong," "firm," and "unquestionably legitimate" basis upon which the city council could determine that the effects of past racial discrimination warranted a remedial and prophylactic governmental response. As I have noted, supra, at 530-534, Richmond acted against a backdrop of congressional and Executive Branch studies which demonstrated with such force the nationwide pervasiveness of prior discrimination that Congress presumed that "‘present economic inequities'" in construction contracting resulted from "‘past discriminatory systems.'" Supra at 531 (quoting H.R.Rep. No. 94-468, pp. 1-2 (1975)). The city's local evidence confirmed that Richmond's construction industry did not deviate from this pernicious national pattern. The fact that just 0.67% of public construction expenditures over the previous five years had gone to minority-owned prime contractors, despite the city's racially mixed population, strongly suggests that construction contracting in the area was rife with "present economic inequities." To the extent this enormous disparity did not itself demonstrate that discrimination had occurred, the descriptive testimony of Richmond's elected and appointed leaders drew the necessary link between the pitifully small presence of minorities in construction contracting and past exclusionary practices. That no one who testified challenged this depiction of widespread racial discrimination in area construction contracting lent significant weight to these accounts. The fact that area trade associations had virtually no minority members dramatized the extent of present [p541] inequities, and suggested the lasting power of past discriminatory systems. In sum, to suggest that the facts on which Richmond has relied do not provide a sound basis for its finding of past racial discrimination simply blinks credibility.
Richmond's reliance on localized, industry-specific findings is a far cry from the reliance on generalized "societal discrimination" which the majority decries as a basis for remedial action. Ante at 496, 499, 505. But characterizing the plight of Richmond's minority contractors as mere "societal discrimination" is not the only respect in which the majority's critique shows an unwillingness to come to grips with why construction contracting in Richmond is essentially a whites-only enterprise. The majority also takes the disingenuous approach of disaggregating Richmond's local evidence, attacking it piecemeal, and thereby concluding that no single piece of evidence adduced by the city, "standing alone," see, e.g., ante at 503, suffices to prove past discrimination. But items of evidence do not, of course, "stan[d] alone" or exist in alien juxtaposition; they necessarily work together, reinforcing or contradicting each other.
In any event, the majority's criticisms of individual items of Richmond's evidence rest on flimsy foundations. The majority states, for example, that reliance on the disparity between the share of city contracts awarded to minority firms (0.67%) and the minority population of Richmond (approximately 50%) is "misplaced." Ante at 501. It is true that, when the factual predicate needed to be proved is one of present discrimination, we have generally credited statistical contrasts between the racial composition of a workforce and the general population as proving discrimination only where this contrast revealed "gross statistical disparities." Hazelwood School Dist. v. United States, 433 U.S. 299, 307-308 (1977) (Title VII case); see also Teamsters v. United States, 431 U.S. 324, 339 (1977) (same). But this principle does not impugn Richmond's statistical contrast, for two reasons. First, considering how minuscule the share of Richmond public [p542] construction contracting dollars received by minority-owned businesses is, it is hardly unreasonable to conclude that this case involves a "gross statistical disparit[y]." Hazelwood School Dist., supra, at 307. There are roughly equal numbers of minorities and nonminorities in Richmond -- yet minority-owned businesses receive one-seventy-fifth the public contracting funds that other businesses receive. See Teamsters, supra, at 342, n. 23 ("[F]ine tuning of the statistics could not have obscured the glaring absence of minority [bus] drivers. . . . [T]he company's inability to rebut the inference of discrimination came not from a misuse of statistics, but from ‘the inexorable zero'") (citation omitted) (quoted in Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 656-657 (1987) (O'CONNOR, J., concurring in judgment)).
Second, and more fundamentally, where the issue is not present discrimination but rather whether past discrimination has resulted in the continuing exclusion of minorities from an historically tight-knit industry, a contrast between population and workforce is entirely appropriate to help gauge the degree of the exclusion. In Johnson v. Transportation Agency, Santa Clara County, supra, JUSTICE O'CONNOR specifically observed that, when it is alleged that discrimination has prevented blacks from "obtaining th[e] experience" needed to qualify for a position, the "relevant comparison" is not to the percentage of blacks in the pool of qualified candidates, but to "the total percentage of blacks in the labor force." Id. at 651; see also Steelworkers v. Weber, 443 U.S. 193, 198-199, and n. 1 (1979); Teamsters, supra, at 339, n. 20. This contrast is especially illuminating in cases like this, where a main avenue of introduction into the workforce -- here, membership in the trade associations whose members presumably train apprentices and help them procure subcontracting assignments -- is itself grossly dominated by nonminorities. The majority's assertion that the city "does not even know how many MBE's in the relevant market are qualified," ante at 502, is thus entirely beside the [p543] point. If Richmond indeed has a monochromatic contracting community -- a conclusion reached by the District Court, see Civ. Action No. 84-0021 (ED Va.1984) (reprinted at Supp.App. to Juris. Statement 164) -- this most likely reflects the lingering power of past exclusionary practices. Certainly this is the explanation Congress has found persuasive at the national level. See Fullilove, 448 U.S. at 465. The city's requirement that prime public contractors set aside 30% of their subcontracting assignments for minority-owned enterprises, subject to the ordinance's provision for waivers where minority-owned enterprises are unavailable or unwilling to participate, is designed precisely to ease minority contractors into the industry.
