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Legal Standards for Government Affirmative Action Contracting Programs
evidence before the City Council was: (a) Richmond’s population was 50 percent African
American, yet less than one percent of its prime construction contracts had been awarded to
minority businesses; (b) local contractors’ associations were virtually all White; (c) the City
Attorney’s opinion that the Plan was constitutional; and (d) general statements describing
widespread racial discrimination in the local, Virginia, and national construction industries.
In affirming the Court of Appeals’ determination that the Plan was unconstitutional, Justice
Sandra Day O’Connor’s plurality opinion rejected the extreme positions that local governments
either have carte blanche to enact race-based legislation or must prove their own illegal conduct:
[A] state or local subdivision…has the authority to eradicate the effects of private
discrimination within its own legislative jurisdiction.… [Richmond] can use its spending
powers to remedy private discrimination, if it identifies that discrimination with the
particularity required by the Fourteenth Amendment.… [I]f the City could show that it
had essentially become a “passive participant” in a system of racial exclusion…[it] could
take affirmative steps to dismantle such a system. 17
Strict scrutiny of race-based remedies is required to determine whether racial classifications are
in fact motivated by either notions of racial inferiority or blatant racial politics. This highest level
of judicial review “smokes out” illegitimate uses of race by assuring that the legislative body is
pursuing a goal important enough to warrant use of a highly suspect tool. 18 It further ensures that
the means chosen “fit” this compelling goal so closely that there is little or no possibility that the
motive for the classification was illegitimate racial prejudice or stereotype. The Court made clear
that strict scrutiny seeks to expose racial stigma; racial classifications are said to create racial
hostility if they are based on notions of racial inferiority. 19
Race is so suspect a basis for government action that more than “societal” discrimination is
required to restrain racial stereotyping or pandering. The Court provided no definition of
“societal” discrimination or any guidance about how to recognize the ongoing realities of history
and culture in evaluating race-conscious programs. The Court simply asserted that:
[w]hile there is no doubt that the sorry history of both private and public discrimination
in this country has contributed to a lack of opportunities for black entrepreneurs, this
observation, standing alone, cannot justify a rigid racial quota in the awarding of public
contracts in Richmond, Virginia…. [A]n amorphous claim that there has been past
discrimination in a particular industry cannot justify the use of an unyielding racial quota.
17 Id. at 491-92.
18 See also Grutter v. Bollinger, 539 U.S. 306, 327 (2003) (“Not every decision influenced by race is equally
objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and
the sincerity of the reasons advanced by the governmental decision maker for the use of race in that particular
context.”).
19 488 U.S. at 493.
NERA Economic Consulting 20