488 U.S. 469 (1989), argued 5 Oct. 1988, decided 23 Jan. 1989 by vote of 6 to 3; O’Connor for the Court, Stevens, Kennedy, and Scalia concurring, Marshall, Brennan, and Blackmun in dissent. In Croson, a majority of the Supreme Court was finally assembled in support of the application of the strict scrutiny standard to determine the constitutionality of affirmative action plans based on race. However, it is still not possible to determine specifically the content of this standard as applied to affirmative action.
In 1983, the Richmond, Virginia, City Council enacted the Minority Business Utilization Plan requiring prime contractors to subcontract at least 30 percent of the dollar amount of the contract to minority business enterprises. The plan was to remain in effect for five years and contained waiver provisions for cases where every feasible attempt to comply failed.
The Supreme Court found the plan in violation of the Equal Protection Clause of the Fourteenth Amendment. It rejected Richmond's argument that it was legitimately copying an earlier federal minority business set-aside law that had been upheld in Fullilove v. Klutznick (1980). Fullilove was distinguishable, Justice Sandra Day O’Connor wrote, because section 5 of the Fourteenth Amendment granted Congress a unique mandate to enforce its dictates. States, however, are not equally empowered by the Constitution. Justice Antonin Scalia's dissent went even further, declaring that the Constitution is colorblind and that race-conscious plans, presumably even federal ones, are unacceptable.
Because of Croson most state or local affirmative action plans will now be judged by the strict scrutiny standard. When combined with two earlier cases, Wygant v. Jackson Board of Education (1986) and United States v. Paradise (1987), Croson seems to require that these plans demonstrate a compelling interest that requires a showing of past discrimination, not mere reliance on societal discrimination for their justification. They must also choose means that are narrowly tailored to vindicate that interest and must take into account factors such as the necessity of the relief and the efficiency of alternative remedies, the duration of the remedy, the flexibility of the remedy and/or the availability of waivers, the relationship of the numerical goals to minorities within the relevant labor market, and the likely effect on innocent parties. It is uncertain how many of these factors, and in what combination and circumstances, a majority of the Court will require in future cases. What is clear is that the justices remain deeply suspicious of affirmative action. In Adarand Constructors, Inc. v. Peña (1995), they held that federal affirmative action programs, like state affirmative action programs, must meet a test of “strict scrutiny” in order to be constitutional.
James E. Jones, Jr.