The majority's perfunctory dismissal of the testimony of Richmond's appointed and elected leaders is also deeply disturbing. These officials -- including councilmembers, a former mayor, and the present city manager -- asserted that race discrimination in area contracting had been widespread, and that the set-aside ordinance was a sincere and necessary attempt to eradicate the effects of this discrimination. The majority, however, states that, where racial classifications are concerned, "simple legislative assurances of good intention cannot suffice." Ante at 500. It similarly discounts as minimally probative the city council's designation of its set-aside plan as remedial. "[B]lind judicial deference to legislative or executive pronouncements," the majority explains, "has no place in equal protection analysis." Ante at 501.
No one, of course, advocates "blind judicial deference" to the findings of the city council or the testimony of city leaders. The majority's suggestion that wholesale deference is what Richmond seeks is a classic straw-man argument. But the majority's trivialization of the testimony of Richmond's leaders is dismaying in a far more serious respect. By disregarding the testimony of local leaders and the judgment of local government, the majority does violence to the very principles of comity within our federal system which this [p544] Court has long championed. Local officials, by virtue of their proximity to, and their expertise with, local affairs, are exceptionally well qualified to make determinations of public good "within their respective spheres of authority." Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 244 (1984); see also FERC v. Mississippi, 456 U.S. 742, 777-778 (1982) (O'CONNOR, J., concurring in judgment in part and dissenting in part). The majority, however, leaves any traces of comity behind in its headlong rush to strike down Richmond's race-conscious measure.
Had the majority paused for a moment on the facts of the Richmond experience, it would have discovered that the city's leadership is deeply familiar with what racial discrimination is. The members of the Richmond City Council have spent long years witnessing multifarious acts of discrimination, including, but not limited to, the deliberate diminution of black residents' voting rights, resistance to school desegregation, and publicly sanctioned housing discrimination. Numerous decisions of federal courts chronicle this disgraceful recent history. In Richmond v. United States, 422 U.S. 358 (1975), for example, this Court denounced Richmond's decision to annex part of an adjacent county at a time when the city's black population was nearing 50% because it was
infected by the impermissible purpose of denying the right to vote based on race through perpetuating white majority power to exclude Negroes from office.
Id. at 373; see also id. at 382 (BRENNAN, J., dissenting) (describing Richmond's "flagrantly discriminatory purpose . . . to avert a transfer of political control to what was fast becoming a black-population majority") (citation omitted). [n7]
In Bradley v. School Bd. of Richmond, 462 F.2d 1058, 1060, n. 1 (CA4 1972), aff'd by an equally divided Court, 412 [p545] U.S. 92 (1973), the Court of Appeals for the Fourth Circuit, sitting en banc, reviewed in the context of a school desegregation case Richmond's long history of inadequate compliance with Brown v. Board of Education, 347 U.S. 483 (1954), and the cases implementing its holding. The dissenting judge elaborated:
The sordid history of Virginia's, and Richmond's attempts to circumvent, defeat, and nullify the holding of Brown I has been recorded in the opinions of this and other courts, and need not be repeated in detail here. It suffices to say that there was massive resistance and every state resource, including the services of the legal officers of the state, the services of private counsel (costing the State hundreds of thousands of dollars), the State police, and the power and prestige of the Governor, was employed to defeat Brown I. In Richmond, as has been mentioned, not even freedom of choice became actually effective until 1966, twelve years after the decision of Brown I.
462 F.2d at 1075 (Winter, J.) (emphasis in original) (footnotes and citations omitted). The Court of Appeals majority in Bradley used equally pungent words in describing public and private housing discrimination in Richmond. Though rejecting the black plaintiffs' request that it consolidate Richmond's school district with those of two neighboring counties, the maJority nonetheless agreed with the plaintiffs' assertion that
within the City of Richmond there has been state (also federal) action tending to perpetuate apartheid of the races in ghetto patterns throughout the city.
When the legislatures and leaders of cities with histories of pervasive discrimination testify that past discrimination has infected one of their industries, armchair cynicism like that exercised by the majority has no place. It may well be that "the autonomy of a State is an essential component of federalism," Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 588 (1985) (O'CONNOR, J., dissenting), and that "each State is sovereign within its own domain, governing its citizens and providing for their general welfare," FERC v. Mississippi, 456 U.S. at 777 (O'CONNOR, J., dissenting), but apparently this is not the case when federal judges, with nothing but their impressions to go on, choose to disbelieve the explanations of these local governments and officials. Disbelief is particularly inappropriate here in light of the fact that appellee Croson, which had the burden of proving unconstitutionality at trial, Wygant, 476 U.S. at 277-278 (plurality opinion), has at no point come forward with any direct evidence that the city council's motives were anything other than sincere. [n9]
Finally, I vehemently disagree with the majority's dismissal of the congressional and Executive Branch findings [p547] noted in Fullilove as having "extremely limited" probative value in this case. Ante at 504. The majority concedes that Congress established nothing less than a "presumption" that minority contracting firms have been disadvantaged by prior discrimination. Ibid. The majority, inexplicably, would forbid Richmond to "share" in this information, and permit only Congress to take note of these ample findings. Ante at 504-505. In thus requiring that Richmond's local evidence be severed from the context in which it was prepared, the majority would require cities seeking to eradicate the effects of past discrimination within their borders to reinvent the evidentiary wheel and engage in unnecessarily duplicative, costly, and time-consuming factfinding.
