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The case of City of Richmond v. J.A. Croson Co. deals with the conflict between equal treatment and the use of race-based measures to address past discrimination. The Supreme Court reviewed the constitutionality of state and local programs that allocate public contracting opportunities exclusively to minority-owned businesses. The Richmond City Council adopted the Minority Business Utilization Plan in 1983, which required prime contractors to subcontract at least 30% of the dollar amount of the contract to one or more Minority Business Enterprises (MBE’s) when awarded construction contracts by the city. Croson challenged the constitutionality of the Richmond ordinance that included a 30% set-aside for MBEs in public contracts. The Fourth Circuit Court of Appeals upheld the ordinance, but the Supreme Court vacated the opinion and remanded the case for further consideration. On remand, the Court of Appeals struck down the Richmond set-aside program as violating both prongs of strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment. The court found that findings of societal discrimination will not suffice; the findings must concern prior discrimination by the government unit involved. The Richmond Plan violates personal rights and the principle of equal dignity and respect for all individuals by denying certain citizens the opportunity to compete for public contracts based solely on their race. Public entities have a compelling interest in ensuring that public funds do not finance private prejudice.
The court ruled that the 30% quota for minority firms in the construction industry is unjustified and violates the Equal Protection Clause. Legislation that grants special preference based on race risks assuming that those who receive the preference are less qualified solely based on their race. Discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society. The city can take measures against those who discriminate and may even use narrowly tailored racial preferences to break down patterns of exclusion. The city can also use race-neutral methods to increase accessibility of contracting opportunities for small entrepreneurs of all races. Justice Scalia argues that race-conscious remedies should only be used if necessary to eliminate an unlawful racial classification, and a race-neutral approach is preferred. Justice Marshall dissents, arguing that Richmond should be allowed to allocate contracting dollars to minority-owned businesses to address past discrimination and inequities. The author argues that affirmative action programs must have important governmental objectives and be substantially related to achieving those objectives to be constitutional.
The passage discusses the standard of review for racial classifications and remedies for past discrimination. Racial classifications promoting hatred warrant strict scrutiny, while those drawn to remedy past discrimination should not be subjected to conventional strict scrutiny. However, the majority's conclusion that remedial classifications do not warrant a different standard of review under the Constitution is problematic, as it implies that racial discrimination is largely a thing of the past, which is not true. Arbitrary limitations on race-conscious relief would freeze the status quo and impede effective remedies. The dissenting opinion supports Richmond's set-aside plan and believes the fight against racial discrimination is far from over.
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