(Cite as: 448 U.S. 448, 100 S.Ct.
2758)
H. Earl FULLILOVE et al., Petitioners,
v.
Philip M. KLUTZNICK, Secretary of Commerce of the
United States, et al.
No. 78‑1007.
Supreme Court of the United States
Argued Nov. 27, 1979.
Decided July 2, 1980.
Associations of construction contractors and subcontractors and
others brought action seeking preliminary injunction to prevent enforcement of
"minority business enterprise" provision of Public Works Employment
Act of 1977. The United States District Court for the Southern District of New
York, Henry F. Werker, J., 443 F.Supp. 253, dismissed the complaint. On appeal,
the United States Court of Appeals for the Second Circuit, Blumenfeld, District
Judge, sitting by designation, 584 F.2d 600, affirmed. On certiorari, the
Supreme Court, Mr. Chief Justice Burger, held that "minority business
enterprise" provision of Public Works Employment Act of 1977, which
requires that, absent 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 by minority group
members, is not unconstitutional.
Affirmed.
Mr.
Justice Powell concurred and filed opinion.
Mr.
Justice Marshall concurred in judgment and filed opinion in which Mr. Justice
Brennan and Mr. Justice Blackmun joined.
Mr.
Justice Stewart dissented and filed opinion in which Mr. Justice Rehnquist
joined.
Mr.
Justice Stevens dissented and filed opinion.
**2759 Syllabus [FN*]
FN* The syllabus constitutes no part of the
opinion of the Court but has been prepared by the Reporter of Decisions for the
convenience of the reader. See United
States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed.
499.
*448 The
"minority business enterprise" (MBE) provision of the Public Works
Employment Actof 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 *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. 2763‑2782; 2795‑2797.
584 F.2d
600, affirmed.
**2760 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. 2763‑2782.
(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. 2763‑2771.
(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. 2771‑2775.
(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 recipient'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. 2772‑2773.
(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. P. 2773.
(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 *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, 86 S.Ct. 1717, 16 L.Ed.2d 828; Oregon v. Mitchell, 400 U.S. 112,
91 S.Ct. 260, 27 L.Ed.2d 272. Pp. 2773‑2775.
(iv) Thus,
the objectives of the MBE provision are within the scope of Congress' Spending
Power. Cf., Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1. P. 2775.
(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. 2775‑2782.
(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, 91 S.Ct. 1267, 28 L.Ed.2d 554; McDaniel v.
Barresi, 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 582; North Carolina Board of
Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586. Pp. 2776‑2777.
**2761
(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, 777, 96 S.Ct. 1251, 1270, 47 L.Ed.2d 444. Pp.
2777‑2778.
(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. 2778‑2779.
*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 re‑evaluation
by the Congress prior to any extension or re‑enactment. Pp. 2779‑2780.
(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. 2780‑2782.
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, 359, 98 S.Ct. 2733,
2783, 57 L.Ed.2d 750 (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‑**2762 aside provision of the 1977
Act is plainly constitutional, the racial classifications being substantially
related to the achievement of the important and *452 congressionally
articulated goal of remedying the present effects of past racial
discrimination. Pp. 2795‑ 2797.
Robert G.
Benisch, New York City, for petitioners Fullilove et al.
Robert J.
Hickey, Washington, D. C., for petitioner General Building Contractors of New
York State, Inc.
Drew S.
Days III, Washington, D. C., for respondents.
*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, 99 S.Ct. 2403, 60 L.Ed.2d 1064 (1979).
I
In May
1977, Congress enacted the Public Works Employment Act of 1977, Pub.L. 95‑28,
91 Stat. 116, which amended the Local Public Works Capital Development and
Investment Act of 1976, Pub.L. 94‑369, 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 *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: [FN1]
FN1. 91 Stat. 116, 42 U.S.C. § 6705(f)(2) (1976
ed., Supp. II).
"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. [FN2] In August 1977, the
EDA issued guidelines supplementing the statute and regulations with respect to
minority business participation in local public works grants, [FN3] 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. [FN4]
FN2. 42 Fed.Reg. 27432 (1977), as amended by 42
Fed.Reg. 35822 (1977); 13 CFR Part 317 (1978).
FN3. 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.
FN4. 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.
*455
**2763 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. [FN5]
FN5. 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.
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*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 otherCourts of
Appeals and District Courts that the MBE program was constitutional, id., at
608‑609. [FN6] It expressly rejected petitioners' contention that the 10%
MBE requirement violated the equal protection guarantees of the Constitution.
[FN7] Id., at 609.
FN6. 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 (R.I. 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 (S.C. 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, 98 S.Ct. 3132, 57 L.Ed.2d 1153 (1978),
on remand, 459 F.Supp. 766 (CD Cal.), vacated and remanded sub nom. Armistead
v. Associated General Contractors of California, 448 U.S. 908, 100 S.Ct. 3052,
65 L.Ed.2d 1138.
FN7. 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.
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 *457 hort‑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. [**2764 FN8] 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. [FN9] The 1976 Act placed a number
of restrictions on project eligibility designed to assure that federal moneys
were targeted to accomplish the legislative purposes. [FN10] It established
criteria to determine grant priorities and to apportion federal funds among
political jurisdictions. [FN11] Those criteria directed grant funds toward
areas of high unemployment. [FN12] The statute authorized the appropriation of
up to $2 billion for a period ending in September 1977; [FN13] this
appropriation was soon consumed by grants made under the program.