No principle of federalism or of federal power, however, forbids a state or local government from drawing upon a nationally relevant historical record prepared by the Federal Government. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52 (1986) (city is "entitled to rely on the experiences of Seattle and other cities" in enacting an adult theater ordinance, as the First Amendment "does not require a city . . . to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the cities relies upon is reasonably believed to be relevant to the problem that the city addresses"); see also Steelworkers v. Weber, 443 U.S. at 198, n. 1 ("Judicial findings of exclusion from crafts on racial grounds are so numerous as to make such exclusion a proper subject for judicial notice"); cf. Wygant, 476 U.S. at 296 (MARSHALL, J., dissenting) ("No race-conscious provision that purports to serve a remedial purpose can be fairly assessed in a vacuum"). [n10] Of course, Richmond could have built an even more [p548] compendious record of past discrimination, one including additional stark statistics and additional individual accounts of past discrimination. But nothing in the Fourteenth Amendment imposes such onerous documentary obligations upon States and localities once the reality of past discrimination is apparent. See infra, at 555-561.
In my judgment, Richmond's set-aside plan also comports with the second prong of the equal protection inquiry, for it is substantially related to the interests it seeks to serve in remedying past discrimination and in ensuring that municipal contract procurement does not perpetuate that discrimination. The most striking aspect of the city's ordinance is the similarity it bears to the "appropriately limited" federal set-aside provision upheld in Fullilove. 448 U.S. at 489. Like the federal provision, Richmond's is limited to five years in duration, ibid., and was not renewed when it came up for reconsideration in 1988. Like the federal provision, Richmond's contains a waiver provision freeing from its subcontracting requirements those nonminority firms that demonstrate that they cannot comply with its provisions. Id. at 483-484. Like the federal provision, Richmond's has a minimal impact on innocent third parties. While the measure affects 30% of public contracting dollars, that translates to only [p549] 3% of overall Richmond area contracting. Brief for Appellant 44, n. 73 (recounting federal census figures on construction in Richmond); see Fullilove, supra, at 484 (burden shouldered by nonminority firms is "relatively light" compared to "overall construction contracting opportunities").
Finally, like the federal provision, Richmond's does not interfere with any vested right of a contractor to a particular contract; instead it operates entirely prospectively. 448 U.S. at 484. Richmond's initiative affects only future economic arrangements, and imposes only a diffuse burden on nonminority competitors -- here, businesses owned or controlled by nonminorities which seek subcontracting work on public construction projects. The plurality in Wygant emphasized the importance of not disrupting the settled and legitimate expectations of innocent parties.
While hiring goals impose a diffuse burden, often foreclosing only one of several opportunities, layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives. That burden is too intrusive.
Wygant, 476 U.S. at 283; see Steelworkers v. Weber, 443 U.S. at 208.
These factors, far from "justify[ing] a preference of any size or duration," ante at 505, are precisely the factors to which this Court looked in Fullilove. The majority takes issue, however, with two aspects of Richmond's tailoring: the city's refusal to explore the use of race-neutral measures to increase minority business participation in contracting, ante at 507, and the selection of a 30% set-aside figure. Ante at 507-508. The majority's first criticism is flawed in two respects. First, the majority overlooks the fact that, since 1975, Richmond has barred both discrimination by the city in awarding public contracts and discrimination by public contractors. See Richmond, Va., City Code § 17.1 et seq. (1985). The virtual absence of minority businesses from the city's contracting rolls, indicated by the fact that such businesses have received less than 1% of public contracting dollars, [p550] strongly suggests that this ban has not succeeded in redressing the impact of past discrimination or in preventing city contract procurement from reinforcing racial homogeneity. Second, the majority's suggestion that Richmond should have first undertaken such race-neutral measures as a program of city financing for small firms, ante at 507, ignores the fact that such measures, while theoretically appealing, have been discredited by Congress as ineffectual in eradicating the effects of past discrimination in this very industry. For this reason, this Court in Fullilove refused to fault Congress for not undertaking race-neutral measures as precursors to its race-conscious set-aside. See Fullilove, supra, at 463-467 (noting inadequacy of previous measures designed to give experience to minority businesses); see also id. at 511 (Powell, J., concurring) ("By the time Congress enacted [the federal set-aside] in 1977, it knew that other remedies had failed to ameliorate the effects of racial discrimination in the construction industry"). The Equal Protection Clause does not require Richmond to retrace Congress' steps when Congress has found that those steps lead nowhere. Given the well-exposed limitations of race-neutral measures, it was thus appropriate for a municipality like Richmond to conclude that, in the words of JUSTICE BLACKMUN, "[i]n order to get beyond racism, we must first take account of race. There is no other way." University of California Regents v. Bakke, 438 U.S. at 407 (separate opinion). [n11] [p551]
As for Richmond's 30% target, the majority states that this figure "cannot be said to be narrowly tailored to any goal, except perhaps outright racial balancing." Ante at 507. The majority ignores two important facts. First, the set-aside measure affects only 3% of overall city contracting; thus, any imprecision in tailoring has far less impact than the majority suggests. But more important, the majority ignores the fact that Richmond's 30% figure was patterned directly on the Fullilove precedent. Congress' 10% figure fell "roughly halfway between the present percentage of minority contractors and the percentage of minority group members in the Nation." Fullilove, supra, at 513-514 (Powell, J., concurring). The Richmond City Council's 30% figure similarly falls roughly halfway between the present percentage of Richmond-based minority contractors (almost zero) and the percentage of minorities in Richmond (50%). In faulting Richmond for not presenting a different explanation for its choice of a set-aside figure, the majority honors Fullilove only in the breach.
