richmond croson argued october decided january appellant city adopted minority business utilization plan plan requiring prime contractors awarded city construction contracts subcontract least dollar amount contract one minority business enterprises mbe plan defined include business anywhere country least owned controlled black oriental indian eskimo aleut citizens although plan declared remedial nature adopted public hearing direct evidence presented city discriminated basis race letting contracts prime contractors discriminated minority subcontractors evidence introduced included statistical study indicating although city population black prime construction contracts awarded minority businesses recent years figures establishing variety local contractors associations virtually mbe members city counsel conclusion plan constitutional fullilove klutznick statements plan proponents indicating widespread racial discrimination local state national construction industries pursuant plan city adopted rules requiring individualized consideration bid request waiver providing waiver granted upon proof sufficient qualified mbe unavailable unwilling participate appellee construction company sole bidder city contract denied waiver lost contract brought suit alleging plan unconstitutional fourteenth amendment equal protection clause federal district upheld plan respects appeals affirmed applying test derived principal opinion fullilove supra accorded great deference congress findings past societal discrimination holding minority certain federal construction grants violate equal protection component fifth amendment however appellee petition certiorari case vacated remanded consideration light intervening decision wygant jackson board education plurality applied strict scrutiny standard holding layoff program agreed school board local teachers union violated fourteenth amendment equal protection clause remand appeals held city plan violated prongs strict scrutiny plan justified compelling governmental interest since record revealed prior discrimination city awarding contracts narrowly tailored accomplish remedial purpose held judgment affirmed affirmed justice delivered opinion respect parts iv concluding city failed demonstrate compelling governmental interest justifying plan since factual predicate supporting plan establish type identified past discrimination city construction industry authorize relief fourteenth amendment equal protection clause pp generalized assertion past discrimination entire construction industry justify use unyielding racial quota since provides guidance city legislative body determine precise scope injury seeks remedy allow decisionmaking essentially limitless scope duration city argument attempting remedy various forms past societal discrimination alleged responsible small number minority entrepreneurs local contracting industry fails since city also lists host nonracial factors seem face member racial group seeking establish new business enterprise deficiencies working capital inability meet bonding requirements unfamiliarity bidding procedures disability caused inadequate track record pp none facts cited city relied district singly together provide basis prima facie case constitutional statutory violation anyone city construction industry fact plan declares remedial insufficient since mere recitation benign legitimate purpose racial classification entitled little weight similarly views plan proponents past present discrimination industry highly conclusory little probative value reliance disparity number prime contracts awarded minority businesses city minority population also misplaced since proper statistical evaluation compare percentage mbe relevant market qualified undertake city subcontracting work percentage total city construction dollars presently awarded minority subcontractors neither known city fact mbe membership local contractors associations extremely low also probative absent link number mbe eligible membership since numerous explanations dearth minority participation including past societal discrimination education economic opportunities well black white career entrepreneurial choices congress finding connection approved fullilove nationwide discrimination construction industry also extremely limited probative value since including waiver procedure national program congress explicitly recognized scope problem vary market area market area event congress acting pursuant unique enforcement powers fourteenth amendment pp evidence relied upon justice marshall dissent city history school desegregation numerous congressional reports little define scope injury minority contractors city necessary remedy justify preference size duration moreover justice marshall suggestion discrimination findings may shared jurisdiction jurisdiction unprecedented contrary decisions pp since absolutely evidence past discrimination oriental indian eskimo aleut persons aspect city construction industry plan random inclusion groups strongly impugns city claim remedial motivation plan narrowly tailored remedy effects prior discrimination since entitles black hispanic oriental entrepreneur anywhere country absolute preference citizens based solely race although many barriers minority participation construction industry relied upon city justify plan appear race neutral evidence city considered using alternative means increase minority participation city contracting moreover plan rigid quota rests upon completely unrealistic assumption minorities choose enter construction lockstep proportion representation local population unlike program upheld fullilove plan waiver system focuses upon availability mbe inquire whether particular mbe seeking racial preference suffered effects past discrimination city prime contractors given fact city must already consider bids waivers basis city interest maintaining quota system rather investigating need remedial action particular cases seem simply administrative convenience standing alone justify use suspect classification equal protection strict scrutiny pp justice joined chief justice justice white concluded part ii city identify past discrimination local construction industry particularity required equal protection clause power adopt legislation designed eradicate effects discrimination principal opinion fullilove read relieve city necessity making specific findings discrimination required clause since congressional finding past discrimination relied case made pursuant congress unique power amendment enforce therefore identify redress violations amendment provisions conversely amendment includes equal protection clause explicit constraint upon power political subdivisions must undertake remedial efforts accordance dictates section however appeals erred extent followed rote wygant plurality ruling equal protection clause requires showing prior discrimination governmental unit involved since ruling made context policy affected particular public employer work force whereas case involves state entity specific authority address discriminatory practices within local commerce jurisdiction pp justice joined chief justice justice white justice kennedy concluded parts since plan denies certain citizens opportunity compete fixed percentage public contracts based solely race wygant strict scrutiny standard review must applied requires firm evidentiary basis concluding underrepresentation minorities product past discrimination application standard dependent race burdened benefited racial classification assures city pursuing remedial goal important enough warrant use highly suspect tool means chosen fit compelling goal closely little possibility motive classification illegitimate racial prejudice stereotype relaxed standard review proposed justice marshall dissent provide means determining racial classification fact designed remedial goals since accepts remedial nature classification examination factual basis classification enactment nexus scope factual basis even level equal protection scrutiny said vary according ability different groups defend interests representative process heightened scrutiny still appropriate circumstances case since blacks constitute approximately city population hold five nine seats city council thereby raising concern political majority may acted disadvantage minority based unwarranted assumptions incomplete facts pp even absence evidence discrimination local construction industry city disposal array devices increase accessibility city contracting opportunities small entrepreneurs races suffered effects past societal discrimination including simplification bidding procedures relaxation bonding requirements training financial aid elimination modification formal barriers caused bureaucratic inertia prohibition discrimination provision credit bonding local suppliers banks pp justice stevens although agreeing plan justified remedy past discrimination concluded fourteenth amendment limit permissible racial classifications remedy past wrongs requires governmental decisions evaluated primarily studying probable impact future pp disregarding past history racial injustice even arguable basis suggesting race subcontractor contractor city projects relevance access market although race always irrelevant sound governmental decisionmaking city makes claim public interest efficient performance construction contracts served granting preference enterprises pp legislative bodies city council primarily policymaking entities promulgate rules govern future conduct raise valid constitutional concerns use political process punish characterize past conduct private citizens courts hand well equipped identify past wrongdoers fashion remedies create conditions presumably existed wrong committed broad discretion racial discrimination cases chancellors enjoy areas law fashion remedies persons proved guilty violations law pp rather engaging debate proper standard review apply litigation constructive try identify characteristics advantaged disadvantaged classes may justify disparate treatment instead carefully identifying characteristics city merely engaged type stereotypical analysis hallmark equal protection clause violations class persons benefited plan limited victims past discrimination white contractors city encompasses persons never business city minority contractors may guilty discrimination minority group members firms prospered notwithstanding discriminatory treatment similarly although plan unquestionably disadvantages white contractors guilty past discrimination blacks also punishes discriminated forbidden law never discriminated anyone pp justice kennedy concluded fourteenth amendment interpreted reduce state power eradicate racial discrimination effects public private sectors absolute duty wrongs caused intentionally state except conflict federal law state remedy violates equal protection although rule striking racial preferences necessary remedies victims unlawful discrimination serve important structural goals eliminating necessity courts pass preference enacted rule significant break precedents require test need adopted rather may assumed principle race neutrality found equal protection clause vindicated less absolute strict scrutiny standard application demonstrates city plan remedy unconstitutional preference pp justice scalia agreeing strict scrutiny must applied governmental racial classifications concluded fourteenth amendment prohibits state local governments discriminating basis race order undo effects past discrimination except one circumstance necessary eliminate maintenance system unlawful racial classification moreover state remedial power instance extends scope constitutional violation encompass continuing effects discriminatory system system eliminated pp state remains free undo effects past discrimination permissible ways involve classification race example according contracting preference small new businesses actual victims discrimination identified latter instance classification based race fact victims wronged pp john payton argued cause appellant briefs mark hersh drew carneal michael sarahan michael jackson john pickering walter ryland argued cause filed brief appellee briefs amici curiae urging reversal filed state maryland joseph curran attorney general charles monk ii deputy attorney general state michigan frank kelley attorney general louis caruso solicitor general brent simmons assistant attorney general state new york et al robert abrams attorney general new york peter sherwood solicitor general suzanne lynn marjorie fujiki marla tepper assistant attorneys general john van de kamp attorney general california joseph lieberman attorney general connecticut frederick cooke corporation counsel district columbia neil hartigan attorney general illinois james shannon attorney general massachusetts hubert humphrey iii attorney general minnesota cary edwards attorney general new jersey anthony celebrezze attorney general ohio dave frohnmayer attorney general oregon james attorney general rhode island travis medlock attorney general south carolina kenneth eikenberry attorney general washington charles brown attorney general west virginia donald hanaway attorney general wisconsin joseph meyer attorney general wyoming alpha kappa alpha sorority et al eva jefferson paterson robert harris judith kurtz william mcneill iii nathaniel colley american civil liberties union et al edward chen steven shapiro john powell john hart ely city san francisco california et al louise renne burk delventhal lawyer committee civil rights law et al stephen pollak james bird paula sweeney grover hankins judith lichtman conrad harper stuart land norman redlich william robinson judith winston antonia hernandez maryland legislative black caucus koteles alexander bernadette gartrell minority business enterprise legal defense education fund et al anthony robinson russell frisby andrew sandler naacp legal defense educational fund julius chambers charles stephen ralston ronald ellis eric schnapper napoleon williams clyde murphy national league cities et al benna ruth solomon david strauss briefs amici curiae urging affirmance filed solicitor general fried assistant attorney general reynolds deputy solicitor general ayer deputy assistant attorney general clegg glen nager david flynn league robert helman michele odorizzi daniel harris justin finger jeffrey sinensky jill kahn associated specialty contractors john mcguinn gary lieber equal employment advisory council robert williams douglas mcdowell mountain legal foundation constance brooks pacific legal foundation ronald zumbrun john findley southeastern legal foundation stephen parker washington legal foundation et al daniel popeo paul kamenar justice announced judgment delivered opinion respect parts iv opinion respect part ii chief justice justice white join opinion respect parts chief justice justice white justice kennedy join case confront tension fourteenth amendment guarantee equal treatment citizens use measures ameliorate effects past discrimination opportunities enjoyed members minority groups society fullilove klutznick held congressional program requiring certain federal construction grants awarded minority contractors violate equal protection principles embodied due process clause fifth amendment relying largely decision fullilove lower federal courts applied similar standard review assessing constitutionality state local minority provisions equal protection clause fourteenth amendment see south florida chapter associated general contractors america metropolitan dade county cert denied ohio contractors assn keip since decision two terms ago wygant jackson board education lower federal courts attempted apply standards evaluating constitutionality state local programs allocate portion public contracting opportunities exclusively businesses see michigan road builders milliken appeal docketed associated general contractors cal city cty san francisco noted probable jurisdiction case consider applicability