The "minority business enterprise" (MBE) provision of the Public
Works Employment Act of 1977 (1977 Act) requires that, absent an
administrative waiver, at least 10% of federal funds granted for
local public works projects must be used by the state or local
grantee to procure services or supplies from businesses owned by
minority group members, defined as United States citizens "who are
Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and
Aleuts." Under implementing regulations and guidelines, grantees
and their private prime contractors are required, to the extent
feasible, in fulfilling the 10% MBE requirement, to seek out all
available, qualified, bona fide MBE's, to provide technical
assistance as needed, to lower or waive bonding requirements where
feasible, to solicit the aid of the Office of Minority Business
Enterprise, the Small Business Administration, or other sources for
assisting MBE's in obtaining required working capital, and to give
guidance through the intricacies of the bidding process. The
administrative program, which recognizes that contracts will be
awarded to bona fide MBE's even though they are not the lowest
bidders if their bids reflect merely attempts to cover costs
inflated by the present effects of prior disadvantage and
discrimination, provides for handling grantee applications for
administrative waiver of the 10% MBE requirement on a case-by-case
basis if infeasibility is demonstrated by a showing that, despite
affirmative efforts, such level of participation cannot be achieved
without departing from the program's objectives. The program also
provides an administrative mechanism to ensure that only bona fide
MBE's are encompassed by the program, and to prevent unjust
participation by minority firms whose access to public contracting
opportunities is not impaired by the effects of prior
discrimination.
Petitioners, several associations of construction contractors
and subcontractors and a firm engaged in heating, ventilation, and
air conditioning work, filed suit for declaratory and injunctive
relief in Federal District Court, alleging that they had sustained
economic injury due to enforcement of the MBE requirement, and that
the MBE provision, on its face, violated,
inter alia, the
Equal Protection Clause of the Fourteenth
Page 448 U. S. 449
Amendment and the equal protection component of the Due Process
Clause of the Fifth Amendment. The District Court upheld the
validity of the MBE program, and the Court of Appeals affirmed.
Held: The judgment is affirmed. Pp.
448 U. S.
456-492;
448 U. S.
517-522.
584 F.2d 600, affirmed.
MR. CHIEF .JUSTICE BURGER, joined by MR. JUSTICE WHITE and MR.
JUSTICE POWELL, concluded that the MBE provision of the 1977 Act,
on its face, does not violate the Constitution. Pp.
448 U. S.
456-492.
(a) Viewed against the legislative and administrative background
of the 1977 Act, the legislative objectives of the MBE provision
and of the administrative program thereunder were to ensure --
without mandating the allocation of federal funds according to
inflexible percentages solely based on race or ethnicity -- that,
to the extent federal funds were granted under the 1977 Act,
grantees who elected to participate would not employ procurement
practices that Congress had decided might result in perpetuation of
the effects of prior discrimination which had impaired or
foreclosed access by minority businesses to public contracting
opportunities. Pp.
448 U. S.
456-472.
(b) In considering the constitutionality of the MBE provision,
it first must be determined whether the objectives of the
legislation are within Congress' power. Pp.
448 U. S.
472-480.
(i) The 1977 Act, as primarily an exercise of Congress' Spending
Power under Art. I, § 8, cl. 1, "to provide for the . . . general
Welfare," conditions receipt of federal moneys upon the receipt's
compliance with federal statutory and administrative directives.
Since the reach of the Spending Power is at least as broad as
Congress' regulatory powers, if Congress, pursuant to its
regulatory powers, could have achieved the objectives of the MBE
program, then it may do so under the Spending Power. Pp.
448 U. S.
473-475
(ii) Insofar as the MBE program pertains to the actions of
private prime contractors, including those not responsible for any
violation of antidiscrimination laws, Congress could have achieved
its objectives under the Commerce Clause. The legislative history
shows that there was a rational basis for Congress to conclude that
the subcontracting practices of prime contractors could perpetuate
the prevailing impaired access by minority businesses to public
contracting opportunities, and that this inequity has an effect on
interstate commerce. Pp.
448 U. S.
475-476.
(iii) Insofar as the MBE program pertains to the actions of
state and local grantees, Congress could have achieved its
objectives by use of its power under § 5 of the Fourteenth
Amendment "to enforce, by appropriate legislation" the equal
protection guarantee of that Amendment. Congress had abundant
historical basis from which it could conclude
Page 448 U. S. 450
that traditional procurement practices, when applied to minority
businesses, could perpetuate the effects of prior discrimination,
and that the prospective elimination of such barriers to
minority-firm access to public contracting opportunities was
appropriate to ensure that those businesses were not denied equal
opportunity to participate in federal grants to state and local
governments, which is one aspect of the equal protection of the
laws.
Cf., e.g., Katzenbach v. Morgan, 384 U.
S. 641;
Oregon v. Mitchell, 400 U.
S. 112. Pp.
448 U.S.
476-478.
(iv) Thus, the objectives of the MBE provision are within the
scope of Congress' Spending Power.
Cf. Lau v. Nichols,
414 U. S. 563. Pp.
448 U. S.
479-480.
(c) Congress' use here of racial and ethnic criteria as a
condition attached to a federal grant is a valid means to
accomplish its constitutional objectives, and the MBE provision, on
its face, does not violate the equal protection component of the
Due Process Clause of the Fifth Amendment. Pp.
448 U. S.
480-492.
(i) In the MBE program's remedial context, there is no
requirement that Congress act in a wholly "color-blind" fashion.
Cf., e.g., Swann v. Charlotte-Mecklenberg Board of
Education, 402 U. S. 1;
McDaniel v. Barresi, 402 U. S. 39;
North Carolina Board of Education v. Swann, 402 U. S.
43. Pp.
448 U. S.
482-484.
(ii) The MBE program is not constitutionally defective because
it may disappoint the expectations of access to a portion of
government contracting opportunities of nonminority firms who may
themselves be innocent of any prior discriminatory actions. When
effectuating a limited and properly tailored remedy to cure the
effects of prior discrimination, such "a sharing of the burden" by
innocent parties is not impermissible.
Franks v. Bowman
Transportation Co., 424 U. S. 747,
424 U. S. 777.
Pp.
448 U. S.
484-485.
(iii) Nor is the MBE program invalid as being underinclusive in
that it limits its benefit to specified minority groups, rather
than extending its remedial objectives to all businesses whose
access to government contracting is impaired by the effects of
disadvantage or discrimination. Congress has not sought to give
select minority groups a preferred standing in the construction
industry, but has embarked on a remedial program to place them on a
more equitable footing with respect to public contracting
opportunities, and there has been no showing that Congress
inadvertently effected an invidious discrimination by excluding
from coverage an identifiable minority group that has been the
victim of a degree of disadvantage and discrimination equal to or
greater than that suffered by the groups encompassed by the MBE
program. Pp.
448 U. S.
485-486.
Page 448 U. S. 451
(iv) The contention that the MBE program, on its face, is
overinclusive in that it bestows a benefit on businesses identified
by racial or ethnic criteria which cannot be justified on the basis
of competitive criteria or as a remedy for the present effects of
identified prior discrimination is also without merit. The MBE
provision, with due account for its administrative program,
provides a reasonable assurance that application of racial or
ethnic criteria will be narrowly limited to accomplishing Congress'
remedial objectives, and that misapplications of the program will
be promptly and adequately remedied administratively. In
particular, the administrative program provides waiver and
exemption procedures to identify and eliminate from participation
MBE's who are not "bona fide," or who attempt to exploit the
remedial aspects of the program by charging an unreasonable price
not attributable to the present effects of past discrimination.
Moreover, grantees may obtain a waiver if they demonstrate that
their best efforts will not achieve or have not achieved the 10%
target for minority firm participation within the limitations of
the program's remedial objectives. The MBE provision may be viewed
as a pilot project, appropriately limited in extent and duration
and subject to reassessment and reevaluation by the Congress prior
to any extension or reenactment. Pp.
448 U. S.
486-489.
(d) In the continuing effort to achieve the goal of equality of
economic opportunity, Congress has latitude to try new techniques
such as the limited use of racial and ethnic criteria to accomplish
remedial objectives, especially in programs where voluntary
cooperation is induced by placing conditions on federal
expenditures. When a program narrowly tailored by Congress to
achieve its objectives comes under judicial review, it should be
upheld if the courts are satisfied that the legislative objectives
and projected administration of the program give reasonable
assurance that the program will function within constitutional
limitations. Pp.
448 U. S.
490-492.
MR. JUSTICE MARSHALL, joined by MR. JUSTICE BRENNAN and MR.
JUSTICE BLACKMUN, concurring in the judgment, concluded that the
proper inquiry for determining the constitutionality of racial
classifications that provide benefits to minorities for the purpose
of remedying the present effects of past racial discrimination is
whether the classifications serve important governmental objectives
and are substantially related to achievement of those objectives,
University of California Regents v. Bakke, 438 U.
S. 265,
438 U. S. 359
(opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., concurring
in judgment in part and dissenting in part), and that, judged under
this standard, the 10% minority set-aside provision of the 1977 Act
is plainly constitutional, the racial classifications being
substantially related to the achievement of the important and
Page 448 U. S. 452
congressionally articulated goal of remedying the present
effects of past racial discrimination. Pp.
448 U. S.
517-521.
BURGER, C.J., announced the judgment of the Court and delivered
an opinion, in which WHITE and POWELL, JJ., joined. POWELL, J.,
filed a concurring opinion,
post, p.
448 U. S. 495.
MARSHALL, J., filed an opinion concurring in the judgment, in which
BRENNAN and BLACKMUN, J.J., joined,
post p.
448 U. S. 517.
STEWART, J., filed a dissenting opinion, in which REHNQUIST, J.,
joined,
post, p.
448 U. S. 522.
STEVENS, J., filed a dissenting opinion,
post, p.
448 U. S.
532.
Page 448 U. S. 453
MR. CHIEF JUSTICE BURGER announced the judgment of the Court and
delivered an opinion, in which MR. JUSTICE WHITE and MR. JUSTICE
POWELL joined.
We granted certiorari to consider a facial constitutional
challenge to a requirement in a congressional spending program
that, absent an administrative waiver, 10% of the federal funds
granted for local public works projects must be used by the state
or local grantee to procure services or supplies from businesses
owned and controlled by members of statutorily identified minority
groups. 441 U.S. 960 (1979).
I
In May, 1977, Congress enacted the Public Works Employment Act
of 1977, Pub.L. 928, 91 Stat. 116, which amended the Local Public
Works Capital Development and Investment Act of 1976, Pub.L. 9369,
90 Stat. 999, 42 U.S.C. § 6701
et seq. The 1977 amendments
authorized an additional $4 billion appropriation for federal
grants to be made by the Secretary of Commerce, acting through the
Economic Development Administration (EDA), to state and local
governmental entities for use in local public works projects. Among
the changes made was the addition of the provision that has
Page 448 U. S. 454
become the focus of this litigation. Section 103(f)(2) of the
1977 Act, referred to as the "minority business enterprise" or
"MBE" provision, requires that: [
Footnote 1]
"Except to the extent that the Secretary determines otherwise,
no grant shall be made under this Act for any local public works
project unless the applicant gives satisfactory assurance to the
Secretary that at least 10 per centum of the amount of each grant
shall be expended for minority business enterprises. For purposes
of this paragraph, the term 'minority business enterprise' means a
business at least 50 per centum of which is owned by minority group
members or, in case of a publicly owned business, at least 51 per
centum of the stock of which is owned by minority group members.
For the purposes of the preceding sentence, minority group members
are citizens of the United States who are Negroes,
Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts."
In late May, 1977, the Secretary promulgated regulations
governing administration of the grant program which were amended
two months later. [
Footnote 2]
In August, 1977, the EDA issued guidelines supplementing the
statute and regulations with respect to minority business
participation in local public works grants, [
Footnote 3] and in October, 1977, the EDA issued a
technical bulletin promulgating detailed instructions and
information to assist grantees and their contractors in meeting the
10% MBE requirement. [
Footnote
4]
Page 448 U. S. 455
On November 30, 1977, petitioners filed a complaint in the
United States District Court for the Southern District of New York
seeking declaratory and injunctive relief to enjoin enforcement of
the MBE provision. Named as defendants were the Secretary of
Commerce, as the program administrator, and the State and City of
New York, as actual and potential project grantees. Petitioners are
several associations of construction contractors and
subcontractors, and a firm engaged in heating, ventilation, and air
conditioning work. Their complaint alleged that they had sustained
economic injury due to enforcement of the 10% MBE requirement, and
that the MBE provision, on its face, violated the Equal Protection
Clause of the Fourteenth Amendment, the equal protection component
of the Due Process Clause of the Fifth Amendment, and various
statutory antidiscrimination provisions. [
Footnote 5]
After a hearing held the day the complaint was filed, the
District Court denied a requested temporary restraining order and
scheduled the matter for an expedited hearing on the merits. On
December 19, 1977, the District Court issued a memorandum opinion
upholding the validity of the MBE program and denying the
injunctive relief sought.
Fullilove v.
Kreps, 443 F.
Supp. 253 (1977).
The United States Court of Appeals for the Second Circuit
affirmed, 584 F.2d 600 (1978), holding that, "even under the most
exacting standard of review, the MBE provision passes
constitutional muster."
Id. at 603. Considered in the
context of many years of governmental efforts to remedy past racial
and ethnic discrimination, the court found it
Page 448 U. S. 456
"difficult to imagine" any purpose for the program other than to
remedy such discrimination.
Id. at 605. In its view, a
number of factors contributed to the legitimacy of the MBE
provision, most significant of which was the narrowed focus and
limited extent of the statutory and administrative program, in
size, impact, and duration,
id. at 607-608; the court
looked also to the holdings of other Courts of Appeals and District
Courts that the MBE program was constitutional,
id. at
608-609. [
Footnote 6] It
expressly rejected petitioners' contention that the 10% MBE
requirement violated the equal protection guarantees of the
Constitution. [
Footnote 7]
Id. at 609.
II
A
The MBE provision was enacted as part of the Public Works
Employment Act of 1977, which made various amendments to Title I of
the Local Public Works Capital Development and Investment Act of
1976. The 1976 Act was intended
Page 448 U. S. 457
as a short-term measure to alleviate the problem of national
unemployment and to stimulate the national economy by assisting
state and local governments to build needed public facilities.
[
Footnote 8] To accomplish
these objectives, the Congress authorized the Secretary of
Commerce, acting through the EDA, to make grants to state and local
governments for construction, renovation, repair, or other
improvement of local public works projects. [
Footnote 9] The 1976 Act placed a number of
restrictions on project eligibility designed to assure that federal
moneys were targeted to accomplish the legislative purposes.
[
Footnote 10] It established
criteria to determine grant priorities and to apportion federal
funds among political jurisdictions. [
Footnote 11] Those criteria directed grant funds toward
areas of high unemployment. [
Footnote 12] The statute authorized the appropriation of
up to $2 billion for a period ending in September, 1977; [
Footnote 13] this appropriation was
soon consumed by grants made under the program.
Early in 1977, Congress began consideration of expanded
appropriations and amendments to the grant program. Under
administration of the 1976 appropriation, referred to as "Round I"
of the local public works program, applicants seeking some $25
billion in grants had competed for the $2 billion in available
funds; of nearly 25,000 applications, only some 2,000 were granted.
[
Footnote 14] The results
provoked widespread
Page 448 U. S. 458
concern for the fairness of the allocation process. [
Footnote 15] Because the 1977 Act
would authorize the appropriation of an additional $4 billion to
fund "Round II" of the grant program, [
Footnote 16] the congressional hearings and debates
concerning the amendment focused primarily on the politically
sensitive problems of priority and geographic distribution of
grants under the supplemental appropriation. [
Footnote 17] The result of this attention was
inclusion in the 1977 Act of provisions revising the allocation
criteria of the 1976 legislation. Those provisions, however,
retained the underlying objective to direct funds into areas of
high unemployment. [
Footnote
18] The 1977 Act also added new restrictions on applicants
seeking to qualify for federal grants; [
Footnote 19] among these was the MBE provision.
The origin of the provision was an amendment to the House
version of the 1977 Act, H.R. 11, offered on the floor of the House
on February 23, 1977, by Representative Mitchell of Maryland.
[
Footnote 20] As offered,
the amendment provided: [
Footnote 21]
"Notwithstanding any other provision of law, no grant shall be
made under this Act for any local public works project unless at
least 10 per centum of the articles, materials, and supplies which
will be used in such project are procured from minority business
enterprises. For purposes of this paragraph, the term 'minority
business
Page 448 U. S. 459
enterprise' means a business at least 50 percent of which is
owned by minority group members or, in case of publicly owned
businesses, at least 51 percent of the stock of which is owned by
minority group members. For the purposes of the preceding sentence,
minority group members are citizens of the United States who are
Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and
Aleuts."
The sponsor stated that the objective of the amendment was to
direct funds into the minority business community, a sector of the
economy sorely in need of economic stimulus but which, on the basis
of past experience with Government procurement programs, could not
be expected to benefit significantly from the public works program
as then formulated. [
Footnote
22] He cited the marked statistical disparity that, in fiscal
year 1976 less than 1% of all federal procurement was concluded
with minority business enterprises, although minorities comprised
15-18% of the population. [
Footnote 23] When the amendment was put forward during
debate on H.R. 11, [
Footnote
24] Representative Mitchell reiterated the need to ensure that
minority firms would obtain a fair opportunity to share in the
benefits of this Government program. [
Footnote 25]
The amendment was put forward not as a new concept, but rather
one building upon prior administrative practice.
Page 448 U. S. 460
In his introductory remarks, the sponsor rested his proposal
squarely on the ongoing program under § 8(a) of the Small Business
Act, Pub.L. 85-536, § 2, 72 Stat. 389, which, as will become
evident, served as a model for the administrative program developed
to enforce the MBE provision: [
Footnote 26]
"The first point in opposition will be that you cannot have a
set-aside. Well, Madam Chairman, we have been doing this for the
last 10 years in Government. The 8-A set-aside under SBA has been
tested in the courts more than 30 times and has been found to be
legitimate and bona fide. We are doing it in this bill."
Although the proposed MBE provision, on its face, appeared
mandatory, requiring compliance with the 10% minority participation
requirement "[n]otwithstanding any other provision of law," its
sponsor gave assurances that existing administrative practice would
ensure flexibility in administration if, with respect to a
particular project, compliance with the 10% requirement proved
infeasible. [
Footnote
27]
Representative Roe of New Jersey then suggested a change of
language expressing the twin intentions (1) that the federal
administrator would have discretion to waive the 10% requirement
where its application was not feasible, and (2) that the grantee
would be mandated to achieve at least 10% participation by minority
businesses unless infeasibility was demonstrated. [
Footnote 28] He proposed as a substitute
for the first sentence of the amendment the language that
eventually was enacted: [
Footnote 29]
"Except to the extent that the Secretary determines otherwise,
no grant shall be made under this Act for any local public works
project unless the applicant gives satisfactory assurance to the
Secretary that at least 10 percent
Page 448 U. S. 461
of the amount of each grant shall be expended for minority
business enterprises."
The sponsor fully accepted the suggested clarification because
it retained the directive that the initial burden of compliance
would fall on the grantee. That allocation of burden was necessary
because, as he put it,
"every agency of the Government has tried to figure out a way to
avoid doing this very thing. Believe me, these bureaucracies can
come up with 10,000 ways to avoid doing it. [
Footnote 30]"
Other supporters of the MBE amendment echoed the sponsor's
concern that a number of factors, difficult to isolate or quantify,
seemed to impair access by minority businesses to public
contracting opportunities. Representative Conyers of Michigan spoke
of the frustration of the existing situation, in which, due to the
intricacies of the bidding process and through no fault of their
own, minority contractors and businessmen were unable to gain
access to government contracting opportunities. [
Footnote 31]
Representative Biaggi of New York then spoke to the need for the
amendment to "promote a sense of economic equality in this Nation."
He expressed the view that, without the amendment, "this
legislation may be potentially inequitable to minority businesses
and workers" in that it would perpetuate the historic practices
that have precluded minority businesses from effective
participation in public contracting opportunities. [
Footnote 32] The amendment was accepted by
the House. [
Footnote 33]
Two weeks later, the Senate considered S. 427, its package of
amendments to the Local Public Works Capital Development and
Investment Act of 1976. At that time Senator Brooke of
Massachusetts introduced an MBE amendment,
Page 448 U. S. 462
worded somewhat differently than the House version, but aimed at
achieving the same objectives. [
Footnote 34] His statement in support of the 10%
requirement reiterated and summarized the various expressions on
the House side that the amendment was necessary to ensure that
minority businesses were not deprived of access to the government
contracting opportunities generated by the public works program.
[
Footnote 35]
The Senate adopted the amendment without debate. [
Footnote 36] The Conference Committee,
called to resolve differences between the House and Senate versions
of the Public Works Employment Act of 1977, adopted the language
approved by the House for the MBE provision. [
Footnote 37] The Conference Reports added only
the comment: "This provision shall be dependent on the availability
of minority business enterprises located in the project area."
[
Footnote 38]
The device of a 10% MBE participation requirement, subject to
administrative waiver, was thought to be required to assure
minority business participation; otherwise, it was thought that
repetition of the prior experience could be expected,
Page 448 U. S. 463
with participation by minority business accounting for an
inordinately small percentage of government contracting. The causes
of this disparity were perceived as involving the longstanding
existence and maintenance of barriers impairing access by minority
enterprises to public contracting opportunities, or sometimes as
involving more direct discrimination, but not as relating to lack
-- as Senator Brooke put it -- "of capable and qualified minority
enterprises who are ready and willing to work." [
Footnote 39] In the words of its sponsor,
the MBE provision was "designed to begin to redress this grievance
that has been extant for so long." [
Footnote 40]
B
The legislative objectives of the MBE provision must be
considered against the background of ongoing efforts directed
toward deliverance of the century-old promise of equality of
economic opportunity. The sponsors of the MBE provision in the
House and the Senate expressly linked the provision to the existing
administrative programs promoting minority opportunity in
government procurement, particularly those related to § 8(a) of the
Small Business Act of 1953. [
Footnote 41] Section 8(a) delegates to the Small Business
Administration (SBA) an authority and an obligation "whenever it
determines such action is necessary" to enter into contracts with
any procurement agency of the Federal Government to furnish
required goods or services, and, in turn, to enter into
subcontracts with small businesses for the performance of such
contracts. This authority lay dormant for a decade. Commencing in
1968, however, the SBA was directed by the President [
Footnote 42] to develop a program
pursuant to its § 8(a) authority to assist small
Page 448 U. S. 464
business concerns owned and controlled by "socially or
economically disadvantaged" persons to achieve a competitive
position in the economy.
At the time the MBE provision was enacted, the regulations
governing the § 8(a) program defined "social or economic
disadvantage" as follows: [
Footnote 43]
"An applicant concern must be owned and controlled by one or
more persons who have been deprived of the opportunity to develop
and maintain a competitive position in the economy because of
social or economic disadvantage. Such disadvantage may arise from
cultural, social, chronic economic circumstances or background, or
other similar cause. Such persons include, but are not limited to,
black Americans, American Indians, Spanish-Americans, oriental
Americans, Eskimos, and Aleuts. . . ."
The guidelines accompanying these regulations provided that a
minority business could not be maintained in the program, even when
owned and controlled by members of the identified minority groups,
if it appeared that the business had not been deprived of the
opportunity to develop and maintain a competitive position in the
economy because of social or economic disadvantage. [
Footnote 44]
Page 448 U. S. 465
As the Congress began consideration of the Public Works
Employment Act of 1977, the House Committee on Small Business
issued a lengthy Report summarizing its activities, including its
evaluation of the ongoing § 8(a) program. [
Footnote 45] One chapter of the Report, entitled
"Minority Enterprises and Allied Problems of Small Business,"
summarized a 1975 Committee Report of the same title dealing with
this subject matter. [
Footnote
46] The original Report, prepared by the House Subcommittee on
SBA Oversight and Minority Enterprise, observed: [
Footnote 47]
"The subcommittee is acutely aware that the economic policies of
this Nation must function within and be guided by our
constitutional system which guarantees 'equal protection of the
laws.' The effects of past inequities stemming from racial
prejudice have not remained in the past.
The Congress has
recognized the reality that past discriminatory practices have, to
some degree, adversely affected our present economic
system."
"While minority persons comprise about 16 percent of the
Nation's population, of the 13 million businesses in the United
States, only 382,000, or approximately 3.0 percent, are owned by
minority individuals. The most recent data from the Department of
Commerce also indicates that the gross receipts of all businesses
in this country totals about $2,540.8 billion, and, of this amount,
only $16.6 billion, or about 0.65 percent was realized by minority
business concerns."
