Richmond City Council adopted the Minority Business Utilization Plan which required prime contractors to whom the city awarded construction contracts to subcontract at least 30% of the dollar amount of the contract to one or more minority business enterprises.
The plan declared that it was remedial in nature and enacted for the purpose of promoting participation by minority business enterprises.
SCOTUS found the plan unconstitutional.
What level of scrutiny should be used to test the constitutionality of affirmative action laws?
Strict scrutiny should be used to test the constitutionality of affirmative action laws.
A state has the authority to eradicate the effects of private discrimination within its own legislative jurisdiction.
The city may use its spending powers to remedy private discrimination if it identifies that discrimination with the particularity required by the 14th amendment.
If the city could show that it had essentially become a passive participant in a system of racial exclusion in the construction industry, it is clear that the city could take affirmative steps to dismantle such a system.
The purpose of strict scrutiny is to smoke 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.
The test also 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 racial prejudice.
One of the central arguments for using a less exacting standard is that the measures were put in place by the dominant racial group. Here, that does not apply because 5 of 9 of the board members are black.
A generalized assertion that there has been past discrimination in an entire industry provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy.
It is sheer speculation how many minority firms there would be in Richmond absent past societal discrimination.
The 30% quota cannot be tied to any injury suffered by anyone. None of the allegations proved the city of Richmond with a strong basis in evidence for its conclusion that remedial action was necessary.
The mere recitation of a benign and legitimate purpose is entitled to little or no weight; racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice.
None of the evidence presented by the city points to any identifiable discrimination in the Richmond construction industry.
Allowing this would open the door to competing claims for remedial relief by every disadvantaged group.
If the 30% set-aside was narrowly tailored to compensated black contractors for past discrimination, why are the forced to share this benefit with Eskimos? This gross over-inclusiveness strongly impugns the city's claim of remedial motivation.
It is almost impossible to determine whether the plan is narrowly tailored to remedy prior discrimination since it is not linked to identified discrimination in any way.
The city did not consider any race neutral means to achieve the same goal.
It invalidly rests on the assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population.
I believe that a governmental decision that rests on racial classification could be permissible both for remedying past wrongs and for some other reason.
I do not believe that racial discrimination can ever be used to ameliorate the effects of past discrimination.
There is only one circumstance in which the states may act by race to undo the effects of past discrimination: where it is necessary to eliminate their own maintenance of a system of unlawful racial classification (underpayment of blacks, e.g.).
Nothing in the Constitution can be construed to prevent Richmond from allocating a portion of its contracting dollars for minority controlled businesses.
This case is indistinguishable from the federal set-aside plan in Fullilove v. Klutznick (federal law which required gov'ts to set aside 10% of federal monies for minority businesses).
This decision will discourage states from attempting to rectify the scourge of past discrimination.
Affirmative action is much different from discrimination and should be judged in the same way. Strict scrutiny is not appropriate.