decision wygant minority program adopted city richmond virginia april richmond city council adopted minority business utilization plan plan plan required prime contractors city awarded construction contracts subcontract least dollar amount contract one minority business enterprises mbe ordinance codified richmond city code apply city contracts awarded prime contractors ibid plan defined mbe business least percent owned controlled minority group members minority group members defined itizens blacks orientals indians eskimos aleuts ibid geographic limit plan otherwise qualified mbe anywhere avail plan declared remedial nature enacted purpose promoting wider participation minority business enterprises construction public projects plan expired june effect approximately five years ibid plan authorized director department general services promulgate rules shall allow waivers individual situations contractor prove satisfaction director requirements herein achieved end director promulgated contract clauses minority business utilization plan contract clauses paragraph rules provided partial complete waiver foregoing requirement shall granted city exceptional circumstances justify waiver must shown every feasible attempt made comply must demonstrated sufficient relevant qualified minority business enterprises unavailable unwilling participate contract enable meeting mbe goal record exh see croson richmond croson plan adopted richmond city council public hearing app seven members public spoke merits ordinance five opposition two favor proponents provision relied study indicated general population richmond black city prime construction contracts awarded minority businesses period also established variety contractors associations whose representatives appeared opposition ordinance virtually minority businesses within membership see brief appellant chart listing minority membership six local construction industry associations city legal counsel indicated view ordinance constitutional decision fullilove klutznick app councilperson marsh proponent ordinance made following statement information however want make sure put record practicing law community since familiar practices construction industry area state around nation say without equivocation general conduct construction industry area state around nation one race discrimination exclusion basis race widespread opponents ordinance questioned wisdom legality argued disparity minorities population richmond number prime contracts awarded mbe little probative value establishing discrimination construction industry statement councilperson wake representatives various contractors associations questioned whether enough mbe richmond area satisfy requirement statement beck statement singer statement murphy murphy noted construction firms minority owned located california new york illinois florida hawaii predicted ordinance thus lead windfall minority firms richmond ibid councilperson gillespie indicated concern many local labor jobs held blacks whites lost ordinance put geographic limit mbe eligible representatives local contractors organizations indicated discriminate basis race fact actively seeking minority members statement shuman company work belonged contractors organizations nobody know black puerto rican minority ever turned actually sought join become part us see also statement watts councilperson gillespie expressed concern legality plan asked vote delayed pending consultation outside counsel suggestion rejected ordinance enacted vote six two councilperson gillespie abstaining september city richmond issued invitation bid project provision installation certain plumbing fixtures city jail september eugene bonn regional manager croson company croson mechanical plumbing heating contractor received bid forms project involved installation stainless steel urinals water closets city jail products either two manufacturers specified acorn engineering company acorn bradley manufacturing company bradley bonn determined meet requirement minority contractor supply fixtures provision fixtures amounted total contract price september bonn contacted five six mbe potential suppliers fixtures contacting three local state agencies maintained lists mbe mbe expressed interest project tendered quote october day bids due bonn telephoned group mbe time melvin brown president continental metal hose continental local mbe indicated wished participate project brown subsequently contacted two sources specified fixtures order obtain price quotation one supplier ferguson plumbing supply mbe already made quotation directly croson refused quote fixtures continental brown also contacted agent bradley one two manufacturers specified fixtures agent familiar brown continental indicated credit check required take least days complete october sealed bids opened croson turned bidder bid brown bonn met personally bid opening brown informed bonn difficulty obtaining credit approval hindered submission bid october croson still received bid continental date submitted request waiver croson waiver request indicated continental unqualified mbe contacted unresponsive unable quote upon learning croson waiver request brown contacted agent acorn fixture manufacturer specified city based upon discussions acorn brown subsequently submitted bid fixtures croson continental bid higher price croson included fixtures bid city constituted increase market price fixtures added bonding insurance using continental raised cost project day brown contacted acorn also called city procurement officials told continental mbe supply fixtures specified city jail contract november city denied croson waiver request indicating croson days submit mbe utilization commitment form warned failure result bid considered unresponsive croson wrote city november letter bonn indicated continental authorized supplier either acorn bradley fixtures also noted acorn quotation brown subject credit approval case substantially higher quotation croson received finally bonn noted continental bid submitted days prime bids due second letter croson laid additional costs using continental supply fixtures entail asked allowed raise overall contract price accordingly city denied croson request waiver suggestion contract price raised city informed croson decided rebid project december counsel croson wrote city asking review waiver denial city attorney responded city elected rebid project appeal decision shortly thereafter croson brought action federal district eastern district virginia arguing richmond ordinance unconstitutional face applied case district upheld plan respects see supplemental app juris statement supp original opinion divided panel fourth circuit appeals affirmed croson courts applied test derived common concerns articulated various opinions fullilove klutznick university california regents bakke see croson supra relying great deference accorded congress findings past discrimination fullilove panel majority indicated view standard applied richmond city council stating unlike review make lower decision task determine sufficient evidence sustain council majority position traditional sense weighing evidence rather determine whether legislative history demonstrates council reasonably concluded private governmental discrimination contributed negligible percentage public contracts awarded minority contractors quoting fullilove supra powell concurring croson sought certiorari granted writ vacated opinion appeals remanded case consideration light intervening decision wygant jackson board education see remand divided panel appeals struck richmond program violating prongs strict scrutiny equal protection clause fourteenth amendment croson richmond croson ii majority found core holding wygant show plan justified compelling governmental interest municipality wishes employ racial preference rest assumptions historical discrimination read requirement indings societal discrimination suffice findings must concern prior discrimination government unit involved quoting wygant supra emphasis original case debate city council meeting revealed record prior discrimination city awarding public contracts croson ii supra moreover statistics comparing minority population richmond percentage prime contracts awarded minority firms little probative value establishing prior discrimination relevant market actually suggested political remedial basis racial preference concluded plan supported compelling governmental interest every plan enacted past enacted future appeals went hold even city demonstrated compelling interest use quota narrowly tailored accomplish remedial purpose found figure chosen arbitrarily tied number minority subcontractors richmond relevant number ibid dissenting judge argued majority misconstrue misapplie decision wygant noted probable jurisdiction city appeal affirm judgment ii parties supporting amici fight initial battle scope city power adopt legislation designed address effects past discrimination relying decision wygant appellee argues city must limit remedial efforts eradicating effects prior discrimination essentially position taken appeals appellant argues decision fullilove controlling result city richmond enjoys sweeping legislative power define attack effects prior discrimination local construction industry find neither two rather stark alternatives withstand analysis fullilove upheld minority contained public works employment act pub stat et seq act challenge based equal protection component due process clause act authorized billion appropriation federal grants state local governments use public works projects primary purpose act give national economy quick boost recessionary period funds committed state local grantees september act also contained following requirement except extent secretary determines otherwise grant shall made act unless applicant gives satisfactory assurance secretary least per centum amount grant shall expended minority business enterprises fullilove quoting stat mbe defined businesses effectively controlled citizens negroes orientals indians eskimos aleuts ibid principal opinion fullilove written chief justice burger employ strict scrutiny traditional standard equal protection review chief justice noted outset although racial classifications call close examination time bound approach task appropriate deference congress branch charged constitution power provide general welfare enforce appropriate legislation equal protection guarantees fourteenth amendment principal opinion asked two questions first objectives legislation within power congress second limited use racial ethnic criteria permissible means congress carry objectives within constraints due process clause issue congressional power chief justice found congress commerce power sufficiently broad allow reach practices prime contractors federally funded local construction projects congress mandate state local government compliance program power enforce fourteenth amendment citing katzenbach morgan chief justice next turned constraints congress power employ remedial relief opinion stressed two factors upholding mbe first unique remedial powers congress fourteenth amendment deal limited remedial powers federal example broad remedial powers congress fundamental organ government state federal repose comprehensive remedial power congress expressly charged constitution competence authority enforce equal protection guarantees principal opinion emphasis added reviewing legislative history behind act principal opinion focused evidence congress nationwide history past discrimination reduced minority participation federal construction grants chief justice also noted congress drew experience small business act extended aid minority businesses chief justice concluded congress abundant historical basis conclude traditional procurement practices applied minority businesses perpetuate effects prior discrimination second factor emphasized principal opinion fullilove flexible nature two congressional assumptions underlay mbe program first effects past discrimination impaired competitive position minority businesses second adjustment effects past discrimination assure least funds federal grant program flow minority businesses chief justice noted assumptions rebutted grantee seeking waiver requirement thus waiver sought minority businesses available fill requirement importantly mbe attempted exploit remedial aspects program charging unreasonable price price attributable present effects prior discrimination chief justice indicated without fine tuning remedial purpose statute pass ed muster concurring opinion justice powell relied legislative history adduced principal opinion finding congress reasonably concluded private governmental discrimination contributed negligible percentage public contracts awarded minority contractors justice powell also found means chosen congress particularly light flexible waiver provisions reasonably necessary address problem identified justice powell made clear governmental entities might show congress undertaking measures degree specificity required findings discrimination breadth discretion choice remedies may vary nature authority governmental body appellant supporting amici rely heavily fullilove proposition city council like congress need make specific findings discrimination engage relief thus appellant argues perversion federalism hold federal government compelling interest remedying effects racial discrimination public works program city government brief appellant omitted appellant ignores congress unlike state political subdivision specific constitutional mandate enforce dictates fourteenth amendment power enforce may times also include power define situations congress determines threaten principles equality adopt prophylactic rules deal situations see katzenbach morgan correctly viewed positive grant legislative power authorizing congress exercise discretion determining whether legislation needed secure guarantees fourteenth amendment see also south carolina katzenbach similar interpretation congressional power fifteenth amendment civil war amendments worked dramatic change balance congressional state power matters race speaking thirteenth fourteenth amendments ex parte virginia stated intended really limitations powers enlargements power congress congress may identify redress effects discrimination mean fortiori political subdivisions free decide remedies appropriate section fourteenth amendment explicit constraint state power must undertake remedial efforts accordance provision hold otherwise cede control content equal protection clause state legislatures myriad political subdivisions mere recitation benign compensatory purpose use racial classification essentially entitle exercise full power congress fourteenth amendment insulate racial classification judicial scrutiny believe result contrary intentions framers fourteenth amendment desired place clear limits use race criterion legislative action federal courts enforce limitations see associated general contractors cal city cty san francisco kozinski city like federal government regard findings must make justify remedial action see also days fullilove yale hereinafter days fullilove clearly focused constitutionality congressionally mandated program emphasis original bohrer bakke weber fullilove benign discrimination congressional power enforce fourteenth amendment ind congress may authorize pursuant section state action foreclosed acting alone justice marshall dissent suggests see post find fourteenth amendment form federal matters race simply note apparent fourteenth amendment stemmed distrust state legislative enactments based race dissent notes positive grant legislative power congress post quoting katzenbach morgan supra emphasis dissent thus treatment exercise congressional power fullilove dispositive cases wall cited dissent post noted civil war amendments granted additional powers federal government laid additional restraints upon seem equally clear however state