I would ordinarily end my analysis at this point and conclude that Richmond's ordinance satisfies both the governmental interest and substantial relationship prongs of our Equal Protection Clause analysis. However, I am compelled to add more, for the majority has gone beyond the facts of this case to announce a set of principles which unnecessarily restricts the power of governmental entities to take race-conscious measures to redress the effects of prior discrimination.
Today, for the first time, a majority of this Court has adopted strict scrutiny as its standard of Equal Protection Clause review of race-conscious remedial measures. Ante at 493-494; ante at 520 (SCALIA, J., concurring in judgment). This is an unwelcome development. A profound difference separates governmental actions that themselves are racist [p552] and governmental actions that seek to remedy the effects of prior racism or to prevent neutral governmental activity from perpetuating the effects of such racism. See, e.g., Wygant v. Jackson Bd. of Education, 476 U.S. at 301-302 (1986) (MARSHALL, J., dissenting); Fullilove, 448 U.S. at 517-519 (MARSHALL, J., concurring in judgment); University of California Regents v. Bakke, 438 U.S. at 355-362 (1978) (joint opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.).
drawn on the presumption that one race is inferior to another or because they put the weight of government behind racial hatred and separatism
warrant the strictest judicial scrutiny because of the very irrelevance of these rationales. Id. at 357-358. By contrast, racial classifications drawn for the purpose of remedying the effects of discrimination that itself was race-based have a highly pertinent basis: the tragic and indelible fact that discrimination against blacks and other racial minorities in this Nation has pervaded our Nation's history, and continues to scar our society. As I stated in Fullilove:
Because the consideration of race is relevant to remedying the continuing effects of past racial discrimination, and because governmental programs employing racial classifications for remedial purposes can be crafted to avoid stigmatization, . . . such programs should not be subjected to conventional "strict scrutiny" -- scrutiny that is strict in theory, but fatal in fact.
Fullilove, supra, at 518-519 (citation omitted).
In concluding that remedial classifications warrant no different standard of review under the Constitution than the most brutal and repugnant forms of state-sponsored racism, a majority of this Court signals that it regards racial discrimination as largely a phenomenon of the past, and that government bodies need no longer preoccupy themselves with rectifying racial injustice. I, however, do not believe this Nation is anywhere close to eradicating racial discrimination or its vestiges. In constitutionalizing its wishful thinking, [p553] the majority today does a grave disservice not only to those victims of past and present racial discrimination in this Nation whom government has sought to assist, but also to this Court's long tradition of approaching issues of race with the utmost sensitivity.
I am also troubled by the majority's assertion that, even if it did not believe generally in strict scrutiny of race-based remedial measures, "the circumstances of this case" require this Court to look upon the Richmond City Council's measure with the strictest scrutiny. Ante at 495. The sole such circumstance which the majority cites, however, is the fact that blacks in Richmond are a "dominant racial grou[p]" in the city. Ibid. In support of this characterization of dominance, the majority observes that "blacks comprise approximately 50% of the population of the city of Richmond" and that "[f]ive of the nine seats on the City Council are held by blacks." Ibid.
While I agree that the numerical and political supremacy of a given racial group is a factor bearing upon the level of scrutiny to be applied, this Court has never held that numerical inferiority, standing alone, makes a racial group "suspect," and thus entitled to strict scrutiny review. Rather, we have identified other "traditional indicia of suspectness:" whether a group has been
saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.
San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973).
It cannot seriously be suggested that nonminorities in Richmond have any "history of purposeful unequal treatment." Ibid. Nor is there any indication that they have any of the disabilities that have characteristically afflicted those groups this Court has deemed suspect. Indeed, the numerical and political dominance of nonminorities within [p554] the State of Virginia and the Nation as a whole provides an enormous political check against the "simple racial politics" at the municipal level which the majority fears. Ante at 493. If the majority really believes that groups like Richmond's nonminorities, which comprise approximately half the population but which are outnumbered even marginally in political fora, are deserving of suspect class status for these reasons alone, this Court's decisions denying suspect status to women see Craig v. Boren, 429 U.S. 190, 197 (1976), and to persons with below-average incomes, see San Antonio Independent School Dist., supra, at 28, stand on extremely shaky ground. See Castaneda v. Partida, 430 U.S. 482, 504 (1977) (MARSHALL, J., concurring).