"These statistics are not the result of random chance. The
presumption must be made that past discriminatory systems have
resulted in present economic inequities. In order to right this
situation, the Congress has formulated certain remedial programs
designed to uplift those socially
Page 448 U. S. 466
or economically disadvantaged persons to a level where they may
effectively participate in the business mainstream of our
economy.*"
"* For the purposes of this report, the term 'minority' shall
include only such minority individuals as are considered to be
economically or socially disadvantaged. [
Footnote 48]"
The 1975 Report gave particular attention to the § 8(a) program,
expressing disappointment with its limited effectiveness. [
Footnote 49] With specific reference
to Government construction contracting, the Report concluded,
"there are substantial § 8(a) opportunities in the area of
Federal construction, but . . . the practices of some agencies
preclude the realization of this potential. [
Footnote 50]"
The Subcommittee took "full notice . . . as evidence for its
consideration" of reports submitted to the Congress by the General
Accounting Office and by the U.S. Commission on Civil Rights, which
reflected a similar dissatisfaction with the effectiveness of the §
8(a) program. [
Footnote 51]
The
Page 448 U. S. 467
Civil Rights Commission report discussed at some length the
barriers encountered by minority businesses in gaining access to
government contracting opportunities at the federal, state, and
local levels. [
Footnote 52]
Among the major difficulties confronting minority businesses were
deficiencies in working capital, inability to meet bonding
requirements, disabilities caused by an inadequate "track record,"
lack of awareness of bidding opportunities, unfamiliarity with
bidding procedures, preselection before the formal advertising
process, and the exercise of discretion by government procurement
officers to disfavor minority businesses. [
Footnote 53]
The Subcommittee Report also gave consideration to the
operations of the Office of Minority Business Enterprise, an agency
of the Department of Commerce organized pursuant to Executive
Orders [
Footnote 54] to
formulate and coordinate federal efforts to assist the development
of minority businesses. The Report concluded that OMBE efforts were
"totally inadequate" to achieve its policy of increasing
opportunities for subcontracting by minority businesses on public
contracts. OMBE efforts were hampered by a "glaring lack of
specific objectives which each prime contractor should be required
to achieve," by a "lack of enforcement provisions," and by a "lack
of any meaningful monitoring system." [
Footnote 55]
Against this backdrop of legislative and administrative
programs, it is inconceivable that Members of both Houses were not
fully aware of the objectives of the MBE provision and of the
reasons prompting its enactment.
Page 448 U. S. 468
C
Although the statutory MBE provision itself outlines only the
bare bones of the federal program, it makes a number of critical
determinations: the decision to initiate a limited racial and
ethnic preference; the specification of a minimum level for
minority business participation; the identification of the minority
groups that are to be encompassed by the program; and the provision
for an administrative waiver where application of the program is
not feasible. Congress relied on the administrative agency to flesh
out this skeleton, pursuant to delegated rulemaking authority, and
to develop an administrative operation consistent with legislative
intentions and objectives.
As required by the Public Works Employment Act of 1977, the
Secretary of Commerce promulgated regulations to set into motion
"Round II" of the federal grant program. [
Footnote 56] The regulations require that construction
projects funded under the legislation must be performed under
contracts awarded by competitive bidding, unless the federal
administrator has made a determination that, in the circumstances
relating to a particular project, some other method is in the
public interest. Where competitive bidding is employed, the
regulations echo the statute's requirement that contracts are to be
awarded on the basis of the "lowest responsive bid submitted by a
bidder meeting established criteria of responsibility," and they
also restate the MBE requirement. [
Footnote 57]
EDA also has published guidelines devoted entirely to the
administration of the MBE provision. The guidelines outline the
obligations of the grantee to seek out all available, qualified,
bona fide MBE's, to provide technical assistance as needed, to
lower or waive bonding requirements where
Page 448 U. S. 469
feasible, to solicit the aid of the Office of Minority Business
Enterprise, the SBA, or other sources for assisting MBE's in
obtaining required working capital, and to give guidance through
the intricacies of the bidding process. [
Footnote 58]
EDA regulations contemplate that, as anticipated by Congress,
most local public works projects will entail the award of a
predominant prime contract, with the prime contractor assuming the
above grantee obligations for fulfilling the 10% MBE requirement.
[
Footnote 59] The EDA
guidelines specify that, when prime contractors are selected
through competitive bidding, bids for the prime contract "shall be
considered by the Grantee to be responsive only if at least 10
percent of the contract funds are to be expended for MBE's."
[
Footnote 60] The
administrative program envisions that competitive incentive will
motivate aspirant prime contractors to perform their obligations
under the MBE provision so as to qualify as "responsive" bidders.
And, since the contract is to be awarded to the lowest responsive
bidder, the same incentive is expected to motivate prime
contractors to seek out the most competitive of the available,
qualified, bona fide minority firms. This too is consistent with
the legislative intention. [
Footnote 61]
The EDA guidelines also outline the projected administration of
applications for waiver of the 10% MBE requirement, which may be
sought by the grantee either before or during the bidding process.
[
Footnote 62] The Technical
Bulletin issued by EDA discusses in greater detail the processing
of waiver requests, clarifying certain issues left open by the
guidelines. It specifies that waivers may be total or partial,
depending on
Page 448 U. S. 470
the circumstances, [
Footnote
63] and it illustrates the projected operation of the waiver
procedure by posing hypothetical questions with projected
administrative responses. One such hypothetical is of particular
interest, for it indicates the limitations on the scope of the
racial or ethnic preference contemplated by the federal program
when a grantee or its prime contractor is confronted with an
available, qualified, bona fide minority business enterprise who is
not the lowest competitive bidder. The hypothetical provides:
[
Footnote 64]
"
Question: Should a request for waiver of the 10%
requirement based on an unreasonable price asked by an MBE ever be
granted?"
"
Answer: It is possible to imagine situations where an
MBE might ask a price for its product or services that is
unreasonable and where, therefore, a waiver is justified. However,
before a waiver request will be honored, the following
determinations will be made:"
"a) The MBE's quote is unreasonably priced. This determination
should be based on the nature of the product or service of the
subcontractor, the geographic location of the site and of the
subcontractor, prices of similar products or services in the
relevant market area, and general business conditions in the market
area. Furthermore, a subcontractor's price should not be considered
unreasonable if he is merely trying to cover his costs because the
price results from disadvantage which affects the MBE's cost of
doing business or results from discrimination."
"b) The contractor has contacted other MBEs and has no
meaningful choice but to accept an unreasonably high price."
This announced policy makes clear the administrative
understanding that a waiver or partial waiver is justified (and
will
Page 448 U. S. 471
be granted) to avoid subcontracting with a minority business
enterprise at an "unreasonable" price,
i.e., a price above
competitive levels which cannot be attributed to the minority
firm's attempt to cover costs inflated by the present effects of
disadvantage or discrimination.
This administrative approach is consistent with the legislative
intention. It will be recalled that, in the Report of the House
Subcommittee on SBA Oversight and Minority Enterprise, the
Subcommittee took special care to note that, when using the term
"minority," it intended to include "only such minority individuals
as are considered to be economically or socially disadvantaged."
[
Footnote 65] The
Subcommittee also was cognizant of existing administrative
regulations designed to ensure that firms maintained on the lists
of bona fide minority business enterprises be those whose
competitive position is impaired by the effects of disadvantage and
discrimination. In its Report, the Subcommittee expressed its
intention that these criteria continue to govern administration of
the SBA's § 8(a) program. [
Footnote 66] The sponsors of the MBE provision, in their
reliance on prior administrative practice, intended that the term
"minority business enterprise" would be given that same limited
application; this even found expression in the legislative debates,
where Representative Roe made the point: [
Footnote 67]
"[W]hen we are talking about companies held by minority groups .
. . [c]ertainly people of a variety of backgrounds are included in
that. That is not really a measurement. They are talking about
people in the minority and deprived."
The EDA Technical Bulletin provides other elaboration of the MBE
provision. It clarifies the definition of "minority
Page 448 U. S. 472
group members." [
Footnote
68] It also indicates EDA's intention
"to allow credit for utilization of MBEs only for those
contracts in which involvement constitutes a basis for
strengthening the long-term and continuing participation of the MBE
in the construction and related industries. [
Footnote 69]"
Finally, the Bulletin outlines a procedure for the processing of
complaints of "unjust participation by an enterprise or individuals
in the MBE program," or of improper administration of the MBE
requirement. [
Footnote
70]
III
When we are required to pass on the constitutionality of an Act
of Congress, we assume "the gravest and most delicate duty that
this Court is called on to perform."
Blodgett v. Holden,
275 U. S. 142,
275 U. S. 148
(1927) (opinion of Holmes, J.). A program that employs racial or
ethnic criteria, even in a remedial context, calls for close
examination; yet we are bound to approach our task with appropriate
deference to the Congress, a coequal branch charged by the
Constitution with the power to "provide for the . . . general
Welfare of the United States" and "to enforce, by appropriate
legislation," the equal protection guarantees of the Fourteenth
Amendment. Art. I, § 8, cl. 1; Amdt. 14, § 5. In
Columbia
Broadcasting System, Inc. v. Democratic National Committee,
412 U. S. 94,
412 U. S. 102
(1973), we accorded "great weight to the decisions of Congress"
even though the legislation implicated fundamental constitutional
rights guaranteed by the First Amendment. The rule is not different
when a congressional program raises equal protection concerns.
See, e.g., Cleland v. National College of Business,
435 U. S. 213
(1978);
Mathews v. De Castro, 429 U.
S. 181 (1976).
Page 448 U. S. 473
Here we pass, not on a choice made by a single judge or a school
board, but on a considered decision of the Congress and the
President. However, in no sense does that render it immune from
judicial scrutiny, and it "is not to say we
defer' to the
judgment of the Congress . . . on a constitutional question," or
that we would hesitate to invoke the Constitution should we
determine that Congress has overstepped the bounds of its
constitutional power. Columbia Broadcasting, supra at
412 U. S.
103.
The clear objective of the MBE provision is disclosed by our
necessarily extended review of its legislative and administrative
background. The program was designed to ensure that, to the extent
federal funds were granted under the Public Works Employment Act of
1977, grantees who elect to participate would not employ
procurement practices that Congress had decided might result in
perpetuation of the effects of prior discrimination which had
impaired or foreclosed access by minority businesses to public
contracting opportunities. The MBE program does not mandate the
allocation of federal funds according to inflexible percentages
solely based on race or ethnicity.
Our analysis proceeds in two steps. At the outset, we must
inquire whether the
objectives of this legislation are
within the power of Congress. If so, we must go on to decide
whether the limited use of racial and ethnic criteria, in the
context presented, is a constitutionally permissible means for
achieving the congressional objectives and does not violate the
equal protection component of the Due Process Clause of the Fifth
Amendment.
A
(1)
In enacting the MBE provision, it is clear that Congress
employed an amalgam of its specifically delegated powers. The
Public Works Employment Act of 1977, by its very nature, is
primarily an exercise of the Spending Power. U.S.
Page 448 U. S. 474
Const., Art. I, 8, cl. 1. This Court has recognized that the
power to "provide for the . . . general Welfare" is an independent
grant of legislative authority, distinct from other broad
congressional powers.
Buckley v. Valeo, 424 U. S.
1,
424 U. S. 90-91
(1976);
United States v. Butler, 297 U. S.
1,
297 U. S. 65-66
(1936). Congress has frequently employed the Spending Power to
further broad policy objectives by conditioning receipt of federal
moneys upon compliance by the recipient with federal statutory and
administrative directives. This Court has repeatedly upheld against
constitutional challenge the use of this technique to induce
governments and private parties to cooperate voluntarily with
federal policy.
E.g., California Bankers Assn. v. Shultz,
416 U. S. 21
(1974);
Lau v. Nichols, 414 U. S. 563
(1974);
Oklahoma v. CSC, 330 U. S. 127
(1947);
Helvering v. Davis, 301 U.
S. 619 (1937);
Steward Machine Co. v. Davis,
301 U. S. 548
(1937).
The MBE program is structured within this familiar legislative
pattern. The program conditions receipt of public works grants upon
agreement by the state or local governmental grantee that at least
10% of the federal funds will be devoted to contracts with minority
businesses, to the extent this can be accomplished by overcoming
barriers to access and by awarding contracts to bona fide MBE's. It
is further conditioned to require that MBE bids on these contracts
are competitively priced, or might have been competitively priced
but for the present effects of prior discrimination. Admittedly,
the problems of administering this program with respect to these
conditions may be formidable. Although the primary responsibility
for ensuring minority participation falls upon the grantee, when
the procurement practices of the grantee involve the award of a
prime contract to a general or prime contractor, the obligations to
assure minority participation devolve upon the private contracting
party; this is a contractual condition of eligibility for award of
the prime contract.
Page 448 U. S. 475
Here we need not explore the outermost limitations on the
objectives attainable through such an application of the Spending
Power. The reach of the Spending Power, within its sphere, is at
least as broad as the regulatory powers of Congress. If, pursuant
to its regulatory powers, Congress could have achieved the
objectives of the MBE program, then it may do so under the Spending
Power. And we have no difficulty perceiving a basis for
accomplishing the objectives of the MBE program through the
Commerce Power insofar as the program objectives pertain to the
action of private contracting parties, and through the power to
enforce the equal protection guarantees of the Fourteenth Amendment
insofar as the program objectives pertain to the action of state
and local grantees.
(2)
We turn first to the Commerce Power. U.S.Const., Art. I, § 8,
cl. 3. Had Congress chosen to do so, it could have drawn on the
Commerce Clause to regulate the practices of prime contractors on
federally funded public works projects.
Katzenbach v.
McClung, 379 U. S. 294
(1964); Heart of Atlanta Motel, Inc. v. United States,
379 U.
S. 241 (1964). The legislative history of the MBE
provision shows that there was a rational basis for Congress to
conclude that the subcontracting practices of prime contractors
could perpetuate the prevailing impaired access by minority
businesses to public contracting opportunities, and that this
inequity has an effect on interstate commerce. Thus, Congress could
take necessary and proper action to remedy the situation.
Ibid.
It is not necessary that these prime contractors be shown
responsible for any violation of antidiscrimination laws. Our cases
dealing with application of Title VII of the Civil Rights Act of
1964, 78 Stat. 253, as amended, express no doubt of the
congressional authority to prohibit practices "challenged as
perpetuating the effects of [not unlawful] discrimination occurring
prior to the effective date of the Act."
Franks
v.
Page 448 U. S. 476
Bowman Transportation Co., 424 U.
S. 747,
424 U. S. 761
(1976);
see California Brewers Assn. v. Bryant,
444 U. S. 598
(1980);
Teamsters v. United States, 431 U.
S. 324 (1977);
Albemarle Paper Co. v. Moody,
422 U. S. 405
(1975);
Griggs v. Duke Power Co., 401 U.
S. 424 (1971). Insofar as the MBE program pertains to
the actions of private prime contractors, the Congress could have
achieved its objectives under the Commerce Clause. We conclude
that, in this respect, the objectives of the MBE provision are
within the scope of the Spending Power.
(3)
In certain contexts, there are limitations on the reach of the
Commerce Power to regulate the actions of state and local
governments.
National League of Cities v. Usery,
426 U. S. 833
(1976). To avoid such complications, we look to § 5 of the
Fourteenth Amendment for the power to regulate the procurement
practices of state and local grantees of federal funds.
Fitzpatrick v. Bitzer, 427 U. S. 445
(1976). A review of our cases persuades us that the objectives of
the MBE program are within the power of Congress under § 5 "to
enforce, by appropriate legislation," the equal protection
guarantees of the Fourteenth Amendment.
In
Katzenbach v. Morgan, 384 U.
S. 641 (1966), we equated the scope of this authority
with the broad powers expressed in the Necessary and Proper Clause,
U.S.Const., Art. I, § 8, cl. 18.
"Correctly viewed, § 5 is a positive grant of legislative power
authorizing Congress to exercise its discretion in determining
whether and what legislation is needed to secure the guarantees of
the Fourteenth Amendment."
384 U.S. at
384 U. S. 651.
In
Katzenbach, the Court upheld § 4(e) of the Voting
Rights Act of 1965, 79 Stat. 439, 42 U.S.C.1973b(e), which
prohibited application of state English language literacy
requirements to otherwise qualified voters who had completed the
sixth grade in an accredited American school in
Page 448 U. S. 477
which a language other than English was the predominant medium
of instruction. To uphold this exercise of congressional authority,
the Court found no prerequisite that application of a literacy
requirement violate the Equal Protection Clause. 384 U.S. at
384 U. S.
648-649. It was enough that the Court could perceive a
basis upon which Congress could reasonably predicate a judgment
that application of literacy qualifications within the compass of §
4(e) would discriminate in terms of access to the ballot and
consequently in terms of access to the provision or administration
of governmental programs.
Id. at
384 U. S.
652-653.
Four years later, in
Oregon v. Mitchell, 400 U.
S. 112 (1970), we upheld § 201 of the Voting Rights Act
Amendments of 1970, 84 Stat. 315, which imposed a 5-year nationwide
prohibition on the use of various voter-qualification tests and
devices in federal, state, and local elections. The Court was
unanimous, albeit in separate opinions, in concluding that Congress
was within its authority to prohibit the use of such voter
qualifications; Congress could reasonably determine that its
legislation was an appropriate method of attacking the perpetuation
of prior purposeful discrimination, even though the use of these
tests or devices might have discriminatory effects only.
See
City of Rome v. United States, 446 U.
S. 156,
446 U. S.
176-177 (1980). Our cases reviewing the parallel power
of Congress to enforce the provisions of the Fifteenth Amendment,
U.S.Const., Amdt. 15, § 2, confirm that congressional authority
extends beyond the prohibition of purposeful discrimination to
encompass state action that has discriminatory impact perpetuating
the effects of past discrimination.
South Carolina v.
Katzenbach, 383 U. S. 301
(1966);
cf. City of Rome, supra.
With respect to the MBE provision, Congress had abundant
evidence from which it could conclude that minority businesses have
been denied effective participation in public contracting
opportunities by procurement practices that perpetuated
Page 448 U. S. 478
the effects of prior discrimination. Congress, of course, may
legislate without compiling the kind of "record" appropriate with
respect to judicial or administrative proceedings. Congress had
before it, among other data, evidence of a long history of marked
disparity in the percentage of public contracts awarded to minority
business enterprises. This disparity was considered to result not
from any lack of capable and qualified minority businesses, but
from the existence and maintenance of barriers to competitive
access which had their roots in racial and ethnic discrimination,
and which continue today, even absent any intentional
discrimination or other unlawful conduct. Although much of this
history related to the experience of minority businesses in the
area of federal procurement, there was direct evidence before the
Congress that this pattern of disadvantage and discrimination
existed with respect to state and local construction contracting as
well. In relation to the MBE provision, Congress acted within its
competence to determine that the problem was national in scope.
Although the Act recites no preambulary "findings" on the
subject, we are satisfied that Congress had abundant historical
basis from which it could conclude that traditional procurement
practices, when applied to minority businesses, could perpetuate
the effects of prior discrimination. Accordingly, Congress
reasonably determined that the prospective elimination of these
barriers to minority firm access to public contracting
opportunities generated by the 1977 Act was appropriate to ensure
that those businesses were not denied equal opportunity to
participate in federal grants to state and local governments, which
is one aspect of the equal protection of the laws. Insofar as the
MBE program pertains to the actions of state and local grantees,
Congress could have achieved its objectives by use of its power
under § 5 of the Fourteenth Amendment. We conclude that, in this
respect, the objectives of the MBE provision are within the scope
of the Spending Power.
Page 448 U. S. 479
(4)
There are relevant similarities between the MBE program and the
federal spending program reviewed in
Lau v. Nichols,
414 U. S. 563
(1974). In
Lau, a language barrier "effectively
foreclosed" non-English-speaking Chinese pupils from access to the
educational opportunities offered by the San Francisco public
school system.
Id. at
414 U. S.
564-566. It had not been shown that this had resulted
from any discrimination, purposeful or otherwise, or from other
unlawful acts. Nevertheless, we upheld the constitutionality of a
federal regulation applicable to public school systems receiving
federal funds that prohibited the utilization of
"criteria or methods of administration
which have the
effect . . . of defeating or substantially impairing
accomplishment of the objectives of the [educational] program as
respect individuals of a particular race, color, or national
origin."
Id. at
414 U. S. 568
(emphasis added). Moreover, we upheld application to the San
Francisco school system, as a recipient of federal funds, of a
requirement that,
"[w]here inability to speak and understand the English language
excludes national origin minority group children from effective
participation in the educational program offered by a school
district, the district must take affirmative steps to rectify the
language deficiency in order to open its instructional program to
these students."
Ibid.
It is true that the MBE provision differs from the program
approved in Lau in that the MBE program directly employs racial and
ethnic criteria as a means to accomplish congressional objectives;
however, these objectives are essentially the same as those
approved in
Lau. Our holding in
Lau is
instructive on the exercise of congressional authority by way of
the MBE provision. The MBE program, like the federal regulations
reviewed in
Lau, primarily regulates state action in the
use of federal funds voluntarily sought and accepted by the
grantees subject to statutory and administrative conditions. The
MBE participation requirement is directed at
Page 448 U. S. 480
the utilization of criteria, methods, or practices thought by
Congress to have the effect of defeating, or substantially
impairing, access by the minority business community to public
funds made available by congressional appropriations.
B
We now turn to the question whether, as a means to accomplish
these plainly constitutional objectives, Congress may use racial
and ethnic criteria, in this limited way, as a condition attached
to a federal grant. We are mindful that
"[i]n no matter should we pay more deference to the opinion of
Congress than in its choice of instrumentalities to perform a
function that is within its power,"
National Mutual Insurance Co. v. Tidewater Transfer
Co., 337 U. S. 582,
337 U. S. 603
(1949) (opinion of Jackson, J.). However, Congress may employ
racial or ethnic classifications in exercising its Spending or
other legislative powers only if those classifications do not
violate the equal protection component of the Due Process Clause of
the Fifth Amendment. We recognize the need for careful judicial
evaluation to assure that any congressional program that employs
racial or ethnic criteria to accomplish the objective of remedying
the present effects of past discrimination is narrowly tailored to
the achievement of that goal.
Again, we stress the limited scope of our inquiry. Here we are
not dealing with a remedial decree of a court, but with the
legislative authority of Congress. Furthermore, petitioners have
challenged the constitutionality of the MBE provision on its face;
they have not sought damages or other specific relief for injury
allegedly flowing from specific applications of the program; nor
have they attempted to show that, as applied in identified
situations, the MBE provision violated the constitutional or
statutory rights of any party to this case. [
Footnote 71] In
Page 448 U. S. 481
these circumstances, given a reasonable construction and in
light of its projected administration, if we find the MBE program,
on its face, to be free of constitutional defects, it must be
upheld as within congressional power.
Parker v. Levy,
417 U. S. 733,
417 U. S. 760
(1974);
Fortson v. Dorsey, 379 U.
S. 433,
379 U. S.
438-439 (1965);
Aptheker v. Secretary of State,
378 U. S. 500,
378 U. S. 515
(1964);
see United States v. Raines, 362 U. S.
17,
362 U. S. 20-24
(1960).
Our review of the regulations and guidelines governing
administration of the MBE provision reveals that Congress enacted
the program as a strictly remedial measure; moreover, it is a
remedy that functions prospectively, in the manner of an injunctive
decree. Pursuant to the administrative program, grantees and their
prime contractors are required to seek out all available,
qualified, bona fide MBE's; they are required to provide technical
assistance as needed, to lower or waive bonding requirements where
feasible, to solicit the aid of the Office of Minority Business
Enterprise, the SBA, or other sources for assisting MBE's to obtain
required working capital, and to give guidance through the
intricacies of the bidding process.
Supra at
448 U. S.
468-469. The program assumes that grantees who undertake
these efforts in good faith will obtain at least 10% participation
by minority business enterprises. It is recognized that, to achieve
this target, contracts will be awarded to available qualified bona
fide MBE's even though they are not the lowest competitive bidders,
so long as their higher bids, when challenged, are found to reflect
merely attempts to cover costs inflated by the present effects of
prior disadvantage and discrimination.
Supra at
448 U. S.
470-471. There is available to the grantee a provision
authorized by Congress for administrative waiver on
Page 448 U. S. 482
a case-by-case basis should there be a demonstration that,
despite affirmative efforts, this level of participation cannot be
achieved without departing from the objectives of the program.
Supra at
448 U. S.
469-470. There is also an administrative mechanism,
including a complaint procedure, to ensure that only bona fide
MBE's are encompassed by the remedial program, and to prevent
unjust participation in the program by those minority firms whose
access to public contracting opportunities is not impaired by the
effects of prior discrimination.
Supra at
448 U. S.
471-472.
(1)
As a threshold matter, we reject the contention that, in the
remedial context, the Congress must act in a wholly "color-blind"
fashion. In
Swann v. Charlotte-Mecklenburg Board of
Education, 402 U. S. 1,
402 U. S. 18-21
(1971), we rejected this argument in considering a court-formulated
school desegregation remedy on the basis that examination of the
racial composition of student bodies was an unavoidable starting
point, and that racially based attendance assignments were
permissible so long as no absolute racial balance of each school
was required. In
McDaniel v. Barresi, 402 U. S.