local subdivision delegated authority state authority eradicate effects private discrimination within legislative jurisdiction authority must course exercised within constraints fourteenth amendment decision wygant contrary wygant addressed constitutionality use racial quotas local school authorities pursuant agreement reached local teachers union context addressing school board power adopt layoff program affecting work force wygant plurality indicated equal protection clause required showing prior discrimination governmental unit involved wygant matter state law city richmond legislative authority procurement policies use spending powers remedy private discrimination identifies discrimination particularity required fourteenth amendment extent question city competence appeals erred following wygant rote case involving state entity authority address discriminatory practices within local commerce jurisdiction thus city show essentially become passive participant system racial exclusion practiced elements local construction industry think clear city take affirmative steps dismantle system beyond dispute public entity state federal compelling interest assuring public dollars drawn tax contributions citizens serve finance evil private prejudice cf norwood harrison racial discrimination schools barred constitution also axiomatic state may induce encourage promote private persons accomplish constitutionally forbidden accomplish citation internal quotations omitted iii equal protection clause fourteenth amendment provides state shall deny person within jurisdiction equal protection laws emphasis added noted past rights created first section fourteenth amendment terms guaranteed individual rights established personal rights shelley kraemer richmond plan denies certain citizens opportunity compete fixed percentage public contracts based solely upon race whatever racial group citizens belong personal rights treated equal dignity respect implicated rigid rule erecting race sole criterion aspect public decisionmaking absent searching judicial inquiry justification measures simply way determining classifications benign remedial classifications fact motivated illegitimate notions racial inferiority simple racial politics indeed purpose strict scrutiny smoke illegitimate uses race assuring legislative body pursuing goal important enough warrant use highly suspect tool test also ensures means chosen fit compelling goal closely little possibility motive classification illegitimate racial prejudice stereotype classification based race carry danger stigmatic harm unless strictly reserved remedial settings may fact promote notions racial inferiority lead politics racial hostility see university california regents bakke opinion powell referential programs may reinforce common stereotypes holding certain groups unable achieve success without special protection based factor relation individual worth thus reaffirm view expressed plurality wygant standard review equal protection clause dependent race burdened benefited particular classification wygant concurring part concurring judgment see also san antonio independent school dist rodriguez marshall dissenting highly suspect nature classifications based race nationality alienage well established footnotes omitted continued adherence standard review employed wygant justice marshall dissent suggests see post indicate view racial discrimination largely phenomenon past government bodies need longer preoccupy rectifying racial injustice indicate see infra local subdivisions many legislative weapons disposal punish prevent present discrimination remove arbitrary barriers minority advancement rather interpretation stems agreement view expressed justice powell bakke guarantee equal protection mean one thing applied one individual something else applied person another color bakke supra standard proposed justice marshall dissent classifications designed remedial goals post forthwith subject relaxed standard review dissent arrives legal conclusion racial classification designed remedial goals without first engaging examination factual basis enactment nexus scope factual basis told however remedial conclusion reached dissent standard singularly deferential bears little resemblance close examination legislative purpose engaged reviewing classifications based either race gender see weinberger wiesenfeld mere recitation benign compensatory purpose automatic shield protects inquiry actual purposes underlying statutory scheme dissent version equal protection review effectively assures race always relevant american life ultimate goal eliminat ing entirely governmental decisionmaking irrelevant factors human race wygant supra stevens dissenting omitted never achieved even accept reading guarantee equal protection level scrutiny varies according ability different groups defend interests representative process heightened scrutiny still appropriate circumstances case one central arguments applying less exacting standard benign racial classifications measures essentially involve choice made dominant racial groups disadvantage one aspect judiciary role equal protection clause protect discrete insular minorities majoritarian prejudice indifference see carolene products maintain concerns implicated white majority places burdens upon see ely democracy distrust case blacks constitute approximately population city richmond five nine seats city council held blacks concern political majority easily act disadvantage minority based unwarranted assumptions incomplete facts seem militate application heightened judicial scrutiny case see ely constitutionality reverse racial discrimination chi rev course works ways law favors blacks whites suspect enacted predominantly black legislature bakke supra confronted racial quota employed university california davis medical school plan seats entering class school reserved exclusively certain minority groups among justifications offered support plan desire reduc historic deficit traditionally disfavored minorities medical school medical profession need counte effects societal discrimination citations omitted five members determined none interests justify plan completely eliminated nonminorities consideration specified percentage opportunities powell addressing constitutionality davis plan stevens joined burger stewart rehnquist jj concurring judgment part dissenting part addressing legality davis admissions plan title vi civil rights act justice powell opinion applied heightened scrutiny equal protection clause racial classification issue opinion decisively rejected first justification racially segregated admissions plan desire black medical students doctors standing alone merely insufficiently compelling justify racial classification discrimination sake forbidden constitution second concern history discrimination society large justify racial quota medical school admissions justice powell contrasted focused goal remedying wrongs worked specific instances racial discrimination remedying effects societal discrimination amorphous concept injury may ageless reach past ibid indicated governmental interest remedying past discrimination triggered judicial legislative administrative findings constitutional statutory violations must made ibid government compelling interest favoring one race another wygant four members applied heightened scrutiny system employee layoffs justice powell writing plurality drew distinction societal discrimination inadequate basis classifications type identified discrimination support define scope relief challenged classification case tied layoff minority teachers percentage minority students enrolled school district lower courts upheld scheme based theory minority students need role models alleviate effects prior discrimination society reversed plurality four justices reiterating view expressed justice powell bakke ocietal discrimination without amorphous basis imposing racially classified remedy wygant supra role model theory employed lower courts failed two reasons first statistical disparity students teachers probative value demonstrating kind prior discrimination hiring promotion justify relief see also concurring part concurring judgment disparity percentage minorities teaching staff percentage minorities student body probative employment discrimination second role model theory relation basis believing constitutional statutory violation occurred used justify decisionmaking essentially limitless scope duration plurality opinion absence particularized findings uphold remedies ageless reach past timeless ability affect future think clear factual predicate offered support richmond plan suffers two defects identified fatal wygant district found city council findings sufficient ensure adopting plan remedying present effects past discrimination construction industry supp app emphasis added like role model theory employed wygant generalized assertion past discrimination entire industry provides guidance legislative body determine precise scope injury seeks remedy logical stopping point wygant supra plurality opinion relief wrong extend percentage public contracts awarded mbe richmond mirrored percentage minorities population whole appellant argues attempting remedy various forms past discrimination alleged responsible small number minority businesses local contracting industry among city cites exclusion blacks skilled construction trade unions training programs past discrimination prevented following traditional path laborer entrepreneur brief appellant city also lists host nonracial factors seem face member racial group attempting establish new business enterprise deficiencies working capital inability meet bonding requirements unfamiliarity bidding procedures disability caused inadequate track record doubt sorry history private public discrimination country contributed lack opportunities black entrepreneurs observation standing alone justify rigid racial quota awarding public contracts richmond virginia like claim discrimination primary secondary schooling justifies rigid racial preference medical school admissions amorphous claim past discrimination particular industry justify use unyielding racial quota sheer speculation many minority firms richmond absent past societal discrimination sheer speculation many minority medical students admitted medical school davis absent past discrimination educational opportunities defining sorts injuries identified discrimination give local governments license create patchwork racial preferences based statistical generalizations particular field endeavor defects readily apparent case quota realistic sense tied injury suffered anyone district relied upon five predicate facts reaching conclusion adequate basis quota ordinance declares remedial several proponents measure stated views past discrimination construction industry minority businesses received prime contracts city minorities constituted city population minority contractors local state contractors associations congress made determination effects past discrimination stifled minority participation construction industry nationally supp app none findings singly together provide city richmond strong basis evidence conclusion remedial action necessary wygant plurality opinion nothing approaching prima facie case constitutional statutory violation anyone richmond construction industry see also concurring district accorded great weight fact city council designated plan remedial mere recitation benign legitimate purpose racial classification entitled little weight see weinberger wiesenfeld need equal protection cases accept face value assertions legislative purposes examination legislative scheme history demonstrates asserted purpose goal legislation racial classifications suspect means simple legislative assurances good intention suffice district also relied highly conclusionary statement proponent plan racial discrimination construction industry area state around nation app statement councilperson marsh also noted city manager related view racial discrimination still plagued construction industry home city pittsburgh statement deese statements little probative value establishing identified discrimination richmond construction industry factfinding process legislative bodies generally entitled presumption regularity deferential review judiciary see williamson lee optical oklahoma legislative body chooses employ suspect classification rest upon generalized assertion classification relevance goals see mclaughlin florida governmental actor render race legitimate proxy particular condition merely declaring condition exists see wygant supra history racial classifications country suggests blind judicial deference legislative executive pronouncements necessity place equal protection analysis see korematsu murphy dissenting reliance disparity number prime contracts awarded minority firms minority population city richmond similarly misplaced doubt gross statistical disparities shown alone proper case may constitute prima facie proof pattern practice discrimination title vii hazelwood school dist equally clear hen special qualifications required fill particular jobs comparisons general population rather smaller group individuals possess necessary qualifications may little probative value see also mayor philadelphia educational equality league case assumed citizens fungible purposes determining whether members particular class unlawfully excluded employment context recognized certain entry level positions positions requiring minimal training statistical comparisons racial composition employer work force racial composition relevant population may probative pattern discrimination see teamsters statistical comparison minority relevant population probative discriminatory exclusion special qualifications necessary relevant statistical pool purposes demonstrating discriminatory exclusion must number minorities qualified undertake particular task see hazelwood supra johnson transportation agency santa clara county concurring judgment case city even know many mbe relevant market qualified undertake prime work public construction projects cf ohio contractors assn keip relying percentage minority businesses state compared percentage state purchasing contracts awarded minority firms upholding city know percentage total city construction dollars minority firms receive subcontractors prime contracts let city large extent subcontracting dollars seems rest unsupported assumption white prime contractors simply hire minority firms see associated general contractors cal city cty san francisco finding decline assume male caucasian contractors award contracts male caucasians indeed evidence record overall minority participation city contracts richmond minority contractor participation community block development grant construction projects app statement deese city manager without information minority participation subcontracting quite simply impossible evaluate overall minority representation city construction expenditures city district also relied evidence mbe membership local contractors associations extremely low standing alone evidence probative discrimination local construction industry numerous explanations dearth minority participation including past societal discrimination education economic opportunities well black white career entrepreneurial choices blacks may disproportionately attracted industries construction see state small business report president relative distribution businesses businesses proportionally represented transportation industry considerably less proportionally represented wholesale trade manufacturing finance industries mere fact black membership trade organizations low standing alone establish prima facie case discrimination cf bazemore friday mere existence single race clubs absence evidence exclusion race create duty integrate low minority membership associations relevant city link number local mbe eligible membership statistical disparity