St. Mary's Law Journal


Martha J. Hess


In City of Richmond v. J.A. Croson Co., the Supreme Court held a minority business utilization plan (Richmond Plan) was violative of the Fourteenth Amendment’s Equal Protection Clause. The Richmond Plan required all builders awarded city construction contracts to subcontract, at minimum, 30% of the contract value to Minority Business Enterprises. A state government enacting legislation that burdens one class of persons and benefits a similarly-situated class must provide sufficient justification for its action to survive equal protection analysis. When distinction is based on race or national origin—classes considered inherently suspect—a reviewing court subjects the governmental legislation to strict scrutiny, the highest level of review. To pass strict scrutiny, the government must demonstrate that it had a compelling interest in enacting the legislation, and it chose narrowly tailored means to advance its purpose. In City of Richmond v. JA. Croson Co., the majority stated the existence of societal discrimination alone is not adequate justification for enacting race-based legislation. Further, the city's statistical evidence did not establish actual discrimination in the construction industry in the Richmond area. The Richmond Plan was also not narrowly tailored because race-neutral alternatives were not considered, and the 30% quota was not linked to any identifiable goal. Strict scrutiny provides that the means used to further the compelling goal fit that goal so closely that there is little chance that racial distinction was brought about by underlying stereotypes or racial prejudice. The Richmond Plan was hastily enacted, without a full inquiry into the effects of discrimination faced by minority owned construction companies in the Richmond area. Although the majority was correct in finding the Richmond Plan to be without sufficient proof of discrimination, the requirements for proving discrimination after Croson may make it difficult for some municipalities to adopt affirmative action plans.


St. Mary's University School of Law