39,
402 U. S. 41
(1971), citing
Swann, we observed:
"In this remedial process, steps will almost invariably require
that students be assigned 'differently because of their race.' Any
other approach would freeze the
status quo that is the
very target of all desegregation processes."
(Citations omitted.) And in
North Carolina Board of
Education v. Swann, 402 U. S. 43
(1971), we invalidated a state law that absolutely forbade
assignment of any student on account of race, because it foreclosed
implementation of desegregation plans that were designed to remedy
constitutional violations. We held that
"[j]ust as the race of students must be considered in
determining whether a constitutional violation has occurred, so
also must race be considered in formulating a remedy."
Id. at
402 U. S.
46.
Page 448 U. S. 483
In these school desegregation cases we dealt with the authority
of a federal court to formulate a remedy for unconstitutional
racial discrimination. However, the authority of a court to
incorporate racial criteria into a remedial decree also extends to
statutory violations. Where federal antidiscrimination laws have
been violated, an equitable remedy may, in the appropriate case,
include a racial or ethnic factor.
Franks v. Bowman
Transportation Co., 424 U. S. 747
(1976);
see Teamsters v. United States, 431 U.
S. 324 (1977);
Albemarle Paper Co. v. Moody,
422 U. S. 405
(1975). In another setting, we have held that a state may employ
racial criteria that are reasonably necessary to assure compliance
with federal voting rights legislation, even though the state
action does not entail the remedy of a constitutional violation.
United Jewish Organizations of Williamsburgh, Inc. v.
Carey, 430 U. S. 144,
430 U. S.
147-165 (1977) (opinion of WHITE, J., joined by BRENNAN,
BLACKMUN, and STEVENS, JJ.);
id. at
430 U. S.
180-187 (BURGER, C.J., dissenting on other grounds).
When we have discussed the remedial powers of a federal court,
we have been alert to the limitation that
"[t]he power of the federal courts to restructure the operation
of local and state governmental entities 'is not plenary. . . .'
[A] federal court is required to tailor 'the scope of the remedy'
to fit the nature and extent of the . . . violation."
Dayton Board of Education v. Brinkman, 433 U.
S. 406,
433 U. S.
419-420 (1977) (quoting
Milliken v. Bradley,
418 U. S. 717,
418 U. S. 738
(1974), and
Swann v. Charlotte-Mecklenburg Board of Education,
supra at
402 U. S.
16).
Here we deal, as we noted earlier, not with the limited remedial
powers of a federal court, for example, but with the broad remedial
powers of Congress. It is fundamental that in no organ of
government, state or federal, does there repose a more
comprehensive remedial power than in the Congress, expressly
charged by the Constitution with competence and authority to
enforce equal protection guarantees. Congress not only may induce
voluntary action to assure compliance
Page 448 U. S. 484
with existing federal statutory or constitutional
antidiscrimination provisions, but also where Congress has
authority to declare certain conduct unlawful, it may, as here,
authorize and induce state action to avoid such conduct.
Supra at
448 U. S.
473-480.
(2)
A more specific challenge to the MBE program is the charge that
it impermissibly deprives nonminority businesses of access to at
least some portion of the government contracting opportunities
generated by the Act. It must be conceded that, by its objective of
remedying the historical impairment of access, the MBE provision
can have the effect of awarding some contracts to MBE's which
otherwise might be awarded to other businesses, who may themselves
be innocent of any prior discriminatory actions. Failure of
nonminority firms to receive certain contracts is, of course, an
incidental consequence of the program, not part of its objective;
similarly, past impairment of minority-firm access to public
contracting opportunities may have been an incidental consequence
of "business as usual" by public contracting agencies and among
prime contractors.
It is not a constitutional defect in this program that it may
disappoint the expectations of nonminority firms. When effectuating
a limited and properly tailored remedy to cure the effects of prior
discrimination, such "a sharing of the burden" by innocent parties
is not impermissible.
Franks, supra at
424 U. S. 777;
see Albemarle Paper Co., supra; United Jewish Organizations,
supra. The actual "burden" shouldered by nonminority firms is
relatively light in this connection when we consider the scope of
this public works program as compared with overall construction
contracting opportunities. [
Footnote 72] Moreover, although we may assume that the
complaining
Page 448 U. S. 485
parties are innocent of any discriminatory conduct, it was
within congressional power to act on the assumption that in the
past some nonminority businesses may have reaped competitive
benefit over the years from the virtual exclusion of minority firms
from these contracting opportunities.
(3)
Another challenge to the validity of the MBE program is the
assertion that it is underinclusive -- that it limits its benefit
to specified minority groups, rather than extending its remedial
objectives to all businesses whose access to government contracting
is impaired by the effects of disadvantage or discrimination. Such
an extension would, of course, be appropriate for Congress to
provide; it is not a function for the courts.
Even in this context, the well established concept that a
legislature may take one step at a time to remedy only part of a
broader problem is not without relevance.
See Dandridge v.
Williams, 397 U. S. 471
(1970);
Williamson v. Lee Optical Co., 348 U.
S. 483 (1955). We are not reviewing a federal program
that seeks to confer a preferred status upon a nondisadvantaged
minority or to give special assistance to only one of several
groups established to be similarly disadvantaged minorities. Even
in such a setting, the Congress is not without a certain authority.
See, e.g., Personnel Administrator of Massachusetts v.
Feeney, 442 U. S. 256
(1979);
Califano v. Webster, 430 U.
S. 313 (1977);
Morton v Mancari, 417 U.
S. 535 (1974).
The Congress has not sought to give select minority groups a
preferred standing in the construction industry, but has
Page 448 U. S. 486
embarked on a remedial program to place them on a more equitable
footing with respect to public contracting opportunities. There has
been no showing in this case that Congress has inadvertently
effected an invidious discrimination by excluding from coverage an
identifiable minority group that has been the victim of a degree of
disadvantage and discrimination equal to or greater than that
suffered by the groups encompassed by the MBE program. It is not
inconceivable that, on very special facts, a case might be made to
challenge the congressional decision to limit MBE eligibility to
the particular minority groups identified in the Act.
See Vance
v. Bradley, 440 U. S. 93,
440 U. S.
109-112 (1979);
Oregon v. Mitchell, 400 U.S. at
400 U. S. 240
(opinion of BRENNAN, WHITE, and MARSHALL, JJ.). But on this record,
we find no basis to hold that Congress is without authority to
undertake the kind of limited remedial effort represented by the
MBE program. Congress, not the courts, has the heavy burden of
dealing with a host of intractable economic and social problems
(4)
It is also contended that the MBE program is overinclusive --
that it bestows a benefit on businesses identified by racial or
ethnic criteria which cannot be justified on the basis of
competitive criteria or as a remedy for the present effects of
identified prior discrimination. It is conceivable that a
particular application of the program may have this effect;
however, the peculiarities of specific applications are not before
us in this case. We are not presented here with a challenge
involving a specific award of a construction contract or the denial
of a waiver request; such questions of specific application must
await future cases.
This does not mean that the claim of overinclusiveness is
entitled to no consideration in the present case. The history of
governmental tolerance of practices using racial or ethnic criteria
for the purpose or with the effect of imposing an invidious
discrimination must alert us to the deleterious
Page 448 U. S. 487
effects of even benign racial or ethnic classifications when
they stray from narrow remedial justifications. Even in the context
of a facial challenge such as is presented in this case, the MBE
provision cannot pass muster unless, with due account for its
administrative program, it provides a reasonable assurance that
application of racial or ethnic criteria will be limited to
accomplishing the remedial objectives of Congress, and that
misapplications of the program will be promptly and adequately
remedied administratively.
It is significant that the administrative scheme provides for
waiver and exemption. Two fundamental congressional assumptions
underlie the MBE program: (1) that the present effects of past
discrimination have impaired the competitive position of businesses
owned and controlled by members of minority groups; and (2) that
affirmative efforts to eliminate barriers to minority firm access,
and to evaluate bids with adjustment for the present effects of
past discrimination, would assure that at least 10% of the federal
funds granted under the Public Works Employment Act of 1977 would
be accounted for by contracts with available, qualified, bona fide
minority business enterprises. Each of these assumptions may be
rebutted in the administrative process.
The administrative program contains measures to effectuate the
congressional objective of assuring legitimate participation by
disadvantaged MBE's. Administrative definition has tightened some
less definite aspects of the statutory identification of the
minority groups encompassed by the program. [
Footnote 73] There is administrative scrutiny to
identify and
Page 448 U. S. 488
eliminate from participation in the program MBE's who are not
"bona fide" within the regulations and guidelines; for example,
spurious minority-front entities can be exposed. A significant
aspect of this surveillance is the complaint procedure available
for reporting "unjust participation by an enterprise or individuals
in the MBE program."
Supra at
448 U. S. 472.
And even as to specific contract awards, waiver is available to
avoid dealing with an MBE who is attempting to exploit the remedial
aspects of the program by charging an unreasonable price,
i.e., a price not attributable to the present effects of
past discrimination.
Supra at
448 U. S.
469-471. We must assume that Congress intended close
scrutiny of false claims and prompt action on them.
Grantees are given the opportunity to demonstrate that their
best efforts will not succeed or have not succeeded in achieving
the statutory 10% target for minority firm participation within the
limitations of the program's remedial objectives. In these
circumstances, a waiver or partial waiver is available once
compliance has been demonstrated. A waiver may be sought and
granted at any time during the contracting process, or even prior
to letting contracts, if the facts warrant.
Page 448 U. S. 489
Nor is the program defective because a waiver may be sought only
by the grantee, and not by prime contractors who may experience
difficulty in fulfilling contract obligations to assure minority
participation. It may be administratively cumbersome, but the
wisdom of concentrating responsibility at the grantee level is not
for us to evaluate; the purpose is to allow the EDA to maintain
close supervision of the operation of the MBE provision. The
administrative complaint mechanism allows for grievances of prime
contractors who assert that a grantee has failed to seek a waiver
in an appropriate case. Finally, we note that, where private
parties, as opposed to governmental entities, transgress the
limitations inherent in the MBE program, the possibility of
constitutional violation is more removed.
See Steelworkers v.
Weber, 443 U. S. 193,
443 U. S. 20
(1979).
That the use of racial and ethnic criteria is premised on
assumptions rebuttable in the administrative process gives
reasonable assurance that application of the MBE program will be
limited to accomplishing the remedial objectives contemplated by
Congress, and that misapplications of the racial and ethnic
criteria can be remedied. In dealing with this facial challenge to
the statute, doubts must be resolved in support of the
congressional judgment that this limited program is a necessary
step to effectuate the constitutional mandate for equality of
economic opportunity. The MBE provision may be viewed as a pilot
project, appropriately limited in extent and duration, and subject
to reassessment and reevaluation by the Congress prior to any
extension or reenactment. [
Footnote 74] Miscarriages of administration could have
only a transitory economic impact on businesses not encompassed by
the program, and would not be irremediable.
Page 448 U. S. 490
IV
Congress, after due consideration, perceived a pressing need to
move forward with new approaches in the continuing effort to
achieve the goal of equality of economic opportunity. In this
effort, Congress has necessary latitude to try new techniques such
as the limited use of racial and ethnic criteria to accomplish
remedial objectives; this is especially so in programs where
voluntary cooperation with remedial measures is induced by placing
conditions on federal expenditures. That the program may press the
outer limits of congressional authority affords no basis for
striking it down.
Petitioners have mounted a facial challenge to a program
developed by the politically responsive branches of Government. For
its part, the Congress must proceed only with programs narrowly
tailored to achieve its objectives, subject to continuing
evaluation and reassessment; administration of the programs must be
vigilant and flexible; and, when such a program comes under
judicial review, courts must be satisfied that the legislative
objectives and projected administration give reasonable assurance
that the program will function within constitutional limitations.
But as Mr. Justice Jackson admonished in a different context in
1941: [
Footnote 75]
"The Supreme Court can maintain itself and succeed in its tasks
only if the counsels of self-restraint urged most earnestly by
members of the Court itself are humbly and faithfully heeded. After
the forces of conservatism and liberalism, of radicalism and
reaction, of emotion and of self-interest are all caught up in the
legislative process and averaged and come to rest in some
compromise measure such as the Missouri Compromise, the N.R.A. the
A.A.A., a minimum wage law, or some other legislative policy, a
decision striking it down closes an area of compromise in which
conflicts have actually, if only
Page 448 U. S. 491
temporarily, been composed. Each such decision takes away from
our democratic federalism another of its defenses against domestic
disorder and violence. The vice of judicial supremacy, as exerted
for ninety years in the field of policy, has been its progressive
closing of the avenues to peaceful and democratic conciliation of
our social and economic conflicts."
Mr. Justice Jackson reiterated these thoughts shortly before his
death in what was to be the last of his Godkin Lectures: [
Footnote 76]
"I have said that, in these matters, the Court must respect the
limitations on its own powers, because judicial usurpation is to me
no more justifiable and no more promising of permanent good to the
country than any other kind. So I presuppose a Court that will not
depart from the judicial process, will not go beyond resolving
cases and controversies brought to it in conventional form, and
will not consciously encroach upon the functions of its coordinate
branches."
In a different context, to be sure, that is, in discussing the
latitude which should be allowed to states in trying to meet social
and economic problems, Mr. Justice Brandeis had this to say:
"To stay experimentation in things social and economic is a
grave responsibility. Denial of the right to experiment may be
fraught with serious consequences to the Nation."
New State Ice Co. v. Liebmann, 285 U.
S. 262,
285 U. S. 311
(1932) (dissenting opinion).
Any preference based on racial or ethnic criteria must
necessarily receive a most searching examination to make sure that
it does not conflict with constitutional guarantees. This case is
one which requires, and which has received, that kind
Page 448 U. S. 492
of examination. This opinion does not adopt, either expressly or
implicitly, the formulas of analysis articulated in such cases as
University of California Regents v. Bakke, 438 U.
S. 265 (1978). However, our analysis demonstrates that
the MBE provision would survive judicial review under either "test"
articulated in the several
Bakke opinions. The MBE
provision of the Public Works Employment Act of 1977 does not
violate the Constitution. [
Footnote 77]
Affirmed.
APPENDIX TO OPINION OF BURGER, C.J.
|
448
U.S. 448apppar1|
� 1. The EDA Guidelines, at 2-7, provide in relevant part:
"The primary obligation for carrying out the 10% MBE
participation requirement rests with EDA Grantees. . . . The
Grantee and those of its contractors which will make subcontracts
or purchase substantial supplies from other firms (hereinafter
referred to as 'prime contractors') must seek out all available bon
fide MBE's and make every effort to use as many of them as possible
on the project."
"An MBE is bona fide if the minority group ownership interests
are real and continuing, and not created solely to meet 10% MBE
requirements. For example, the minority group owners or
stockholders should possess control over management, interest in
capital and interest in earnings commensurate with the percentage
of ownership
Page 448 U. S. 493
on which the claim of minority ownership status is based. . .
."
"An MBE is available if the project is located in the market
area of the MBE and the MBE can perform project services or supply
project materials at the time they are needed. The relevant market
area depends on the kind of services or supplies which are needed.
. . . EDA will require that Grantees and prime contractors engage
MBE's from as wide a market area as is economically feasible."
"An MBE is qualified if it can perform the services or supply
the materials that are needed. Grantees and prime contractors will
be expected to use MBE's with less experience than available
nonminority enterprises, and should expect to provide technical
assistance to MBE's as needed. Inability to obtain bonding will
ordinarily not disqualify an MBE. Grantees and prime contractors
are expected to help MBE's obtain bonding, to include MBE's in any
overall bond or to waive bonding where feasible. The Small Business
Administration (SBA) is prepared to provide a 90% guarantee for the
bond of any MBE participating in an LPW [local public works]
project. Lack of working capital will not ordinarily disqualify an
MBE. SBA is prepared to provide working capital assistance to any
MBE participating in an LPW project. Grantees and prime contractors
are expected to assist MBE's in obtaining working capital through
SBA or otherwise."
". . . [E]very Grantee should make sure that it knows the names,
addresses and qualifications of all relevant MBE's which would
include the project location in their market areas. . . . Grantees
should also hold prebid conferences to which they invite interested
contractors and representatives of . . . MBE support
organizations."
"Arrangements have been made through the Office of Minority
Business Enterprise . . . to provide assistance
Page 448 U. S. 494
to Grantees and prime contractors in fulfilling the 10% MBE
requirement. . . ."
"Grantees and prime contractors should also be aware of other
support which is available from the Small Business Administration.
. . ."
". . . [T]he Grantee must monitor the performance of its prime
contractors to make sure that their commitments to expend funds for
MBE's are being fulfilled. . . . Grantees should administer every
project tightly. . . ."
|
448
U.S. 448apppar2|
� 2. The EDA guidelines, at 13-15, provide in relevant part:
"Although a provision for waiver is included under this section
of the Act, EDA will only approve a waiver under exceptional
circumstances. The Grantee must demonstrate that there are not
sufficient, relevant, qualified minority business enterprises whose
market areas include the project location to justify a waiver. The
Grantee must detail in its waiver request the efforts the Grantee
and potential contractors have exerted to locate and enlist MBE's.
The request must indicate the specific MBE's which were contacted
and the reason each MBE was not used. . . ."
"
* * * *"
"Only the Grantee can request a waiver. . . . Such a waiver
request would ordinarily be made after the initial bidding or
negotiation procedures proved unsuccessful. . . ."
"
* * * *"
"[A] Grantee situated in an area where the minority population
is very small may apply for a waiver before requesting bids on its
project or projects. . . ."
|
448
U.S. 448apppar3|
� 3. The EDA Technical Bulletin, at 1, provides the following
definitions:
"a) Negro -- An individual of the black race of African
origin."
"b) Spanish-speaking -- An individual of a Spanish-speaking
culture and origin or parentage. "
Page 448 U. S. 495
"c) Oriental -- An individual of a culture, origin or parentage
traceable to the areas south of the Soviet Union, East of Iran,
inclusive of islands adjacent thereto, and out to the Pacific
including but not limited to Indonesia, Indochina, Malaysia, Hawaii
and the Philippines."
"d) Indian -- An individual having origins in any of the
original people of North America and who is recognized as an Indian
by either a tribe, tribal organization or a suitable authority in
the community. (A suitable authority in the community may be:
educational institutions, religious organizations, or state
agencies.)"
"e) Eskimo -- An individual having origins in any of the
original peoples of Alaska."
"f) Aleut -- An individual having origins in any of the original
peoples of the Aleutian Islands."
|
448
U.S. 448apppar4|
� 4. The EDA Technical Bulletin, at 19, provides in relevant
part:
"Any person or organization with information indicating unjust
participation by an enterprise or individuals in the MBE program or
who believes that the MBE participation requirement is being
improperly applied should contact the appropriate EDA grantee and
provide a detailed statement of the basis for the complaint."
"Upon receipt of a complaint, the grantee should attempt to
resolve the issues in dispute. In the event the grantee requires
assistance in reaching a determination, the grantee should contact
the Civil Rights Specialist in the appropriate Regional
Office."
"If the complainant believes that the grantee has not
satisfactorily resolved the issues raised in his complaint, he may
personally contact the EDA Regional Office."
[
Footnote 1]
91 Stat. 116, 42 U.S.C. § 6705(f)(2) (1976 ed., Supp. II).
[
Footnote 2]
42 Fed.Reg. 27432 (1977), as amended by 42 Fed.Reg. 35822
(1977); 13 CFR Part 317 (1978).
[
Footnote 3]
U.S. Dept. of Commerce, Economic Development Administration,
Local Public Works Program, Round II, Guidelines For 10% Minority
Business Participation In LPW Grants (1977) (hereinafter
Guidelines); App. 156a-167a.
[
Footnote 4]
U.S. Dept. of Commerce, Economic Development Administration, EDA
Minority Business Enterprise (MBE) Technical Bulletin (Additional
Assistance and Information Available to Grantees and Their
Contractors In Meeting The 10% MBE Requirement) (1977) (hereinafter
Technical Bulletin); App. 129a-155a.
[
Footnote 5]
42 U.S.C. §§ 1981, 1983, 1985; Title VI, § 601 of the Civil
Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d; Title VII, §
701
et seq. of the Civil Rights Act of 1964, 78 Stat. 253,
as amended, 42 U.S.C. § 2000e
et seq.
[
Footnote 6]
Ohio Contractors Assn. v. Economic Development
Administration, 580 F.2d 213 (CA6 1978);
Constructors
Assn. v. Kreps, 573 F.2d 811 (CA3 1978);
Rhode Island
Chapter, Associated General Contractors v.
Kreps, 450 F.
Supp. 338 (RI 1978);
Associated General Contractors v.
Secretary of Commerce, No. 77-4218 (Kan. Feb. 9, 1978);
Carolinas Branch, Associated General Contractors v.
Kreps, 442 F.
Supp. 392 (SC 1977);
Ohio Contractors Assn. v. Economic
Development Administration, 452 F.
Supp. 1013 (SD Ohio 1977);
Montana Contractors' Assn. v.
Secretary of Commerce, 439 F.
Supp. 1331 (Mont.1977);
Florida East Coast Chapter v.
Secretary of Commerce, No. 77-8351 (SD Fla. Nov. 3, 1977);
but see Associated General Contractors v. Secretary of
Commerce, 441 F.
Supp. 955 (CD Cal.1977),
vacated and remanded for
consideration of mootness, 438 U.S. 909 (1978),
on
remand, 459 F.
Supp. 766 (CD Cal.),
vacated and remanded sub nom.
Armistead v. Associated General Contractors of California,
post, p. 908.
[
Footnote 7]
Both the Court of Appeals and the District Court rejected
petitioners' various statutory arguments without extended
discussion. 584 F.2d at 608, n. 15; 443 F. Supp. at 262.
[
Footnote 8]
H.R.Rep. No. 91077, p. 2 (1976). The bill discussed in this
Report was accepted by the Conference Committee in preference to
the Senate version. S.Conf.Rep. No. 94-939, p. 1 (1976); H.R.Conf.
Rep. No. 94-1260, p. 1 (1976).
[
Footnote 9]
90 Stat. 999, 42 U.S.C. § 6702.
[
Footnote 10]
90 Stat. 1000, 42 U.S.C. § 6705.
[
Footnote 11]
90 Stat. 1000, 42 U.S.C. § 6707.
[
Footnote 12]
90 Stat. 1001, 42 U.S.C. § 6707(c).
[
Footnote 13]
90 Stat. 1002, 42 U.S.C. § 6710. The actual appropriation of the
full amount authorized was made several weeks later. Pub.L. 94-447,
90 Stat. 1497.
[
Footnote 14]
123 Cong.Rec. 2136 (1977) (remarks of Sen. Randolph).
[
Footnote 15]
See, e.g., Hearings on H.R. 11 and Related Bills before
the Subcommittee on Economic Development of the House Committee on
Public Works and Transportation, 95th Cong., 1st Sess. (1977);
H.R.Rep. No. 95-20 (1977); S.Rep. No. 95-38 (1977).
[
Footnote 16]
91 Stat. 119, 42 U.S.C. § 6710 (1976 ed., Supp. II). The actual
appropriation of the full authorized amount was made the same day.
Pub.L. 95-29, 91 Stat. 123.
[
Footnote 17]
E.g., Hearings,
supra, n 15; 123 Cong.Rec. 5290-5353 (1977);
id. at 7097-7176.
[
Footnote 18]
91 Stat. 117, 42 U.S.C. § 6707 (1976 ed., Supp. II).
[
Footnote 19]
91 Stat. 116, 42 U.S.C. § 6705 (1976 ed., Supp. II).
[
Footnote 20]
123 Cong.Rec. 5097 (1977) (remarks of Rep. Mitchell).
[
Footnote 21]
Id. at 5098.
[
Footnote 22]
Id. at 5097-5098
[
Footnote 23]
Id. at 5098.
[
Footnote 24]
Id. at 5327. As reintroduced, the first sentence of the
amendment was modified to provide:
"Notwithstanding any other provision of law, no grant shall be
made under this Act for any local public works project unless at
least 10 per centum of the dollar volume of each contract shall be
set aside for minority business enterprise and, or, unless at least
10 per centum of the articles, materials, and supplies which will
be used in such project are procured from minority business
enterprises."
[
Footnote 25]
Id. at 5327-5328.
[
Footnote 26]
Id. at 5327.
[
Footnote 27]
Id. at 5327-5328
[
Footnote 28]
Id. at 5328 (remarks of Rep. Roe)
[
Footnote 29]
Ibid.
[
Footnote 30]
Id. at 5329 (remarks of Rep. Mitchell).
[
Footnote 31]
Id. at 5330 (remarks of Rep. Conyers).
[
Footnote 32]
Id. at 5331 (remarks of Rep. Biaggi).
[
Footnote 33]
Id. at 5332.