FN8. H.R.Rep.No.94‑1077, p. 2 (1976),
U.S.Code Cong. & Admin.News 1976, p. 1746. 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), U.S.Code Cong. & Admin.News 1976, p. 1746.
FN9. 90 Stat. 999, 42 U.S.C. § 6702.
FN10. 90 Stat. 1000, 42 U.S.C. § 6705.
FN11. 90 Stat. 1000, 42 U.S.C. § 6707.
FN12. 90 Stat. 1001, 42 U.S.C. § 6707(c).
FN13. 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.
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. [FN14] The results
provoked widespread *458 concern for the fairness of the allocation process.
[FN15] Because the 1977 Act would authorize the appropriation of an additional
$4 billion to fund "Round II" of the grant program, [FN16] the
congressional hearings and debates concerning the amendments focused primarily
on the politically sensitive problems of priority and geographic distribution
of grants under the supplemental appropriation. [FN17] 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. [FN18] The
1977 Act also added new restrictions on applicants seeking to qualify for
federal grants; [FN19] among these was the MBE provision.
FN14. 123 Cong.Rec. 2136 (1977) (remarks of Sen.
Randolph).
FN15. 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), U.S.Code Cong. & Admin.News 1977, p. 150.
FN16. 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.
FN17. E. g., Hearings, supra, n. 15; 123 Cong.Rec.
5290‑5353 (1977); id., at 7097‑7176.
FN18. 91 Stat. 117, 42 U.S.C. § 6707 (1976 ed.,
Supp. II).
FN19. 91 Stat. 116, 42 U.S.C. § 6705 (1976 ed.,
Supp. II).
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. [FN20] As offered, the amendment provided: [FN21]
FN20. 123 Cong.Rec. 5097 (1977) (remarks of Rep.
Mitchell).
FN21. Id., at 5098.
"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 **2765 minority business enterprises. For
purposes of this paragraph, the term 'minority business *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. [FN22] 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. [FN23] When the amendment was put forward during debate on
H.R. 11, [FN24] Representative Mitchell reiterated the need to ensure that
minority firms would obtain a fair opportunity to share in the benefits of this
Government program. [FN25]
FN22. Id., at 5097‑5098.
FN23. Id., at 5098.
FN24. 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."
FN25. Id., at 5327‑5328.
The
amendment was put forward not as a new concept, but rather one building upon
prior administrative practice. *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: [FN26]
FN26. Id., at 5327.
"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. [FN27]
FN27. Id., at 5327‑5328.
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.
[FN28] He proposed as a substitute for the first sentence of the amendment the
language that eventually was enacted: [FN29]
FN28. Id., at 5328 (remarks of Rep. Roe).
FN29. Ibid.
"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 **2766 that at least 10 percent *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." [FN30]
FN30. Id., at 5329 (remarks of Rep. Mitchell).
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. [FN31]
FN31. Id., at 5330 (remarks of Rep. Conyers).
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. [FN32] The
amendment was accepted by the House. [FN33]
FN32. Id., at 5331 (remarks of Rep. Biaggi).
FN33. Id., at 5332.
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, *462 worded
somewhat differently than the House version, but aimed at achieving the same
objectives. [FN34] 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. [FN35]
FN34. 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 2764‑ 2765. 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).
FN35. Ibid.
The Senate
adopted the amendment without debate. [FN36] 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. [FN37] The Conference Reports added only the comment: "This
provision shall be dependent on the availability of minority business
enterprises located in the project area." [FN38]
FN36. Ibid.
FN37. S.Conf.Rep.No.95‑110, p. 11 (1977); H.R.Conf.Rep.No.95‑230,
p. 11 (1977).
FN38. 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.
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 **2767 prior experience could be expected,
*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." [FN39] In
the words of its sponsor, the MBE provision was "designed to begin to
redress this grievance that has been extant for so long." [FN40]
FN39. Id., at 7156 (remarks of Sen. Brooke).
FN40. Id., at 5330 (remarks of Rep. Mitchell).
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. [FN41] 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 directedby the President [FN42] to develop a program
pursuant to its § 8(a) authority to assist small *464 business concerns owned
and controlled by "socially or economically disadvantaged" persons to
achieve a competitive position in the economy.
FN41. Id., at 5327; id., at 7156 (remarks of Sen.
Brooke).
FN42. Exec.Order No. 11375, 3 CFR 684 (1966‑1970
Comp.); Exec.Order No. 11518, 3 CFR 907
(1966‑1970 Comp.).
At the
time the MBE provision was enacted, the regulations governing the § 8(a)
program defined "social or economic disadvantage" as follows: [FN43]
FN43. 13 CFR § 124.8‑1(c)(1) (1977).
"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. [FN44]
FN44. 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").
*465
**2768 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. [FN45] 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. [FN46] The original Report,
prepared by the House Subcommittee on SBA Oversight and Minority Enterprise,
observed: [FN47]
FN45. H.R.Rep.No.94‑1791 (1977).
FN46. Id., at 124‑149.
FN47. H.R.Rep.No.94‑468, pp. 1‑2
(1975) (emphasis added).
