488 U.S. 469, 493 (1989)
On April 11, 1983, the Richmond City Council adopted the Minority Business Utilization Plan requiring prime contractors awarded city construction contracts to subcontract at least 30% of the dollar amount of each contract to one or more Minority Business Enterprises defined as businesses at least 51% owned and controlled by black, Spanish-speaking, Oriental, Indian, Eskimo, or Aleut citizens with no geographic limit.1
The Plan was enacted after a public hearing at which council members relied on a study showing that although the city's population was 50% black, minority-owned businesses had received only 0.67% of the city's prime construction contracts from 1978 to 1983, and noted that local contractors' associations had virtually no minority members.2
No direct evidence was presented that the city had discriminated in letting contracts or that its prime contractors had discriminated against minority subcontractors.3
On September 6, 1983, the city issued an invitation to bid on plumbing fixtures for the city jail.4
J. A. Croson Company, a mechanical plumbing and heating contractor owned by a white person, submitted the sole bid of $126,530 on October 13, 1983.5
Croson contacted multiple minority firms but received no timely, competitive bid for the fixtures, which represented 75% of the contract value.6
Croson submitted a request for a waiver of the 30% set-aside requirement.7
The city denied Croson's waiver request, indicating that Croson had 10 days to submit an MBE Utilization Commitment Form, and warned that failure to do so could result in its bid being considered unresponsive.8
The city informed Croson that it had decided to rebid the project.9
Croson filed suit under 42 U.S.C. § 1983 in the United States District Court for the Eastern District of Virginia alleging that the Plan violated the Equal Protection Clause.10
The District Court upheld the Plan in all respects.11
A divided panel of the Court of Appeals for the Fourth Circuit initially affirmed the Plan.12
We granted the writ, vacated the opinion of the Court of Appeals, and remanded the case for further consideration in light of our intervening decision in Wygant v. Jackson Board of Education, 476 U. S. 267 (1986).13
On remand, a divided panel of the Court of Appeals struck down the Richmond set-aside program as violating both prongs of strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment.14
We noted probable jurisdiction of the city's appeal, 484 U. S. 1058 (1988), and we now affirm the judgment.15
Whether the Minority Business Utilization Plan adopted by the Richmond City Council violates the Equal Protection Clause of the Fourteenth Amendment?16
The Equal Protection Clause of the Fourteenth Amendment requires that all racial classifications imposed by state and local governments be subjected to the most searching scrutiny.17 Such classifications must be narrowly tailored to further a compelling governmental interest.18 The standard of review does not depend on the race of those burdened or benefited by the classification.19 The single purpose of the Fourteenth Amendment is to eliminate racial discrimination by government.20
Yes. The Plan fails strict scrutiny because the city failed to demonstrate a compelling governmental interest in the use of the 30% set-aside.21 The factual predicate for the Plan does not establish that the city had become a passive participant in a system of racial exclusion practiced by elements of the local construction industry.22 The city's reliance on the disparity between the 50% black population and the less than 1% MBE participation in city contracts is misplaced.23 There is no evidence that the city had engaged in discrimination in letting contracts or that the city's prime contractors had discriminated against minority-owned subcontractors.24
The city's argument that it is attempting to remedy past societal discrimination is unavailing.25 This interest cannot be established by relying on mere statistical disparities without identifying any pattern of discriminatory exclusion of minorities from the local construction industry.26
The Plan violates the Equal Protection Clause of the Fourteenth Amendment.27
Related opinions on this issue
Justice Stevens concurred in the judgment.28 He emphasized that the ordinance cannot be justified as a remedy for past discrimination.29 The city's use of a racial quota is not narrowly tailored because it is based upon a stereotype that all minority contractors are equally disadvantaged.30
The ordinance is not limited to those minority groups that have suffered the effects of past discrimination in the local construction industry. Stevens stressed that the justification for the ordinance rests on the fact that white contractors have discriminated against black contractors in the past. Yet the class benefited is not limited to victims of such discrimination and includes persons who have never been in business in Richmond.
