Commentators are heralding (or decrying, as the case may be) the United States Supreme Court’s opinion in City of Richmond v. J. A. Croson Company, 55 U.S.L.W. 4132 (1989), as a turning point in the philosophical outlook of the Supreme Court and, more specifically, its view of “remedial” or “reverse” discrimination. In fact, although the Supreme Court’s holding in Richmond is a tiny step in the right direction, each of the five separate opinions filed endorse the incorrect assumptions underlying not only remedial discrimination but most of the intrusions into individual rights made by the courts in the twentieth century.
The case involved a Richmond plan requiring all prime contractors for City of Richmond projects to subcontract thirty percent of public works funds paid on the project to minority-owned contracting companies. The plan stated that it was remedial. An application for waiver could be made on the basis of impossibility. According to The New York Times of January 25, 1989 (pg. A18), some 36 states and 200 local governments have such remedial plans establishing quotas or requiring reasonable efforts to include minorities on government projects.
In the Richmond case, J. A. Croson Company, the prime contractor, could not find a minority contractor to perform the requisite portion of the plumbing project at issue. Croson submitted its bid and requested a waiver. Subsequently, a minority company willing to do the job came forward, but its participation would have led to an $8000 increase in the cost of the work. J. A. Croson (which was the only bidder), asked the City to raise the contract price or waive the minority participation requirement. The City refused both requests and said it would have the project rebid. J. A. Croson sued and the case eventually reached the Supreme Court.
As lawyer and law student readers will know, for most of the twentieth century, analysis of the Equal Protection Clause of the Fourteenth Amendment to the Constitution has involved level upon level of error. First, it is assumed – as it is in all areas of constitutional law – that rights are not absolute, and may be overridden if there is a sufficient government interest, which is “balanced” against the right. In balancing the right to equal protection and the governmental interest, the courts have established a tiered system of review: certain “suspect classifications” (such as race) or intrusions into “fundamental” rights are subject to more rigorous examination (“strict scrutiny”) in determining whether the government action was justified. In cases requiring strict scrutiny, the right may still be curtailed, but only on a showing of “compelling” state interest. In other cases, the right may be overridden if there is a “rational relationship” between the government action and the governmental interest being pursued.
Of course, this Byzantine analytical superstructure could be swept aside in a moment if it were understood that rights are absolute and cannot be “balanced,” that government can never discriminate on the basis of race and that there is no need for “scrutiny,” strict or otherwise. No such suggestion is made in the Richmond case.
The “turning point” in the Richmond decision is the agreement of a majority of Justices that “strict scrutiny,” rather than a relaxed standard of review, applies to remedial discrimination by the States, as well as to plain old discrimination, and that the discrimination must really be remedial; there must be specific evidence of past discrimination. (Understand that this does not mean evidence of discrimination by the government against a particular individual – just a pattern of discrimination in some school district, industry, etc. In this case there was little evidence of discrimination with respect to City construction projects beyond statistics showing the participation of minorities. As Justice O’Connor pointed out, the Richmond plan defined “minority” to include Aleuts, when it may very well have been that no Aleut ever lived in Richmond, much less tried to obtain a City subcontracting award.) This, pitifully, is as far as the touted new “conservative” Supreme Court got in its main opinion; there is no hint of the absolutism of rights, no suspicion that perhaps “suspect classification” analysis is discriminatory in its own right; there is just the announcement that while State governments may discriminate, and may do so for the purpose of remedying past discrimination, they must be able to show that there was discrimination in the past and that the plan they adopt is appropriate for the remedial purpose.
Justice Scalia, who wrote a separate opinion, got a bit further; he strongly opposes any racial preferences for remedial purposes, except where absolutely necessary to dismantle a discriminatory system (e.g., raising the pay scale of blacks currently being paid less than whites) or to remedy discrimination against an identified victim (e.g., firing a white man to give the job to a black man wrongly denied the job because of race). Of course, neither of these examples reflects a racial preference or discrimination, but merely an elimination of a racial preference. Indeed, with respect to discrimination in general, whether remedial or not, Justice Scalia believes there should be no governmental classifications unless justified by some “imminent danger to life and limb,” such as a race riot in a prison requiring temporary segregation of inmates. However, Justice Scalia’s opinion rests upon and expressly sanctions “strict scrutiny” analysis. Remedial discrimination is, in Justice Scalia’s view, constitutionally offensive because it cannot pass strict scrutiny; temporary segregation in a prison riot can.
The Richmond case is not a step backward. In practical terms, it may result in the elimination of some remedial discrimination plans. (The application of strict scrutiny, historically, has generally resulted in disapproval of the state action under consideration.) It does not signal a significant change in philosophical approach. In fact, that is the significance of the Richmond case. Contrary to all reports, there has been no fundamental change as a result of the new conservative majority on the Supreme Court and there will not be, until basic philosophical premises are questioned.
Copyright © The Association for Objective Law. All rights reserved. Republished in Capitalism Magazine by permission of TAFOL.