In my view, the "circumstances of this case," ante at 495, underscore the importance of not subjecting to a strict scrutiny straitjacket the increasing number of cities which have recently come under minority leadership and are eager to rectify, or at least prevent the perpetuation of, past racial discrimination. In many cases, these cities will be the ones with the most in the way of prior discrimination to rectify. Richmond's leaders had just witnessed decades of publicly sanctioned racial discrimination in virtually all walks of life -- discrimination amply documented in the decisions of the federal judiciary. See supra, at 544-546. This history of "purposefully unequal treatment" forced upon minorities, not imposed by them, should raise an inference that minorities in Richmond had much to remedy -- and that the 1983 set-aside was undertaken with sincere remedial goals in mind, not "simple racial politics." Ante at 493.
Richmond's own recent political history underscores the facile nature of the majority's assumption that elected officials' voting decisions are based on the color of their skins. In recent years, white and black councilmembers in Richmond have increasingly joined hands on controversial matters. When the Richmond City Council elected a black man mayor in 1982, for example, his victory was won with the [p555] support of the city council's four white members. Richmond Times-Dispatch, July 2, 1982, p. 1, col. 1. The vote on the set-aside plan a year later also was not purely along racial lines. Of the four white councilmembers, one voted for the measure and another abstained. App. 49. The majority's view that remedial measures undertaken by municipalities with black leadership must face a stiffer test of Equal Protection Clause scrutiny than remedial measures undertaken by municipalities with white leadership implies a lack of political maturity on the part of this Nation's elected minority officials that is totally unwarranted. Such insulting judgments have no place in constitutional jurisprudence.
Today's decision, finally, is particularly noteworthy for the daunting standard it imposes upon States and localities contemplating the use of race-conscious measures to eradicate the present effects of prior discrimination and prevent its perpetuation. The majority restricts the use of such measures to situations in which a State or locality can put forth "a prima facie case of a constitutional or statutory violation." Ante at 500. In so doing, the majority calls into question the validity of the business set-asides which dozens of municipalities across this Nation have adopted on the authority of Fullilove.
Nothing in the Constitution or in the prior decisions of this Court supports limiting state authority to confront the effects of past discrimination to those situations in which a prima facie case of a constitutional or statutory violation can be made out. By its very terms, the majority's standard effectively cedes control of a large component of the content of that constitutional provision to Congress and to state legislatures. If an antecedent Virginia or Richmond law had defined as unlawful the award to nonminorities of an overwhelming share of a city's contracting dollars, for example, Richmond's subsequent set-aside initiative would then satisfy [p556] the majority's standard. But without such a law, the initiative might not withstand constitutional scrutiny. The meaning of "equal protection of the laws" thus turns on the happenstance of whether a state or local body has previously defined illegal discrimination. Indeed, given that racially discriminatory cities may be the ones least likely to have tough antidiscrimination laws on their books, the majority's constitutional incorporation of state and local statutes has the perverse effect of inhibiting those States or localities with the worst records of official racism from taking remedial action.
Similar flaws would inhere in the majority's standard even if it incorporated only federal antidiscrimination statutes. If Congress tomorrow dramatically expanded Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. -- or alternatively, if it repealed that legislation altogether -- the meaning of equal protection would change precipitously along with it. Whatever the Framers of the Fourteenth Amendment had in mind in 1868, it certainly was not that the content of their Amendment would turn on the amendments to, or the evolving interpretations of a, federal statute passed nearly a century later. [n12] [p557]
To the degree that this parsimonious standard is grounded on a view that either § 1 or § 5 of the Fourteenth Amendment substantially disempowered States and localities from remedying past racial discrimination, ante at 488 U.S. 490"]490-491, 504, the majority is seriously mistaken. With respect, first, to § 5, our precedents have never suggested that this provision -- or, for that matter, its companion federal empowerment provisions in the Thirteenth and Fifteenth Amendments -- was meant to preempt or limit state police power to undertake race-conscious remedial measures. To the contrary, in 490-491, 504, the majority is seriously mistaken. With respect, first, to § 5, our precedents have never suggested that this provision -- or, for that matter, its companion federal empowerment provisions in the Thirteenth and Fifteenth Amendments -- was meant to preempt or limit state police power to undertake race-conscious remedial measures. To the contrary, in Katzenbach v. Morgan, 384 U.S. 641 (1966), we held that § 5
is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.