"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 *466 or economically disadvantaged persons to a level where they may
effectively participate in the business mainstream of our economy.*
FN* For the purposes of this report the term
'minority' shall include only such minority individuals as are considered to be
economically or socially disadvantaged." [FN48]
FN48. 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.840, p. 17 (1976).
The 1975
Report gave particular attention to the § 8(a) program, expressing
disappointment with its limited effectiveness. [FN49] 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." [FN50] 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. [FN51] The *467 Civil **2769 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. [FN52] 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.
[FN53]
FN49. H.R.Rep.No.94‑468, pp. 28‑30
(1975).
FN50. Id., at 29.
FN51. 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).
FN52. U. S. Commission on Civil Rights,
"Minorities and Women as Government Contractors" 16‑28, 86‑88
(1975).
FN53. Ibid.
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 [FN54] 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." [FN55]
FN54. Exec.Order No. 11458, 3 CFR 779 (1966‑1970
Comp.); Exec.Order No. 11625, 3 CFR 616 (1971‑1975 Comp.).
FN55. 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. 14‑15 (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).
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.
*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. [FN56] 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. [FN57]
FN56. 91 Stat. 117, 42 U.S.C. § 6706 (1976 ed.,
Supp. II); 13 CFR Part 317
(1978).
FN57. 91 Stat. 116, 42 U.S.C. (1976 ed., Supp. II)
§ 6705(e)(1); 13 CFR § 317.19 (1978).
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 **2770 available, qualified, bona fide MBE's to provide technical
assistance as needed, to lower or waive bonding requirements where *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.
[FN58]
FN58. Guidelines 2‑7; App. 157a‑160a. The
relevant portions of the Guidelines are set out in the Appendix to this
opinion, ¶ 1.
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. [FN59] 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." [FN60] 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. [FN61]
FN59. Guidelines 2; App. 157a; see 123 Cong.Rec.
5327‑5328 (1977) (remarks of Rep. Mitchell and Rep. Roe).
FN60. Guidelines 8; App. 161a.
FN61. See 123 Cong.Rec. 5327‑5328 (1977)
(remarks of Rep. Mitchell and Rep. Roe).
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. [FN62] 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 *470 the circumstances, [FN63] 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: [FN64]
FN62. Guidelines 13‑16; App. 165a‑167a.
The relevant portions of the Guidelines are set out in the Appendix to this
opinion, ¶ 2.
FN63. Technical Bulletin 5; App. 136a.
FN64. Technical Bulletin 9‑10; App. 143a.
"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.
**2771 "b) The contractor has contacted under
the 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 *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." [FN65] 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. [FN66] 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: [FN67]
FN65. Text accompanying n. 48, supra.
FN66. H.R.Rep.No.94‑468, p. 30 (1975).
FN67. 123 Cong.Rec. 5330 (1977) (remarks of Rep.
Roe).
"[W]hen we are talking bout 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 *472 group members." [FN68] 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." [FN69] 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. [FN70]
FN68. Technical Bulletin 1; App. 131a‑132a. These
definitions are set out in the Appendix to this opinion, ¶ 3.
FN69. Technical Bulletin 3; App. 135a.
FN70. Technical Bulletin 19; App. 155a. The
relevant portions of the Technical Bulletin are set out in the Appendix to this
opinion, ¶ 4.
III
[1][2][3]
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, 148, 48 S.Ct. 105, 107, 72
L.Ed. 206 (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
co‑equal 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 **2772 National Committee, 412
U.S. 94, 102, 93 S.Ct. 2080, 2086, 36 L.Ed.2d 772 (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, 98 S.Ct. 1024, 55 L.Ed.2d 225 (1978); Mathews v. De Castro, 429
U.S. 181, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976).
*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 103, 93 S.Ct., at 2087.
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. *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, 90‑91, 96 S.Ct. 612, 668‑669, 46 L.Ed.2d 659
(1976); United States v. Butler, 297 U.S. 1, 65‑66, 56 S.Ct. 312, 319, 80
L.Ed. 477 (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, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974); Lau v. Nichols, 414
U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974); Oklahoma v. CSC, 330 U.S. 127, 67
S.Ct. 544, 91 L.Ed. 794 (1947); Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904,
81 L.Ed. 1307 (1937); Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883,
81 L.Ed. 1279 (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 **2773 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.
*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)
[4] 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, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964); Heart of Atlanta
Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258
(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. *476 Bowman Transportation Co., 424 U.S. 747,
761, 96 S.Ct. 1251, 1263, 47 L.Ed.2d 444 (1976); see California Brewers Assn.
v. Bryant, 444 U.S. 598, 100 S.Ct. 814, 63 L.Ed.2d 55 (1980); Teamsters v.
United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Albemarle
Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Griggs
v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (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, 96 S.Ct. 2465, 49 L.Ed.2d 245 (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, 96 S.Ct. 2666, 49 L.Ed.2d 614
(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 **2774 legislation," the equal protection guarantees of the
Fourteenth Amendment.
In
Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (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 651,
86 S.Ct., at 1723‑24. 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 *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 648‑649, 86 S.Ct., at 1722. 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 652‑653, 86 S.Ct., at 1724.
Four years
later, in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272
(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,
176‑177, 100 S.Ct. 1548, 1561‑1562, 64 L.Ed.2d 119 (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, 86 S.Ct.