Joined by Justices Brennan And Blackmun
Justice Marshall dissented and argued that the city's Plan is a legitimate exercise of its authority to remedy the effects of past discrimination.31 The city has identified a compelling governmental interest in remedying the effects of past discrimination in the local construction industry.32 The Plan is narrowly tailored to serve that interest.33
The city's use of a 30% set-aside is justified by the city's findings of statistical disparity.34 The Court has departed from its established jurisprudence in striking down the city's Plan.35
Whether a municipality may adopt a racial set-aside in public contracting without demonstrating a compelling governmental interest based on identified past discrimination by the city or its prime contractors?36
A municipality may not adopt a racial set-aside in public contracting without demonstrating a compelling governmental interest based on identified past discrimination by the governmental unit involved.37 A state or local subdivision has authority to eradicate the effects of private discrimination within its own legislative jurisdiction.38 It must identify that discrimination with the particularity required by the Fourteenth Amendment and may not rely on generalized assertions of past societal discrimination.39
No. The city has failed to demonstrate a compelling governmental interest because it has not shown that it had become a passive participant in a system of racial exclusion.40 There is no evidence that the city had engaged in discrimination in letting contracts or that the city's prime contractors had discriminated against minority-owned subcontractors. The city's generalized assertion that there has been past discrimination in the construction industry is not sufficient to establish the required factual predicate for race-conscious relief.41
A municipality may not adopt a racial set-aside in public contracting without demonstrating a compelling governmental interest based on identified past discrimination by the city or its prime contractors.42
Related opinions on this issue
Justice Kennedy concurred in part and in the judgment.43 He explained that the moral imperative of racial neutrality is the driving force of the Equal Protection Clause.44 The ordinance falls far short of the standard adopted.45
The nature and scope of the injury that existed, its historical or antecedent causes, the extent to which the city contributed to it, and the necessity for the response adopted were all matters unmeasured, unexplored, and unexplained by the city council.46 Kennedy concluded that the ordinance is invalid under the Fourteenth Amendment.47
Joined by Justice Brennan
Justice Blackmun dissented and joined Justice Marshall's opinion.48 He highlighted the irony that the Court struck down Richmond's efforts in the former capital of the Confederacy.49 Blackmun argued that the Plan is a necessary and appropriate means of remedying the effects of past discrimination in the construction trades.50 The city's findings of statistical disparity establish a strong basis in evidence for the use of a racial set-aside.51
The Court has applied an overly rigid standard of review in striking down the city's Plan.52 Blackmun expressed confidence that the Court would one day fulfill the Constitution's promises of equality.
Whether the 30% set-aside is narrowly tailored to remedy the effects of prior discrimination in the local construction industry?53
A racial set-aside must be narrowly tailored to remedy the effects of prior discrimination.54 This requires consideration of race-neutral means to increase minority participation.55 It also requires identification of the scope of the injury to be redressed.56 The program must be limited to those minority groups that have suffered the effects of past discrimination.57 Rigid quotas that amount to outright racial balancing must be avoided.58
No. The 30% quota cannot be said to be tailored to any goal except perhaps outright racial balancing.59 The city has not considered the use of race-neutral means to increase minority business participation in the Richmond construction market.60 The city has not identified the scope of the injury that its remedial action is designed to redress.61 The city has not limited its program to those minority groups that have suffered the effects of past discrimination in the local construction industry.62
Its inclusion of groups such as Eskimos and Aleuts in its definition of minority strongly suggests that its purpose is not to remedy the effects of prior discrimination.63
The 30% set-aside is not narrowly tailored to remedy the effects of prior discrimination in the local construction industry.64
Related opinions on this issue
Justice Scalia concurred in the judgment.65 He agreed that strict scrutiny must be applied to all governmental classification by race.66 The city has not demonstrated a compelling governmental interest in the use of a racial quota.67
The Plan is not a remedy for the effects of past discrimination.68 Scalia emphasized that the States do not have the same authority as Congress to enact race-conscious legislation.69 Only a social emergency rising to the level of imminent danger to life and limb can justify an exception to the principle that the Constitution is colorblind.
Whether statistical disparities between the minority population and the percentage of contracts awarded to minority firms, standing alone, establish a strong basis in evidence for race-conscious relief?70
Statistical disparities between the minority population and the percentage of contracts awarded to minority firms, standing alone, do not establish a strong basis in evidence for race-conscious relief.71 Where special qualifications are required to fill particular jobs, comparisons to the general population rather than to the smaller group of individuals who possess the necessary qualifications may have little probative value in demonstrating prior discrimination.72
No. The city's reliance on the disparity between the 50% black population and the less than 1% MBE participation in city contracts is misplaced.73 There is no evidence that the city had engaged in discrimination in letting contracts or that the city's prime contractors had discriminated against minority-owned subcontractors. The city does not even know how many MBE's in the Richmond construction market are qualified to undertake prime or subcontracting work in public construction projects.74 This renders the statistical comparison of little probative value.75
Statistical disparities between the minority population and the percentage of contracts awarded to minority firms, standing alone, do not establish a strong basis in evidence for race-conscious relief.