Id. at 651 (emphasis added); see id. at 653-656; South Carolina v. Katzenbach, 383 U.S. 301, 326-327 (1966) (interpreting similar provision of the Fifteenth Amendment to empower Congress to "implemen[t] the rights created" by its passage); see also City of Rome v. [p558] United States, 446 U.S. 156, 173 (1980) (same). Indeed, we have held that Congress has this authority even where no constitutional violation has been found. See Katzenbach, supra, (upholding Voting Rights Act provision nullifying state English literacy requirement we had previously upheld against Equal Protection Clause challenge). Certainly Fullilove did not view § 5 either as limiting the traditionally broad police powers of the States to fight discrimination, or as mandating a zero-sum game in which state power wanes as federal power waxes. On the contrary, the Fullilove plurality invoked § 5 only because it provided specific and certain authorization for the Federal Government's attempt to impose a race-conscious condition on the dispensation of federal funds by state and local grantees. See Fullilove, 448 U.S. at 476 (basing decision on § 5 because "[i]n certain contexts, there are limitations on the reach of the Commerce Power").
As for § 1, it is too late in the day to assert seriously that the Equal Protection Clause prohibits States -- or for that matter, the Federal Government, to whom the equal protection guarantee has largely been applied, see Bolling v. Sharpe, 347 U.S. 497 (1954) -- from enacting race-conscious remedies. Our cases in the areas of school desegregation, voting rights, and affirmative action have demonstrated time and again that race is constitutionally germane, precisely because race remains dismayingly relevant in American life.
In adopting its prima facie standard for States and localities, the majority closes its eyes to this constitutional history and social reality. So, too, does JUSTICE SCALIA. He would further limit consideration of race to those cases in which States find it "necessary to eliminate their own maintenance of a system of unlawful racial classification" -- a "distinction" which, he states, "explains our school desegregation cases." Ante at 524 (SCALIA, J., concurring in judgment). But this Court's remedy-stage school desegregation decisions cannot so conveniently be cordoned off. These decisions (like those involving voting rights and affirmative action) [p559] stand for the same broad principles of equal protection which Richmond seeks to vindicate in this case: all persons have equal worth, and it is permissible, given a sufficient factual predicate and appropriate tailoring, for government to take account of race to eradicate the present effects of race-based subjugation denying that basic equality. JUSTICE SCALIA's artful distinction allows him to avoid having to repudiate "our school desegregation cases," ibid., but, like the arbitrary limitation on race-conscious relief adopted by the majority, his approach "would freeze the status quo that is the very target" of the remedial actions of States and localities. McDaniel v. Barresi, 402 U.S. at 41; see also Board of Education v. Swann, 402 U.S. at 46 (striking down State's flat prohibition on assignment of pupils on basis of race as impeding an "effective remedy"); United Jewish Organizations v. Carey, 430 U.S. 144, 159-162 (1977) (upholding New York's use of racial criteria in drawing district lines so as to comply with § 5 of the Voting Rights Act).
The fact is that Congress' concern in passing the Reconstruction Amendments, and particularly their congressional authorization provisions, was that States would not adequately respond to racial violence or discrimination against newly freed slaves. To interpret any aspect of these Amendments as proscribing state remedial responses to these very problems turns the Amendments on their heads. As four Justices, of whom I was one, stated in University of California Regents v. Bakke:
[There is] no reason to conclude that the States cannot voluntarily accomplish under § 1 of the Fourteenth Amendment what Congress under § 5 of the Fourteenth Amendment validly may authorize or compel either the States or private persons to do. A contrary position would conflict with the traditional understanding recognizing the competence of the States to initiate measures consistent with federal policy in the absence of congressional preemption of the subject matter. Nothing [p560] whatever in the legislative history of either the Fourteenth Amendment or the Civil Rights Acts even remotely suggests that the States are foreclosed from furthering the fundamental purpose of equal opportunity to which the Amendment and those Acts are addressed. Indeed, voluntary initiatives by the States to achieve the national goal of equal opportunity have been recognized to be essential to its attainment. "To use the Fourteenth Amendment as a sword against such State power would stultify that Amendment." Railway Mail Assn. v. Corsi, 326 U.S. 88, 98 (Frankfurter, J., concurring).
438 U.S. at 368 (footnote omitted) (emphasis added).
In short, there is simply no credible evidence that the Framers of the Fourteenth Amendment sought "to transfer the security and protection of all the civil rights . . . from the States to the Federal government." The Slaughter-House Cases, 16 Wall. 36, 77-78 (1873). [n13] The three Reconstruction Amendments undeniably "worked a dramatic change in the balance between congressional and state power," ante at 490: they forbade state-sanctioned slavery, forbade the state-sanctioned denial of the right to vote, and (until the content of the Equal Protection Clause was substantially applied to the Federal Government through the Due Process Clause of the Fifth Amendment) uniquely forbade States from denying equal protection. The Amendments also specifically empowered the Federal Government to combat discrimination at a time when the breadth of federal power under the Constitution was less apparent than it is today. But nothing in the Amendments themselves, or in our long history of interpreting or applying those momentous charters, suggests that [p561] States, exercising their police power, are in any way constitutionally inhibited from working alongside the Federal Government in the fight against discrimination and its effects.