803, 15 L.Ed.2d 769 (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 *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 **2775 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.
*479 (4)
There are
relevant similarities between the MBE program and the federal spending program
reviewed in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (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 564‑566, 94 S.Ct., at 787‑788.
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 568, 94 S.Ct., at 789 (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 *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
[5][6] 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, 603, 69 S.Ct. 1173, 1183, 93 L.Ed. 1556 (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 **2776 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.
[FN71] In *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, 760, 94 S.Ct. 2547, 2563, 41 L.Ed.2d 439
(1974); Fortson v. Dorsey, 379 U.S. 433, 438‑ 439, 85 S.Ct. 498, 501, 13
L.Ed.2d 401 (1965); Aptheker v. Secretary of State, 378 U.S. 500, 515, 84 S.Ct.
1659, 1668, 12 L.Ed.2d 992 (1964); see United States v. Raines, 362 U.S. 17, 20‑24,
80 S.Ct. 519, 522‑524, 4 L.Ed.2d 524 (1960).
FN71. 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.
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 2770. 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 2771. There
is available to the grantee a provision authorized by Congress for
administrative waiver on *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 2770. 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 2771.
(1)
[7] 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, 18‑21, 91
S.Ct. 1267, 1277‑1278, 28 L.Ed.2d 554 (1971), we rejected this argument
in considering a court‑formulated school desegregation remedy on the
basis that examination of the racial composition of student **2777 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, 41, 91 S.Ct. 1287, 1289, 28
L.Ed.2d 582 (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, 91 S.Ct. 1284, 28
L.Ed.2d 586 (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 46, 91 S.Ct., at 1286.
*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, 96 S.Ct.
1251, 47 L.Ed.2d 444 (1976); see Teamsters v. United States, 431 U.S. 324, 97
S.Ct. 1843, 52 L.Ed.2d 396 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405,
95 S.Ct. 2362, 45 L.Ed.2d 280 (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, 147‑165, 97
S.Ct. 996, 1000‑1009, 51 L.Ed.2d 229 (1977) (opinion of WHITE, J., joined
by BRENNAN, BLACKMUN, and STEVENS, JJ.); id., at 180‑187, 97 S.Ct., at
1017‑1020 (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, 419‑420, 97 S.Ct. 2766, 2775, 53 L.Ed.2d 851 (1977)
(quoting Milliken v. Bradley, 418 U.S. 717, 738, 94 S.Ct. 3112, 3124, 41
L.Ed.2d 1069 (1974), and Swann v. Charlotte‑Mecklenburg Board of
Education, supra, at 16, 91 S.Ct., at 1276).
[8] 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
*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 2772‑2775.
(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 **2778 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.
[9] 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, 424 U.S., at 777, 96 S.Ct., at 1270; see Albermarle 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. [FN72] Moreover, although we may assume that the
complaining *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.
FN72. 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.
(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, 90 S.Ct. 1153, 25 L.Ed.2d
491 (1970); Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed.
563 (1955). We are not reviewing a federal program that seeks to confer a
preferred statusupon 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, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979); Califano v. Webster, 430 U.S.
313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977); Morton v. Mancari, 417 U.S. 535, 94
S.Ct. 2474, 41 L.Ed.2d 290 (1974).
The
Congress has not sought to give select minority groups a preferred standing in
the construction industry, but has *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 **2779 U.S. 93, 109‑112, 99 S.Ct. 939, 949‑950,
59 L.Ed.2d 171 (1979); Oregon v. Mitchell, 400 U.S., at 240, 91 S.Ct., at 322
(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 *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.
[FN73] There is administrative scrutiny **2780 to identify and *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 2771. 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 2770‑2771. We must assume that Congress
intended close scrutiny of false claims and prompt action on them.
FN73. 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 numbers." 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, ¶ 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(i) (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.
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.
*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, 200, 99
S.Ct. 2721, 2726, 61 L.Ed.2d 480 (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 re‑ enactment.
[FN74] Miscarriages of administration could have only a transitory economic
impact on businesses not encompassed by the program, and would not be
irremediable.
FN74. 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).
*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 **2781 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: [FN75]
FN75. R. Jackson, The Struggle for Judicial
Supremacy 321 (1941).
"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 *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: [FN76]
FN76. R. Jackson, The Supreme Court in the
American System of Government 61‑62 (1955).
"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, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (1932) (dissenting
opinion).
[10] 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 *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, 98 S.Ct. 2733, 57
L.Ed.2d 750 (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. [FN77]
FN77. 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, 550‑551, 94 S.Ct. 2474, 2482‑2483,
41 L.Ed.2d 290 (1974); Preiser v.
Rodriguez, 411 U.S. 475, 489‑490, 93 S.Ct. 1827, 1836, 36 L.Ed.2d 439
(1973); Bulova Watch Co. v. United States, 365 U.S. 753, 758, 81 S.Ct. 864,
867, 6 L.Ed.2d 72 (1961); United States v. Borden Co., 308 U.S. 188, 198‑202,
60 S.Ct. 182, 188‑190, 84 L.Ed. 181 (1939).
Affirmed.
**2782 APPENDIX TO OPINION OF BURGER, C. J.
¶ 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 bona 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 *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]veryGrantee 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 *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. . . . "
¶ 2. The
EDA guidelines, at 13‑15, provide in relevant part:
**2783 "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. . . . "
¶ 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.