eligible mbe mbe membership great enough inference discriminatory exclusion arise case city compelling interest preventing tax dollars assisting organizations maintaining racially segregated construction market see norwood ohio contractors supra upholding minority based part earlier district finding state become joint participant private industry certain craft unions pattern racially discriminatory conduct excluded black laborers work public construction contracts finally city district relied congress finding connection approved fullilove nationwide discrimination construction industry probative value findings demonstrating existence discrimination richmond extremely limited inclusion waiver procedure national program addressed fullilove congress explicitly recognized scope problem vary market area market area see fullilove noting presumption minority firms disadvantaged past discrimination may rebutted grantees individual situations moreover noted congress exercising powers fourteenth amendment making finding past discrimination cause federal funds distributed manner reinforced prior patterns discrimination subdivisions may take remedial action possess evidence spending practices exacerbating pattern prior discrimination must identify discrimination public private specificity may use relief congress made national findings societal discrimination host fields state local government need find congressional report subject enact program constraints equal protection clause effect rendered nullity see days essential state local agencies also establish presence discrimination bailiwicks based either upon processes upon determinations made competent institutions justice marshall apparently views requirement richmond identify discrimination seeks remedy jurisdiction mere administrative headache onerous documentary obligatio post agree regard accord justice stevens observation fullilove ecause racial characteristics seldom provide relevant basis disparate treatment classifications based race potentially harmful entire body politic especially important reasons classification clearly identified unquestionably legitimate fullilove supra dissenting opinion footnotes omitted evidence relied upon dissent history school desegregation richmond numerous congressional reports little define scope injury minority contractors richmond necessary remedy factors relied upon dissent justify preference size duration moreover justice marshall suggestion findings discrimination may shared jurisdiction jurisdiction manner information concerning zoning property values unprecedented see post quoting renton playtime theatres never approved extrapolation discrimination one jurisdiction experience another see milliken bradley disparate treatment white negro students occurred within detroit school system elsewhere record remedy must limited system sum none evidence presented city points identified discrimination richmond construction industry therefore hold city failed demonstrate compelling interest apportioning public contracting opportunities basis race accept richmond claim past societal discrimination alone serve basis rigid racial preferences open door competing claims remedial relief every disadvantaged group dream nation equal citizens society race irrelevant personal opportunity achievement lost mosaic shifting preferences based inherently unmeasurable claims past wrongs courts asked evaluate extent prejudice consequent harm suffered various minority groups whose societal injury thought exceed arbitrary level tolerability entitled preferential classifications bakke powell think result contrary letter spirit constitutional provision whose central command equality foregoing analysis applies inclusion blacks within richmond program absolutely evidence past discrimination oriental indian eskimo aleut persons aspect richmond construction industry district took judicial notice fact vast majority minority persons richmond black supp app may well richmond never aleut eskimo citizen random inclusion racial groups practical matter may never suffered discrimination construction industry richmond suggests perhaps city purpose fact remedy past discrimination narrowly tailored compensate black contractors past discrimination one may legitimately ask forced share remedial relief aleut citizen moves richmond tomorrow gross overinclusiveness richmond racial preference strongly impugns city claim remedial motivation see wygant haphazard inclusion racial groups illustrates undifferentiated nature plan see also days programs leave one sense racial ethnic groups favored added without attention whether inclusion justified evidence past discrimination iv noted almost impossible assess whether richmond plan narrowly tailored remedy prior discrimination since linked identified discrimination way limit two observations regard first appear consideration use means increase minority business participation city contracting see paradise determining whether remedies appropriate look several factors including efficacy alternative remedies many barriers minority participation construction industry relied upon city justify racial classification appear race neutral mbe disproportionately lack capital meet bonding requirements program city financing small firms fortiori lead greater minority participation principal opinion fullilove found congress carefully examined rejected alternatives enacting mbe see fullilove see also powell concurring time congress enacted mbe knew remedies failed ameliorate effects racial discrimination construction industry evidence record richmond city council considered alternatives quota second quota said narrowly tailored goal except perhaps outright racial balancing rests upon completely unrealistic assumption minorities choose particular trade lockstep proportion representation local population see sheet metal workers eeoc concurring part dissenting part completely unrealistic assume individuals one race gravitate mathematical exactitude employer union absent unlawful discrimination since city must already consider bids waivers basis difficult see need rigid numerical quota noted congressional scheme upheld fullilove allowed waiver provision mbe higher price attributable effects past discrimination based upon proper findings programs less problematic equal protection standpoint treat candidates individually rather making color applicant skin sole relevant consideration unlike program upheld fullilove richmond plan waiver system focuses solely availability mbe inquiry whether particular mbe seeking racial preference suffered effects past discrimination city prime contractors given existence individualized procedure city interest maintaining quota system rather investigating need remedial action particular cases seem simple administrative convenience interest avoiding bureaucratic effort necessary tailor remedial relief truly suffered effects prior discrimination justify rigid line drawn basis suspect classification see frontiero richardson plurality opinion hen enter realm strict judicial scrutiny doubt administrative convenience shibboleth mere recitation dictates constitutionality richmond scheme successful black hispanic oriental entrepreneur anywhere country enjoys absolute preference citizens based solely race think obvious program narrowly tailored remedy effects prior discrimination nothing say today precludes state local entity taking action rectify effects identified discrimination within jurisdiction city richmond evidence nonminority contractors systematically excluding minority businesses subcontracting opportunities take action end discriminatory exclusion significant statistical disparity number qualified minority contractors willing able perform particular service number contractors actually engaged locality locality prime contractors inference discriminatory exclusion arise see bazemore friday teamsters circumstances city act dismantle closed business system taking appropriate measures discriminate basis race illegitimate criteria see new york state club assn new york city extreme case form narrowly tailored racial preference might necessary break patterns deliberate exclusion local government powerless deal individual instances racially motivated refusals employ minority contractors discrimination occurs city justified penalizing discriminator providing appropriate relief victim discrimination see generally mcdonnell douglas green moreover evidence pattern individual discriminatory acts supported appropriate statistical proof lend support local government determination broader remedial relief justified see teamsters supra even absence evidence discrimination city disposal whole array devices increase accessibility city contracting opportunities small entrepreneurs races simplification bidding procedures relaxation bonding requirements training financial aid disadvantaged entrepreneurs races open public contracting market suffered effects past societal discrimination neglect many formal barriers new entrants may product bureaucratic inertia actual necessity may disproportionate effect opportunities open new minority firms elimination modification little detrimental effect city interests serve increase opportunities available minority business without classifying individuals basis race city may also act prohibit discrimination provision credit bonding local suppliers banks business usual mean business pursuant unthinking exclusion certain members society rewards case hand city ascertained many minority enterprises present local construction market level participation city construction projects city points evidence qualified minority contractors passed city contracts subcontracts either group individual case circumstances simply impossible say city demonstrated strong basis evidence conclusion remedial action necessary wygant proper findings regard necessary define scope injury extent remedy necessary cure effects findings also serve assure citizens deviation norm equal treatment racial ethnic groups temporary matter measure taken service goal equality absent findings danger racial classification merely product unthinking stereotypes form racial politics duty attempt either measure recovery wrong distribute recovery within injured class evenhanded way history adequately support legislative preference almost ethnic religious racial group political strength negotiate piece action members fullilove stevens dissenting city richmond failed identify need remedial action awarding public construction contracts treatment citizens racial basis violates dictates equal protection clause accordingly judgment appeals fourth circuit affirmed footnotes original panel opinion appeals held virginia law city legal authority enact program croson determination disturbed subsequent holding plan violated equal protection clause since city richmond ordinance books prohibiting discrimination award public contracts employment discrimination public contractors see reply brief appellant citing richmond city code et seq city points evidence prime contractors violating ordinance either employment subcontracting practices complete silence record concerning enforcement city antidiscrimination ordinance flies face dissent vision industry prevented blacks obtaining experience necessary participate construction contracting see post justice stevens concurring part concurring judgment central purpose fourteenth amendment national goal equal opportunity citizens order achieve goal must learn past mistakes believe constitution requires us evaluate policy decisions including govern relationships among different racial ethnic groups primarily studying probable impact future therefore agree premise seems underlie today decision well decision wygant jackson board education governmental decision rests racial classification never permissible except remedy past wrong see ante however agree explanation richmond ordinance justified remedy past discrimination therefore join parts iv opinion write separately emphasize three aspects case special importance first city makes claim public interest efficient performance construction contracts served granting preference enterprises case therefore completely unlike wygant thought quite obvious school board reasonably concluded integrated faculty provide educational benefits entire student body provided nearly faculty pointed dissent case even completely disregard history racial injustice race always irrelevant sound governmental decisionmaking case public contracting however disregard past even arguable basis suggesting race subcontractor general contractor relevance access market second litigation involves attempt legislative body rather fashion remedy past wrong legislatures primarily policymaking bodies promulgate rules govern future conduct constitutional prohibitions enactment ex post facto laws bills attainder reflect valid concern use political process punish characterize past conduct private citizens judicial system rather legislative process best equipped identify past wrongdoers fashion remedies create conditions presumably existed wrong committed thus cases involving review judicial remedies imposed persons proved guilty violations law allow courts racial discrimination cases broad discretion chancellors enjoy areas law see swann board education third instead engaging debate proper standard review apply litigation believe constructive try identify characteristics advantaged disadvantaged classes may justify disparate treatment see cleburne cleburne living center stevens concurring case approach convinces instead carefully identifying characteristics two classes contractors respectively favored disfavored ordinance richmond city council merely engaged type stereotypical analysis hallmark violations equal protection clause whether look class persons benefited ordinance disadvantaged class conclusion emerges justification ordinance fact past white contractors presumably white citizens richmond discriminated black contractors class persons benefited ordinance however limited victims discrimination encompasses persons never business richmond well minority contractors may guilty discriminating members minority groups indeed record shows enterprises benefited ordinance may firms prospered notwithstanding discriminatory conduct may harmed minority firms years ago ironically minority firms survived competitive struggle rather perished likely benefit ordinance kind ordinance equally vulnerable failure identify characteristics disadvantaged class white contractors justify disparate treatment class unquestionably includes white contractors guilty past discrimination blacks habit rather evidence analysis makes seem acceptable assume every white contractor covered ordinance shares guilt indeed even among discriminated past must assumed least complied city ordinance made discrimination unlawful since thus composition disadvantaged class white contractors presumably includes guilty unlawful discrimination practiced discrimination forbidden law never discriminated anyone basis race imposing common burden disparate class merely member class race stems reliance stereotype rather fact reason special irony stereotypical thinking prompts legislation kind although stigmatizes disadvantaged class unproven charge past racial discrimination actually imposes greater stigma supposed beneficiaries explained opinion fullilove klutznick ven though actual predicate legislation statute kind inevitably perceived many resting assumption granted special preference less qualified respect identified purely race risk habitual attitudes toward classes persons rather analysis relevant characteristics class serve basis legislative classification present benefits distributed well burdens imposed past traditional attitudes often provided explanation discrimination women aliens illegitimates black citizens today danger awareness past injustice lead automatic acceptance new classifications fact justified attributes characteristic class