The majority today sounds a full-scale retreat from the Court's longstanding solicitude to race-conscious remedial efforts "directed toward deliverance of the century-old promise of equality of economic opportunity." Fullilove, 448 U.S. at 463. The new and restrictive tests it applies scuttle one city's effort to surmount its discriminatory past, and imperil those of dozens more localities. I, however, profoundly disagree with the cramped vision of the Equal Protection Clause which the majority offers today, and with its application of that vision to Richmond, Virginia's, laudable set-aside plan. The battle against pernicious racial discrimination or its effects is nowhere near won. I must dissent.
1. In the interest of convenience, I refer to the opinion in this case authored by JUSTICE O'CONNOR as "the majority," recognizing that certain portions of that opinion have been joined by only a plurality of the Court.
2. Other Reports indicating the dearth of minority-owned businesses include H.R.Rep. No. 92-1615, p. 3 (1972) (Report of the Subcommittee on Minority Small Business Enterprise, finding that the "long history of racial bias" has created "major problems" for minority businessmen); H.R.Doc. No. 92-194, p. 1 (1972) (text of message from President Nixon to Congress, describing federal efforts "to press open new doors of opportunity for millions of Americans to whom those doors had previously been barred, or only half-open"); H.R.Doc. No. 92-169, p. 1 (1971) (text of message from President Nixon to Congress, describing paucity of minority business ownership and federal efforts to give "every man an equal chance at the starting line").
3. Numerous congressional studies undertaken after 1977 and issued before the Richmond City Council convened in April, 1983, found that the exclusion of minorities had continued virtually unabated -- and that, because of this legacy of discrimination, minority businesses across the Nation had still failed, as of 1983, to gain a real toehold in the business world. See, e.g., H.R.Rep. No. 95-949, pp. 2, 8 (1978) (Report of House Committee on Small Business, finding that minority businesses "are severely undercapitalized" and that many minorities are disadvantaged "because they are identified as members of certain racial categories"); S.Rep. No. 95-1070, pp. 14-15 (1978); (Report of Senate Select Committee on Small Business, finding that the federal effort "has fallen far short of its goal to develop strong and growing disadvantaged small businesses," and "recogniz[ing] the pattern of social and economic discrimination that continues to deprive racial and ethnic minorities, and others, of the opportunity to participate fully in the free enterprise system"); S.Rep. No. 96-31, pp. 1X, 107 (1979) (Report of Senate Select Committee on Small Business, finding that many minorities have "suffered the effects of discriminatory practices or similar invidious circumstances over which they have no control"); S.Rep. No. 96-974, p. 3 (1980) (Report of Senate Select Committee on Small Business, finding that government aid must be "significantly increased" if minority-owned businesses are to "have the maximum practical opportunity to develop into viable small businesses"); H.R.Rep. No. 97-956, p. 35 (1982) (Report of House Committee on Small Business, finding that federal programs to aid minority businesses have had "limited success" to date, but concluding that success could be "greatly expanded" with "appropriate corrective actions"); H.R.Rep. No. 98-3, p. 1 (1983) (Report of House Committee on Small Business, finding that "the small business share of Federal contracts continues to be inadequate").
4. According to testimony by trade association representatives, the Associated General Contractors of Virginia had no blacks among its 130 Richmond-area members, App. 27-28 (remarks of Stephen Watts); the American Subcontractors Association had no blacks among its 80 Richmond members, id. at 36 (remarks of Patrick Murphy); the Professional Contractors Estimators Association had 1 black member among its 60 Richmond members, id. at 39 (remarks of Al Shuman); the Central Virginia Electrical Contractors Association had 1 black member among its 45 members, id. at 40 (remarks of Al Shuman); and the National Electrical Contractors Association had 2 black members among its 81 Virginia members. Id. at 34 (remarks of Mark Singer).
5. Among those testifying to the discriminatory practices of Richmond's construction industry was Councilmember Henry Marsh, who had served as mayor of Richmond from 1977 to 1982. Marsh stated:
I have been practicing law in this community since 1961, and I am familiar with the practices in the construction industry in this area, in the State, and around the nation. And I can say without equivocation that the general conduct in the construction industry in this area, and the State and around the nation, is one in which race discrimination and exclusion on the basis of race is widespread.
I think the situation involved in the City of Richmond is the same. . . . I think the question of whether or not remedial action is required is not open to question.
Id. at 41. Manuel Deese, who in his capacity as City Manager had oversight responsibility for city procurement matters, stated that he fully agreed with Marsh's analysis. Id. at 42.
6. The representatives of several trade associations did, however, deny that their particular organizations engaged in discrimination. See, e.g., id. at 38 (remarks of Al Shuman, on behalf of the Central Virginia Electrical Contractors Association).
7. For a disturbing description of the lengths to which some Richmond white officials went during recent decades to hold in check growing black political power, see J. Moeser & R. Dennis, The Politics of Annexation -- Oligarchic Power in a Southern City 50-188 (1982).