*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."
¶ 4. The
EDA Technical Bulletin, at 19, provides in relevant part:
"Any person or organizationwith 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."
Mr.
Justice POWELL, concurring.
Although I
would place greater emphasis than THE CHIEF JUSTICE on the need to articulate
judicial standards of review *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, 98 S.Ct.
2733, 57 L.Ed.2d 750 (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
**2784 means of advancing a compelling governmental interest. Bakke, supra, at
299, 305, 98 S.Ct., at 2756; see In re Griffiths, 413 U.S. 717, 721‑722,
93 S.Ct. 2851, 2854‑2855, 37 L.Ed.2d 910 (1973); Loving v. Virginia, 388
U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); McLaughlin v. Florida,
379 U.S. 184, 196, 85 S.Ct. 283, 290, 13 L.Ed.2d 222 (1964). For the reasons
stated in myBakke 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, 402‑404, 84 S.Ct. 454, 455‑456, 11 L.Ed.2d
430 (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. [FN1]
FN1. 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 2798. But, in
narrowly defined circumstances, that presumption may be rebutted. Cf. Lee v.
Washington, 390 U.S. 333, 334, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968) (BLACK,
HARLAN, and STEWART, JJ., concurring).
*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,
388 U.S., at 11, 87 S.Ct., at 1823, quoting Hirabayashi v. United States, 320
U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (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,
499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954).
The
Government does have a legitimate interest in ameliorating the disabling
effects of identified discrimination. Bakke, supra, at 307, 98 S.Ct., at 2757; see,
e. g., Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 236, 93
S.Ct. 2686, 2711, 37 L.Ed.2d 548 (1973) (POWELL, J., concurring in part and
dissenting in part); McDaniel v. Barresi, 402 U.S. 39, 41, 91 S.Ct. 1287, 1288,
28 L.Ed.2d 582 (1971); North Carolina Board of Education v. Swann, 402 U.S. 43,
45‑46, 91 S.Ct. 1284, 1285‑1286, 28 L.Ed.2d 586 (1971); Green v.
County School Board, 391 U.S. 430, 437‑438, 88 S.Ct. 1689, 1693‑1694,
20 L.Ed.2d 716 (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, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (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 307, 98 S.Ct., at
2757; see e. g., Teamsters v. United *498 States, 431 U.S. 324, 367‑ 376,
97 S.Ct. 1843, 1870‑1875, 52 L.Ed.2d 396 (1977); United Jewish
Organizations v. Carey, 430 U.S. 144, 155‑159, 97 S.Ct. 996, 1004‑1006,
51 L.Ed.2d 229 (1977) (opinion of WHITE, J.); South Carolina v. Katzenbach, 383
U.S. 301, 308‑315, 86 S.Ct. 803, 808‑811, 15 L.Ed.2d 769 (1966).
**2785
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, 103, 96 S.Ct. 1895, 1905, 48 L.Ed.2d 495
(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 309‑310, 98 S.Ct., at 2758‑2759.
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
721‑722, 93 S.Ct., at 2854‑2855. 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 275‑276, 98 S.Ct., at 2740‑2741.
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 *499 while ensuring that each applicant
receives fair and competitive consideration. Id., at 317‑318, 98 S.Ct.,
at 2762‑2763.
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, 257, 85 S.Ct. 348, 357, 13 L.Ed.2d
258 (1964). In Katzenbach v. McClung, 379 U.S. 294, 304, 85 S.Ct. 377, 384, 13
L.Ed.2d 290 (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, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973). Acting to
further the purposes of Title VII, Congress vested in **2786 the federal courts
broad equitable discretion *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, 764, 96 S.Ct. 1251, 1264, 47 L.Ed.2d 444 (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. [FN2] 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, 345, 25 L.Ed. 676 (1880). In Jones v. Alfred H. Mayer & Co., 392 U.S.
409, 441‑443, 88 S.Ct. 2186, 2204‑2205, 20 L.Ed.2d 1189 (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, 168‑170, 179,
96 S.Ct. 2586, 2593‑2594, 2598, 49 L.Ed.2d 415 (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, 295‑296, 96 S.Ct.
2574, 2585‑2586, 49 L.Ed.2d 493 (1976); Johnson v. Railway Express
Agency, Inc., 421 U.S. 454, 459‑460, 95 S.Ct. 1716, 1719‑1720, 44
L.Ed.2d 295 (1975).
FN2. 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.
In
Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (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 *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 652‑653,
86 S.Ct., at 1724. 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 308, 86 S.Ct., at 808,
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 309, 86 S.Ct., at 808. 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 327‑328, 86 S.Ct., at 818. [FN3]
FN3. 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, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970), this
Court, speaking through five separate opinions, unanimously upheld the action
as a proper exercise of Congress' authority under the post‑Civil War
Amendments. See id., at 117, 91 S.Ct., at 261 (Black, J.); id., at 135, 91
S.Ct., at 270 (Douglas, J.); id., at 152, 91 S.Ct., at 279 (Harlan, J.); id.,
at 229, 91 S.Ct., at 317 (BRENNAN, WHITE, and MARSHALL, JJ.); id., at 281, 91
S.Ct., at 343 (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, 91 S.Ct., at
344 (citation omitted).