[
Footnote 34]
Id. at 7155-7156 (remarks of Sen. Brooke). The first
paragraph of Senator Brooke's formulation was identical to the
version originally offered by Representative Mitchell, quoted in
the text,
supra at
448 U. S.
458-459. A second paragraph of Senator Brooke's
amendment provided:
"This section shall not be interpreted to defund projects with
less than 10 percent minority participation in areas with minority
population of less than 5 percent. In that event, the correct level
of minority participation will be predetermined by the Secretary in
consultation with EDA and based upon its lists of qualified
minority contractors and its solicitation of competitive bids from
all minority firms on those lists,"
123 Cong.Rec. 7156 (1977).
[
Footnote 35]
Ibid.
[
Footnote 36]
Ibid.
[
Footnote 37]
S.Conf.Rep. No. 95-110, P. 11 (1977); H.R.Conf.Rep. No. 95230,
p. 11 (1977).
[
Footnote 38]
Ibid. The Conference Committee bill was agreed to by
the Senate, 123 Cong.Rec. 12941-12942 (1977), and by the House,
id., at 13242-13257, and was signed into law on May 13,
1977.
[
Footnote 39]
Id. at 7156 (remarks of Sen. Broke).
[
Footnote 40]
Id. at 5330 (remarks of Rep. Mitchell).
[
Footnote 41]
Id. at 5327;
id. at 7156 (remarks of Sen.
Brooke).
[
Footnote 42]
Exec.Order No. 11375, 3 CFR 684 (1966-1970 Comp.); Exec.Order
No. 11518, 3 CFR 907 (1966-1970 Comp.).
[
Footnote 43]
13 CFR § 124.8-1(c)(1) (1977).
[
Footnote 44]
U.S. Small Business Administration, Office of Business
Development, Section 8(a) Program, Standard Operating Procedure
15-16 (1976);
see H.R.Rep. No. 94-468, p. 30 (1975)
("[T]he relevant rules and regulations require such applicant to
identify with the disadvantages of his or her racial group
generally, and that such disadvantages must have personally
affected the applicant's ability to enter into the mainstream of
the business system"); U.S. Small Business Administration, Office
of Minority Small Business and Capital Ownership Development, MSB
& COD Programs, Standard Operating Procedure 20 (1979) ("The
social disadvantage of individuals, including those within the
above-named [racial and ethnic] groups, shall be determined by SBA
on a case-by-case basis. Membership alone in any group is not
conclusive that an individual is socially disadvantaged") .
[
Footnote 45]
H.R.Rep. No. 94-1791 (1977).
[
Footnote 46]
Id. at 124-149
[
Footnote 47]
H.R.Rep. No. 94-468, pp. 1-2 (1975) (emphasis added).
[
Footnote 48]
Another chapter of the 1977 Report of the House Committee on
Small Business summarized a review of the SBA's Security Bond
Guarantee Program, making specific reference to minority business
participation in the construction industry:
"The very basic problem disclosed by the testimony is that, over
the years, there has developed a business system which has
traditionally excluded measurable minority participation. In the
past, more than the present, this system of conducting business
transactions overtly precluded minority input. Currently, we more
often encounter a business system which is racially neutral on its
face, but, because of past overt social and economic
discrimination, is presently operating, in effect, to perpetuate
these past inequities. Minorities, until recently, have not
participated to any measurable extent, in our total business system
generally, or in the construction industry, in particular."
H.R.Rep. No. 94-1791, p. 182 (1977), summarizing H.R.Rep. No.
94-840, p. 17 (1976).
[
Footnote 49]
H.R.Rep. No. 94-468, pp. 28-30 (1975).
[
Footnote 50]
Id. at 29.
[
Footnote 51]
Id. at 11; U.S. General Accounting Office, Questionable
Effectiveness of the § 8(a) Procurement Program, GGD-75-57 (1975);
U.S. Comm'n on Civil Rights, Minorities and Women as Government
Contractors (May 1975).
[
Footnote 52]
Id. at 16-28, 86-88.
[
Footnote 53]
Ibid.
[
Footnote 54]
Exec.Order No. 11458, 3 CFR 779 (1966-1970 Comp.); Exec.Order
No. 11625, 3 CFR 616 (1971-1975 Comp.).
[
Footnote 55]
H.R.Rep. No. 94-468, p. 32 (1975). For other congressional
observations with respect to the effect of past discrimination on
current business opportunities for minorities,
see, e.g.,
H.R.Rep. No. 92-1615, p. 3 (1972); H.R.Rep. No. 95-949, p. 8
(1978); S.Rep. No. 95-1070, pp. 1415 (1978); S.Rep. No. 96-31, pp.
107, 123-124 (1979);
see also, e.g., H.R.Doc. No. 92-169,
p. 4 (1971); H.R.Doc. No. 92-194, p. 1 (1972).
[
Footnote 56]
91 Stat. 117, 42 U.S.C. § 6706 (1976 ed., Supp. II); 3 CFR Part
317 (1978).
[
Footnote 57]
91 Stat. 116, 42 U.S.C. § 6705(e)(1) (1976 ed., Supp. II); 13
CFR § 317.19 (1978).
[
Footnote 58]
Guidelines 2-7; App. l57a-160a. The relevant portions of the
Guidelines are set out in the Appendix to this opinion, �
448
U.S. 448apppar1|>1.
[
Footnote 59]
Guidelines 2; App. 157a;
see 123 Cong.Rec. 5327-5328
(1977) (remarks of Rep. Mitchell and Rep. Roe).
[
Footnote 60]
Guidelines 8; App. 161a.
[
Footnote 61]
See 123 Cong.Rec. 5327-5328 (1977) (remarks of Rep.
Mitchell and Rep. Roe).
[
Footnote 62]
Guidelines 13-16; App. 165a-167a. The relevant portions Of the
Guidelines are set out in the Appendix to this opinion, �
448
U.S. 448apppar2|>2.
[
Footnote 63]
Technical Bulletin 5; App. 136a.
[
Footnote 64]
Technical Bulletin 9-10; App. 143a.
[
Footnote 65]
Text accompanying
n 48,
supra.
[
Footnote 66]
H.R.Rep. No. 94-468, p. 30 (1975).
[
Footnote 67]
123 Cong.Rec. 5330 (1977) (remarks of Rep. Roe).
[
Footnote 68]
Technical Bulletin 1; App. 131a-132a. These definitions are set
out in the Appendix to this opinion, �
448
U.S. 448apppar3|>3.
[
Footnote 69]
Technical Bulletin 3; App. 135a.
[
Footnote 70]
Technical Bulletin 19; App. 155a. The relevant portions of the
Technical Bulletin are set out in the Appendix to this opinion, �
448
U.S. 448apppar4|>4.
[
Footnote 71]
In their complaint, in order to establish standing to challenge
the validity of the program, petitioners alleged as "[s]pecific
examples" of economic injury three instances where one of their
number assertedly would have been awarded a public works contract
but for enforcement of the MBE provision. Petitioners requested
only declaratory and injunctive relief against continued
enforcement of the MBE provision; they did not seek any remedy for
these specific instances of assertedly unlawful discrimination.
App. 12a-13a, 17a-19a.
[
Footnote 72]
The Court of Appeals relied upon Department of Commerce
statistics to calculate that the $4.2 billion in federal grants
conditioned upon compliance with the MBE provision amounted to
about 2.5% of the total of nearly $170 billion spent on
construction in the United States during 1977. Thus, the 10%
minimum minority business participation contemplated by this
program would account for only 0.25% of the annual expenditure for
construction work in the United States.
Fullilove v.
Kreps, 584 F.2d at 607.
[
Footnote 73]
The MBE provision, 42 U.S.C. § 6705(f)(2) (1976 ed., Supp. II),
classifies as a minority business enterprise any
"business at least 50 per centum of which is owned by minority
group members or, in the case of a publicly owned business, at
least 51 per centum of the stock of which is owned by minority
group members."
Minority group members are defined as "citizens of the United
States who are Negroes, Spanish-speaking, Orientals, Indians,
Eskimos and Aleuts." The administrative definitions are set out in
the Appendix to this opinion, �
448
U.S. 448apppar3|>3. These categories also are classified as
minorities in the regulations implementing the nondiscrimination
requirements of the Railroad Revitalization and Regulatory Reform
Act of 1976, 45 U.S.C. § 803,
see 49 CFR § 265.5(j)
(1978), on which Congress relied as precedent for the MBE
provision.
See 123 Cong.Rec. 7156 (1977) (remarks of Sen.
Brooke). The House Subcommittee on SBA Oversight and Minority
Enterprise, whose activities played a significant part in the
legislative history of the MBE provision, also recognized that
these categories were included within the Federal Government's
definition of "minority business enterprise." H.R.Rep. No. 94-468,
pp. 20-21 (1975). The specific inclusion of these groups in the MBE
provision demonstrates that Congress concluded they were victims of
discrimination. Petitioners did not press any challenge to
Congress' classification categories in the Court of Appeals; there
is no reason for this Court to pass upon the issue at this
time.
[
Footnote 74]
Cf. GAO, Report to the Congress, Minority Firms on
Local Public Works Projects -- Mixed Results, CED-79-9 (Jan. 16,
1979); U.S. Dept. of Commerce, Economic Development Administration,
Local Public Works Program Interim Report on 10 Percent Minority
Business Enterprise Requirement (Sept. 1978).
[
Footnote 75]
R. Jackson, The Struggle for Judicial Supremacy 321 (1941).
[
Footnote 76]
R. Jackson, The Supreme Court in the American System of
Government 61-62 (1955).
[
Footnote 77]
Although the complaint alleged that the MBE program violated
several federal statutes,
n 5,
supra, the only statutory argument urged upon us is that
the MBE provision is inconsistent with Title VI of the Civil Rights
Act of 1964. We perceive no inconsistency between the requirements
of Title VI and those of the MBE provision. To the extent any
statutory inconsistencies might be asserted, the MBE provision --
the later, more specific enactment -- must be deemed to control.
See, e.g., Morton v. Mancari, 417 U.
S. 535,
417 U. S.
550-551 (1974);
Preiser v. Rodriguez,
411 U. S. 475,
411 U. S.
489-490 (1973);
Bulova Watch Co. v. United
States, 365 U. S. 753,
365 U. S. 758
(1961);
United States v. Borden Co., 308 U.
S. 188,
308 U. S.
198-202 (1939)
MR. JUSTICE POWELL, concurring.
Although I would place greater emphasis than THE CHIEF JUSTICE
on the need to articulate judicial standards of review
Page 448 U. S. 496
in conventional terms, I view his opinion announcing the
judgment as substantially in accord with my own views. Accordingly,
I join that opinion and write separately to apply the analysis set
forth by my opinion in
University of California Regents v.
Bakke, 438 U. S. 265
(1978) (hereinafter
Bakke).
The question in this case is whether Congress may enact the
requirement in § 103(f)(2) of the Public Works Employment Act of
1977 (PWEA), that 10% of federal grants for local public work
projects funded by the Act be set aside for minority business
enterprises. Section 103(f)(2) employs a racial classification that
is constitutionally prohibited unless it is a necessary means of
advancing a compelling governmental interest.
Bakke,
supra, at
438 U. S. 299,
438 U. S. 305;
see In re Griffiths, 413 U. S. 717,
413 U. S.
721-722 (1973);
Loving v. Virginia,
388 U. S. 1,
388 U. S. 11
(1967);
McLaughlin v. Florida, 379 U.
S. 184,
379 U. S. 196
(1964). For the reason stated in my
Bakke opinion, I
consider adherence to this standard as important and consistent
with precedent.
The Equal Protection Clause, and the equal protection component
of the Due Process Clause of the Fifth Amendment, demand that any
governmental distinction among groups must be justifiable.
Different standards of review applied to different sorts of
classifications simply illustrate the principle that some
classifications are less likely to be legitimate than others.
Racial classifications must be assessed under the most stringent
level of review, because immutable characteristics, which bear no
relation to individual merit or need, are irrelevant to almost
every governmental decision.
See, e.g., Anderson v.
Martin, 375 U. S. 399,
375 U. S.
402-404 (1964). In this case, however, I believe that §
103(f)(2) is justified as a remedy that serves the compelling
governmental interest in eradicating the continuing effects of past
discrimination identified by Congress. [
Footnote 2/1]
Page 448 U. S. 497
I
Racial preference never can constitute a compelling state
interest.
"'Distinctions between citizens solely because of their
ancestry' [are] 'odious to a free people whose institutions are
founded upon the doctrine of equality.'"
Loving v. Virginia, supra at
388 U. S. 11,
quoting
Hirabayashi v. United States, 320 U. S.
81,
320 U. S. 100
(1943). Thus, if the set-aside merely expresses a congressional
desire to prefer one racial or ethnic group over another, §
103(f)(2) violates the equal protection component in the Due
Process Clause of the Fifth Amendment.
See Bolling v.
Sharpe, 347 U. S. 497,
347 U. S. 499
(1954) .
The Government does have a legitimate interest in ameliorating
the disabling effects of identified discrimination.
Bakke,
supra, at
438 U. S. 307;
see, e.g., Keyes v. School District No. 1, Denver, Colo.,
413 U. S. 189,
413 U. S. 236
(1973) (POWELL, J., concurring in part and dissenting in part);
McDaniel v. Barresi, 402 U. S. 39,
402 U. S. 41
(1971);
North Carolina Board of Education v. Swann,
402 U. S. 43,
402 U. S. 45 46
(1971);
Green v. County School Board, 391 U.
S. 430,
391 U. S.
437-438 (1968). The existence of illegal discrimination
justifies the imposition of a remedy that will "make persons whole
for injuries suffered on account of unlawful . . . discrimination."
Albemarle Paper Co. v. Moody, 422 U.
S. 405,
422 U. S. 418
(1975). A critical inquiry, therefore, is whether § 103(f)(2) was
enacted as a means of redressing such discrimination. But this
Court has never approved race-conscious remedies absent judicial,
administrative, or legislative findings of constitutional or
statutory violations.
Bakke, supra, at
438 U. S. 307;
see, e.g., 431 U. S.
United
Page 448 U. S. 498
States, 431 U. S. 324,
431 U. S.
367-376 (1977);
United Jewish Organizations v.
Carey, 430 U. S. 144,
430 U. S.
155-159 (1977) (opinion of WHITE, J.);
South
Carolina v. Katzenbach, 383 U. S. 301,
383 U. S.
308-315 (1966).
Because the distinction between permissible remedial action and
impermissible racial preference rests on the existence of a
constitutional or statutory violation, the legitimate interest in
creating a race-conscious remedy is not compelling unless an
appropriate governmental authority has found that such a violation
has occurred. In other words, two requirements must be met. First,
the governmental body that attempts to impose a race-conscious
remedy must have the authority to act in response to identified
discrimination.
Cf. Hampton v. Mow Sun Wong, 426 U. S.
88,
426 U. S. 103
(1976). Second, the governmental body must make findings that
demonstrate the existence of illegal discrimination. In
Bakke, the Regents failed both requirements. They were
entrusted only with educational functions, and they made no
findings of past discrimination. Thus, no compelling governmental
interest was present to justify the use of a racial quota in
medical school admissions.
Bakke, supra at
438 U. S.
309-310.
Our past cases also establish that, even if the government
proffers a compelling interest to support reliance upon a suspect
classification, the means selected must be narrowly drawn to
fulfill the governmental purpose.
In re Griffiths, supra
at
413 U. S.
721-722. In
Bakke, for example, the state
university did have a compelling interest in the attainment of a
diverse student body. But the method selected to achieve that end,
the use of a fixed admissions quota, was not appropriate. The
Regents' quota system eliminated some nonminority applicants from
all consideration for a specified number of seats in the entering
class, although it allowed minority applicants to compete for all
available seats. 438 U.S. at
438 U. S.
275-276. In contrast, an admissions program that
recognizes race as a factor, but not the sole factor, in assessing
an applicant's qualifications serves the university's interest in
diversity
Page 448 U. S. 499
while ensuring that each applicant receives fair and competitive
consideration.
Id. at
438 U. S.
317-318.
In reviewing the constitutionality of § 103(f)(2), we must
decide (i) whether Congress is competent to make findings of
unlawful discrimination; (ii) if so, whether sufficient findings
have been made to establish that unlawful discrimination has
affected adversely minority business enterprises, and (iii) whether
the 10% set-aside is a permissible means for redressing
identifiable past discrimination. None of these questions may be
answered without explicit recognition that we are reviewing an Act
of Congress.
II
The history of this Court's review of congressional action
demonstrates beyond question that the National Legislature is
competent to find constitutional and statutory violations. Unlike
the Regents of the University of California, Congress properly may
-- and indeed must -- address directly the problems of
discrimination in our society.
See Heart of Atlanta Motel, Inc.
v. United States, 379 U. S. 241,
379 U. S. 257
(1964). In
Katzenbach v. McClung, 379 U.
S. 294,
379 U. S. 304
(1964), for example, this Court held that Congress had the power
under the Commerce Clause to prohibit racial discrimination in
public restaurants on the basis of its "finding[s] that [such
discrimination] had a direct and adverse effect on the free flow of
interstate commerce."
Similarly, after hearing "overwhelming" evidence of private
employment discrimination,
see H.R.Rep. No. 914, 88th
Cong., 1st Sess., pt. 2, p. 26 (1963), Congress enacted Title VII
of the Civil Rights Act of 1964 in order
"to assure equality of employment opportunities and to eliminate
those discriminatory practices and devices which have fostered
racially stratified job environments to the disadvantage of
minority citizens."
McDonnell Douglas Corp. v. Green, 411 U.
S. 792,
411 U. S. 800
(1973). Acting to further the purposes of Title VII, Congress
vested in the federal courts broad equitable discretion
Page 448 U. S. 500
to ensure that
"'persons aggrieved by the consequences and effects of the
unlawful employment practice be, so far as possible, restored to a
position where they would have been were it not for the unlawful
discrimination.'"
Franks v. Bowman Transportation Co., 424 U.
S. 747,
424 U. S. 764
(1976), quoting Section-by-Section Analysis of H.R. 1746,
accompanying the Equal Employment Opportunity Act of 1972 --
Conference Report, 118 Cong.Rec. 7166, 7168 (1972).
In addition, Congress has been given the unique constitutional
power of legislating to enforce the provisions of the Thirteenth,
Fourteenth, and Fifteenth Amendments. [
Footnote 2/2] At an early date, the Court stated that
"[i]t is the power of Congress which has been enlarged" by the
enforcement provisions of the post-Civil War Amendments.
Ex
parte Virginia, 100 U. S. 339,
100 U. S. 345
(1880). In
Jones v. Alfred H. Mayer & Co.,
392 U. S. 409,
392 U. S.
441-443 (1968), the Court recognized Congress'
competence to determine that private action inhibiting the right to
acquire and convey real property was racial discrimination
forbidden by the Thirteenth Amendment. Subsequently, we held that
Congress' enactment of 42 U.S.C. § 1981 pursuant to its powers
under the Thirteenth Amendment,
see Runyon v. McCrary,
427 U. S. 160,
427 U. S.
168-170, 179 (1976), provides to all persons a federal
remedy for racial discrimination in private employment.
See
McDonald v. Sante Fe Transportation Co., 427 U.
S. 273,
427 U. S.
295-296 (1976);
Johnson v. Railway Express Agency,
Inc., 421 U. S. 454,
421 U. S.
459-460 (1975).
In
Katzenbach v. Morgan, 384 U.
S. 641 (1966), the Court considered whether § 5 of the
Fourteenth Amendment gave Congress the power to enact § 4(e) of the
Voting Rights Act of 1965, 42 U.S.C. § 1973b(e). Section 4(e)
provides
Page 448 U. S. 501
that no person educated in Puerto Rico may be denied the right
to vote in any election for failure to read or write the English
language. The Court held that Congress was empowered to enact §
4(e) as a remedy for discrimination against the Puerto Rican
community. 384 U.S. at
384 U. S.
652-653. Implicit in its holding was the Court's belief
that Congress had the authority to find, and had found, that
members of this minority group had suffered governmental
discrimination.
Congress' authority to find and provide for the redress of
constitutional violations also has been confirmed in cases
construing the Enforcement Clause of the Fifteenth Amendment. In
South Carolina v. Katzenbach, 383 U.S. at
383 U. S. 308,
for example, the Court upheld the Voting Rights Act of 1965, 42
U.S.C. § 1973
et seq., as an appropriate remedy for
violations of the Fifteenth Amendment. It noted that Congress had
found "insidious and pervasive" discrimination demanding "ster[n]
and . . . elaborate" measures. 383 U.S. at
383 U. S. 309.
Most relevant to our present inquiry was the Court's express
approval of Congress' decision to "prescrib[e] remedies for voting
discrimination which go into effect without the need for prior
adjudication."
Id. at
383 U. S.
327-328. [
Footnote
2/3]
Page 448 U. S. 502
It is beyond question, therefore, that Congress has the
authority to identify unlawful discriminatory practices, to
prohibit those practices, and to prescribe remedies to eradicate
their continuing effects. The next inquiry is whether Congress has
made findings adequate to support its determination that minority
contractors have suffered extensive discrimination.
III
A
The petitioners contend that the legislative history of §
103(f)(2) reflects no congressional finding of statutory or
constitutional violations. Crucial to that contention is the
assertion that a reviewing court may not look beyond the
legislative history of the PWEA itself for evidence that Congress
believed it was combating invidious discrimination. But
petitioners' theory would erect an artificial barrier to full
understanding of the legislative process.
Congress is not an adjudicatory body called upon to resolve
specific disputes between competing adversaries. Its constitutional
role is to be representative, rather than impartial, to make
policy, rather than to apply settled principles of law. The
petitioners' contention that this Court should treat the debates on
§ 103(f)(2) as the complete "record" of congressional
decisionmaking underlying that statute is essentially a plea that
we treat Congress as if it were a lower federal court. But Congress
is not expected to act as though it were duty bound to find facts
and make conclusions of law. The creation of national rules for the
governance of our society simply does not entail the same concept
of recordmaking that is appropriate to a judicial or administrative
proceeding. Congress has no responsibility to confine its vision to
the facts and evidence adduced by particular parties. Instead, its
special
Page 448 U. S. 503
attribute as a legislative body lies in its broader mission to
investigate and consider all facts and opinions that may be
relevant to the resolution of an issue. One appropriate source is
the information and expertise that Congress acquires in the
consideration and enactment of earlier legislation. After Congress
has legislated repeatedly in an area of national concern, its
Members gain experience that may reduce the need for fresh hearings
or prolonged debate when Congress again considers action in that
area.
Acceptance of petitioners' argument would force Congress to make
specific factual findings with respect to each legislative action.
Such a requirement would mark an unprecedented imposition of
adjudicatory procedures upon a coordinate branch of Government.
Neither the Constitution nor our democratic tradition warrants such
a constraint on the legislative process. I therefore conclude that
we are not confined in this case to an examination of the
legislative history of § 103(f)(2) alone. Rather, we properly may
examine the total contemporary record of congressional action
dealing with the problems of racial discrimination against minority
business enterprises.
B
In my view, the legislative history of § 103(f)(2) demonstrates
that Congress reasonably concluded that private and governmental
discrimination had contributed to the negligible percentage of
public contracts awarded minority contractors. [
Footnote 2/4]
Page 448 U. S. 504
The opinion of THE CHIEF JUSTICE provides a careful overview of
the relevant legislative history,
see ante at
448 U. S.
456-467, to which only a few words need be added.
Section 103(f)(2) originated in an amendment introduced on the
floor of the House of Representatives by Representative Mitchell.
Congressman Mitchell noted that the Federal Government was already
operating a set-aside program under § 8(a) of the Small Business
Act, 15 U.S.C. § 637(a). He described his proposal as
"the only sensible way for us to begin to develop a viable
economic system for minorities in this country, with the ultimate
result being that we are going to eventually be able to . . . end
certain programs which are merely support survival programs for
people which do not contribute to the economy."
123 Cong.Rec. 5327 (1977). [
Footnote
2/5] Senator Brooke, who introduced a similar measure in the
Senate, reminded the Senate of the special provisions previously
enacted into § 8(a) of the Small Business Act and the Railroad
Revitalization and Regulatory Reform Act of 1976, 90 Stat. 149, 49
U.S.D. § 1657a, which, he stated, demonstrated the validity of his
amendment. 123 Cong. Rec. 7155-7156 (1977).
Section 8(a) of the Small Business Act provides that the Small
Business Administration may enter into contracts with the Federal
Government and subcontract them out to small businesses. The Small
Business Administration has been directed by Executive Order to
employ § 8(a) to aid socially and economically disadvantaged
persons.
Ante at
448 U. S.
463-464. [
Footnote
2/6]
Page 448 U. S. 505
The operation of the § 8(a) program was reviewed by
congressional Committees between 1972 and 1977. In 1972, the House
Subcommittee on Minority Small Business Enterprise found that
minority businessmen face economic difficulties that "are the
result of past social standards which linger as characteristics of
minorities as a group." H.R.Rep. No. 92-1615, p. 3 (1972). In 1975,
the House Subcommittee on SBA Oversight and Minority Enterprise
concluded that "[t]he effect of past inequities stemming from
racial prejudice have not remained in the past," and that low
participation by minorities in the economy was the result of "past
discriminatory practices." H.R.Rep. No. 91 68, pp. 1-2 (1975). In
1977, the House Committee on Small Business found that
"over the years, there has developed a business system which has
traditionally excluded measurable minority participation. In the
past more than the present, this system of conducting business
transactions overtly precluded minority input. Currently, we more
often encounter a business system which is racially neutral on its
face, but, because of past overt social and economic
discrimination, is presently operating, in effect, to perpetuate
these past inequities."