whole government creates special preference special disability class persons identify characteristic justifies special treatment classification defined racial terms believe particular identification imperative case two conceivable bases differentiating preferred classes society whole occurred victims unfair treatment past less able compete future although first factors justify appropriate remedy past wrongs reasons already stated statute remedial measure second factor simply true nothing record case legislative history act experience may notice judicially provides support proposition omitted view approach case gives unwarranted deference legislative action purports serve purely remedial goal overlooks potential value determinations may serve valid purposes regard former point explained length fullilove klutznick dissenting opinion prepared assume even narrowly tailored program supported stronger findings constitutionally justified unless legislature identify particular victims particular perpetrators past discrimination precisely makes findings fact conclusions law remedial justification legislation almost certainly sweep broadly regard latter point think unfortunate neither wygant case seems prepared acknowledge policy decisions may serve legitimate public purpose agree course race seldom relevant legislative decisions best foster public good legitimate justifications legislation usually available unlike totally discount legitimacy decisions may produce tangible fully justified future benefits see infra see also justice powell discussion university california regents bakke rather analyzing case kind asking whether minority teachers sort special entitlement jobs remedy sins committed past believe first ask whether board action advances public interest educating children future present society race always irrelevant sound governmental decisionmaking take obvious example law enforcement undercover agent needed infiltrate group suspected ongoing criminal behavior members group race seem perfectly rational employ agent race rather member different racial class similarly city recent history racial unrest superintendent police might reasonably conclude integrated police force develop better relationship community thereby effective job maintaining law order force composed white officers context public education quite obvious school board may reasonably conclude integrated faculty able provide benefits student body provided nearly faculty one important lessons american public schools teach diverse ethnic cultural national backgrounds brought together famous melting pot identify essential differences among human beings inhabit land one thing white child taught white teacher color like beauty skin deep far convincing experience truth basis routine ongoing learning process wygant jackson board education footnotes omitted see art cl cl course legislatures frequently appropriate funds compensate victims past governmental misconduct judicial remedy see pub stat provision restitution interned world war ii thus consistent normal practice city richmond provide direct monetary compensation enterprise city might injured past voluntary decision public body however quite different decision require one private party compensate another unproven injury pointed separate opinion concurring judgment paradise party found guilty repeated persistent violations law bears burden demonstrating chancellor efforts fashion effective relief exceed bounds reasonableness burden proof case like precisely opposite cases wygant jackson board education fullilove klutznick involve proven violations law cases governmental decisionmaker make decisions must overcome strong presumption burden rests federal district judge found governmental unit guilty racially discriminatory conduct violates constitution one equal protection clause requires every state govern impartially direct courts apply one standard review cases different standard cases craig boren stevens concurring always asked whether find rational basis classification issue term rational course includes requirement impartial lawmaker logically believe classification serve legitimate public purpose transcends harm members disadvantaged class thus word rational least includes elements legitimacy neutrality must always characterize performance sovereign duty govern impartially every equal protection case ask certain basic questions class harmed legislation subjected tradition disfavor laws public purpose served law characteristic disadvantaged class justifies disparate treatment cases answer questions tell us whether statute rational basis cleburne cleburne living center stevens concurring see ante surely question power legislature impose statutory burden private citizens engaging discriminatory practices time practices unlawful cf teamsters course another possibility overlooked ordinance might nothing form patronage racial patronage like racial gerrymander defensible political patronage political gerrymander cf karcher daggett stevens concurring rogers lodge stevens dissenting mobile bolden stevens concurring judgment cousins city council chicago stevens dissenting cert denied southern state long history discrimination republicans awarding public contracts rely past discrimination basis granting legislative preference republican contractors future justice kennedy concurring part concurring judgment join part ii justice opinion give explanation part ii examines case law upholding congressional power grant preferences based overt explicit classification race see fullilove klutznick acknowledgment summary part ii precise fair must decline join process law equal protection violation enacted state becomes transformed equal protection guarantee enacted congress poses difficult proposition us reconsideration issue must await case purposes ordinance challenged suffices say state power eradicate racial discrimination effects public private sectors absolute duty wrongs caused intentionally state fourteenth amendment interpreted reduce state authority regard unless course conflict federal law state remedy violation equal protection latter case presented moral imperative racial neutrality driving force equal protection clause justice scalia opinion underscores proposition quite properly view rule suggested opinion strike preferences necessary remedies victims unlawful discrimination serve important structural goals eliminate necessity courts pass upon racial preference enacted structural protections may necessities moral imperatives obeyed opinion make crystal clear political branches least legislation must based criteria race nevertheless given rule automatic invalidity racial preferences almost every case significant break precedents require test convinced need adopt point assumption vindicate principle race neutrality found equal protection clause accept less absolute rule contained justice opinion rule based proposition racial preference must face rigorous scrutiny courts reasons follows first confident application strict scrutiny standard operate manner generally consistent imperative race neutrality forbids use even narrowly drawn racial classifications except last resort second rule remedies already less absolute one relief may adequate remedy judicial determination state instrumentality violated equal protection clause note connection evidence support judicial finding intentional discrimination may suffice also justify remedial legislative action diminishes constitutional responsibilities political branches say must wait act ordered third strict scrutiny rule consistent precedents justice opinion demonstrates ordinance us falls far short standard adopt nature scope injury existed historical antecedent causes extent city contributed either intentional acts passive complicity acts discrimination private sector necessity response adopted duration relation wrong precision otherwise bore whatever injury fact addressed matters unmeasured unexplored unexplained city council left ordinance legislative record open fair charge remedy preference cause corrosive animosities constitution forbids whole sphere government national policy condemns rest society well ordinance invalid fourteenth amendment justice scalia concurring judgment agree much opinion particular justice conclusion strict scrutiny must applied governmental classification race whether asserted purpose remedial benign ante agree however justice dictum suggesting despite fourteenth amendment state local governments may circumstances discriminate basis race order broad sense ameliorate effects past discrimination ante benign purpose compensating social disadvantages whether acquired reason prior discrimination otherwise pursued illegitimate means racial discrimination assertedly benign purposes repeatedly rejected see wygant jackson board education plurality opinion discrimination teacher assignments provide role models minority students palmore sidoti awarding custody child father divorced mother entered interracial remarriage order spare child social pressures stresses lee washington per curiam permanent racial segregation prison inmates presumably reduce possibility racial conflict difficulty overcoming effects past discrimination nothing compared difficulty eradicating society source effects tendency fatal nation classify judge men women basis country origin color skin solution first problem aggravates second solution share view expressed alexander bickel lesson great decisions lesson contemporary history least generation discrimination basis race illegal immoral unconstitutional inherently wrong destructive democratic society bickel morality consent least state local action issue social emergency rising level imminent danger life limb example prison race riot requiring temporary segregation inmates cf lee washington supra justify exception principle embodied fourteenth amendment ur constitution colorblind neither knows tolerates classes among citizens plessy ferguson harlan dissenting accord ex parte virginia story commentaries constitution cooley ed cooley constitutional limitations ed contexts approved use racial classifications federal government remedy effects past discrimination believe must extend holdings fullilove klutznick upheld legislative action congress similar asserted purpose issue permitted federal courts prescribe quite severe remedies confronted egregious persistent unlawful discrimination see paradise sheet metal workers eeoc justice acknowledges however ante one thing permit racially based conduct federal government whose legislative powers concerning matters race explicitly enhanced fourteenth amendment see amdt quite another permit precise entities whose conduct matters race amendment specifically directed see amdt said ex parte virginia supra civil war amendments designed take away possibility oppression law race color limitations power enlargements power congress thus without revisiting held fullilove trying derive rationale three separate opinions supporting judgment none commanded three votes compare opinion burger joined white powell jj opinion powell opinion marshall joined brennan blackmun jj believe decision case controls one us sound distinction federal state local action based race rests upon substance civil war amendments upon social reality governmental theory simple fact justice stewart described fullilove dispassionate objectivity flexibility needed mold remedy around single objective eliminating effects past present discrimination political qualities already doubted national legislature fullilove supra stewart rehnquist joined dissenting substantially less likely exist state local level struggle racial justice historically struggle national society oppression individual see ex parte virginia supra denying writ habeas corpus state judge custody federal indictment excluding jurors basis race hyman wiecek equal justice law pp logan judicial federalism history rev struggle retains character modern times see brown board education brown ii montgomery board education swann board education griffin prince edward county school board cooper aaron struggle involved discrimination blacks see yick wo hopkins chinese hernandez texas hispanics old south see columbus board education penick keyes school dist denver colorado record shows words racial discrimination group finds ready expression state local federal level children founding fathers come surprise acute awareness heightened danger oppression political factions small rather large political units dates beginning national history see wood creation american republic pp james madison observed support proposed constitution enhancement national powers smaller society fewer probably distinct parties interests composing fewer distinct parties interests frequently majority found party smaller number individuals composing majority smaller compass within placed easily concert execute plan oppression extend sphere take greater variety parties interests make less probable majority whole common motive invade rights citizens common motive exists difficult feel discover strength act unison federalist pp rossiter ed view one circumstance may act race undo effects past discrimination necessary eliminate maintenance system unlawful racial classification example state agency discriminatory pay scale compensating black employees positions less nonblack counterparts may assuredly promulgate order raising salaries black employees eliminate differential cf bazemore friday distinction explains school desegregation cases made plain localities sometimes obligation adopt remedies doubt cases taken account continuing effects previously mandated racial school assignment held effects justify remedy concluded context perpetuate dual school system stressed school district constitutional duty dismantle dual system found ach instance failure refusal fulfill affirmative duty continues violation fourteenth amendment columbus board education penick supra emphasis added concluding context efforts dismantling dual system ineffective might indicate lack good faith green new kent county school board see also raney board education gould school permitted part local authorities affirmative duty disestablish dual school system voluntary measures attendance zones drawn achieve greater racial balance assignment race purpose mcdaniel barresi thus permitting use race declassify racially classified students teachers educational resources however also made clear remedial power extends scope continuing constitutional violation see columbus board education penick supra dayton board education brinkman milliken bradley keyes school dist denver colorado supra implicit cases dual school system completely disestablished may longer assign students race cf pasadena city board education spangler federal may require racial assignment circumstances analysis bazemore friday supra reflected unwillingness conclude outside context school assignment continuing effects prior discrimination equated state maintenance discriminatory system found government adoption wholly neutral admissions policies homemaker clubs sufficed remedy prior constitutional violation maintaining segregated admissions obligation use racial reassignments eliminate continuing effects remaining clubs owever sound green new kent county school board supra may context public schools said application wholly different milieu state course act undo effects past discrimination many permissible ways involve classification race particular field state contracting example may adopt preference small businesses even new businesses make easier previously excluded discrimination enter field programs may well racially disproportionate impact based race course state may undo effects past discrimination sense giving identified victim state discrimination wrongfully denied example giving previously rejected black applicant job reason discrimination awarded white applicant even means terminating latter employment context white jobholder selected