*502
**2787 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 it 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 *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.
[FN4] *504 The **2788 opinion of THE CHIEF JUSTICE provides a careful overview
of the relevant legislative history, see ante, at 2763‑ 2769, to which
only a few words need be added.
FN4. 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, 656, 86 S.Ct. 1717, 1726, 16
L.Ed.2d 828 (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 2786‑2787; 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.
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). [FN5] 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.C. §
1657a, which, he stated, demonstrated the validity of his amendment. 123
Cong.Rec. 7155‑7156 (1977).
FN5. 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).
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 2767. [FN6] *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.94‑468, pp. 1‑2 (1975). In
1977, the House Committee on Small Business found that
FN6. 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.
v. Kleppe, 477 F.2d 696, 706 (CA5 1973), cert. denied, 415 U.S. 914, 94 S.Ct.
1410, 39 L.Ed.2d 468 (1974).
"over the years, there has developed a
business system which has traditionally excluded measurable minority
participation. **2789 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).
*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. [FN7]
FN7. 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.
11 and 12, infra.
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 sub‑contract
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, 284, 91 S.Ct. 260, 344, 27 L.Ed.2d
272 (1970) (STEWART, J., concurring in part and dissenting in part). [FN8]
FN8. 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 2793. 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, 319, n. 53, 98 S.Ct. 2733, 2763, n. 53,
57 L.Ed.2d 750 (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 fairminded people that the congressional action is just.
*507 IV
Under this
Court's established doctrine, a racial classification is suspect and subject to
strict judicial scrutiny. As noted in Part I, the government may employ such a
classification only when necessary to accomplish a compelling governmental
purpose. See Bakke, 438 U.S., at 305, 98 S.Ct., at 2756. 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, 65 S.Ct. 193, 89 L.Ed. 194 (1944); Hirabayshi v.
United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943). Indeed, the
failure of legislative action to **2790 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,
*508 at 2784. Nor has Congress sought to employ a racially conscious means to
further a nonracial goal. In such instances, a non‑racial means should be
available to further the legitimate governmental purpose. See Bakke, supra, at
310‑311, 98 S.Ct., at 2759.
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 45‑46, 91 S.Ct.,
at 1285‑1286. 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, 280‑281, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977); Dayton
Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851
(1977); Austin Independent School District v. United States, 429 U.S. 990, 991,
97 S.Ct. 517, 50 L.Ed.2d 603 (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 794, 96 S.Ct.,
at 1278 (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 *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 345, 25 L.Ed. 676. [FN9]
FN9. See also Jones v. Alfred H. Mayer & Co.,
392 U.S. 409, 88 S.Ct. 2186, 2203‑2204, 20 L.Ed.2d 1189 (1968), quoting
Cong.Globe, 39th Cong., 1st Sess., 322 (1866) (remarks of Sen. Trumbull on
Congress' authority under the Thirteenth Amendment).
**2791
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 *510 Branches would be required
to conform to the Constitution. See, e. g., Marbury v. Madison, 1 Cranch 137, 2
L.Ed. 60 (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 46, 471 F.2d
408, 414, n. 12 (CA2), cert. denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d
398 (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 work force, 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, *511 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775
(1975); Bridgeport Guardians, Inc. v. Bridgeport Civil Service Comm'n, 482 F.2d
1333, 1341 (CA2 1973), cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d
481 (1975); Carter v. Gallagher, 452 F.2d 315, 331 (CA8) (en banc), cert.
denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (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, 94 S.Ct. 1971, 40 L.Ed.2d 307 (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 **2792 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, [FN10] 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. [FN11] And Congress knew that the *512 ability of minority group
members to gain experience had been frustrated by the difficulty of entering
the construction trades. [FN12] The set‑aside program adopted as part of
this emergency *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.
FN10. 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).
FN11. 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 (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.
FN12. When Senator Brooke introduced the PWEA set‑aside
in the Senate, he stated that aid tominority 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, 92 S.Ct. 98, 30 L.Ed.2d 95 (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.
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 **2793 longer than the discriminatory effects it is
designed to eliminate. It will be necessary for Congress to re‑examine
the need for a race‑conscious remedy before it extends or re‑enacts
§ 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 *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 374‑375, 97 S.Ct.,
at 1874. 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 PWEA 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 *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. [FN13]
FN13. 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, 210‑212, 97 S.Ct. 1021, 1028‑1029,
51 L.Ed.2d 270 (1977) (opinion of BRENNAN, J.); Richardson v. Belcher, 404 U.S.
78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971) ("To characterize an Act
of Congress as conferring a 'public benefit' does not, of course, immunize it
from scrutiny under the Fifth Amendment").
**2794
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. [FN14]
FN14. 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 309‑ 310, 98 S.Ct., at 2758‑2759.
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.
*516 V
In the
history of this Court and this country, 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, 16 S.Ct. 1138, 41 L.Ed.
