The legal case involves the use of race-based measures to address past discrimination and the tension between the Fourteenth Amendment's requirement of equal treatment. The Supreme Court found that the Minority Business Utilization Plan of Richmond, Virginia violated the Equal Protection Clause of the Fourteenth Amendment as it was not narrowly tailored to accomplish a remedial purpose and was chosen arbitrarily. However, the Court had previously upheld a similar minority set-aside provision in the Public Works Employment Act of 1977. The court ruled that a statistical disparity between eligible minority-owned businesses and their membership must be proven by the city to establish a set-aside program. Evidence of past discrimination must be identified with specificity before using race-conscious relief. The court clarified that its decision does not prevent a state or local entity from taking action to rectify the effects of identified discrimination within its jurisdiction.
Justice Stevens, concurring in part and concurring in the judgment, argues that policy decisions should be evaluated based on their probable impact on the future and that the Fourteenth Amendment aims to promote equal opportunity for all citizens. He disagrees with the premise that a governmental decision based on a racial classification is never permissible except as a remedy for a past wrong. However, he agrees with the Court's explanation that the Richmond ordinance cannot be justified as a remedy for past discrimination. Justice Stevens emphasizes that in the case of public contracting, there is no basis for suggesting that the race of a subcontractor or general contractor should have any relevance to their access to the market if we disregard the past. The Richmond City Council failed to carefully identify the characteristics of the two classes of contractors that are favored and disfavored by its ordinance, and instead relied on stereotypical analysis, which violates the Equal Protection Clause. The justification for the ordinance is based on past discrimination, but the class of persons benefited by the ordinance is not limited to victims of such discrimination. The minority-business enterprises that have benefited from the ordinance may be firms that have prospered despite past discriminatory conduct that may have harmed other minority firms.
Justice Kennedy agrees with Justice O'Connor's opinion that the state has the power and duty to eradicate racial discrimination and its effects, but he disagrees with Part II, which examines the case law upholding congressional power to grant preferences based on explicit racial classification. Justice Scalia's opinion suggests a rule of automatic invalidity for racial preferences, but Justice O'Connor's less absolute rule requires any racial preference to face the most rigorous scrutiny by the courts. The strict scrutiny standard forbids the use of narrowly drawn racial classifications except as a last resort. Evidence supporting a judicial finding of intentional discrimination may justify remedial legislative action.
Justice Scalia agrees with the Court's decision that strict scrutiny must be applied to all government classifications by race, but disagrees with the suggestion that state and local governments may discriminate on the basis of race to ameliorate the effects of past discrimination. He argues that the benign purpose of compensating for social disadvantages cannot be pursued through racial discrimination. Justice Scalia believes that the Civil War Amendments were designed to take away all possibility of oppression by law because of race or color and to be limitations on the power of the States and enlargements of the power of Congress. Therefore, he does not believe that the Court's decision in Fullilove v. Klutznick controls the case before them. Justice Scalia argues that the only circumstance in which states may use race to "undo the effects of past discrimination" is when it is necessary to eliminate their own maintenance of an unlawful racial classification system.
In this legal case, Justice Marshall dissents from the majority opinion that Richmond's set-aside program for minority-owned businesses is unconstitutional under the Equal Protection Clause. He argues that Richmond has provided sufficient evidence of past discrimination and that the majority's decision will discourage governmental entities from taking action to rectify past discrimination. The Supreme Court found that Richmond had a legitimate basis for remedial action due to past racial discrimination, supported by both national and local evidence. The Court recognized the existence of public and private housing discrimination in Richmond, which perpetuated racial segregation in the city. The author disagrees with the majority's view that the congressional and Executive Branch findings in Fullilove have "extremely limited" probative value in this case.
Justice Blackmun dissents from the majority opinion and agrees with Justice Marshall that the city of Richmond's efforts to combat discrimination in the construction trades should not be invalidated. He recognizes the past discrimination and criticizes the majority's approach as backward. He is optimistic that the Court will eventually uphold the Constitution's commitment to equality.
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