H.R.Rep. No. 94-1791, p. 182 (1977).
Page 448 U. S. 506
The Committee's Report was issued on January 3, 1977, less than
two months before Representative Mitchell introduced § 103(f)(2)
into the House of Representatives. [
Footnote 2/7]
In light of these legislative materials and the discussion of
legislative history contained in THE CHIEF JUSTICE's opinion, I
believe that a court must accept as established the conclusion that
purposeful discrimination contributed significantly to the small
percentage of federal contracting funds that minority business
enterprises have received. Refusals to subcontract work to minority
contractors may, depending upon the identity of the discriminating
party, violate Title VI of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000d
et seq., or 42 U.S.C. § 1981, or the Fourteenth
Amendment. Although the discriminatory activities were not
identified with the exactitude expected in judicial or
administrative adjudication, it must be remembered that "Congress
may paint with a much broader brush than may this Court. . . ."
Oregon v. Mitchell, 400 U. S. 112,
400 U. S. 284
(1970) (STEWART, J., concurring in part and dissenting in part).
[
Footnote 2/8]
Page 448 U. S. 507
IV
Under this Court's established doctrine, a racial classification
is suspect and subject to strict judicial scrutiny. As noted in
448 U. S. the
government may employ such a classification only when necessary to
accomplish a compelling governmental purpose.
See Bakke,
438 U.S. at
438 U. S. 305.
The conclusion that Congress found a compelling governmental
interest in redressing identified discrimination against minority
contractors therefore leads to the inquiry whether use of a 10%
set-aside is a constitutionally appropriate means of serving that
interest. In the past, this "means" test has been virtually
impossible to satisfy. Only two of this Court's modern cases have
held the use of racial classifications to be constitutional.
See Korematsu v. United States, 323 U.
S. 214 (1944);
Hirabayshi v. United States,
320 U. S. 81
(1943). Indeed, the failure of legislative action to survive strict
scrutiny has led some to wonder whether our review of racial
classifications has been strict in theory, but fatal in fact.
See Gunther, The Supreme Court, 1971 Term -- Foreword: In
Search of Evolving Doctrine on a Changing Court: A Model for a
Newer Equal Protection, 86 Harv.L.Rev. 1, 8 (1972).
A
Application of the "means" test necessarily demands an
understanding of the type of congressional action at issue. This is
not a case in which Congress has employed a racial classification
solely as a means to confer a racial preference. Such a purpose
plainly would be unconstitutional.
Supra
Page 448 U. S. 508
at
448 U. S. 497.
Nor has Congress sought to employ a racially conscious means to
further a nonracial goal. In such instances, a nonracial means
should be available to further the legitimate governmental purpose.
See Bakke, supra at
408 U. S.
310-311.
Enactment of the set-aside is designed to serve the compelling
governmental interest in redressing racial discrimination. As this
Court has recognized, the implementation of any affirmative remedy
for redress of racial discrimination is likely to affect persons
differently depending upon their race.
See, e.g., North
Carolina Board of Education v. Swann, 402 U.S. at
402 U. S. 45-46.
Although federal courts may not order or approve remedies that
exceed the scope of a constitutional violation,
see Milliken v.
Bradley, 433 U. S. 267,
433 U. S.
280-281 (1977);
Dayton Board of Education v.
Brinkman, 433 U. S. 406
(1977);
Austin Independent School District v. United
States, 429 U.S. 990, 991 (1976) (POWELL, J., concurring),
this Court has not required remedial plans to be limited to the
least restrictive means of implementation. We have recognized that
the choice of remedies to redress racial discrimination is "a
balancing process left, within appropriate constitutional or
statutory limits, to the sound discretion of the trial court."
Franks v. Bowman Transportation Co., 424 U.S. at
424 U. S. 794
(POWELL, J., concurring in part and dissenting in part).
I believe that the Enforcement Clauses of the Thirteenth and
Fourteenth Amendments give Congress a similar measure of discretion
to choose a suitable remedy for the redress of racial
discrimination. The legislative history of § 5 of the Fourteenth
Amendment is particularly instructive. Senator Howard, the member
of the Joint Committee on Reconstruction who introduced the
Amendment into the Senate, described § 5 as "a direct affirmative
delegation of power to Congress to carry out all the principles of
all [the] guarantees" of § 1 of the Amendment. Cong.Globe, 39th
Cong., 1st Sess., 2766 (1866). Furthermore, he stated that § 5
"casts upon the Congress the responsibility of seeing to it, for
the future, that all the sections of the amendment
Page 448 U. S. 509
are carried out in good faith, and that no State infringes the
rights of persons or property. I look upon this clause as
indispensable for the reason that it thus imposes upon the Congress
this power and this duty."
Id. at 2768. Senator Howard's emphasis on the
importance of congressional action to effectuate the goals of the
Fourteenth Amendment was echoed by other Members of Congress.
Representative Stevens, also a member of the Reconstruction
Committee, said that the Fourteenth Amendment "allows Congress to
correct the unjust legislation of the States,"
id. at
2459, and Senator Poland wished to leave no doubt "as to the power
of Congress to enforce principles lying at the very foundation of
all republican government. . . ."
Id. at 2961.
See
id. at 2512-2513 (remarks of Rep. Raymond);
id. at
2511 (Rep. Eliot);
Ex parte Virginia, 100 U.S. at
100 U. S. 345.
[
Footnote 2/9]
Although the Framers of the Fourteenth Amendment may have
contemplated that Congress, rather than the federal courts, would
be the prime force behind enforcement of the Fourteenth Amendment,
see 6 C. Fairman, History of the Supreme Court of the
United States: Reconstruction and Reunion, Part 1, pp. 1295, 1296
(1971), they did not believe that congressional action would be
unreviewable by this Court. Several Members of Congress emphasized
that a primary purpose of the Fourteenth Amendment was to place the
provisions of the Civil Rights Act of 1866 "in the eternal
firmament of the Constitution." Cong.Globe, 39th Cong., 1st Sess.,
2462 (1866) (remarks of Rep. Garfield).
See id. at 2459
(remarks of Rep. Stevens);
id. at 2465 (remarks of Rep.
Thayer);
id. at 2498 (remarks of Rep. Broomall). By 1866,
Members of Congress fully understood that judicial review was the
means by which action of the Legislative and Executive
Page 448 U. S. 510
Branches would be required to conform to the Constitution.
See, e.g., 5 U. S.
Madison, 1 Cranch 137 (1803).
I conclude, therefore, that the Enforcement Clauses of the
Thirteenth and Fourteenth Amendments confer upon Congress the
authority to select reasonable remedies to advance the compelling
state interest in repairing the effects of discrimination. But that
authority must be exercised in a manner that does not erode the
guarantees of these Amendments. The Judicial Branch has the special
responsibility to make a searching inquiry into the justification
for employing a race-conscious remedy. Courts must be sensitive to
the possibility that less intrusive means might serve the
compelling state interest equally as well. I believe that Congress'
choice of a remedy should be upheld, however, if the means selected
are equitable and reasonably necessary to the redress of identified
discrimination. Such a test allows the Congress to exercise
necessary discretion, but preserves the essential safeguard of
judicial review of racial classifications.
B
When reviewing the selection by Congress of a race-conscious
remedy, it is instructive to note the factors upon which the Courts
of Appeals have relied in a closely analogous area. Courts
reviewing the proper scope of race-conscious hiring remedies have
considered (i) the efficacy of alternative remedies,
NAACP v.
Allen, 493 F.2d 614, 619 (CA5 1974);
Vulcan Society Inc.
v. Civil Service Comm'n, 490 F.2d 387, 398 (CA2 1973), (ii)
the planned duration of the remedy,
id. at 399;
United
States v Wood, Wire & Metal Lathers Local 6, 471 F.2d 408,
414, n. 12 (CA2),
cert. denied, 412 U.S. 939 (1973), (iii)
the relationship between the percentage of minority workers to be
employed and the percentage of minority group members in the
relevant population or workforce,
Association Against
Discrimination v. Bridgeport, 594 F.2d 306, 311 (CA2 1979);
Boston Chapter NAACP v. Beecher, 504 F.2d 1017, 1026-1027
(CA1 1974),
cert. denied,
Page 448 U. S. 511
421 U.S. 910 (1975);
Bridgeport Guardians, Inc. v.
Bridgeport Civil Service Comm'n, 482 F.2d 1333, 1341 (CA2
1973)
cert. denied, 421 U.S. 991 (1975);
Carter v.
Gallagher, 452 F.2d 315, 331 (CA8) (en banc),
cert.
denied, 406 U.S. 950 (1972), and (iv) the availability of
waiver provisions if the hiring plan could not be met,
Associated General Contractors, Inc. v. Altshuler, 490
F.2d 9, 18-19 (CA1 1973),
cert. denied, 416 U.S. 957
(1974).
By the time Congress enacted § 103(f)(2) in 1977, it knew that
other remedies had failed to ameliorate the effects of racial
discrimination in the construction industry. Although the problem
had been addressed by antidiscrimination legislation, executive
action to remedy employment discrimination in the construction
industry, and federal aid to minority businesses, the fact remained
that minority contractors were receiving less than 1% of federal
contracts.
See 123 Cong.Rec. 7156 (1977) (remarks of Sen.
Brooke). Congress also knew that economic recession threatened the
construction industry as a whole. Section 103(f)(2) was enacted as
part of a bill designed to stimulate the economy by appropriating
$4 billion in federal funds for new public construction. Since the
emergency public construction funds were to be distributed quickly,
[
Footnote 2/10] any remedial
provision designed to prevent those funds from perpetuating past
discrimination also had to be effective promptly. Moreover,
Congress understood that any effective remedial program had to
provide minority contractors the experience necessary for continued
success without federal assistance. [
Footnote 2/11] And Congress knew that the
Page 448 U. S. 512
ability of minority group members to gain experience had been
frustrated by the difficulty of entering the construction trades.
[
Footnote 2/12] The set-aside
program adopted as part of this emergency
Page 448 U. S. 513
legislation serves each of these concerns because it takes
effect as soon as funds are expended under PWEA, and because it
provides minority contractors' with experience that could enable
them to compete without governmental assistance.
The 103(f)(2) set-aside is not a permanent part of federal
contracting requirements. As soon as the PWEA program concludes,
this set-aside program ends. The temporary nature of this remedy
ensures that a race-conscious program will not last longer than the
discriminatory effects it is designed to eliminate. It will be
necessary for Congress to reexamine the need for a race-conscious
remedy before it extends or reenacts § 103(f)(2) .
The percentage chosen for the set-aside is within the scope of
congressional discretion. The Courts of Appeals have approved
temporary hiring remedies insuring that the percentage of minority
group workers in a business or governmental agency will be
reasonably related to the percentage of minority group members in
the relevant population.
Boston Chapter NAACP v. Beecher,
504 F.2d at 1027;
Bridgeport Guardians, Inc. v.
Bridgeport, 482 F.2d at 1341;
Carter v. Gallagher,
452 F.2d at 331. Only 4% of contractors are members of minority
groups,
see Fullilove v. Kreps, 584 F.2d 600, 608 (CA2
1978), although minority group members constitute about 17% of the
national population,
see Constructors Association of Western
Pennsylvania v. Kreps, 441 F.
Supp. 936, 951 (WD Pa.1977),
aff'd, 573 F.2d 811 (CA3
1978). The choice of a 10% set-aside thus falls roughly halfway
Page 448 U. S. 514
between the present percentage of minority contractors and the
percentage of minority group members in the Nation.
Although the set-aside is pegged at a reasonable figure, its
effect might be unfair if it were applied rigidly in areas of the
country where minority group members constitute a small percentage
of the population. To meet this concern, Congress enacted a waiver
provision into § 103(f)(2). The factors governing issuance of a
waiver include the availability of qualified minority contractors
in a particular geographic area, the size of the locale's minority
population, and the efforts made to find minority contractors. U.S.
Dept. of Commerce, Local Public Works Program, Round II, Guidelines
for 10 Minority Business Participation LPW Grants (1977); App.
165a-167a. We have been told that 1,261 waivers had been granted by
September 9, 1979. Brief for Secretary of Commerce 62, n. 37.
C
A race-conscious remedy should not be approved without
consideration of an additional crucial factor -- the effect of the
set-aside upon innocent third parties.
See Teamsters v. United
States, 431 U.S. at
431 U. S.
374-375. In this case, the petitioners contend with some
force that they have been asked to bear the burden of the set-aside
even though they are innocent of wrongdoing. I do not believe,
however, that their burden is so great that the set-aside must be
disapproved. As noted above, Congress knew that minority
contractors were receiving only 1% of federal contracts at the time
the set-aside was enacted. The PWA appropriated $4 billion for
public work projects, of which it could be expected that
approximately $400 million would go to minority contractors. The
Court of Appeals calculated that the set-aside would reserve about
0.25% of all the funds expended yearly on construction work in the
United States for approximately 4% of the Nation's contractors who
are members of a minority group. 584 F.2d at 607-608. The set-aside
would have
Page 448 U. S. 515
no effect on the ability of the remaining 96% of contractors to
compete for 99.75% of construction funds. In my view, the effect of
the set-aside is limited, and so widely dispersed that its use is
consistent with fundamental fairness. [
Footnote 2/13]
Consideration of these factors persuades me that the set-aside
is a reasonably necessary means of furthering the compelling
governmental interest in redressing the discrimination that affects
minority contractors. Any marginal unfairness to innocent
nonminority contractors is not sufficiently significant -- or
sufficiently identifiable -- to outweigh the governmental interest
served by § 103(f)(2). When Congress acts to remedy identified
discrimination, it may exercise discretion in choosing a remedy
that is reasonably necessary to accomplish its purpose. Whatever
the exact breadth of that discretion, I believe that it encompasses
the selection of the set-aside in this case. [
Footnote 2/14]
Page 448 U. S. 516
V
In the history of this Court and this county, few questions have
been more divisive than those arising from governmental action
taken on the basis of race. Indeed, our own decisions played no
small part in the tragic legacy of government-sanctioned
discrimination.
See Plessy v. Ferguson, 163 U.
S. 537 (1896);
Dred Scott v.
Sandford, 19 How. 393 (1857). At least since the
decision in
Brown v. Board of Education, 347 U.
S. 483 (1954), the Court has been resolute in its
dedication to the principle that the Constitution envisions a
Nation where race is irrelevant. The time cannot come too soon when
no governmental decision will be based upon immutable
characteristics of pigmentation or origin. But in our quest to
achieve a society free from racial classification, we cannot ignore
the claims of those who still suffer from the effects of
identifiable discrimination.
Distinguishing the rights of all citizens to be free from racial
classifications from the rights of some citizens to be made whole
is a perplexing, but necessary, judicial task. When we first
confronted such an issue in
Bakke, I concluded that the
Regents of the University of California were not competent to make,
and had not made, findings sufficient to uphold the use of the
race-conscious remedy they adopted. As my opinion made clear, I
believe that the use of racial classifications, which are
fundamentally at odds with the ideals of a democratic society
implicit in the Due Process and Equal Protection Clauses, cannot be
imposed simply to serve transient social or political goals,
however worthy they may be. But the issue here turns on the scope
of congressional power, and Congress has been given a unique
constitutional role in the enforcement of the post-Civil War
Amendments. In this case, where Congress determined that minority
contractors were victims of purposeful discrimination and where
Page 448 U. S. 517
Congress chose a reasonably necessary means to effectuate its
purpose, I find no constitutional reason to invalidate § 103
(f)(2). [
Footnote 2/15]
[
Footnote 2/1]
Although racial classifications require strict judicial
scrutiny, I do not agree that the Constitution prohibits all racial
classification. MR. JUSTICE STEWART recognizes the principle that I
believe is applicable:
"Under our Constitution, any official action that treats a
person differently on account of his race or ethnic origin is
inherently suspect and presumptively invalid."
Post at
448 U. S. 523.
But, in narrowly defined circumstances, that presumption may be
rebutted.
Cf. Lee v. Washington, 390 U.
S. 333,
390 U. S. 334
(1968) (Black, Harlan, and STEWART, JJ., concurring).
[
Footnote 2/2]
Section 2 of the Thirteenth Amendment, which abolished slavery,
provides that "Congress shall have power to enforce this article by
appropriate legislation." In virtually identical language, § 5 of
the Fourteenth Amendment and § 2 of the Fifteenth Amendment give
Congress the power to enforce the provisions of those
Amendments.
[
Footnote 2/3]
Among the remedies approved in
South Carolina v.
Katzenbach was the temporary suspension of literacy tests in
some jurisdictions. The Voting Rights Act Amendments of 1970, 42
U.S.C. § 1973aa
et seq., temporarily banned the use of
literacy tests in all jurisdictions. In
Oregon v.
Mitchell, 400 U. S. 112
(1970), this Court, speaking through five separate opinions,
unanimously upheld that action as a proper exercise of Congress'
authority under the post-Civil War Amendments.
See id. at
400 U. S. 117
(Black, J.);
id. at
400 U. S. 135
(Douglas, J.);
id. at
400 U. S. 152
(Harlan, J.);
id. at
400 U. S. 229
(BRENNAN, WHITE, and MARSHALL, JJ.);
id. at
400 U. S. 281
(STEWART, J., with whom BURGER, C.J. and BLACKMUN, J., concurred).
MR. JUSTICE STEWART said:
"Congress was not required to make state-by-state findings
concerning . . . actual impact of literacy requirements on the
Negro citizen's access to the ballot box. In the interests of
uniformity, Congress may paint with a much broader brush than may
this Court, which must confine itself to the judicial function of
deciding individual cases and controversies upon individual
records. The findings that Congress made when it enacted the Voting
Rights Act of 1965 would have supported a nationwide ban on
literacy tests."
Id. at 284 (citation omitted).
[
Footnote 2/4]
I cannot accept the suggestion of the Court of Appeals that §
103(f)(2) must be viewed as serving a compelling state interest if
the reviewing court can "perceive a basis" for legislative action.
Fullilove v. Kreps, 584 F.2d 600, 604-605 (1978), quoting
Katzenbach v. Morgan, 384 U. S. 641,
384 U. S. 656
(1966). The "perceive a basis" standard refers to congressional
authority to act, not to the distinct question whether that action
violates the Due Process Clause of the Fifth Amendment.
In my view, a court should uphold a reasonable congressional
finding of discrimination. A more stringent standard of review
would impinge upon Congress' ability to address problems of
discrimination,
see supra at
448 U. S.
500-503; a standard requiring a court to "perceive a
basis" is essentially meaningless in this context. Such a test
might allow a court to justify legislative action even in the
absence of affirmative evidence of congressional findings.
[
Footnote 2/5]
During subsequent debate in the House, Representative Conyers
emphasized that minority businesses, "through no fault of their
own, simply have not been able to get their foot in the door." 123
Cong.Rec. 5330 (1977);
see id. at 5331 (remarks of Rep.
Biaggi).
[
Footnote 2/6]
In 1969, 1970, and 1971, the President issued Executive Orders
directing federal aid for minority business enterprises.
See Exec.Order No. 11458, 3 CFR 779 (1966 1970 Comp.);
Exec.Order No. 11518, 3 CFR 907 (1966-1970 Comp.); Exec.Order No.
11625, 3 CFR 616 (1971-1975 Comp.). The President noted that
"members of certain minority groups, through no fault of their
own, have been denied the full opportunity to [participate in the
free enterprise system],"
Exec.Order No. 11518, 3 CFR 908 (1966-1970 Comp.), and that
the
"opportunity for full participation in our free enterprise
system by socially and economically disadvantaged persons is
essential if we are to obtain social and economic justice."
Exec.Order No. 11625, 3 CFR 616 (1971-1975 Comp.). Assistance to
minority business enterprises through the § 8(a) program has been
designed to promote the goals of these Executive Orders.
Ray
Baillie Trash Hauling, Inc. . Kleppe, 477 F.2d 696, 706 (CA5
1973),
cert. denied, 415 U.S. 914 (1974).
[
Footnote 2/7]
Two sections of the Railroad Revitalization and Regulatory
Reform Act also reflect Congress' recognition of the need for
remedial steps on behalf of minority businesses. Section 905, 45
U.S.C. § 803, prohibits discrimination in any activity funded by
the Act, and § 906, 49 U.S.C. § 1657a, establishes a Minority
Resource Center to assist minority businessmen to obtain contracts
and business opportunities related to the maintenance and
rehabilitation of railroads. The provisions were enacted by a
Congress that recognized the
"established national policy, since at least the passage of the
Civil Rights Act of 1964, to encourage and assist in the
development of minority business enterprise."
S.Rep. No. 94 499, p. 44 (1975) (Commerce Committee). In
January, 1977, the Department of Transportation issued regulations
pursuant to 45 U.S.C. § 803(d) that require contractors to
formulate affirmative action programs to ensure that minority
businesses receive a fair proportion of contract opportunities.
See 49 CFR §§ 265.9-265.17 (1978).
See also nn.
448
U.S. 448fn2/11|>11 and
448
U.S. 448fn2/12|>12,
infra.
[
Footnote 2/8]
Although this record suffices to support the congressional
judgment that minority contractors suffered identifiable
discrimination, Congress need not be content with findings that
merely meet constitutional standards. Race-conscious remedies,
popularly referred to as affirmative action programs, almost
invariably affect some innocent persons.
See infra at
448 U. S. 514.
Respect and support for the law, especially in an area as sensitive
as this, depend in large measure upon the public's perception of
fairness.
See Bakke, 438 U. S. 265,
438 U. S. 319,
n. 53 (1978); J. Wilkinson, From
Brown to
Bakke
264-266 (1979); Perry, Modern Equal Protection: A Conceptualization
and Appraisal, 79 Colum.L.Rev. 1023, 1048-1049 (1979). It therefore
is important that the legislative record supporting race-conscious
remedies contain evidence that satisfies fair-minded people that
the congressional action is just.
[
Footnote 2/9]
See also Jones v. Alfred H. Mayer & Co.,
392 U. S. 409,
392 U. S.
440-441 (1968), quoting Cong.Globe, 39th Cong., 1st
Sess., 322 (1866) (remarks of Sen. Trumbull on Congress' authority
under the Thirteenth Amendment).
[
Footnote 2/10]
The PWEA provides that federal moneys be committed to state and
local grantees by September 30, 1977. 42 U.S.C. § 6707 (h)(1) (1976
ed., Supp. II). Action on applications for funds was to be taken
within 60 days after receipt of the application, § 6706, and
on-site work was to begin within 90 days of project approval, §
6705(d).
[
Footnote 2/11]
In 1972, a congressional oversight Committee addressed the
"complex problem -- how to achieve economic prosperity despite a
long history of racial bias."
See H.R.Rep. No. 92-1615, p.
3 (1972) (Select Committee on Small Business). The Committee
explained how the effects of discrimination translate into economic
barriers:
"In attempting to increase their participation as entrepreneurs
in our economy, the minority businessman usually encounters several
major problems. These problems, which are economic in nature, are
the result of past social standards which linger as characteristics
of minorities as a group."
"The minority entrepreneur is faced initially with the lack of
capital, the most serious problem of all beginning minorities or
other entrepreneurs. Because minorities as a group are not
traditionally holders of large amounts of capital, the entrepreneur
must go outside his community in order to obtain the needed
capital. Lending firms require substantial security and a track
record in order to lend funds, security which the minority
businessmen usually cannot provide. Because he cannot produce
either, he is often turned down."
"
* * * *"
"Functional expertise is a necessity for the successful
operation of any enterprise. Minorities have traditionally assumed
the role of the labor force in business, with few gaining access to
positions whereby they could learn not only the physical operation
of the enterprise, but also the internal functions of
management."
Id. at 3-4.
[
Footnote 2/12]
When Senator Brooke introduced the PWEA set-aside in the Senate,
he stated that aid to minority businesses also would help to
alleviate problems of minority unemployment. 123 Cong.Rec. 7156
(1977). Congress had considered the need to remedy employment
discrimination in the construction industry when it refused to
override the "Philadelphia Plan." The "Philadelphia Plan,"
promulgated by the Department of Labor in 1969, required all
federal contractors to use hiring goals in order to redress past
discrimination.
See Contractors Association of Eastern
Pennsylvania v. Secretary of Labor, 442 F.2d 159, 163 (CA3),
cert. denied, 404 U.S. 854 (1971). Later that year, the
House of Representatives refused to adopt an amendment to an
appropriations bill that would have had the effect of overruling
the Labor Department's order. 115 Cong.Rec. 40921 (1969). The
Senate, which had approved such an amendment, then voted to recede
from its position.
Id. at 40749.