256 (1896); Dred Scott v. Sandford, 19 How. 393, 15 L.Ed. 691 (1857). At least
since the decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686,
98 L.Ed. 873 (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 *517 Congress chose a reasonably necessary
means to effectuate its purpose, I find no constitutional reason to invalidate§
103(f)(2). [FN15]
FN15. 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 287 (opinion of
POWELL, J.); id., at 348‑350, 98 S.Ct., at 2778‑2779 (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, 324‑379, 98 S.Ct. 2733, 2766‑2794, 57 L.Ed.2d **2795 750
(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. [FN1]
FN1. 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 328, 98 S.Ct., at 2768 (opinion of BRENNAN, WHITE, MARSHALL, and
BLACKMUN, JJ.); id., at 287, 98 S.Ct., at 2746 (opinion of POWELL, J.).
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 356, 98 S.Ct., at 2782
(opinion concurring in judgment in part and dissenting in part) (hereinafter
cited as joint separate opinion). [FN2] We acknowledged that "a *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 357, 98 S.Ct., at 2782. 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 357‑358, 98 S.Ct., at 2783.
FN2. 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 367, n. 43, 98 S.Ct., at
2788 (joint separate opinion) (quoting Buckley v. Valeo, 424 U.S. 1, 93, 96
S.Ct. 612, 670, 46 L.Ed.2d 659 (1976) (per curiam )).
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. [FN3] 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 357, 98 S.Ct., at 2783 (quoting San Antonio
Independent School District v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1293,
36 L.Ed.2d 16 (1973)). See also United States v. Carolene Products Co., 304
U.S. *519 144, 152, n. 4, 58 S.Ct. 778, 783, 82 L.Ed. 1234 (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, 438 U.S., at 362, 98 S.Ct., at 2785 (joint
separate opinion).
FN3. 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 362, 98 S.Ct.,
at 2785 (joint separate opinion); id., at 305‑306, 98 S.Ct. at 2756‑2757
(opinion of POWELL, J.).
Nor did we
determine that such programs should be analyzed under the minimally rigorous
**2796 rational‑basis standard of review. 438 U.S., at 358, 98 S.Ct., at
2783. 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 360‑361, 98 S.Ct., at 2784.
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
361, 98 S.Ct., at 2785. "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 359, 98
S.Ct., at 2784.
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.
*520 As
Mr. Chief Justice BURGER demonstrates, see ante, at 2763‑2769, 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
2787‑2789. 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 362, 98 S.Ct., at 2785 (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 classifications. Ibid. See
generally id., at 362‑373, 98 S.Ct., at 2785‑2790. [FN4]
FN4. 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 366,
98 S.Ct., at 2787 (joint separate opinion).
See also ante, at 2774‑2775; the concurring
opinion of my Brother POWELL, ante, at 2787.
Because
the means chosen by Congress to implement the set‑aside provision are
substantially related to the achievement *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 **2797 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 378, 98 S.Ct., at 2793. 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 2775‑2780. Cf. the concurring
opinion of my Brother POWELL, ante, at 2790‑2794. 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 375, 98 S.Ct., at 2792 (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 2778, 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.
*522 III
In my
separate opinion in Bakke, 438 U.S., at 387‑396, 98 S.Ct., at 2798, 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 387, 395, 98 S.Ct., at 2802. 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 401, 98 S.Ct., at 2805.
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 407, 98 S.Ct., at 2808 (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 oursociety 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.
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 *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, 559, 16
S.Ct. 1138, 1146, 41 L.Ed. 256 (Harlan, J., dissenting). His colleagues **2798
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 550,
16 S.Ct., at 1143. 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, 10, 87 S.Ct. 1817, 1822, 18 L.Ed.2d
1010; Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559; Strauder v.
West Virginia, 100 U.S. 303, 307‑308, 25 L.Ed. 664; Slaughter‑House
Cases, 16 Wall. 36, 71‑72, 21 L.Ed. 394. 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, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597; Bolling v.
Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884. [FN1] 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, 192, 85 S.Ct. 283, 288, 13 L.Ed.2d 222; Bolling v.
Sharpe, supra, 347 U.S., at 499, 74 S.Ct., at 694; Korematsu v. United States,
323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194. [FN2]
FN1. "Equal protection analysis in the Fifth
Amendment area is the same as that under the Fourteenth Amendment." Buckley
v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659.
FN2. 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, 99 S.Ct.
2721, 61 L.Ed.2d 480. The Fourteenth
Amendment limits only the actions of the States; the Fifth Amendment limits
only the actions of the National Government.
*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,
74 S.Ct. 686, 98 L.Ed. 873; Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59
S.Ct. 232, 83 L.Ed. 208. 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, 84 S.Ct.
454, 11 L.Ed.2d 430, 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 403,
84 S.Ct., at 456 (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, 83 S.Ct. 1405, 10 L.Ed.2d 632; Buchanan v. Warley, 245 U.S. 60, 38
S.Ct. 16, 62 L.Ed. 149. [FN3]
FN3. University of California Regents v. Bakke,
438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750, and United Jewish Organizations v.
Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229, 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 179‑180, 97 S.Ct., at 1017 (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, 65 S.Ct.
193, 89 L.Ed. 194; Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87
L.Ed. 1774. 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, 74 S.Ct. 693, 98 L.Ed. 884.
*525
**2799 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. [FN4] 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, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774, quoted in
Loving v. Virginia, supra, at 11, 87 S.Ct., at 1823. [FN5] *526 In short,
racial discrimination is by definition invidious discrimination.
FN4. 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, 97 S.Ct. 1843, 52 L.Ed.2d 396; Franks v. Bowman
Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444; Swann v.