disadvantageous treatment race wrongfully awarded job another entitled worlds apart system disadvantaged identified solely race agree dictum fundamental distinction must drawn effects societal discrimination effects identified discrimination situation different richmond plan tailored identify particular bidders suffered effects past discrimination city prime contractors ante view however reason make difference justify action see ante rather enable remediation nothing prevents richmond according contracting preference identified victims discrimination beneficiaries might black neither beneficiaries disadvantaged preference identified basis race words far justifying racial classification identification actual victims discrimination makes less supportable ever obviously unneeded final book professor bickel wrote racial quota derogates human dignity individuality applied invidious principle well practice moreover easily turned purports help history racial quota history subjugation beneficence evil lies name effects quota divider society creator castes worse racial base especially society desperately striving equality make race irrelevant bickel morality consent plainly true society blacks suffered discrimination immeasurably greater directed racial groups believe racial preferences help even score display reinforce manner thinking race source injustice endures within society source injustice still relevant proposition blacks jews irish discriminated individual men women created equal discriminated relevant resolve never happen racial preferences appear even score small degree one embraces proposition society appropriately viewed divided races making right injustice rendered past black man compensated discriminating white nothing worth embrace since blacks disproportionately disadvantaged racial discrimination remedial program aimed disadvantaged disproportionately beneficial impact blacks program one operates basis race accord letter spirit constitution since believe appellee constitutional right bid succeed fail decisionmaking process uninfected racial bias concur judgment justice marshall justice brennan justice blackmun join dissenting welcome symbol racial progress former capital confederacy acts forthrightly confront effects racial discrimination midst view nothing constitution construed prevent richmond virginia allocating portion contracting dollars businesses owned controlled members minority groups indeed richmond program indistinguishable meaningful respects fact patterned upon federal plan upheld fullilove klutznick majority holds today however equal protection clause fourteenth amendment blocks richmond initiative essence majority position richmond failed catalog adequate findings prove past discrimination impeded minorities joining participating fully richmond construction contracting industry find deep irony richmond judgment point much municipality richmond knows racial discrimination century decisions federal courts richly documented city disgraceful history public private racial discrimination event richmond city council supported determination minorities wrongly excluded local construction contracting proof includes statistics showing businesses received virtually city contracting dollars rarely ever belonged area trade associations testimony municipal officials discrimination widespread local construction industry exhaustive widely publicized federal studies relied fullilove studies showed pervasive discrimination nation construction industry operated exclude minorities public contracting precisely types statistical testimonial evidence today credited cases approving measures designed remedy past discrimination fundamentally today decision marks deliberate giant step backward jurisprudence cynical one municipality attempt redress effects past racial discrimination particular industry majority launches grapeshot attack remedies general majority unnecessary pronouncements inevitably discourage prevent governmental entities particularly localities acting rectify scourge past discrimination harsh reality majority decision constitution command initial matter majority takes exceedingly myopic view factual predicate richmond city council relied passed minority business utilization plan majority analyzes richmond initiative based solely upon facts local construction contracting practices adduced city council session measure enacted ante majority downplays fact city council rich trove evidence discrimination nation construction industry seriously impaired competitive position businesses owned controlled members minority groups backdrop documented national discrimination however local evidence adduced richmond properly understood majority refusal recognize richmond proved exception dismaying pattern national exclusion congress painstakingly identified infects entire analysis case six years richmond acted congress passed president signed public works employment act pub stat et seq act measure appropriated billion federal grants state local governments use public works projects section act minority business provision required state local grantees use federal grants procure services supplies businesses owned controlled members statutorily identified minority groups absent administrative waiver fullilove supra upheld validity federal chief justice burger principal opinion noted importance overcoming criteria methods practices thought congress effect defeating substantially impairing access minority business community public funds made available congressional appropriations fullilove finding provision properly tailored goal chief justice concluded program valid either strict intermediate scrutiny congressional program upheld fullilove based upon array congressional agency studies documented powerful influence racially exclusionary practices business world report house committee small business concluded effects past inequities stemming racial prejudice remained past congress recognized reality past discriminatory practices degree adversely affected present economic system minority persons comprise percent nation population million businesses approximately percent owned minority individuals recent data department commerce also indicates gross receipts businesses country totals billion amount billion percent realized minority business concerns statistics result random chance presumption must made past discriminatory systems resulted present economic inequities pp quoted fullilove supra opinion burger emphasis deleted added ver years developed business system traditionally excluded measurable minority participation past present system conducting business transactions overtly precluded minority input currently often encounter business system racially neutral face past overt social economic discrimination presently operating effect perpetuate past inequities minorities recently participated measurable extent total business system generally construction industry particular summarizing quoted fullilove supra thus abundant evidence public domain minority businesses ha denied effective participation public contracting opportunities procurement practices perpetuated effects prior discrimination fullilove supra significantly evidence demonstrated discrimination prevented existing nascent businesses obtaining federal contracting assignments state local ones well see fullilove supra members richmond city council well aware exhaustive congressional findings point majority tellingly elides transcript session council enacted local initiative contains numerous references congressional program evidence nationwide discrimination barriers described fullilove decision see app remarks city attorney william hefty remarks councilmember william leidinger remarks minority community task force president freddie ray remarks councilmember henry marsh iii remarks city manager manuel deese city council members also heard testimony although minority groups made half city population million richmond dispensed construction contracts five years ending march gone prime contractors remarks councilmember henry richardson heard testimony major richmond area construction trade associations virtually minorities among hundreds members finally heard testimony city officials exclusionary history local construction industry district noted single person testified city council denied discrimination richmond construction industry widespread civ action ed reprinted supp app juris statement long one views richmond local evidence discrimination backdrop systematic nationwide racial discrimination congress painstakingly identified industry case readily resolved ii agreement upon means applying equal protection clause program eluded every time issue come us wygant jackson bd education marshall dissenting view long classifications designed remedial goals must serve important governmental objectives must substantially related achievement objectives order withstand constitutional scrutiny university california regents bakke joint opinion brennan white marshall blackmun jj citations omitted see also wygant supra marshall dissenting fullilove marshall concurring judgment analyzed terms standard richmond like federal program modeled plainly constitutional fullilove supra marshall concurring judgment turning first governmental interest inquiry richmond two powerful interests setting aside portion public contracting funds enterprises first city interest eradicating effects past racial discrimination far late day doubt remedying discrimination compelling let alone important interest fullilove six members deemed interest sufficient support program governing federal contract procurement decision holding federal provision satisfied equal protection principles level scrutiny recognized measure sought remove barriers competitive access roots racial ethnic discrimination continue today even absent intentional discrimination unlawful conduct see also powell concurring marshall concurring judgment indeed repeatedly reaffirmed government interest breaking barriers erected past racial discrimination cases involving access public education mcdaniel barresi university california regents bakke opinion powell joint opinion brennan white marshall blackmun jj employment paradise plurality opinion powell concurring valuable government contracts fullilove opinion burger powell concurring marshall concurring judgment richmond second compelling interest setting aside possible portion contracting dollars interest prospective one preventing city spending decisions reinforcing perpetuating exclusionary effects past discrimination see fullilove noting congress conclusion subcontracting practices prime contractors perpetuate prevailing impaired access minority businesses public contracting opportunities powell concurring majority pays lipservice additional governmental interest see ante decisions often emphasized danger government tacitly adopting encouraging furthering racial discrimination even routine operations shelley kraemer recognized interest constitutional command holding unanimously equal protection clause forbids courts enforce racially restrictive covenants even covenants satisfied requirements state law state harbored discriminatory intent similarly norwood harrison invalidated program state purchased textbooks loaned students public private schools including private schools racially discriminatory policies stated constitution requires state steer clear operating old dual system racially segregated schools also giving significant aid institutions practice racial invidious discrimination see also gilmore city montgomery upholding order forbidding city allow private segregated schools allegedly discriminated basis race use public parks majority wrong trivialize continuing impact government acceptance use private institutions structures wrought discrimination government channels contracting funds community established contractors whose racial homogeneity product private discrimination place imprimatur practices forged continue define community also provides measurable boost economic entities thrived within denying important economic benefits entities prior discrimination might well better qualified receive valuable government contracts view interest ensuring government reflect reinforce prior private discrimination dispensing public contracts every bit strong interest eliminating private discrimination interest repeatedly deemed compelling see new york state club assn new york city board directors rotary rotary club duarte roberts jaycees bob jones university runyon mccrary government bestows rewards persons businesses positioned thrive period private racial discrimination tighter deadhand grip prior discrimination becomes present future cities like richmond may constitutionally required adopt setaside plans see north carolina bd education swann constitution may require consideration race remedying school segregation mcdaniel supra stating ny approach freeze status quo target desegregation processes doubt richmond acted affirmatively stem perpetuation patterns discrimination decisionmaking served interest highest order remaining question respect governmental interest prong equal protection analysis whether richmond proffered satisfactory proof past racial discrimination support twin interests remediation governmental nonperpetuation although members differed appropriate standard review remedial measures see paradise plurality opinion sheet metal workers eeoc plurality opinion always regarded factual inquiry practical one thus eschewed rigid tests require provision particular species evidence statistical otherwise time required government adduce evidence taken whole sufficient support claimed interest dispel natural concern acted mere paternalistic stereotyping careful consideration modern social conditions fullilove klutznick supra marshall concurring judgment separate opinions issued wygant jackson bd education case involving school board layoff provision reflect shared understanding justice powell opinion plurality four justices stated trial must make factual determination employer strong basis evidence conclusion remedial action necessary justice separate concurrence required firm basis concluding remedial action appropriate dissenting opinion authored joined justices brennan blackmun required government body present legitimate factual predicate reviewing genuinely consider circumstances provision issue finally justice stevens separate dissent sought found rational unquestionably legitimate basis school board action unwillingness go beyond generalized standards require specific types proof circumstances reflects view understanding discrimination takes myriad ingenious pervasive forms university california regents bakke separate opinion marshall varied body evidence richmond relied provides strong firm unquestionably legitimate basis upon city council determine effects past racial discrimination warranted remedial prophylactic governmental response noted supra richmond acted backdrop congressional executive branch studies demonstrated force nationwide pervasiveness prior discrimination congress presumed present economic inequities construction contracting resulted past discriminatory systems supra quoting pp city local evidence confirmed richmond construction industry deviate pernicious national pattern fact public construction expenditures previous five years gone prime contractors despite city racially mixed population strongly suggests construction contracting area rife present economic inequities extent enormous disparity demonstrate discrimination occurred descriptive testimony richmond elected appointed leaders drew necessary link pitifully small presence minorities construction contracting past exclusionary practices one testified challenged depiction widespread racial discrimination area construction contracting lent significant weight accounts fact area trade associations virtually minority members dramatized extent present inequities suggested