The City of Richmond, VA
established a business plan that required contractors who worked on
construction projects for the city to subcontract 30% of the work to
minority-owned businesses. (aka Minority Business Enterprises, aka MBEs).
Richmond stated that the
plan was remedial in nature and enacted "for the purpose of
promoting wider participation by minorities in the construction of public
projects."
At the time, 50% of
Richmond's citizens were black, but only 0.67% of the construction
projects went to MBEs.
Interestingly, most of the
leaders of Richmond's city government were black.
Croson failed to win a
contract and sued, claiming that the business plan was a violation of the Equal
Protection Clause of the 14th
Amendment.
Croson argued that equal
means equal, and any policy that favors one race over another in
inherently unequal, even if it favors the minority.
The US Supreme Court found
that the business plan was unconstitutional and a violation of the Equal
Protection Clause.
The US Supreme Court found
that since this policy involved a suspect classification, the level of review should be strict
scrutiny.
Strict scrutiny is the level of review used when a fundamental constitutional right is infringed, or when
the government action involves the use of a suspect
classification such as race that may
render it void under the Equal Protection Clause.
In order to pass a strict
scrutiny review, a law must:
Be justified by a compelling
governmental interest.
Be narrowly tailored to achieve that interest.
Use least restrictive
means to achieve that interest.
The Court found that there
was no compelling governmental interest because Richmond failed to identify the need for remedial
action.
The Court found that
"generalized assertions" of past racial discrimination could
not justify "rigid" racial quotas for the awarding of public
contracts.
Plus, the 30% number
seemed pretty arbitrary.
The Court found that the
business plan was not narrowly tailored because it gave minorities who just moved to Richmond (who had
never been discriminated against) the same bonus as long-time residents
who could (theoretically) show that they had been the victims of past
discrimination.
The Court found that the
business plan did not use the least restrictive means because Richmond failed to make a showing that
other non-discriminatory means would be insufficient.
This case is notable because
it established that strict scrutiny
is the appropriate level of judicial review for evaluating government
affirmative-action programs.
Until this case there was
debate on whether intermediate scrutiny or even rational basis was the appropriate standard.