8. Again the dissenting judge -- who would have consolidated the school districts -- elaborated:
[M]any other instances of state and private action contribut[ed] to the concentration of black citizens within Richmond and white citizens without. These were principally in the area of residential development. Racially restrictive convenants were freely employed. Racially discriminatory practices in the prospective purchase of county property by black purchasers were followed. Urban renewal, subsidized public housing and government-sponsored home mortgage insurance had been undertaken on a racially discriminatory basis. [The neighboring counties] provided schools, roads, zoning and development approval for the rapid growth of the white population in each county at the expense of the city, without making any attempt to assure that the development that they made possible was integrated. Superimposed on the pattern of government-aided residential segregation . . . had been a discriminatory policy of school construction, i.e., the selection of school construction sites in the center of racially identifiable neighborhoods manifestly to serve the educational needs of students of a single race.
The majority does not question the accuracy of these facts.
462 F.2d at 1075-1076 (Winter, J.) (footnote omitted).
9. Compare Fullilove v. Klutznick, 448 U.S. 448, 541 (1980) (STEVENS, J., dissenting) (noting statements of sponsors of federal set-aside that measure was designed to give their constituents "a piece of the action").
10. Although the majority sharply criticizes Richmond for using data which it did not itself develop, it is noteworthy that the federal set-aside program upheld in Fullilove was adopted as a floor amendment "without any congressional hearings or investigation whatsoever." L. Tribe, American Constitutional Law 345 (2d ed.1988). The principal opinion in Fullilove justified the set-aside by relying heavily on the aforementioned studies by agencies like the Small Business Administration and on legislative reports prepared in connection with prior, failed legislation. See Fullilove v. Klutznick, 448 U.S. at 478 (opinion of Burger, C.J.) ("Although the Act recites no preambulary ‘findings' on the subject, we are satisfied that Congress had abundant historical basis from which it could conclude that traditional procurement practices, when applied to minority businesses, could perpetuate the effects of prior discrimination"); see also id. at 549-550, and 550, n. 25 (STEVENS, J., dissenting) (noting "perfunctory" consideration accorded the set-aside provision); Days, Fullilove, 96 Yale L.J. 453, 465 (1987) ("One can only marvel at the fact that the minority set-aside provision was enacted into law without hearings or committee reports, and with only token opposition") (citation and footnote omitted).
11. The majority also faults Richmond's ordinance for including within its definition of "minority group members" not only black citizens, but also citizens who are "Spanish-speaking, Oriental, Indian, Eskimo, or Aleut persons." Ante at 506. This is, of course, precisely the same definition Congress adopted in its set-aside legislation. Fullilove, 448 U.S. at 454. Even accepting the majority's view that Richmond's ordinance is overbroad because it includes groups, such as Eskimos or Aleuts, about whom no evidence of local discrimination has been proffered, it does not necessarily follow that the balance of Richmond's ordinance should be invalidated.
12. Although the majority purports to "adher[e] to the standard of review employed in Wygant," ante at 488 U.S. 494"]494, the "prima facie case" standard it adopts marks an implicit rejection of the more generally framed "strong basis in evidence" test endorsed by the 494, the "prima facie case" standard it adopts marks an implicit rejection of the more generally framed "strong basis in evidence" test endorsed by the Wygant v. Jackson Bd. of Education, 476 U.S. 267 (1986) plurality, and the similar "firm basis" test endorsed by JUSTICE O'CONNOR in her separate concurrence in that case. See id. at 289; id. at 286. Under those tests, proving a prima facie violation of Title VII would appear to have been but one means of adducing sufficient proof to satisfy Equal Protection Clause analysis. See Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 632 (1987) (plurality opinion) (criticizing suggestion that race-conscious relief be conditioned on showing of a prima facie Title VII violation).
The rhetoric of today's majority opinion departs from Wygant in another significant respect. In Wygant, a majority of this Court rejected as unduly inhibiting and constitutionally unsupported a requirement that a municipality demonstrate that its remedial plan is designed only to benefit specific victims of discrimination. See 476 U.S. at 277-278; id. at 286 (O'CONNOR, J., concurring in part and concurring in judgment); id. at 305 (MARSHALL, J., dissenting). JUSTICE O'CONNOR noted the Court's general agreement that a
remedial purpose need not be accompanied by contemporaneous findings of actual discrimination to be accepted as legitimate as long as the public actor has a firm basis for believing that remedial action is required. . . . [A] plan need not be limited to the remedying of specific instances of identified discrimination for it to be deemed sufficiently "narrowly tailored," or "substantially related," to the correction of prior discrimination by the state actor.
Id. at 286-287. The majority's opinion today, however, hints that a "specific victims" proof requirement might be appropriate in equal protection cases. See, e.g., ante at 504 (States and localities "must identify that discrimination . . . with some specificity"). Given that, just three Terms ago, this Court rejected the "specific victims" idea as untenable, I believe these references -- and the majority's cryptic "identified discrimination" requirement -- cannot be read to require States and localities to make such highly particularized showings. Rather, I take the majority's standard of "identified discrimination" merely to require some quantum of proof of discrimination within a given jurisdiction that exceeds the proof which Richmond has put forth here.
13. Tellingly, the sole support the majority offers for its view that the Framers of the Fourteenth Amendment intended such a result are two law review articles analyzing this Court's recent affirmative action decisions and a Court of Appeals decision which relies upon statements by James Madison. Ante at 491. Madison, of course, had been dead for 32 years when the Fourteenth Amendment was enacted.