lasting power past discriminatory systems sum suggest facts richmond relied provide sound basis finding past racial discrimination simply blinks credibility richmond reliance localized findings far cry reliance generalized societal discrimination majority decries basis remedial action ante characterizing plight richmond minority contractors mere societal discrimination respect majority critique shows unwillingness come grips richmond essentially enterprise majority also takes disingenuous approach disaggregating richmond local evidence attacking piecemeal thereby concluding single piece evidence adduced city standing alone see ante suffices prove past discrimination items evidence course stan alone exist alien juxtaposition necessarily work together reinforcing contradicting event majority criticisms individual items richmond evidence rest flimsy foundations majority example reliance disparity share city contracts awarded minority firms minority population richmond approximately misplaced ante true factual predicate needed proved one present discrimination generally credited statistical contrasts racial composition work force general population proving discrimination contrast revealed gross statistical disparities hazelwood school dist title vii case see also teamsters principle impugn richmond statistical contrast two reasons first considering minuscule share richmond public construction contracting dollars received businesses hardly unreasonable conclude case involves gross statistical disparit hazelwood school supra roughly equal numbers minorities nonminorities richmond yet businesses receive public contracting funds businesses receive see teamsters supra ine tuning statistics obscured glaring absence minority bus drivers company inability rebut inference discrimination came misuse statistics inexorable zero citation omitted quoted johnson transportation agency santa clara county concurring judgment second fundamentally issue present discrimination rather whether past discrimination resulted continuing exclusion minorities historically industry contrast population work force entirely appropriate help gauge degree exclusion johnson transportation agency santa clara county supra justice specifically observed alleged discrimination prevented blacks obtaining th experience needed qualify position relevant comparison percentage blacks pool qualified candidates total percentage blacks labor force see also steelworkers weber teamsters supra contrast especially illuminating cases like main avenue introduction work force membership trade associations whose members presumably train apprentices help procure subcontracting assignments grossly dominated nonminorities majority assertion city even know many mbe relevant market qualified ante thus entirely beside point richmond indeed monochromatic contracting community conclusion reached district see civ action ed reprinted supp app juris statement likely reflects lingering power past exclusionary practices certainly explanation congress found persuasive national level see fullilove city requirement prime public contractors set aside subcontracting assignments enterprises subject ordinance provision waivers enterprises unavailable unwilling participate designed precisely ease minority contractors industry majority perfunctory dismissal testimony richmond appointed elected leaders also deeply disturbing officials including councilmembers former mayor present city manager asserted race discrimination area contracting widespread ordinance sincere necessary attempt eradicate effects discrimination majority however racial classifications concerned simple legislative assurances good intention suffice ante similarly discounts minimally probative city council designation setaside plan remedial lind judicial deference legislative executive pronouncements majority explains place equal protection analysis ante one course advocates blind judicial deference findings city council testimony city leaders majority suggestion wholesale deference richmond seeks classic argument majority trivialization testimony richmond leaders dismaying far serious respect disregarding testimony local leaders judgment local government majority violence principles comity within federal system long championed local officials virtue proximity expertise local affairs exceptionally well qualified make determinations public good within respective spheres authority hawaii housing authority midkiff see also ferc mississippi concurring judgment part dissenting part majority however leaves traces comity behind headlong rush strike richmond measure majority paused moment facts richmond experience discovered city leadership deeply familiar racial discrimination members richmond city council spent long years witnessing multifarious acts discrimination including limited deliberate diminution black residents voting rights resistance school desegregation publicly sanctioned housing discrimination numerous decisions federal courts chronicle disgraceful recent history richmond example denounced richmond decision annex part adjacent county time city black population nearing infected impermissible purpose denying right vote based race perpetuating white majority power exclude negroes office see also brennan dissenting describing richmond flagrantly discriminatory purpose avert transfer political control fast becoming majority citation omitted bradley school bd richmond aff equally divided appeals fourth circuit sitting en banc reviewed context school desegregation case richmond long history inadequate compliance brown board education cases implementing holding dissenting judge elaborated sordid history virginia richmond attempts circumvent defeat nullify holding brown recorded opinions courts need repeated detail suffices say massive resistance every state resource including services legal officers state services private counsel costing state hundreds thousands dollars state police power prestige governor employed defeat brown richmond mentioned even freedom choice became actually effective twelve years decision brown winter emphasis original footnotes citations omitted legislatures leaders cities histories pervasive discrimination testify past discrimination infected one industries armchair cynicism like exercised majority place may well autonomy state essential component federalism garcia san antonio metropolitan transit authority dissenting state sovereign within domain governing citizens providing general welfare ferc mississippi supra dissenting apparently case federal judges nothing impressions go choose disbelieve explanations local governments officials disbelief particularly inappropriate light fact appellee croson burden proving unconstitutionality trial wygant plurality opinion point come forward direct evidence city council motives anything sincere finally vehemently disagree majority dismissal congressional executive branch findings noted fullilove extremely limited probative value case ante majority concedes congress established nothing less presumption minority contracting firms disadvantaged prior discrimination ibid majority inexplicably forbid richmond share information permit congress take note ample findings ante thus requiring richmond local evidence severed context prepared majority require cities seeking eradicate effects past discrimination within borders reinvent evidentiary wheel engage unnecessarily duplicative costly factfinding principle federalism federal power however forbids state local government draw upon nationally relevant historical record prepared federal government see renton playtime theatres city entitled rely experiences seattle cities enacting adult theater ordinance first amendment require city conduct new studies produce evidence independent already generated cities long whatever evidence cities relies upon reasonably believed relevant problem city addresses see also steelworkers weber judicial findings exclusion crafts racial grounds numerous make exclusion proper subject judicial notice cf wygant supra marshall dissenting provision purports serve remedial purpose fairly assessed vacuum course richmond built even compendious record past discrimination one including additional stark statistics additional individual accounts past discrimination nothing fourteenth amendment imposes onerous documentary obligations upon localities reality past discrimination apparent see infra judgment richmond plan also comports second prong equal protection inquiry substantially related interests seeks serve remedying past discrimination ensuring municipal contract procurement perpetuate discrimination striking aspect city ordinance similarity bears appropriately limited federal provision upheld fullilove like federal provision richmond limited five years duration renewed came reconsideration like federal provision richmond contains waiver provision freeing subcontracting requirements nonminority firms demonstrate comply provisions like federal provision richmond minimal impact innocent third parties measure affects public contracting dollars translates overall richmond area contracting brief appellant recounting federal census figures construction richmond see fullilove supra burden shouldered nonminority firms relatively light compared overall construction contracting opportunities finally like federal provision richmond interfere vested right contractor particular contract instead operates entirely prospectively richmond initiative affects future economic arrangements imposes diffuse burden nonminority competitors businesses owned controlled nonminorities seek subcontracting work public construction projects plurality wygant emphasized importance disrupting settled legitimate expectations innocent parties hiring goals impose diffuse burden often foreclosing one several opportunities layoffs impose entire burden achieving racial equality particular individuals often resulting serious disruption lives burden intrusive wygant see steelworkers weber supra factors far justify ing preference size duration ante precisely factors looked fullilove majority takes issue however two aspects richmond tailoring city refusal explore use measures increase minority business participation contracting ante selection figure ante majority first criticism flawed two respects first majority overlooks fact since richmond barred discrimination city awarding public contracts discrimination public contractors see richmond city code et seq virtual absence minority businesses city contracting rolls indicated fact businesses received less public contracting dollars strongly suggests ban succeeded redressing impact past discrimination preventing city contract procurement reinforcing racial homogeneity second majority suggestion richmond first undertaken measures program city financing small firms ante ignores fact measures theoretically appealing discredited congress ineffectual eradicating effects past discrimination industry reason fullilove refused fault congress undertaking measures precursors see fullilove noting inadequacy previous measures designed give experience minority businesses see also powell concurring time congress enacted federal knew remedies failed ameliorate effects racial discrimination construction industry equal protection clause require richmond retrace congress steps congress found steps lead nowhere given limitations measures thus appropriate municipality like richmond conclude words justice blackmun order get beyond racism must first take account race way university california regents bakke separate opinion richmond target majority figure said narrowly tailored goal except perhaps outright racial balancing ante majority ignores two important facts first measure affects overall city contracting thus imprecision tailoring far less impact majority suggests important majority ignores fact richmond figure patterned directly fullilove precedent congress figure fell roughly halfway present percentage minority contractors percentage minority group members nation fullilove supra powell concurring richmond city council figure similarly falls roughly halfway present percentage minority contractors almost zero percentage minorities richmond faulting richmond presenting different explanation choice figure majority honors fullilove breach iii ordinarily end analysis point conclude richmond ordinance satisfies governmental interest substantial relationship prongs equal protection clause analysis however compelled add majority gone beyond facts case announce set principles unnecessarily restricts power governmental entities take measures redress effects prior discrimination today first time majority adopted strict scrutiny standard equal protection clause review remedial measures ante ante scalia concurring judgment unwelcome development profound difference separates governmental actions racist governmental actions seek remedy effects prior racism prevent neutral governmental activity perpetuating effects racism see wygant jackson bd education marshall dissenting fullilove supra marshall concurring judgment university california regents bakke joint opinion brennan white marshall blackmun racial classifications drawn presumption one race inferior another put weight government behind racial hatred separatism warrant strictest judicial scrutiny irrelevance rationales contrast racial classifications drawn purpose remedying effects discrimination race based highly pertinent basis tragic indelible fact discrimination blacks racial minorities nation pervaded nation history continues scar society stated fullilove consideration race relevant remedying continuing effects past racial discrimination governmental programs employing racial classifications remedial purposes crafted avoid stigmatization programs subjected conventional strict scrutiny scrutiny strict theory fatal fact fullilove supra citation omitted concluding remedial classifications warrant different standard review constitution brutal repugnant forms racism majority signals regards racial discrimination largely phenomenon past government bodies need longer preoccupy rectifying racial injustice however believe nation anywhere close eradicating racial discrimination vestiges constitutionalizing wishful thinking majority today grave disservice victims past present racial discrimination nation government sought assist also long tradition approaching issues race utmost sensitivity also troubled majority assertion even believe generally strict scrutiny remedial measures circumstances case require look upon richmond city council measure strictest scrutiny ante sole circumstance majority cites however fact blacks richmond dominant racial grou city ibid support characterization dominance majority observes blacks constitute approximately population city richmond ive nine seats city council held blacks ibid agree numerical political supremacy given racial group factor bearing upon level scrutiny applied never held numerical inferiority standing alone makes racial group suspect thus entitled strict scrutiny review rather identified traditional indicia suspectness whether group saddled disabilities subjected history purposeful unequal treatment relegated position political powerlessness command extraordinary protection majoritarian political process san antonio independent school dist rodriguez seriously suggested nonminorities richmond history purposeful unequal treatment ibid indication disabilities characteristically afflicted groups deemed suspect indeed numerical political dominance nonminorities within state virginia nation whole provides enormous political check simple racial politics municipal level majority fears ante majority really believes groups like richmond nonminorities constitute approximately half population outnumbered even marginally political fora deserving suspect class status reasons alone decisions denying suspect status women see craig boren persons incomes see san antonio independent school supra stand extremely