During the Senate debate, several legislators argued that
implementation of the Philadelphia Plan was necessary to ensure
equal opportunity.
See id. at 40740 (remarks of Sen.
Scott);
id. at 40741 (remarks of Sen. Griffith);
id. at 40744 (remarks of Sen. Bayh). Senator Percy argued
that the Plan was needed to redress discrimination against blacks
in the construction industry.
Id. at 40742-40743. The day
following the Senate vote to recede from its earlier position,
Senator Kennedy noted "exceptionally blatant" racial discrimination
in the construction trades. He commended the Senate's decision that
"the Philadelphia Plan should be a useful and necessary tool for
insuring equitable employment of minorities."
Id. at
41072.
[
Footnote 2/13]
Although I believe that the burden placed upon nonminority
contractors is not unconstitutional, I reject the suggestion that
it is legally irrelevant. Apparently on the theory that Congress
could have enacted no set-aside and provided $400 million less in
funding, the Secretary of Commerce argues that "[n]onminorities
have lost no right or legitimate expectation by the addition of
Section 103(f)(2) to the 1976 Act." Brief for Secretary of Commerce
61. But the United States may not employ unconstitutional
classifications, or base a decision upon unconstitutional
considerations, when it provides a benefit to which a recipient is
not legally entitled.
Cf. Califano v. Goldfarb,
430 U. S. 199,
430 U. S.
210-212 (1977) (opinion of BRENNAN, J.);
Richardson
v. Belcher, 404 U. S. 78,
404 U. S. 81
(1971) ("To characterize an Act of Congress as conferring a
public benefit' does not, of course, immunize it from scrutiny
under the Fifth Amendment").
[
Footnote 2/14]
Petitioners have suggested a variety of alternative programs
that could be used in order to aid minority business enterprises in
the construction industry. My view that this set-aside is within
the discretion of Congress does not imply that other methods are
unavailable to Congress. Nor do I conclude that use of a set-aside
always will be an appropriate remedy, or that the selection of a
set-aside by any other governmental body would be constitutional.
See Bakke, 438 U.S. at
438 U. S.
309-310. The degree of specificity required in the
findings of discrimination and the breadth of discretion in the
choice of remedies may vary with the nature and authority of a
governmental body.
[
Footnote 2/15]
Petitioners also contend that § 103(f)(2) violates Title VI of
the Civil Rights Act of 1964, 42 U.S.C. § 2000d
et seq.
Because I believe that the set-aside is constitutional, I also
conclude that the program does not violate Title VI.
See
Bakke, 438 U.S. at
438 U. S. 287
(opinion of POWELL, J.);
id. at
438 U. S.
348-350 (opinion of BRENNAN, WHITE, MARSHALL, and
BLACKMUN, JJ.).
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE BLACKMUN join, concurring in the judgment.
My resolution of the constitutional issue in this case is
governed by the separate opinion I coauthored in
University of
California Regents v. Bakke, 438 U. S. 265,
438 U. S.
324-379 (1978). In my view, the 10% minority set-aside
provision of the Public Works Employment Act of 1977 passes
constitutional muster under the standard announced in that opinion.
[
Footnote 3/1]
I
In
Bakke, I joined my Brothers BRENNAN, WHITE, and
BLACKMUN in articulating the view that "racial classifications are
not
per se invalid under [the Equal Protection Clause of]
the Fourteenth Amendment."
Id. at
408 U. S. 356
(opinion concurring in judgment in part and dissenting in part)
(hereinafter cited as joint separate opinion). [
Footnote 3/2] We acknowledged that
"a
Page 448 U. S. 518
government practice or statute which . . . contains 'suspect
classifications' is to be subjected to 'strict scrutiny,' and can
be justified only if it furthers a compelling government purpose
and, even then, only if no less restrictive alternative is
available."
Id. at
408 U. S. 357.
Thus, we reiterated the traditional view that racial
classifications are prohibited if they are irrelevant.
Ibid. In addition, we firmly adhered to
"the cardinal principle that racial classifications that
stigmatize -- because they are drawn on the presumption that one
race is inferior to another or because they put the weight of
government behind racial hatred and separatism -- are invalid
without more."
Id. at
408 U. S.
357-358.
We recognized, however, that these principles outlawing the
irrelevant or pernicious use of race were inapposite to racial
classifications that provide benefits to minorities for the purpose
of remedying the present effects of past racial discrimination.
[
Footnote 3/3] Such classifications
may disadvantage some whites, but whites, as a class, lack the
"'traditional indicia of suspectness: the class is not saddled
with such disabilities, or subjected to such a history of
purposeful unequal treatment, or relegated to such a position of
political powerlessness as to command extraordinary protection from
the majoritarian political process.'"
Id. at
408 U. S. 357
(quoting
San Antonio Independent School District v.
Rodriguez, 411 U. S. 1,
411 U. S. 28
(1973)).
See also United States v. Carolene
Products Co., 304 U.S.
Page 448 U. S. 519
144,
304 U. S. 152,
n. 4 (1938). Because the consideration of race is relevant to
remedying the continuing effects of past racial discrimination, and
because governmental programs employing racial classifications for
remedial purposes can be crafted to avoid stigmatization, we
concluded that such programs should not be subjected to
conventional "strict scrutiny" -- scrutiny that is strict in
theory, but fatal in fact.
Bakke, supra, at
408 U. S. 362
(joint separate opinion).
Nor did we determine that such programs should be analyzed under
the minimally rigorous rational basis standard of review. 438 U.S.
at
438 U. S. 358.
We recognized that race has often been used to stigmatize
politically powerless segments of society, and that efforts to
ameliorate the effects of past discrimination could be based on
paternalistic stereotyping, not on a careful consideration of
modern social conditions. In addition, we acknowledged that
governmental classification on the immutable characteristic of race
runs counter to the deep national belief that state-sanctioned
benefits and burdens should bear some relationship to individual
merit and responsibility.
Id. at
438 U. S.
360-361.
We concluded, therefore, that, because a racial classification
ostensibly designed for remedial purposes is susceptible to misuse,
it may be justified only by showing "an important and articulated
purpose for its use."
Id. at
438 U. S.
361.
"In addition, any statute must be stricken that stigmatizes any
group or that singles out those least well represented in the
political process to bear the brunt of a benign program."
Ibid. In our view, then, the proper inquiry is whether
racial classifications designed to further remedial purposes serve
important governmental objectives and are substantially related to
achievement of those objectives.
Id. at
438 U. S.
359.
II
Judged under this standard, the 10 minority set-aside provision
at issue in this case is plainly constitutional. Indeed, the
question is not even a close one.
Page 448 U. S. 520
As MR. CHIEF JUSTICE BURGER demonstrates,
see ante at
448 U. S.
456-467, it is indisputable that Congress' articulated
purpose for enacting the set-aside provision was to remedy the
present effects of past racial discrimination.
See also
the concurring opinion of my Brother POWELL,
ante at
448 U. S.
503-506. Congress had a sound basis for concluding that
minority-owned construction enterprises, though capable, qualified,
and ready and willing to work, have received a disproportionately
small amount of public contracting business because of the
continuing effects of past discrimination. Here, as in
Bakke, 438 U.S. at
438 U. S. 362
(joint separate opinion), "minority underrepresentation is
substantial and chronic, and . . . the handicap of past
discrimination is impeding access of minorities to" the benefits of
the governmental program. In these circumstances, remedying these
present effects of past racial discrimination is a sufficiently
important governmental interest to justify the use of racial
classification.
Ibid. See generally id. at
438 U. S.
362-373. [
Footnote
3/4]
Because the means chosen by Congress to implement the set-aside
provision are substantially related to the achievement
Page 448 U. S. 521
of its remedial purpose, the provision also meets the second
prong of our
Bakke test. Congress reasonably determined
that race-conscious means were necessary to break down the barriers
confronting participation by minority enterprises in federally
funded public works projects. That the set-aside creates a quota in
favor of qualified and available minority business enterprises does
not necessarily indicate that it stigmatizes. As our opinion stated
in
Bakke, "[f]or purposes of constitutional adjudication,
there is no difference between" setting aside
"a predetermined number of places for qualified minority
applicants, rather than using minority status as a positive factor
to be considered in evaluating the applications of disadvantaged
minority applicants."
Id. at
438 U. S. 378.
The set-aside, as enacted by Congress and implemented by the
Secretary of Commerce, is carefully tailored to remedy racial
discrimination while, at the same time, avoiding stigmatization and
penalizing those least able to protect themselves in the political
process.
See ante at
448 U. S.
480-489.
Cf. the concurring opinion of my
Brother POWELL,
ante at
448 U. S.
508-515. Since under the set-aside provision a contract
may be awarded to a minority enterprise only if it is qualified to
do the work, the provision stigmatizes as inferior neither a
minority firm that benefits from it nor a nonminority firm that is
burdened by it. Nor does the set-aside "establish a quota in the
invidious sense of a ceiling,"
Bakke, supra at
438 U. S. 375
(joint separate opinion), on the number of minority firms that can
be awarded public works contracts. In addition, the set-aside
affects only a miniscule amount of the funds annually expended in
the United States for construction work.
See ante at
448 U. S.
481-485, n. 72.
In sum, it is clear to me that the racial classifications
employed in the set-aside provision are substantially related to
the achievement of the important and congressionally articulated
goal of remedying the present effects of past racial
discrimination. The provision, therefore, passes muster under the
equal protection standard I adopted in
Bakke.
Page 448 U. S. 522
III
In my separate opinion in
Bakke, 438 U.S. at
438 U. S.
387-396, I recounted the "ingenious and pervasive forms
of discrimination against the Negro" long condoned under the
Constitution, and concluded that "[t]he position of the Negro today
in America is the tragic but inevitable consequence of centuries of
unequal treatment."
Id. at
438 U. S. 387,
438 U. S. 395.
I there stated:
"It is because of a legacy of unequal treatment that we now must
permit the institutions of this society to give consideration to
race in making decisions about who will hold the positions of
influence, affluence, and prestige in America. For far too long,
the doors to those positions have been shut to Negroes. If we are
ever to become a fully integrated society, one in which the color
of a person's skin will not determine the opportunities available
to him or her, we must be willing to take steps to open those
doors."
Id. at
438 U. S.
401-402. Those doors cannot be fully opened without the
acceptance of race-conscious remedies. As my Brother BLACKMUN
observed in
Bakke: "In order to get beyond racism, we must
first take account of race. There is no other way."
Id. at
438 U. S. 407
(separate opinion).
Congress recognized these realities when it enacted the minority
set-aside provision at issue in this case. Today, by upholding this
race-conscious remedy, the Court accords Congress the authority
necessary to undertake the task of moving our society toward a
state of meaningful equality of opportunity, not an abstract
version of equality in which the effects of past discrimination
would be forever frozen into our social fabric. I applaud this
result. Accordingly, I concur in the judgment of the Court.
[
Footnote 3/1]
On the authority of
Bakke, it is also clear to me that
the set-aside provision does not violate Title VI of the Civil
Rights Act of 1964, 42 U.S.C. § 2000d
et seq. In
Bakke, five Members of the Court were of the view that the
prohibitions of Title VI -- which outlaws racial discrimination in
any program or activity receiving federal financial assistance, --
are coextensive with the equal protection guarantee of the
Fourteenth Amendment.
See 438 U.S. at
438 U. S. 328
(opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.);
id. at
438 U. S. 287
(opinion of POWELL, J.).
[
Footnote 3/2]
In
Bakke, the issue was whether a special minority
admissions program of a state medical school violated the Equal
Protection Clause of the Fourteenth Amendment. In the present case,
the issue is whether the minority set-aside provision violates the
equal protection component of the Due Process Clause of the Fifth
Amendment. As noted in
Bakke, "
[e]qual protection
analysis in the Fifth Amendment area is the same as that under the
Fourteenth Amendment.'" Id. at 408 U. S. 367,
n. 43 (joint separate opinion) (quoting Buckley v. Valeo,
424 U. S. 1,
424 U. S. 93
(1976) (per curiam)) .
[
Footnote 3/3]
In
Bakke, the Medical School of the University of
California at Davis had adopted a special admissions program in
which 16 out of the 100 places in each entering class were reserved
for disadvantaged minorities. A major purpose of this program was
to ameliorate the present effects of past racial discrimination.
See 438 U.S. at
438 U. S. 362
(joint separate opinion);
id. at
438 U. S.
305-306 (opinion of POWELL, J.).
[
Footnote 3/4]
Petitioners argue that the set-aside is invalid because Congress
did not create a sufficient legislative record to support its
conclusion that racial classifications were required to ameliorate
the present effects of past racial discrimination. In petitioners'
view, Congress must make particularized findings that past
violations of the Equal Protection Clause and antidiscrimination
statutes have a current effect on the construction industry.
This approach is fundamentally misguided. Unlike the courts,
Congress is engaged in the broad mission of framing general social
rules, not adjudicating individual disputes. Our prior decisions
recognize Congress' authority to
"require or authorize preferential treatment for those likely
disadvantaged by societal racial discrimination. Such legislation
has been sustained even without a requirement of findings of
intentional racial discrimination by those required or authorized
to accord preferential treatment, or a case-by-case determination
that those to be benefited suffered from racial
discrimination."
Bakke, 438 U.S. at
438 U. S. 366
(joint separate opinion) .
See also ante at
448 U. S. 478;
the concurring opinion of my Brother POWELL,
ante, at
448 U. S.
502-503.
MR. JUSTICE STEWART, with whom MR. JUSTICE REHNQUIST joins,
dissenting.
"Our Constitution is color-blind, and neither knows nor
tolerates classes among citizens. . . . The law regards man
Page 448 U. S. 523
as man, and takes no account of his surroundings or of his
color. . . ."
Those words were written by a Member of this Court 84 years ago.
Plessy v. Ferguson, 163 U. S. 537,
163 U. S. 559
(Harlan, J., dissenting). His colleagues disagreed with him, and
held that a statute that required the separation of people on the
basis of their race was constitutionally valid because it was a
"reasonable" exercise of legislative power, and had been "enacted
in good faith for the promotion [of] the public good. . . ."
Id. at
163 U. S. 550.
Today, the Court upholds a statute that accords a preference to
citizens who are "Negroes, Spanish-speaking, Orientals, Indians,
Eskimos, and Aleuts," for much the same reasons. I think today's
decision is wrong for the same reason that
Plessy v.
Ferguson was wrong, and I respectfully dissent.
A
The equal protection standard of the Constitution has one clear
and central meaning -- it absolutely prohibits invidious
discrimination by government. That standard must be met by every
State under the Equal Protection Clause of the Fourteenth
Amendment.
Loving v. Virginia, 388 U. S.
1,
388 U. S. 10;
Hill v. Texas, 316 U. S. 400;
Strauder v. West Virginia, 100 U.
S. 303,
100 U. S.
307-308;
Slaughter-House
Cases, 16 Wall. 36,
16 U. S. 71-72.
And that standard must be met by the United States itself under the
Due Process Clause of the Fifth Amendment.
Washington v.
Davis, 426 U. S. 229,
426 U. S. 239;
Bolling v. Sharpe, 347 U. S. 497.
[
Footnote 4/1] Under our
Constitution, any official action that treats a person differently
on account of his race or ethnic origin is inherently suspect, and
presumptively invalid.
McLaughlin v. Florida, 379 U.
S. 184,
379 U. S. 192;
Bolling v. Sharpe, supra at
347 U. S. 499;
Korematsu v. United States, 323 U.
S. 214,
323 U. S. 216.
[
Footnote 4/2]
Page 448 U. S. 524
The hostility of the Constitution to racial classifications by
government has been manifested in many cases decided by this Court.
See e.g., Loving v. Virginia, supra; McLaughlin v. Florida,
supra; Brown v. Board of Education, 347 U.
S. 483;
Missouri ex rel. Gaines v. Canada,
305 U. S. 337. And
our cases have made clear that the Constitution is wholly neutral
in forbidding such racial discrimination, whatever the race may be
of those who are its victims. In
Anderson v. Martin,
375 U. S. 399, for
instance, the Court dealt with a state law that required that the
race of each candidate for election to public office be designated
on the nomination papers and ballots. Although the law applied
equally to candidates of whatever race, the Court held that it
nonetheless violated the constitutional standard of equal
protection. "We see
no relevance," the Court said, "in the
State's pointing up the race of the candidate as bearing upon his
qualifications for office."
Id. at
375 U. S. 403
(emphasis added). Similarly, in
Loving v. Virginia, supra,
and
McLaughlin v. Florida, supra, the Court held that
statutes outlawing miscegenation and interracial cohabitation were
constitutionally invalid, even though the laws penalized all
violators equally. The laws were unconstitutional for the simple
reason that they penalized individuals solely because of their
race, whatever their race might be.
See also Goss v. Board of
Education, 373 U. S. 683;
Buchanan v. Warley, 245 U. S. 60.
[
Footnote 4/3]
Page 448 U. S. 525
This history contains one clear lesson. Under our Constitution,
the government may never act to the detriment of a person solely
because of that person's race. [
Footnote 4/4] The color of a person's skin and the
country of his origin are immutable facts that bear no relation to
ability, disadvantage, moral culpability, or any other
characteristics of constitutionally permissible interest to
government.
"Distinctions between citizens solely because of their ancestry
are, by their very nature, odious to a free people whose
institutions are founded upon the doctrine of equality."
Hirabayashi v. United States, 320 U. S.
81,
320 U. S. 100,
quoted in
Loving v. Virginia, supra, at
388 U. S. 11.
[
Footnote 4/5]
Page 448 U. S. 526
In short, racial discrimination is, by definition, invidious
discrimination.
The rule cannot be any different when the persons injured by a
racially biased law are not members of a racial minority. The
guarantee of equal protection is "universal in [its] application,
to all persons . . . without regard to any differences of race, of
color, or of nationality."
Yick Wo v. Hopkins,
118 U. S. 356,
118 U. S. 369.
See In re Griffiths, 413 U. S. 717;
Hernandez v. Texas, 347 U. S. 475;
Truax v. Raich, 239 U. S. 33,
239 U. S. 39-43;
Strauder v. West Virginia, 100 U.S. at
100 U. S. 308.
The command of the equal protection guarantee is simple, but
unequivocal: in the words of the Fourteenth Amendment: "No State
shall . . . deny to any person . . . the equal protection of the
laws." Nothing in this language singles out some "persons" for more
"equal" treatment than others. Rather, as the Court made clear in
Shelley v. Kraemer, 334 U. S. 1,
334 U. S. 22, the
benefits afforded by the Equal Protection Clause "are, by its
terms, guaranteed to the individual. [They] are personal rights."
From the perspective of a person detrimentally affected by a
racially discriminatory law, the arbitrariness and unfairness is
entirely the same, whatever his skin color and whatever the law's
purpose, be it purportedly "for the promotion of the public good"
or otherwise.
No one disputes the self-evident proposition that Congress has
broad discretion under its spending power to disburse the revenues
of the United States as it deems best, and to set conditions on the
receipt of the funds disbursed. No one disputes that Congress has
the authority under the Commerce Clause to regulate contracting
practices on federally funded public works projects, or that it
enjoys broad powers under § 5 of the Fourteenth Amendment "to
enforce by appropriate legislation" the provisions of that
Amendment. But these self-evident truisms do not begin to answer
the question before us in this case. For, in the exercise of its
powers, Congress must obey the Constitution, just as the
legislatures of all the States must obey the Constitution in the
exercise of their
Page 448 U. S. 527
powers. If a law is unconstitutional, it is no less
unconstitutional just because it is a product of the Congress of
the United States.
B
On its face, the minority business enterprise (MBE) provision at
issue in this case denies the equal protection of the law. The
Public Works Employment Act of 1977 directs that all project
construction shall be performed by those private contractors who
submit the lowest competitive bids and who meet established
criteria of responsibility. 42 U.S.C. § 6705(e)(1) (1976 ed., Supp.
II). One class of contracting firms -- defined solely according to
the racial and ethnic attributes of their owners -- is, however,
excepted from the full rigor of these requirements with respect to
a percentage of each federal grant. The statute, on its face and in
effect, thus bars a class to which the petitioners belong from
having the opportunity to receive a government benefit, and bars
the members of that class solely on the basis of their race or
ethnic background. This is precisely the kind of law that the
guarantee of equal protection forbids.
The Court's attempt to characterize the law as a proper remedial
measure to counteract the effects of past or present racial
discrimination is remarkably unconvincing. The Legislative Branch
of government is not a court of equity. It has neither the
dispassionate objectivity nor the flexibility that are needed to
mold a race-conscious remedy around the single objective of
eliminating the effects of past or present discrimination.
[
Footnote 4/6]
But even assuming that Congress has the power, under § 5 of the
Fourteenth Amendment or some other constitutional provision,
Page 448 U. S. 528
to remedy previous illegal racial discrimination, there is no
evidence that Congress has, in the past, engaged in racial
discrimination in its disbursement of federal contracting funds.
The MBE provision thus pushes the limits of any such justification
far beyond the equal protection standard of the Constitution.
Certainly, nothing in the Constitution gives Congress any greater
authority to impose detriments on the basis of race than is
afforded the Judicial Branch. [
Footnote
4/7] And a judicial decree that imposes burdens on the basis of
race can be upheld only where its sole purpose is to eradicate the
actual effects of illegal race discrimination.
See Pasadena
City Board of Education v. Spangler, 427 U.
S. 424.
The provision at issue here does not satisfy this condition. Its
legislative history suggests that it had at least two other
objectives in addition to that of counteracting the effects of past
or present racial discrimination in the public works construction
industry. [
Footnote 4/8] One such
purpose appears to have been to assure
Page 448 U. S. 529
to minority contractors a certain percentage of federally funded
public works contracts. [
Footnote
4/9] But, since the guarantee of equal protection immunizes
from capricious governmental treatment "persons" -- not "races" --
it can never countenance laws that seek racial balance as a goal in
and of itself.
"Preferring members of any one group for no reason other than
race or ethnic origin is discrimination for its own sake. This the
Constitution forbids."
University of California Regents v. Bakke, 438 U.
S. 265,
438 U. S. 307
(opinion of POWELL, J.). Second, there are indications that the MBE
provision may have been enacted to compensate for the effects of
social, educational, and economic "disadvantage." [
Footnote 4/10] No race, however, has a monopoly on
social, educational, or economic
Page 448 U. S. 530
disadvantage, [
Footnote 4/11]
and any law that indulges in such a presumption clearly violates
the constitutional guarantee of equal protection. Since the MBE
provision was, in whole or in part, designed to effectuate
objectives other than the elimination of the effects of racial
discrimination, it cannot stand as a remedy that comports with the
strictures of equal protection, even if it otherwise could.
[
Footnote 4/12]
Page 448 U. S. 531
C
The Fourteenth Amendment was adopted to ensure that every person
must be treated equally by each State, regardless of the color of
his skin. The Amendment promised to carry to its necessary
conclusion a fundamental principle upon which this Nation had been
founded -- that the law would honor no preference based on lineage.
[
Footnote 4/13] Tragically, the
promise of 1868 was not immediately fulfilled, and decades passed
before the States and the Federal Government were finally directed
to eliminate detrimental classifications based on race. Today, the
Court derails this achievement, and places its imprimatur on the
creation once again by government of privileges based on birth.
The Court, moreover, takes this drastic step without, in my
opinion, seriously considering the ramifications of its decision.
Laws that operate on the basis of race require definitions of race.
Because of the Court's decision today, our statute books will once
again have to contain laws that reflect the odious practice of
delineating the qualities that make one person a Negro and make
another white. [
Footnote 4/14]
Moreover, racial discrimination, even "good faith" racial
discrimination, is inevitably a two-edged sword.
"[P]referential programs may only reinforce common stereotypes
holding that certain groups are unable to achieve success without
special protection based on a factor having no relationship to
individual worth."
University of California Regents v. Bakke, supra, at
438 U. S. 298
(opinion
Page 448 U. S. 532
of POWELL, J.). Most importantly, by making race a relevant
criterion once again in its own affairs, the Government implicitly
teaches the public that the apportionment of rewards and penalties
can legitimately be made according to race -- rather than according
to merit or ability -- and that people can, and perhaps should,
view themselves and others in terms of their racial
characteristics. Notions of "racial entitlement" will be fostered,
and private discrimination will necessarily be encouraged.
[
Footnote 4/15]
See Hughes v.
Superior Court, 339 U. S. 460,
339 U. S.
463-464; T. Eastland & W. Bennett, Counting by Race
139-170 (1979); Van Alstyne, Rites of Passage: Race, the Supreme
Court, and the Constitution, 46 U.Chi.L.Rev. 775 (1979).
There are those who think that we need a new Constitution, and
their views may someday prevail. But under the Constitution we
have, one practice in which government may never engage is the
practice of racism -- not even "temporarily," and not even as an
"experiment."
For these reasons, I would reverse the judgment of the Court of
Appeals.
[
Footnote 4/1]
"Equal protection analysis in the Fifth Amendment area is the
same as that under the Fourteenth Amendment."
Buckley v.
