City of Richmond v. J. A. Croson Co.
The Supreme Court struck down Richmond, Virginia's program requiring prime contractors on city construction jobs to subcontract 30% of the work to minority-owned businesses, ruling that the city had not shown enough specific evidence of past discrimination to justify using race as the deciding factor.
The decision means cities and states, unlike Congress, must show detailed proof of discrimination in their own jurisdictions before adopting race-based contracting preferences, and any such program must pass the strictest constitutional test — reshaping how local minority set-aside programs nationwide could be defended in court.
How it got here: A federal trial court and a Fourth Circuit panel upheld the plan; after remand in light of Wygant, a divided Fourth Circuit panel struck it down, and the city appealed to the Supreme Court.
The Case in Depth
What happened
Richmond's City Council adopted a plan requiring prime contractors on city construction jobs to subcontract at least 30% of the dollar value to minority-owned businesses, citing the tiny share of contracts minority firms had received. J.A. Croson Company, a plumbing contractor, was the sole bidder on a jail fixtures contract but could not find a qualifying minority supplier at a competitive price, and the city denied its waiver request and rebid the job instead.
The question before the Court
Could a city force construction companies to give nearly a third of public contract dollars to minority-owned firms without showing specific evidence that the city itself had discriminated?
The Court's answer
No — the Court ruled that Richmond could not require contractors to set aside 30% of subcontracting dollars for minority-owned businesses without much stronger, more specific proof that discrimination had actually occurred in the city's own construction industry. The Court held that unlike Congress, which has special constitutional power to address discrimination nationwide, cities and states must show identified, local evidence of discrimination before using race as a factor in contracting decisions, and any such use of race must survive the toughest constitutional test.
Richmond's evidence — a gap between the city's black population and the tiny share of contracts minority firms received, plus general statements about industry bias and old national findings — was not enough. It amounted to a claim about broad societal discrimination, not proof that Richmond's own contracting practices, or specific contractors, had excluded qualified minority firms.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Local governments that had adopted or were considering minority-contracting set-asides now needed hard local evidence — not just national statistics or general assertions of past bias — before using race as a criterion. Minority-owned businesses lost a legal tool many cities had used to increase their share of public contracting dollars, while contractors challenging such programs gained a powerful precedent.
What changes now
The judgment striking down Richmond's set-aside plan is affirmed, and Richmond -- whose ordinance had already expired -- cannot revive it in this form; the case still went forward on Croson's damages claim for the earlier contract denial. More broadly, the ruling required cities and states across the country with similar minority-contracting preferences to reassess whether they had the kind of specific, localized evidence of discrimination the Court demanded, or risk having their programs struck down as well.
What this does not decide
The Court did not rule out race-conscious remedies altogether: it said a city that shows it was a 'passive participant' in private discrimination, or that has specific evidence of exclusion by contractors or trade groups, could still act, including through narrowly tailored racial preferences in extreme cases. It also left Congress's broader powers under Fullilove undisturbed.
Concurrences and dissents
Concurrence — Justice Stevens
Stevens joined only Parts I, III-B, and IV, rejecting the premise that race-based government action is permissible only as a remedy for past wrongs. He argued some race-based decisions can serve legitimate forward-looking purposes, but found Richmond's ordinance failed because it never identified the actual characteristics of the benefited and burdened classes, relying instead on stereotype.
Concurrence — Justice Kennedy
Kennedy joined all but Part II, declining to endorse the discussion of Congress's power under Fullilove. He agreed strict scrutiny was the correct standard and stressed that racial neutrality is the driving constitutional principle, while leaving open questions about federal versus state power under the Fourteenth Amendment for another case.
Concurrence — Justice Scalia
Scalia agreed strict scrutiny should apply to all racial classifications but rejected the majority's suggestion that states may ever use race to remedy diffuse past discrimination. He argued states may act by race only to eliminate their own current unlawful racial classifications, not merely to address the lingering effects of past societal bias.
Dissent — Justice Marshall
“More fundamentally, today's decision marks a deliberate and giant step backward in this Court's affirmative-action jurisprudence.”Marshall's central objection to the majority's new strict-scrutiny standard for local remedial programs.
Marshall argued Richmond's evidence -- local statistics, testimony from officials, and the same national findings Congress relied on in Fullilove -- easily met the standard the Court itself had used in Wygant, and that the majority's new strict-scrutiny rule and prima facie violation requirement would cripple sincere local efforts to address discrimination, especially by cities with minority-led governments.
Dissent — Justice Blackmun
Blackmun joined Marshall's dissent and added that he was struck by the irony of the Court striking down Richmond's modest, time-limited effort to address its own well-documented history of discrimination, expressing hope the Court would eventually return to a more receptive view of such remedial efforts.
How the Court got there
The legal reasoning, step by step
- The Court held that Congress has unique remedial power under Section 5 of the Fourteenth Amendment to address discrimination nationwide, but that states and cities acting under Section 1 do not enjoy that same broad authority and must instead identify discrimination within their own jurisdiction before using race as a tool.
- Because Richmond's plan sorted people by race, the Court applied strict scrutiny -- the toughest test in constitutional law, requiring a very strong government reason for using race and a law tailored as narrowly as possible to that reason -- regardless of whether the classification was framed as benign or remedial.
- Applying that test, the Court found Richmond's evidence -- a statistical gap between the city's black population and the tiny share of contracts awarded to minority firms, plus general statements about industry-wide bias and a decades-old congressional finding of nationwide discrimination -- amounted only to a claim of broad 'societal discrimination,' which cannot justify a racial quota because it has no logical stopping point.
- The Court concluded that comparing the minority population of the city to the number of contracts awarded was the wrong measure, because the relevant comparison should have been to the number of minority-owned firms actually qualified and available to bid, information the city had never gathered.
- Because the plan swept in racial groups like Eskimos, Aleuts, and other minorities with no documented history of exclusion in Richmond's construction industry, and because the city never considered race-neutral fixes such as easier bonding or financing rules, the Court found the 30% quota was not narrowly tailored to any actual, identified injury.
Doctrinal impact
Cases affected by this decision
Distinguishes Fullilove v. Klutznick (448 U.S. 448)
The Court said Congress's unique power to enforce the Fourteenth Amendment does not extend the same leeway to cities and states.
Reaffirms Wygant v. Jackson Board of Education (476 U.S. 267)
The Court applied Wygant's requirement of a strong evidentiary basis for remedial race-based action to a city contracting program.
Reaffirms University of California Regents v. Bakke (438 U.S. 265)
The Court relied on Justice Powell's Bakke opinion that societal discrimination alone cannot justify a racial quota.