shaky ground see castaneda partida marshall concurring view circumstances case ante underscore importance subjecting strict scrutiny straitjacket increasing number cities recently come minority leadership eager rectify least prevent perpetuation past racial discrimination many cases cities ones way prior discrimination rectify richmond leaders witnessed decades publicly sanctioned racial discrimination virtually walks life discrimination amply documented decisions federal judiciary see supra history purposefully unequal treatment forced upon minorities imposed raise inference minorities richmond much remedy undertaken sincere remedial goals mind simple racial politics ante richmond recent political history underscores facile nature majority assumption elected officials voting decisions based color skins recent years white black councilmembers richmond increasingly joined hands controversial matters richmond city council elected black man mayor example victory support city council four white members richmond july vote plan year later also purely along racial lines four white councilmembers one voted measure another abstained app majority view remedial measures undertaken municipalities black leadership must face stiffer test equal protection clause scrutiny remedial measures undertaken municipalities white leadership implies lack political maturity part nation elected minority officials totally unwarranted insulting judgments place constitutional jurisprudence today decision finally particularly noteworthy daunting standard imposes upon localities contemplating use measures eradicate present effects prior discrimination prevent perpetuation majority restricts use measures situations state locality put forth prima facie case constitutional statutory violation ante majority calls question validity business dozens municipalities across nation adopted authority fullilove nothing constitution prior decisions supports limiting state authority confront effects past discrimination situations prima facie case constitutional statutory violation made terms majority standard effectively cedes control large component content constitutional provision congress state legislatures antecedent virginia richmond law defined unlawful award nonminorities overwhelming share city contracting dollars example richmond subsequent initiative satisfy majority standard without law initiative might withstand constitutional scrutiny meaning equal protection laws thus turns happenstance whether state local body previously defined illegal discrimination indeed given racially discriminatory cities may ones least likely tough antidiscrimination laws books majority constitutional incorporation state local statutes perverse effect inhibiting localities worst records official racism taking remedial action similar flaws inhere majority standard even incorporated federal antidiscrimination statutes congress tomorrow dramatically expanded title vii civil rights act stat amended et seq alternatively repealed legislation altogether meaning equal protection change precipitately along whatever framers fourteenth amendment mind certainly content amendment turn amendments evolving interpretations federal statute passed nearly century later degree parsimonious standard grounded view either fourteenth amendment substantially disempowered localities remedying past racial discrimination ante majority seriously mistaken respect first precedents never suggested provision matter companion provisions thirteenth fifteenth amendments meant limit state police power undertake remedial measures contrary katzenbach morgan held positive grant legislative power authorizing congress exercise discretion determining whether legislation needed secure guarantees fourteenth amendment emphasis added see south carolina katzenbach interpreting similar provision fifteenth amendment empower congress implemen rights created passage see also city rome indeed held congress authority even constitutional violation found see katzenbach morgan supra upholding voting rights act provision nullifying state english literacy requirement previously upheld equal protection clause challenge certainly fullilove view either limiting traditionally broad police powers fight discrimination mandating game state power wanes federal power waxes contrary fullilove plurality invoked provided specific certain authorization federal government attempt impose condition dispensation federal funds state local grantees see fullilove basing decision certain contexts limitations reach commerce power late day assert seriously equal protection clause prohibits matter federal government equal protection guarantee largely applied see bolling sharpe enacting remedies cases areas school desegregation voting rights affirmative action demonstrated time race constitutionally germane precisely race remains dismayingly relevant american life adopting prima facie standard localities majority closes eyes constitutional history social reality justice scalia limit consideration race cases find necessary eliminate maintenance system unlawful racial classification distinction explains school desegregation cases ante scalia concurring judgment school desegregation decisions conveniently cordoned decisions like involving voting rights affirmative action stand broad principles equal protection richmond seeks vindicate case persons equal worth permissible given sufficient factual predicate appropriate tailoring government take account race eradicate present effects subjugation denying basic equality justice scalia artful distinction allows avoid repudiate school desegregation cases like arbitrary limitation relief adopted majority approach freeze status quo target remedial actions localities mcdaniel barresi see also north carolina bd education swann striking state flat prohibition assignment pupils basis race impeding effective remedy jewish organizations carey upholding new york use racial criteria drawing district lines comply voting rights act fact congress concern passing reconstruction amendments particularly congressional authorization provisions adequately respond racial violence discrimination newly freed slaves interpret aspect amendments proscribing state remedial responses problems turns amendments heads four justices one stated university california regents bakke reason conclude voluntarily accomplish fourteenth amendment congress fourteenth amendment validly may authorize compel either private persons contrary position conflict traditional understanding recognizing competence initiate measures consistent federal policy absence congressional subject matter nothing whatever legislative history either fourteenth amendment civil rights acts even remotely suggests foreclosed furthering fundamental purpose equal opportunity amendment acts addressed indeed voluntary initiatives achieve national goal equal opportunity recognized essential attainment use fourteenth amendment sword state power stultify amendment railway mail assn corsi frankfurter concurring omitted emphasis added iv majority today sounds retreat longstanding solicitude remedial efforts directed toward deliverance promise equality economic opportunity fullilove new restrictive tests applies scuttle one city effort surmount discriminatory past imperil dozens localities however profoundly disagree cramped vision equal protection clause majority offers today application vision richmond virginia laudable plan battle pernicious racial discrimination effects nowhere near must dissent interest convenience refer opinion case authored justice majority recognizing certain portions opinion joined plurality reports indicating dearth businesses include report subcommittee minority small business enterprise finding long history racial bias created major problems minority businessmen doc text message president nixon congress describing federal efforts press open new doors opportunity millions americans doors previously barred doc text message president nixon congress describing paucity minority business ownership federal efforts give every man equal chance starting line numerous congressional studies undertaken issued richmond city council convened april found exclusion minorities continued virtually unabated legacy discrimination minority businesses across nation still failed gain real toehold business world see pp report house committee small business finding minority businesses severely many minorities disadvantaged identified members certain racial categories pp report senate select committee small business finding federal effort fallen far short goal develop strong growing disadvantaged small businesses recogniz ing pattern social economic discrimination continues deprive racial ethnic minorities others opportunity participate fully free enterprise system pp ix report senate select committee small business finding many minorities suffered effects discriminatory practices similar invidious circumstances control report senate select committee small business finding government aid must significantly increased businesses maximum practical opportunity develop viable small businesses report house committee small business finding federal programs aid minority businesses limited success date concluding success greatly expanded appropriate corrective actions report house committee small business finding small business share federal contracts continues inadequate according testimony trade association representatives associated general contractors virginia blacks among members app remarks stephen watts american subcontractors association blacks among richmond members remarks patrick murphy professional contractors estimators association black member among richmond members remarks al shuman central virginia electrical contractors association black member among members remarks al shuman national electrical contractors association black members among virginia members remarks mark singer among testifying discriminatory practices richmond construction industry councilmember henry marsh served mayor richmond marsh stated practicing law community since familiar practices construction industry area state around nation say without equivocation general conduct construction industry area state around nation one race discrimination exclusion basis race widespread think situation involved city richmond think question whether remedial action required open question representatives several trade associations however deny particular organizations engaged discrimination see remarks al shuman behalf central virginia electrical contractors association disturbing description lengths richmond white officials went recent decades hold check growing black political power see moeser dennis politics annexation oligarchic power southern city dissenting judge consolidated school districts elaborated instances state private action contribut ed concentration black citizens within richmond white citizens without principally area residential development racially restrictive convenants freely employed racially discriminatory practices prospective purchase county property black purchasers followed urban renewal subsidized public housing home mortgage insurance undertaken racially discriminatory basis neighboring counties provided schools roads zoning development approval rapid growth white population county expense city without making attempt assure development made possible integrated superimposed pattern residential segregation discriminatory policy school construction selection school construction sites center racially identifiable neighborhoods manifestly serve educational needs students single race majority question accuracy facts winter emphasis original omitted cf fullilove klutznick stevens dissenting noting statements sponsors federal measure designed give constituents piece action although majority sharply criticizes richmond using data develop noteworthy federal program upheld fullilove adopted floor amendment without congressional hearings investigation whatsoever tribe american constitutional law ed principal opinion fullilove justified relying heavily aforementioned studies agencies like small business administration legislative reports prepared connection prior failed legislation see fullilove klutznick opinion burger although act recites preambulary findings subject satisfied congress abundant historical basis conclude traditional procurement practices applied minority businesses perpetuate effects prior discrimination see also stevens dissenting noting perfunctory consideration accorded provision days fullilove yale one marvel fact minority provision enacted law without hearings committee reports token opposition citation omitted majority also faults richmond ordinance including within definition minority group members black citizens also citizens oriental indian eskimo aleut persons ante course precisely definition congress adopted legislation fullilove supra even accepting majority view richmond ordinance overbroad includes groups eskimos aleuts evidence local discrimination proffered necessarily follow balance richmond ordinance invalidated although majority purports adher standard review employed wygant ante prima facie case standard adopts marks implicit rejection generally framed strong basis evidence test endorsed wygant jackson bd education plurality similar firm basis test endorsed justice separate concurrence case see tests proving prima facie violation title vii appear one means adducing sufficient proof satisfy equal protection clause analysis see johnson transportation agency santa clara county plurality opinion criticizing suggestion relief conditioned showing prima facie title vii violation rhetoric today majority opinion departs wygant another significant respect wygant majority rejected unduly inhibiting constitutionally unsupported requirement municipality demonstrate remedial plan designed benefit specific victims discrimination see concurring part concurring judgment marshall dissenting justice noted general agreement remedial purpose need accompanied contemporaneous findings actual discrimination accepted legitimate long public actor firm basis believing remedial action required plan need limited remedying specific instances identified discrimination deemed sufficiently narrowly tailored substantially related correction prior discrimination state actor majority opinion today however hints specific victims proof requirement might appropriate equal protection cases see ante localities must identify discrimination specificity given three terms ago rejected specific victims idea untenable believe references majority cryptic identified discrimination requirement read require localities make highly particularized showings rather take majority standard identified discrimination merely require quantum proof discrimination within given jurisdiction exceeds proof richmond put forth tellingly sole support majority offers view framers fourteenth amendment intended result two law review articles analyzing recent decisions appeals decision relies upon statements james madison ante madison course dead years fourteenth amendment enacted justice blackmun justice brennan joins dissenting join justice marshall perceptive incisive opinion revealing great sensitivity toward suffered pains economic discrimination construction trades long never thought live see day city richmond virginia cradle old confederacy sought within narrow confine lessen stark impact persistent discrimination richmond great credit acted yet supposed bastion equality strikes richmond efforts though discrimination never existed demonstrated particular litigation justice marshall convincingly discloses fallacy shallowness approach history irrefutable even though one might sympathize though possibly innocent benefit wrongs past decades today regresses confident however given time one day best fulfill great promises constitution preamble guarantees embodied bill rights fulfillment make nation special