Valeo, 424 U. S. 1,
424 U. S. 93.
[
Footnote 4/2]
By contrast, nothing in the Constitution prohibits a private
person from discriminating on the basis of race in his personal or
business affairs.
See Steelworkers v. Weber, 443 U.
S. 193. The Fourteenth Amendment limits only the actions
of the States; the Fifth Amendment limits only the actions of the
National Government.
[
Footnote 4/3]
University of California Regents v. Bakke, 438 U.
S. 265, and
United Jewish Organizations v.
Carey, 430 U. S. 144, do
not suggest a different rule. The Court in
Bakke
invalidated the racially preferential admissions program that had
deprived Bakke of equal access to a place in the medical school of
a state university. In
United Jewish Organizations v.
Carey, a state legislature had apportioned certain voting
districts with an awareness of their racial composition. Since the
plaintiffs there had "failed to show that the legislative
reapportionment plan had either the purpose or the effect of
discriminating against them on the basis of their race," no
constitutional violation had occurred. 430 U.S. at
430 U. S.
179-180 (concurring opinion). No person in that case was
deprived of his electoral franchise.
More than 35 years ago, during the Second World War, this Court
did find constitutional a governmental program imposing injury on
the basis of race.
See Korematsu v. United States,
323 U. S. 214;
Hirabayashi v. United States, 320 U. S.
81. Significantly, those cases were decided not only in
time of war, but also in an era before the Court had held that the
Due Process Clause of the Fifth Amendment imposes the same equal
protection standard upon the Federal Government that the Fourteenth
Amendment imposes upon the States.
See Bolling v. Sharpe,
347 U. S. 497.
[
Footnote 4/4]
A court of equity may, of course, take race into account in
devising a remedial decree to undo a violation of a law prohibiting
discrimination on the basis of race.
See Teamsters v. United
States, 431 U. S. 324;
Franks v. Bowman Transportation Co., 424 U.
S. 747;
Swann v. Charlotte-Mecklenburg Board of
Education, 402 U. S. 1,
402 U. S. 18-32.
But such a judicial decree, following litigation in which a
violation of law has been determined, is wholly different from
generalized legislation that awards benefits and imposes detriments
dependent upon the race of the recipients.
See text in
448 U. S.
infra.
[
Footnote 4/5]
As Mr. Justice Murphy wrote in dissenting from the Court's
opinion and judgment in
Korematsu v. United States, supra
at
323 U. S.
242:
"Racial discrimination in any form and in any degree has no
justifiable part whatever in our democratic way of life. It is
unattractive in any setting, but it is utterly revolting among a
free people who have embraced the principles set forth in the
Constitution of the United States."
See also DeFunis v. Odegaard, 416 U.
S. 312,
416 U. S.
331-344 (Douglas, J., dissenting); A. Bickel, The
Morality of Consent 132-133 (1975).
[
Footnote 4/6]
See 448
U.S. 448fn4/4|>n. 4,
supra. In
McDaniel v.
Barresi, 402 U. S. 39, the
Court approved a county's voluntary race-conscious redrafting of
its public school pupil assignment system in order to eliminate the
effects of past unconstitutional racial segregation of the pupils.
But no pupil was deprived of a public school education as a
result.
[
Footnote 4/7]
Section 2 of the Thirteenth Amendment gives Congress the
authority to "enforce" the provisions of § 1 of the same Amendment,
and § 5 of the Fourteenth Amendment provides that "[t]he Congress
shall have power to enforce, by appropriate legislation, the
provisions of this article." Neither section grants to Congress the
authority to require the States to flout their obligation under § 1
of the Fourteenth Amendment to afford "the equal protection of the
laws" or the power to enact legislation that itself violates the
equal protection component of the Fifth Amendment.
[
Footnote 4/8]
The legislative history of the MBE provision itself contains not
one mention of racial discrimination or the need to provide a
mechanism to correct the effects of such discrimination. From the
context of the Act, however, it is reasonable to infer that the
program was enacted, at least in part, to remedy perceived past and
present racial discrimination. In 1977, Congress knew that many
minority business enterprises had historically suffered racial
discrimination in the economy as a whole and in the construction
industry in particular.
See H.R.Rep. No. 94-1791, pp.
182-183 (1977); H.R.Rep. No. 94-468, pp. 1-2 (1975); To Amend and
Extend the Local Public Works Capital Development and Investment
Act: Hearings on H.R. 11 and Related Bills before the Subcommittee
on Economic Development of the House Committee on Public Works and
Transportation, 95th Cong., 1st Sess., 939 (1977) (statement of
Rep. Conyers). Some of this discrimination may well, in fact, have
violated one or more of the state and federal antidiscrimination
laws.
[
Footnote 4/9]
See 123 Cong.Rec. 5327 (1977) (Rep. Mitchell) ("all
[the MBE provision] attempts to do is to provide that those who are
in minority businesses get a
fair share of the action from
this public works legislation") (emphasis supplied). Moreover,
sponsors of the legislation repeatedly referred to the low
participation rate of minority businesses in federal procurement
programs.
See id. at 5331 (Rep. Biaggi);
id. at
5327-5328 (Rep. Mitchell);
id. at 5097-5098 (Rep.
Mitchell);
id. at 7156 (Sen. Brooke).
[
Footnote 4/10]
See id. at 5330 (Rep. Conyers) ("minority contractors
and businessmen who are trying to enter in on the bidding process .
. . get the
works' almost every time. The bidding process is
one whose intricacies defy the imaginations of most of us here").
That the elimination of "disadvantage" is one of the program's
objectives is an inference that finds support in the agency's own
interpretation of the statute. See U.S. Dept. of Commerce,
Economic Development Administration, EDA Minority Business
Enterprise Technical Bulletin (Additional Assistance and
Information Available to Grantees and Their Contractors In Meeting
The 10% MBE Requirement) 9-10 (1977) (Technical Bulletin) ("a
[minority] subcontractor's price should not be considered
unreasonable if he is merely trying to cover his costs because the
price results from disadvantage which affect the MBE's
costs of doing business or results from
discrimination." (emphasis added)).
[
Footnote 4/11]
For instance, in 1978, 83.4% of persons over the age of 25 who
had not completed high school were "white,"
see U.S. Dept.
of Commerce Bureau of the Census, Statistical Abstract of the
United States 145 (1979), and, in 1977, 79.0% of households with
annual incomes of less than $ 5,000 were "white,"
see id.
at 458.
[
Footnote 4/12]
Moreover, even a properly based judicial decree will be struck
down if the scope of the remedy it provides is not carefully
tailored to fit the nature and extent of the violation.
See
Dayton Board of Education v. Brinkman, 433 U.
S. 406,
433 U. S.
419-40;
Milliiken v. Bradley, 418 U.
S. 717. Here, assuming that the MBE provision was
intended solely as a remedy for past and present racial
discrimination, it sweeps far too broadly. It directs every state
and local government covered by the program to set aside 10% of its
grant for minority business enterprises. Waivers from that
requirement are permitted, but only where insufficient numbers of
minority businesses capable of doing the work at nonexorbitant
prices are located in the relevant contracting area. No waiver is
provided for any governmental entity that can prove a history free
of racial discrimination. Nor is any exemption permitted for
nonminority contractors that are able to demonstrate that they have
not engaged in racially discriminatory behavior. Finally, the
statute makes no attempt to direct the aid it provides solely
toward those minority contracting firms that arguably still suffer
from the effects of past or present discrimination.
These are not the characteristics of a racially conscious
remedial decree that is closely tailored to the evil to be
corrected. In today's society, it constitutes far too gross an
oversimplification to assume that every single Negro,
Spanish-speaking citizen, Oriental, Indian, Eskimo, and Aleut
potentially interested in construction contracting currently
suffers from the effects of past or present racial discrimination.
Since the MBE set-aside must be viewed as resting upon such an
assumption, it necessarily paints with too broad a brush. Except to
make whole the identified victims of racial discrimination, the
guarantee of equal protection prohibits the government from taking
detrimental action against innocent people on the basis of the sins
of others of their own race.
[
Footnote 4/13]
The Framers of our Constitution lived at a time when the Old
World still tolerated in the shadow of ancient feudal traditions.
As products of the Age of Enlightenment, they set out to establish
a society that recognized no distinctions among white men on
account of their birth.
See U.S.Const., Art. I, § 9, cl. 8
("No Title of Nobility shall be granted by the United States"). The
words Thomas Jefferson wrote in 1776 in the Declaration of
Independence, however, contained the seeds of a far broader
principle: "We hold these truths to be self-evident: that all men
are created equal. . . ."
[
Footnote 4/14]
See Technical Bulletin,
supra, 448
U.S. 448fn4/10|>n. 10, at 1.
Cf. Ga.Code § 53-312
(1937); Tex.Penal Code, Art. 493 (Vernon 1938).
[
Footnote 4/15]
"Our Government is the potent, the omnipresent teacher. For good
or for ill, it teaches the whole people by its example."
Olmstead v. United States, 277 U.
S. 438,
277 U. S. 485
(Brandeis, J., dissenting).
MR. JUSTICE STEVENS dissenting.
The 10% set-aside contained in the Public Works Employment Act
of 1977 (Act), 91 Stat. 116, creates monopoly privileges in a $400
million market for a class of investors defined solely by racial
characteristics. The direct beneficiaries of these monopoly
privileges are the relatively small number of persons within the
racial classification who represent the entrepreneurial subclass --
those who have, or can borrow, working capital.
History teaches us that the costs associated with a sovereign's
grant of exclusive privileges often encompass more
Page 448 U. S. 533
than the high prices and shoddy workmanship that are familiar
handmaidens of monopoly; they engender animosity and discontent, as
well. The economic consequences of using noble birth as a basis for
classification in 18th-century France, though disastrous, were
nothing as compared with the terror that was engendered in the name
of "
egalite" and "
fraternite." Grants of
privilege on the basis of characteristics acquired at birth are far
from an unmixed blessing.
Our historic aversion to titles of nobility [
Footnote 5/1] is only one aspect of our commitment
to the proposition that the sovereign has a fundamental duty to
govern impartially. [
Footnote 5/2]
When government accords different treatment to different persons,
there must be a reason for the difference. [
Footnote 5/3] Because racial
Page 448 U. S. 534
characteristics so seldom provide a relevant basis for disparate
treatment, [
Footnote 5/4] and
because classifications based on race are potentially so harmful to
the entire body politic, [
Footnote
5/5] it is especially
Page 448 U. S. 535
important that the reasons for any such classification be
clearly identified and unquestionably legitimate.
The statutory definition of the preferred class includes
"citizens of the United States who are Negroes, Spanish-speaking,
Orientals, Indians, Eskimos, and Aleuts." All aliens and all
nonmembers of the racial class are excluded. No economic, social,
geographical, or historical criteria are relevant for exclusion or
inclusion. There is not one word in the remainder of the Act or in
the legislative history that explains why any Congressman or
Senator favored this particular definition over any other or that
identifies the common characteristics that every member of the
preferred class was believed to share. [
Footnote 5/6] Nor does the Act or its history
explain
Page 448 U. S. 536
why 10% of the total appropriation was the proper amount to set
aside for investors in each of the six racial subclasses. [
Footnote 5/7]
Four different, though somewhat interrelated, justifications for
the racial classification in this Act have been advanced: first,
that the 10% set-aside is a form of reparation for past injuries to
the entire membership of the class; second, that it is an
appropriate remedy for past discrimination against minority
business enterprises that have been denied access to public
contracts; third, that the members of the favored class have a
special entitlement to "a piece of the action" when government is
distributing benefits; and, fourth, that the program is an
appropriate method of fostering greater minority participation in a
competitive economy. Each of these asserted justifications merits
separate scrutiny.
Page 448 U. S. 537
I
Racial characteristics may serve to define a group of persons
who have suffered a special wrong and who, therefore, are entitled
to special reparations. Congress has recognized, for example, that
the United States has treated some Indian tribes unjustly, and has
created procedures for allowing members of the injured classes to
obtain classwide relief.
See, e.g., Delaware Tribal Business
Committee v. Weeks, 430 U. S. 73. But,
as I have formerly suggested, if Congress is to authorize a
recovery for a class of similarly situated victims of a past wrong,
it has an obligation to distribute that recovery among the members
of the injured class in an evenhanded way.
See id. at
430 U. S. 97-98
(STEVENS, J., dissenting). Moreover, in such a case, the amount of
the award should bear some rational relationship to the extent of
the harm it is intended to cure.
In his eloquent separate opinion in
University of California
Regents v. Bakke, 438 U. S. 265,
438 U. S. 387,
MR. JUSTICE MARSHALL recounted the tragic class-based
discrimination against Negroes that is an indelible part of
America's history. I assume that the wrong committed against the
Negro class is both so serious and so pervasive that it would
constitutionally justify an appropriate class-wide recovery
measured by a sum certain for every member of the injured class.
Whether our resources are adequate to support a fair remedy of that
character is a policy question I have neither the authority nor the
wisdom to address. But that serious class-wide wrong cannot, in
itself, justify the particular classification Congress has made in
this Act. Racial classifications are simply too pernicious to
permit any but the most exact connection between justification and
classification. Quite obviously, the history of discrimination
against. black citizens in America cannot justify a grant of
privileges to Eskimos or Indians.
Even if we assume that each of the six racial subclasses has
suffered its own special injury at some time in our history,
Page 448 U. S. 538
surely it does not necessarily follow that each of those
subclasses suffered harm of identical magnitude. Although "the
Negro was dragged to this country in chains to be sold in slavery,"
Bakke, supra, at
438 U. S. 387
(opinion of MARSHALL, J.), the "Spanish-speaking" subclass came
voluntarily, frequently without invitation, and the Indians, the
Eskimos and the Aleuts had an opportunity to exploit America's
resources before the ancestors of most American citizens arrived.
There is no reason to assume, and nothing in the legislative
history suggests, much less demonstrates, that each of the
subclasses is equally entitled to reparations from the United
States Government. [
Footnote
5/8]
At best, the statutory preference is a somewhat perverse form of
reparation for the members of the injured classes. For those who
are the most disadvantaged within each class are the least likely
to receive any benefit from the special privilege even though they
are the persons most likely still to be suffering the consequences
of the past wrong. [
Footnote 5/9] A
random
Page 448 U. S. 539
distribution to a favored few is a poor form of compensation for
an injury shared by many.
My principal objection to the reparation justification for this
legislation, however, cuts more deeply than my concern about its
inequitable character. We can never either erase or ignore the
history that MR. JUSTICE MARSHAL has recounted. But if that history
can justify such a random distribution of benefits on racial lines
as that embodied in this statutory scheme, it will serve not merely
as a basis for remedial legislation, but rather as a permanent
source of justification for grants of special privileges. For if
there is no duty to attempt either to measure the recovery by the
wrong or to distribute that recovery within the injured class in an
evenhanded way, our history will adequately support a legislative
preference for almost any ethnic, religious, or racial group with
the political strength to negotiate "a piece of the action" for its
members.
Although I do not dispute the validity of the assumption that
each of the subclasses identified in the Act has suffered a severe
wrong at some time in the past, I cannot accept this slapdash
statute as a legitimate method of providing classwide relief.
II
The Act may also be viewed as a much narrower remedial measure
-- one designed to grant relief to the specific minority business
enterprises that have been denied access to public contracts by
discriminatory practices.
The legislative history of the Act does not tell us when, or how
often, any minority business enterprise was denied such access.
Nevertheless, it is reasonable to infer that the number of such
incidents has been relatively small in recent years. For, as noted
by the Solicitor General, in the last 20 years, Congress has
enacted numerous statutes designed to eliminate discrimination and
its effects from federally funded
Page 448 U. S. 540
programs. [
Footnote 5/10]
Title VI of the Civil Rights Act of 1964 unequivocally and
comprehensively prohibits discrimination on the basis of race in
any program or activity receiving federal financial assistance. In
view of the scarcity of litigated claims on behalf of minority
business enterprises during this period, and the lack of any
contrary evidence in the legislative record, it is appropriate to
presume that the law has generally been obeyed.
Assuming, however, that some firms have been denied public
business for racial reasons, the instant statutory remedy is
nevertheless demonstrably much broader than is necessary to right
any such past wrong. For the statute grants the special preference
to a class that includes (1) those minority-owned firms that have
successfully obtained business in the past on a free competitive
basis and undoubtedly are capable of doing so in the future as
well; (2) firms that have never attempted to obtain any public
business in the past; (3) firms that were initially formed after
the Act was passed, including those that may have been organized
simply to take advantage of its provisions; [
Footnote 5/11] (4) firms that have tried to obtain
public business but were unsuccessful for reasons that are
unrelated to the racial characteristics of their stockholders;
Page 448 U. S. 541
and (5) those firms that have been victimized by racial
discrimination.
Since there is no reason to believe that any of the firms in the
first four categories had been wrongfully excluded from the market
for public contracts, the statutory preference for those firms
cannot be justified as a remedial measure. And since a judicial
remedy was already available for the firms in the fifth category,
[
Footnote 5/12] it seems
inappropriate to regard the preference as a remedy designed to
redress any specific wrongs. [
Footnote 5/13] In any event, since it is highly
unlikely that the composition of the fifth category is at all
representative of the entire lass of firms to which the statute
grants a valuable preference, it is ill-fitting to characterize
this as a "narrowly tailored" remedial measure. [
Footnote 5/14]
III
The legislative history of the Act discloses that there is a
group of legislators in Congress identified as the "Black Caucus,"
and that members of that group argued that, if the Federal
Government was going to provide $ 4 billion of new
Page 448 U. S. 542
public contract business, their constituents were entitled to "a
piece of the action."
It is neither unusual nor reprehensible for Congressmen to
promote the authorization of public construction in their
districts. The flow of capital and employment into a district
inevitably has both direct and indirect consequences that are
beneficial. As MR. JUSTICE BRENNAN noted in
Elrod v.
Burns, 427 U. S. 347,
however, the award of such contracts may become a form of political
patronage that is dispensed by the party in power. [
Footnote 5/15] Although the practice of
awarding such contracts to political allies may be as much a part
of our history as the employment practices condemned in
Elrod, it would surely be unconstitutional for the
legislature to specify that all, or a certain portion, of the
contracts authorized by a specific statute must be given to
businesses controlled by members of one political party or another.
That would be true even if the legislative majority was convinced
that a grossly disproportionate share had been awarded to members
of the opposite party in previous years.
In the short run, our political processes might benefit from
legislation that enhanced the ability of representatives of
minority groups to disseminate patronage to their political
backers. But in the long run, any rule that authorized the award of
public business on a racial basis would be just as objectionable as
one that awarded such business on a purely partisan basis.
The legislators' interest in providing their constituents with
favored access to benefits distributed by the Federal Government
is, in my opinion, a plainly impermissible justification for this
racial classification.
IV
The interest in facilitating and encouraging the
participation
Page 448 U. S. 543
by minority business enterprises in the economy is
unquestionably legitimate. Any barrier to such entry and growth --
whether grounded in the law or in irrational prejudice -- should be
vigorously and thoroughly removed. Equality of economic and
investment opportunity is a goal of no less importance than
equality of employment opportunity. This statute, however, is not
designed to remove any barriers to entry. Nor does its sparse
legislative history detail any insuperable or even significant
obstacles to entry into the competitive market.
Three difficulties encountered by minority business enterprises
in seeking governmental business on a competitive basis are
identified in the legislative history. There were references to (1)
unfamiliarity with bidding procedures followed by procurement
officers, (2) difficulties in obtaining financing, and (3) past
discrimination in the construction industry.
The first concern is no doubt a real problem for all businesses
seeking access to the public contract market for the first time. It
justifies a thorough review of bidding practices to make sure that
they are intelligible and accessible to all. It by no means
justifies an assumption that minority business enterprises are any
less able to prepare and submit bids in proper form than are any
other businessmen. Consequently, that concern does not justify a
statutory classification on racial grounds.
The second concern would justify legislation prohibiting private
discrimination in lending practices or authorizing special public
financing for firms that have been or are unable to borrow money
for reasons unrelated to their credit rating. It would not be an
adequate justification for a requirement that a fixed percentage of
all loans made by national banks be made to Eskimos or Orientals
regardless of their ability to repay the loans. Nor, it seems to
me, does it provide a sufficient justification for granting a
preference to a broad class that includes, at one extreme, firms
that have no credit
Page 448 U. S. 544
problem [
Footnote 5/16] and,
at the other extreme, firms whose unsatisfactory credit rating will
prevent them from taking advantage of the statutory preference even
though they are otherwise qualified to do the work. At best, the
preference for minority business enterprises is a crude and
inadequate response to the evils that flow from discriminatory
lending practices.
The question whether the history of past discrimination has
created barriers that can only be overcome by an unusual measure of
this kind is more difficult to evaluate. In analyzing this
question, I think it is essential to draw a distinction between
obstacles placed in the path of minority business enterprises by
others and characteristics of those firms that may impair their
ability to compete.
It is unfortunately but unquestionably true that irrational
racial prejudice persists today and continues to obstruct minority
participation in a variety of economic pursuits, presumably
including the construction industry. But there are two reasons why
this legislation will not eliminate, or even tend to eliminate,
such prejudice. First, prejudice is less likely to be a significant
factor in the public sector of the economy than in the private
sector because both federal and
Page 448 U. S. 545
state laws have prohibited discrimination in the award of public
contracts for many years. Second, and of greater importance, an
absolute preference that is unrelated to a minority firm's ability
to perform a contract inevitably will engender resentment on the
part of competitors excluded from the market for a purely racial
reason and skepticism on the part of customers and suppliers aware
of the statutory classification. It thus seems clear to me that
this Act cannot be defended as an appropriate method of reducing
racial prejudice.
The argument that our history of discrimination has left the
entire membership of each of the six racial classes identified in
the Act less able to compete in a free market than others is more
easily stated than proved. The reduction in prejudice that has
occurred during the last generation has accomplished much less than
was anticipated; it nevertheless remains true that increased
opportunities have produced an ever-increasing number of
demonstrations that members of disadvantaged races are entirely
capable not merely of competing on an equal basis, but also of
excelling in the most demanding professions. But, even though it is
not the actual predicate for this legislation, a statute of this
kind inevitably is perceived by many as resting on an assumption
that those who are granted this special preference are less
qualified in some respect that is identified purely by their race.
[
Footnote 5/17] Because that
perception -- especially when fostered by the Congress of the
United States -- can only exacerbate, rather than reduce, racial
prejudice, it will delay the time when race will become a truly
irrelevant, or at least insignificant, factor. Unless Congress
clearly articulates the need and basis for a racial classification,
and also tailors the classification to its justification, the Court
should not uphold this kind of statute.
Page 448 U. S. 546
This Act has a character that is fundamentally different from a
carefully drafted remedial measure like the Voting Rights Act of
1965. A consideration of some of the dramatic differences between
these two legislative responses to racial injustice reveals not
merely a difference in legislative craftsmanship, but a difference
of constitutional significance. Whereas the enactment of the Voting
Rights Act was preceded by exhaustive hearings and debates
concerning discriminatory denial of access to the electoral
process, and became effective in specific States only after
specific findings were made, this statute authorizes an automatic
nationwide preference for all members of a diverse racial class
regardless of their possible interest in the particular geographic
areas where the public contracts are to be performed. Just why a
wealthy Negro or Spanish-speaking investor should have a preferred
status in bidding on a construction contract in Alaska -- or a
citizen of Eskimo ancestry should have a preference in Miami or
Detroit -- is difficult to understand in light of either the
asserted remedial character of the set-aside or the more basic
purposes of the public works legislation.
The Voting Rights Act addressed the problem of denial of access
to the electoral process. By outlawing specific practices, such as
poll taxes and special tests, the statute removed old barriers to
equal access; by requiring preclearance of changes in voting
practices in covered States, it precluded the erection of new
barriers. The Act before us today does not outlaw any existing
barriers to access to the economic market, and does nothing to
prevent the erection of new barriers. On the contrary, it adopts
the fundamentally different approach of creating a new set of
barriers of its own.
A comparable approach in the electoral context would support a
rule requiring that at least 10% of the candidates elected to the
legislature be members of specified racial minorities. Surely that
would be an effective way of ensuring black citizens the
representation that has long been their due.
Page 448 U. S. 547
Quite obviously, however, such a measure would merely create the
kind of inequality that an impartial sovereign cannot tolerate. Yet
that is precisely the kind of "remedy" that this Act authorizes. In
both political and economic contexts, we have a legitimate interest
in seeing that those who were disadvantaged in the past may succeed
in the future. But neither an election nor a market can be equally
accessible to all if race provides a basis for placing a special
value on votes or dollars.
The ultimate goal must be to eliminate entirely from
governmental decisionmaking such irrelevant factors as a human
being's race. The removal of barriers to access to political and
economic processes serves that goal. [
Footnote 5/18] But the creation of new barriers can
only frustrate true progress. For as MR. JUSTICE POWELL [
Footnote 5/19] and Mr. Justice Douglas
[
Footnote 5/20] have perceptively
observed, such protective barriers reinforce habitual ways of
thinking in terms of classes, instead of individuals. Preferences
based on characteristics acquired at birth foster intolerance and
antagonism against the entire membership of the favored classes.
