Richmond v. J. A. Croson Co.

In finding that Richmond had not established specific past discrimination to support their minority firm goal in the awarding of municipal construction contracts, the courts established the constitutional standard of "strict scrutiny" for state and local affirmative action contracting programs.

President Lyndon Johnson signed the Civil Rights Act of 1964 which was established to end discrimination by private employers, whether or not they were government contractors. Under President Richard Nixon, specific requirements for enforcing contract compliance for affirmative action were developed. These requirements include analyzing the employment of minorities and women in job categories and developing goals and timetables for each category where minorities and women are under represented. Affirmative action, according to the Civil Rights Commission, refers to any action or program which allows the consideration of race, national origin, sex, or disability, along with other criteria. It is used to provide opportunities to a class of qualified persons who have either been historically or actually denied those opportunities.

In support of such national goals, many local and state governments developed affirmative action programs which used "set-asides" or the practice of "setting aside" a portion of municipal business to support the development of under-utilized businesses owned by minorities and women. In 1983, the city of Richmond, Virginia, in pursuit of the ideals of affirmative action, established a local ordinance requiring non-minority-owned contractors receiving city construction contracts to "set-aside" 30 percent of the subcontracting work for minority contractors. This was based on the fact that, for five years prior to the "set-aside" program, less than 1 percent of city construction contracts were awarded to minority contractors, despite a 50 percent minority population in the city, along with other factors.

Following the adoption of the ordinance, a non-minority-owned contracting firm, J. A. Croson Co., bid on a plumbing contract for the city of Richmond. No other companies placed a bid on the contract. While it did contract with minority subcontractors, Croson was unable to meet the ordinance's requirement of 30 percent in its bid for the job, and so requested a waiver from Richmond. The city denied the waiver and informed them that the contract would be placed up for bid again. Croson sued the city in the U.S. District Court for the Eastern District of Virginia challenging Richmond's ordinance under the equal protection clause of the Fourteenth Amendment. This clause states:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The district court upheld the ordinance, however, in all respects. When Croson appealed to the Fourth District Circuit Court, the court first affirmed the lower court's decision. Then when the decision was sent to the state's supreme court for further review, the court found in favor of Croson. The city of Richmond appealed to the U.S. Supreme Court, which, on 23 January 1989, affirmed the decision in favor of Croson.

In her opinion for the 6-3 majority, Justice O'Connor noted that the city had not documented specific local instances of previous discrimination to support its goal of 30 percent. O'Connor applied the constitutional standard of "strict scrutiny" (the most difficult standard to meet) to racial classifications, which she felt was appropriate given the large minority population in the city and on the city council. This review of government actions in order to ensure a compelling interest on the part of the state, and that the actions are "least restrictive" in its means is also known as "strict scrutiny." In support of its case, Richmond had cited factors demonstrating the need for such a program including a lack of capital, training, and experience on the part of minority contractors, but, according to O'Connor, these were too vague. In addition, despite the facts that Congress had found evidence of discrimination in the construction industry nationally and that, within the city itself, discrimination existed in other industries, Richmond needed to document specific instances within the Richmond construction industry in order to prove a compelling interest on its part.

Justice Marshall, along with Justices Brennan and Blackmun, disagreed. In his dissent, Marshall noted that the decision was a step backward in the Court's affirmative action jurisprudence. He found the evidence of discrimination in the construction industry on a national level supported Richmond's claim and that the ordinance met the standard for applying the Equal Protection Clause to an affirmative action program.

As a result of this ruling, municipalities across the country needed to review and revise their affirmative action programs in order to ensure that they had documented specific instances of discrimination. While it would seem to be a heavy burden for them to bear, according to Linda Faye Williams in The Affirmative Action Debate, 60 cities spent more than $30 million in order to establish this documentation following the decision in 1989.