[
Footnote 5/21] For this reason,
I am firmly convinced
Page 448 U. S. 548
that this "temporary measure" will disserve the goal of equal
opportunity.
V
A judge's opinion that a statute reflects a profoundly unwise
policy determination is an insufficient reason for concluding that
it is unconstitutional. Congress has broad power to spend money to
provide for the "general Welfare of the United States," to
"regulate Commerce . . . among the several States," to enforce the
Civil War Amendments, and to discriminate between aliens and
citizens.
See Hampton v. Mow Sun Won, 426 U. S.
88,
426 U. S.
101-102, n. 21. [
Footnote
5/22] But the exercise of these broad powers is subject to the
constraints imposed by the Due Process Clause of the Fifth
Amendment. That Clause has both substantive and procedural
components; it performs the office of both the Due Process and
Equal Protection Clauses of the Fourteenth Amendment in requiring
that the federal sovereign act impartially.
Unlike MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST, however, I
am not convinced that the Clause contains an absolute prohibition
against any statutory classification based on race. I am
nonetheless persuaded that it does impose a special obligation to
scrutinize any governmental decisionmaking process that draws
nationwide distinctions between citizens on the basis of their race
and incidentally also discriminates against noncitizens in the
preferred racial classes. [
Footnote
5/23]
Page 448 U. S. 549
For just as procedural safeguards are necessary to guarantee
impartial decisionmaking in the judicial process, so can they play
a vital part in preserving the impartial character of the
legislative process. [
Footnote
5/24]
In both its substantive and procedural aspects, this Act is
markedly different from the normal product of the legislative
decisionmaking process. The very fact that Congress, for the first
time in the Nation's history, has created a broad legislative
classification for entitlement to benefits based solely on racial
characteristics identifies a dramatic difference between this Act
and the thousands of statutes that preceded it. This dramatic point
of departure is not even mentioned in the statement of purpose of
the Act or in the Reports of either the House or the Senate
Committee that processed the legislation, [
Footnote 5/25] and was not the subject of any testimony
or inquiry
Page 448 U. S. 550
in any legislative hearing on the bill that was enacted. It is
true that there was a brief discussion on the floor of the House,
as well as in the Senate, on two different days, but only a handful
of legislators spoke, and there was virtually no debate. This kind
of perfunctory consideration of an unprecedented policy decision of
profound constitutional importance to the Nation is comparable to
the accidental malfunction of the legislative process that led to
what I regarded as a totally unjustified discrimination in
Delaware Tribal Business Committee v. Weeks, 430 U.S. at
430 U. S.
97.
Although it is traditional for judges to accord the same
presumption of regularity to the legislative process no matter how
obvious it may be that a busy Congress has acted precipitately, I
see no reason why the character of their procedures may not be
considered relevant to the decision whether the legislative product
has caused a deprivation of liberty or property without due process
of law. [
Footnote 5/26]
Whenever
Page 448 U. S. 551
Congress creates a classification that would be subject to
strict scrutiny under the Equal Protection Clause of the Fourteenth
Amendment if it had been fashioned by a state legislature, it seems
to me that judicial review should include a consideration of the
procedural character of the decisionmaking process. [
Footnote 5/27] A holding that the
classification was not adequately preceded by a consideration of
less drastic alternatives or adequately explained by a statement of
legislative purpose would be far less intrusive than a final
determination that the substance of the decision is not "narrowly
tailored to the achievement of that goal." [
Footnote 5/28]
Cf. THE CHIEF JUSTICE's
opinion,
ante at
448 U. S. 480;
MR. JUSTICE MARSHALL's opinion concurring in the judgment,
ante at
448 U. S. 521.
If the general language of the Due Process Clause of the Fifth
Amendment
Page 448 U. S. 552
authorizes this Court to review Acts of Congress under the
standards of the Equal Protection Clause of the Fourteenth
Amendment -- a clause that cannot be found in the Fifth Amendment
-- there can be no separation of powers objection to a more
tentative holding of unconstitutionality based on a failure to
follow procedures that guarantee the kind of deliberation that a
fundamental constitutional issue of this kind obviously merits.
[
Footnote 5/29]
In all events, rather than take the substantive position
expressed in MR. JUSTICE STEWART's dissenting opinion, I would hold
this statute unconstitutional on a narrower ground. It cannot
fairly be characterized as a "narrowly tailored" racial
classification, because it simply raises too many serious questions
that Congress failed to answer or even to address in a responsible
way. [
Footnote 5/30] The risk
that habitual attitudes toward
Page 448 U. S. 553
classes of persons, rather than analysis of the relevant
characteristics of the class, will serve as a basis for a
legislative classification is present when benefits are
distributed, as well as when burdens are imposed. In the past,
traditional attitudes too often provided the only explanation for
discrimination against women, aliens, illegitimates, and black
citizens. Today, there is a danger that awareness of past injustice
will lead to automatic acceptance of new classifications that are
not, in fact, justified by attributes characteristic of the class
as a whole.
When Congress creates a special preference, or a special
disability, for a class of persons, it should identify the
characteristic that justifies the special treatment. [
Footnote 5/31] When the classification is
defined in racial terms, I believe that such particular
identification is imperative.
In this case, only two conceivable bases for differentiating the
preferred classes from society as a whole have occurred to me: (1)
that they were the victims of unfair treatment in the past and (2)
that they are less able to compete in the future. Although the
first of these factors would justify an appropriate remedy for past
wrongs, for reasons that I have already stated, this statute is not
such a remedial measure. The second factor is simply not true.
Nothing in the record of this case, the legislative history of the
Act, or experience that we
Page 448 U. S. 554
may notice judicially provides any support for such a
proposition. It is up to Congress to demonstrate that its unique
statutory preference is justified by a relevant characteristic that
is shared by the members of the preferred class. In my opinion,
because it has failed to make that demonstration, it has also
failed to discharge its duty to govern impartially embodied in the
Fifth Amendment to the United States Constitution.
I respectfully dissent.
[
Footnote 5/1]
"Such pure discrimination is most certainly not a 'legitimate
purpose' for our Federal Government, which should be especially
sensitive to discrimination on grounds of birth."
"Distinctions between citizens solely because of their ancestry
are, by their very nature, odious to a free people whose
institutions are founded upon the doctrine of equality."
"
Hirabayashi v. United States, 320 U. S.
81,
320 U. S. 100. From its
inception, the Federal Government has been directed to treat all
its citizens as having been 'created equal' in the eyes of the law.
The Declaration of Independence states:"
"We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the
pursuit of Happiness."
"And the rationale behind the prohibition against the grant of
any title of nobility by the United States,
see
U.S.Const., Art. I, § 9, cl. 8, equally would prohibit the United
States from attaching any badge of ignobility to a citizen at
birth."
Mathews v. Lucas, 427 U. S. 495,
427 U. S.
520-521, n. 3 (STEVENS, J., dissenting).
[
Footnote 5/2]
"The federal sovereign, like the States, must govern
impartially. The concept of equal justice under law is served by
the Fifth Amendment's guarantee of due process, as well as by the
Equal Protection Clause of the Fourteenth Amendment."
Hampton v. Mow Sun Wong, 426 U. S.
88,
426 U. S. 100.
See also Harris v. McRae, ante at
448 U. S. 349,
448 U. S.
356-357 (STEVENS, J., dissenting);
Craig v.
Boren, 429 U. S. 190,
429 U. S. 211
(STEVENS, J., concurring).
[
Footnote 5/3]
"As a matter of principle, and in view of my attitude toward the
equal protection clause, I do not think differences of treatment
under law should be approved on classification because of
differences unrelated to the legislative purposes. The equal
protection clause ceases to assure either equality or protection if
it is avoided by any conceivable difference that can be pointed out
between those bound and those left free. This Court has often
announced the principle that the differentiation must have an
appropriate relation to the object of the legislation or
ordinance."
Railway Express Agency, Inc. v. New York, 336 U.
S. 106,
336 U. S. 115
(Jackson, J., concurring) .
[
Footnote 5/4]
"Habit, rather than analysis, makes it seem acceptable and
natural to distinguish between male and female, alien and citizens,
legitimate and illegitimate; for too much of our history, there was
the same inertia in distinguishing between black and white. But
that sort of stereotyped reaction may have no rational relationship
-- other than pure prejudicial discrimination -- to the stated
purpose for which the classification is being made."
Mathews v. Lucas, supra at
427 U. S.
520-521 (STEVENS, J., dissenting) (footnote
omitted).
[
Footnote 5/5]
Indeed, the very attempt to define with precision a
beneficiary's qualifying racial characteristics is repugnant to our
constitutional ideals. The so-called guidelines developed by the
Economic Development Administration,
see the appendix to
the opinion of THE CHIEF JUSTICE, p. 3,
ante at
448 U. S.
494-495, are so general as to be fairly innocuous; as a
consequence, they are too vague to be useful. For example, it is
unclear whether the firm described in n.
448
U.S. 448fn5/16|>16,
infra, would be eligible for
the 10% set-aside. If the National Government is to make a serious
effort to define racial classes by criteria that can be
administered objectively, it must study precedents such as the
First Regulation to the Reichs Citizenship Law of November 14,
1935, translated in 4 Nazi Conspiracy and Aggression, Document No.
1417-PS, pp. 8-9 (1946):
"On the basis of Article 3, Reichs Citizenship Law, of 15 Sept.
1935 (RGB1. I, page 146) the following is ordered:"
"
* * * *"
"
Article 5"
"1. A Jew is anyone who descended from at least three
grandparents who were racially full Jews. Article 2, par. 2, second
sentence will apply."
"2. A Jew is also one who descended from two full Jewish
parents, if: (a) he belonged to the Jewish religious community at
the time this law was issued, or who joined the community later;
(b) he was married to a Jewish person, at the time the law was
issued, or married one subsequently; (c) he is the offspring from a
marriage with a Jew, in the sense of Section 1, which was
contracted after the Law for the protection of German blood and
German honor became effective (RGB1. I, page 1146 of 15 Sept.
1935); (d) he is the offspring of an extramarital relationship,
with a Jew, according to Section 1, and will be born out of wedlock
after July 31, 1936."
[
Footnote 5/6]
In 1968, almost 10 years before the Act was passed, the Small
Business Administration had developed a program to assist small
business concerns owned or controlled by "socially or economically
disadvantaged persons." The agency's description of persons
eligible for such assistance stated that such
"persons include, but are not limited to, black Americans,
American Indians, Spanish-Americans, oriental Americans, Eskimos
and Aleuts. . . ."
See opinion of THE CHIEF JUSTICE,
ante at
448 U. S.
463-464. This may be the source of the definition of the
class at issue in this case.
See also ante at
448 U. S.
487-488, n. 73. But the SBA's class of socially or
economically disadvantaged persons neither included all persons in
the racial class nor excluded all nonmembers of the racial class.
Race was used as no more than a factor in identifying the class of
the disadvantaged. The difference between the statutory quota
involved in this case and the SBA's 1968 description of those whose
businesses were to be assisted under § 8(a) of the Small Business
Act is thus at least as great as the difference between the
University of California's racial quota and the Harvard admissions
system that MR. JUSTICE POWELL regarded as critical in
University of California Regents v. Bakke, 438 U.
S. 265,
438 U. S.
315-318.
[
Footnote 5/7]
It was noted that the value of the federal contracts awarded to
minority business firms in prior years had amounted to less than 1%
of the total; since the statutory set-aside of 10% may be satisfied
by subcontracts to minority business enterprises, it is possible
that compliance with the statute would not change the 1%
figure.
The legislative history also revealed that minority business
enterprises represented about 3 or 4% of all eligible firms; the
history does not indicate, however, whether the 10% figure was
intended to provide the existing firms with three times as much
business as they could expect to receive on a random basis, or to
encourage members of the class to acquire or form new firms. An
Economic Development Administration guideline arguably implies that
new investments made in order to take advantage of the 10%
set-aside would not be considered "bona fide."
See
appendix to the opinion of THE CHIEF JUSTICE,
ante at
448 U. S.
492.
The 10% figure bears no special relationship to the relative
size of the entire racial class, to any of the six subclasses, or
to the population of the subclasses in the areas where they
primarily reside. The Aleuts and the Eskimos, for example,
respectively represent less than 1% and 7% of the population of
Alaska,
see The New Columbia Encyclopedia 47, 59, 891 (4th
ed.1975), while Spanish-speaking or Negro citizens represent a
majority or almost a majority in a large number of urban areas.
[
Footnote 5/8]
Ironically, the Aleuts appear to have been ruthlessly exploited
at some point in their history by Russian fur traders.
See
The New Columbia Encyclopedia,
supra at 59.
[
Footnote 5/9]
For a similar reason, the discrimination against males condemned
in
Califano v. Goldfarb, 430 U. S. 199,
could not be justified as a remedy for past discrimination against
females. That case involved a statutory provision which relieved
widows from the obligation of proving dependency on their deceased
spouses in order to obtain benefits, but did not similarly relieve
widowers.
"The widows who benefit from the disparate treatment are those
who were sufficiently successful in the job market to become
nondependent on their husbands. Such a widow is the least likely to
need special benefits. The widow most in need is the one who is
'suddenly forced into a job market with which she is unfamiliar,
and in which, because of her former economic dependency, she will
have fewer skills to offer.' [
Kahn v. Shevin,
416 U. S.
351,]
416 U. S. 354. To accept the
Kahn justification, we must presume that Congress
deliberately gave a special benefit to those females least likely
to have been victims of the historic discrimination discussed in
Kahn."
Id. at
430 U. S. 221
(STEVENS, J., concurring in judgment).
[
Footnote 5/10]
"The statute with the most comprehensive coverage is Title VI of
the Civil Rights Act of 1964, 42 U.S.C. 2000d
et seq.,
which broadly prohibits discrimination on the basis of race, color,
or national origin in any program or activity receiving federal
financial assistance. Since the passage of Title VI, many other
specific federal grant statutes have contained similar prohibitions
against discrimination in particular funded activities.
See,
e.g., State and Local Fiscal Assistance Amendments of 1976, 31
U.S.C. 1242; Energy Conservation and Production Act, 42 U.S.C.
6870; Housing and Community Development Act of 1974, 42 U.S.C.
5309; Comprehensive Employment and Training Act of 1973, 29 U.S.C.
991."
Brief for Secretary of Commerce 21, n. 7.
[
Footnote 5/11]
Although the plain language of the statute appears to include
such firms, as I have already noted,
448
U.S. 448fn5/7|>n. 7,
supra, the EDA guidelines may
consider such newly formed firms ineligible for the statutory
set-aside.
[
Footnote 5/12]
See University of California Regents v. Bakke, 438 U.S.
at
438 U. S.
418-421 (opinion of STEVENS, J.).
See also §
207(d) of the Public Works Employment Act of 1976, 90 Stat. 1008,
42 U.S.C. § 6727(d).
[
Footnote 5/13]
I recognize that the EDA has issued a Technical Bulletin, relied
on heavily by THE CHIEF JUSTICE,
ante at
448 U. S.
469-472, which distinguishes between higher bids quoted
by minority subcontractors which are attributable to the effects of
disadvantage or discrimination and those which are not. That is,
according to the Bulletin, if it is determined that a
subcontractor's uncompetitive high price is not attributable to the
effects of discrimination, a contractor may be entitled to relief
from the 10% set-aside requirement. But even assuming that the
Technical Bulletin accurately reflects Congress' intent in enacting
the set-aside, it is not easy to envision how one could
realistically demonstrate with any degree of precision, if at all,
the extent to which a bid has been inflated by the effects of
disadvantage or past discrimination. Consequently, while THE CHIEF
JUSTICE describes the set-aside as a remedial measure, it plainly
operates as a flat quota.
[
Footnote 5/14]
See THE CHIEF JUSTICE's opinion,
ante at
448 U. S.
480.
[
Footnote 5/15]
"Non-officeholders may be the beneficiaries of lucrative
government contracts for highway construction, buildings, and
supplies." 427 U.S. at
427 U. S.
353
[
Footnote 5/16]
An example of such a firm was disclosed in the record of a
recent case involving a claimed preference for a firm controlled by
Indian shareholders:
"Based on the facts that were developed in the District Court, .
. . the Indian community in general does not benefit from the
[Bureau of Indian Affairs'] interpretation of [the Buy Indian
Act]."
"The facts that were developed in the District Court show that
the beneficiaries of this interpretation were the owners of Indian
Nations Construction Company. The president of that company is a
one-fourth degree Indian who is an administrative law judge for the
Department of Health, Education, and Welfare by occupation. The
vice-president of that company was a one-quarter blood Choctaw who
is a self-employed rancher and who states his net worth at just
under a half million dollars. The treasurer and general manager of
that corporation is a non-Indian and he states his net worth at $
1.3 million."
Tr of Oral Arg. in
Andrus v. Glover Construction Co.,
O.T. 1979, No. 798, pp. 227.
[
Footnote 5/17]
See United Jewish Organizations v. Carey, 430 U.
S. 144,
430 U. S.
173-174 (BRENNAN, J., concurring in part):
"[E]ven preferential treatment may act to stigmatize its
recipient groups, for although intended to correct systemic or
institutional inequities, such a policy may imply to some the
recipients' inferiority and especial need for protection."
[
Footnote 5/18]
"The Equal Protection Clause commands the elimination of racial
barriers, not their creation in order to satisfy our theory as to
how society ought to be organized."
DeFunis v. Odegaard, 416 U. S. 312,
416 U. S. 342
(Douglas, J., dissenting).
[
Footnote 5/19]
See University of California Regents v. Bakke, 438 U.S.
at
438 U. S.
298.
[
Footnote 5/20]
DeFunis v. Odegaard, supra at
416 U. S. 343
(dissenting opinion).
[
Footnote 5/21]
In his
Bakke opinion,
supra, MR JUSTICE POWELL
stated:
"It is far too late to argue that the guarantee of equal
protection to all persons permits the recognition of special wards
entitled to a degree of protection greater than that accorded
others."
438 U.S. at
438 U. S. 295.
In support of that proposition, he quoted Professor Bickel's
comment on the self-contradiction of that argument:
"'The lesson of the great decisions of the Supreme Court and the
lesson of contemporary history have been the same for at least a
generation: discrimination on the basis of race is illegal,
immoral, unconstitutional, inherently wrong, and destructive of
democratic society.'"
Id. at
438 U. S. 295,
n. 35.
[
Footnote 5/22]
This preferential set-aside specifically discriminates in favor
of citizens of the United States.
See supra at
448 U. S.
535.
[
Footnote 5/23]
"When the Federal Government asserts an overriding national
interest as justification for a discriminatory rule which would
violate the Equal Protection Clause if adopted by a State, due
process requires that there be a legitimate basis for presuming
that the rule was actually intended to serve that interest."
Hampton v. Mow Sun Wong, 426 U. S.
88,
426 U. S.
103.
"It is perfectly clear that neither the Congress nor the
President has ever
required the Civil Service Commission
to adopt the citizenship requirement as a condition of eligibility
for employment in the federal civil service. On the other hand, in
view of the fact that the policy has been in effect since the
Commission was created in 1883, it is fair to infer that both the
Legislature and the Executive have been aware of the policy and
have acquiesced in it. In order to decide whether such acquiescence
should give the Commission rule the same support as an express
statutory or Presidential command, it is appropriate to review the
extent to which the policy has been given consideration by Congress
or the President, and the nature of the authority specifically
delegated to the Commission."
Id. at
426 U. S.
105.
[
Footnote 5/24]
See Linde, Due Process of Lawmaking, 55 Neb.L.Rev.197,
255 (1976):
"For the last few years have reawakened our appreciation of the
primacy of process over product in a free society, the knowledge
that no ends can be better than the means of their achievement.
'The highest morality is almost always the morality of process,'
Professor Bickel wrote about Watergate a few months before his
untimely death. If this republic is remembered in the distant
history of law, it is likely to be for its enduring adherence to
legitimate institutions and processes, not for its perfection of
unique principles of justice and certainly not for the rationality
of its laws. This recognition now may well take our attention
beyond the processes of adjudication and of executive government to
a new concern with the due process of lawmaking."
(Footnote omitted.)
[
Footnote 5/25]
The only reference to any minority business enterprises in the
Senate Report was a suggestion that Indians had been receiving
too great a share of the public contracts. The Report
stated:
"Some concern was expressed that Indian with exceptionally high
structural unemployment levels -- were awarded projects at a per
capita value far in excess of non-Indian communities."
S.Rep. No. 938, p. 3 (1977).
The Court quotes three paragraphs from a lengthy Report issued
by the House Committee on Small Business in 1977,
ante at
448 U. S.
465-466, implying that the contents of that Report were
considered by Congress when it enacted the 10% minority set-aside.
But that Report was not mentioned by anyone during the very brief
discussion of the set-aside amendment. When one considers the vast
quantity of written material turned out by the dozens of
congressional committees and subcommittees these days, it is
unrealistic to assume that a significant number of legislators
read, or even were aware of, that Report. Even if they did, the
Report does not contain an explanation of this 10% set-aside for
six racial subclasses.
Indeed, the broad racial classification in this Act is totally
unexplained. Although the legislative history discussed by THE
CHIEF JUSTICE and by MR. JUSTICE POWELL explains why Negro citizens
are included within the preferred class, there is absolutely no
discussion of why Spanish-speaking, Orientals, Indians, Eskimos,
and Aleuts were also included.
See 448
U.S. 448fn5/6|>n. 6,
supra.
[
Footnote 5/26]
"It is not a new thought that 'to guarantee the democratic
legitimacy of political decisions by establishing essential rules
for the political process' is the central function of judicial
review, as Dean Rostow and Professor Strong, among others, have
argued."
Linde,
supra, 55 Neb.L.Rev. at 251
[
Footnote 5/27]
See Sandalow, Judicial Protection of Minorities, 75
Mich.L.Rev. 1162, 1188 (1977):
"[I]f governmental action trenches upon values that may
reasonably be regarded as fundamental, that action should be the
product of a deliberate and broadly based political judgment. The
stronger the argument that governmental action does encroach upon
such values, the greater the need to assure that it is the product
of a process that is entitled to speak for the society. Legislation
that has failed to engage the attention of Congress, like the
decisions of subordinate governmental institutions, does not meet
that test, for it is likely to be the product of partial political
pressures that are not broadly reflective of the society as a
whole."
[
Footnote 5/28]
"Fear of legislative resentment at judicial interference is not
borne out by experience where procedural review exists, any more
than it was after the Supreme Court told Congress that it had used
faulty procedure in unseating Representative Adam Clayton Powell.
It is far more cause for resentment to invalidate the substance of
a policy that the politically accountable branches and their
constituents support than to invalidate a lawmaking procedure that
can be repeated correctly, yet we take substantive judicial review
for granted. Strikingly, the reverse view of propriety prevails in
a number of nations where courts have never been empowered to set
aside policies legitimately enacted into law but do have power to
test the process of legitimate enactment."
Linde,
supra, 55 Neb.L.Rev. at 243 (footnotes
omitted).
[
Footnote 5/29]
The conclusion to THE CHIEF JUSTICE's opinion states:
"Any preference based on racial or ethnic criteria must
necessarily receive a
most searching examination to make
sure that it does not conflict with constitutional guarantees."
Ante at
448 U. S. 491
(emphasis added). I agree with this statement, but it seems to me
that due process requires that the "most searching examination" be
conducted in the first instance by Congress, rather than by a
federal court.
[
Footnote 5/30]
For example, why were these six racial classifications, and no
others, included in the preferred class? Why are aliens excluded
from the preference although they are not otherwise ineligible for
public contracts? What percentage of Oriental blood or what degree
of Spanish-speaking skill is required for membership in the
preferred class? How does the legacy of slavery and the history of
discrimination against the descendants of its victims support a
preference for Spanish-speaking citizens who may be directly
competing with black citizens in some overpopulated communities?
Why is a preference given only to owners of business enterprises,
and why is that preference unaccompanied by any requirement
concerning the employment of disadvantaged persons? Is the
preference limited to a subclass of persons who can prove that they
are subject to a special disability caused by past discrimination,
as the Court's opinion indicates? Or is every member of the racial
class entitled to a preference, as the statutory language seems
plainly to indicate? Are businesses formed just to take advantage
of the preference eligible?
[
Footnote 5/31]
"Of course, a general rule may not define the benefited class by
reference to a distinction which irrationally differentiates
between identically situated persons. Differences in race,
religion, or political affiliation could not rationally justify a
difference in eligibility for social security benefits, for such
differences are totally irrelevant to the question whether one
person is economically dependent on another. But a distinction
between married persons and unmarried persons is of a different
character."
Califano v. Jobst, 434 U. S. 47,
434 U. S.
53.
"If there is no group characteristic that explains the
discrimination, one can only conclude that it is without any
justification that has not already been rejected by the Court."
Foley v. Connelie, 435 U. S. 291,
435 U. S. 312
(STEVENS, J., dissenting).