Charlotte‑Mecklenburg Board of Education, 402 U.S. 1, 18‑32, 91
S.Ct. 1267, 1277‑1284, 28 L.Ed.2d 554. 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 Part B,
infra.
FN5. As Mr. Justice Murphy wrote in dissenting
from the Court's opinion and judgment in Korematsu v. United States, supra, at
242, 65 S.Ct., at 206:
"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, 331‑344,
94 S.Ct. 1704, 1713‑1719, 40 L.Ed.2d 164 (Douglas, J., dissenting); A.
Bickel, The Morality of Consent 132‑133 (1975).
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, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220. See In re Griffiths, 413
U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910; Hernandez v. Texas, 347 U.S. 475, 74
S.Ct. 667, 98 L.Ed. 866; Truax v. Raich, 239 U.S. 33, 39‑43, 36 S.Ct. 7,
9‑11, 60 L.Ed. 131; Strauder v. West Virginia, 100 U.S., at 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, 22,
68 S.Ct. 836, 846, 92 L.Ed. 1161 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.
**2800 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 *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. [FN6]
FN6. See n. 4, supra. In McDaniel v. Barresi, 402
U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 582, 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.
But even
assuming that Congress has the power, under § 5 of the Fourteenth Amendment or
some other constitutional provision, *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. [FN7] 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, 96 S.Ct. 2697, 49 L.Ed.2d 599.
FN7. 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.
The
provision at issue here does not satisfy this condition. Its legislative
history suggests that it had at least two other **2801 objectives in addition
to that of counteracting the effects of past or present racial discrimination
in the public works construction industry. [FN8] One such purpose appears to
have been to assure *529 to minority contractors a certain percentage of
federally funded public works contracts. [FN9] 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, 307, 98 S.Ct. 2733, 2757, 57
L.Ed.2d 750 (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." [FN10] No race, however,
has a monopoly on social, educational, or economic *530 disadvantage, [FN11]
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.
[FN12]
FN8. 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.
FN9. 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).
FN10. 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 affects the MBE's costs of doing business or
results from discrimination " (emphasis added)).
FN11. 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.
FN12. 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, 419‑420, 97 S.Ct. 2766, 2775, 53 L.Ed.2d 851; Milliken v.
Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069. 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 ofdoing 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.
*531 **2802 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. [FN13] 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.
FN13. The Framers of our Constitution lived at a
time when the Old World still operated 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. . .
."
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.
[FN14] 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 298, 98 S.Ct., at 2753 (opinion *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. [FN15] See Hughes v.
Superior Court, 339 U.S. 460, 463‑464, 70 S.Ct. 718, 720, 94 L.Ed. 985; 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).
FN14. See Technical Bulletin, supra n. 10, at 1. Cf.:
Ga.Code § 53‑312 (1937); Tex.Penal Code, Art. 493 (Vernon 1938).
FN15. "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, 485, 48 S.Ct. 564, 575,
72 L.Ed. 944 (Brandeis, J., dissenting).
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 **2803 racism‑‑not even "temporarily"
and not even as an "experiment."
For these
reasons, I would reverse the judgment of the Court of Appeals.
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 *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 [FN1] is only one aspect of our
commitment to the proposition that the sovereign has a fundamental duty to
govern impartially. [FN2] When government accords different treatment to
different persons, there must be a reason for the difference. [FN3] Because
racial *534 characteristics so seldom provide a relevant basis for disparate
treatment, [FN4] and because classifications based on race are potentially so
**2804 harmful to the entire body politic, [FN5] it is especially*535 important
that the reasons for any such classification be clearly identified and
unquestionably legitimate.
FN1. "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, 100 [, 63 S.Ct. 1375,
1385, 87 L.Ed. 1774]. 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, 520‑ 521, n. 3, 96 S.Ct. 2755, 2769, 49 L.Ed.2d 651
(STEVENS, J., dissenting).
FN2. "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, 100, 96 S.Ct. 1895, 1903, 48 L.Ed.2d 495.
See also Harris v. McRae, 448 U.S. 297, 349, 356‑357,
100 S.Ct. 2671, 2701, 2712, 2715‑2716, 65 L.Ed.2d 784 (STEVENS, J.,
dissenting); Craig v. Boren, 429 U.S. 190, 211, 97 S.Ct. 451, 464, 50 L.Ed.2d
397 (STEVENS, J., concurring).
FN3. "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 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." Railroad Express Agency, Inc., v.
New York, 336 U.S. 106, 115, 69 S.Ct. 463, 468, 93 L.Ed. 533 (Jackson, J.,
concurring).
FN4. "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 520‑521,
96 S.Ct., at 2769 (STEVENS, J., dissenting) (footnote omitted).
FN5. 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, ¶ 3, ante, at 2783, 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. 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."
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. [FN6] Nor does the Act or its history explain *536 why 10%
of the total appropriation was the proper amount to set aside for investors in
each of the six racial subclasses. [FN7]
FN6. 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 2767. This may be the source
of the definition of the class at issue in this case. See also ante, at 2779,
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, 315‑318, 98
S.Ct. 2733, 2761‑2763, 57 L.Ed.2d 750.
FN7. 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 2782.
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.
**2805
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.
*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, 97 S.Ct. 911, 51 L.Ed.2d 173. 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 97‑98, 97 S.Ct., at 925 (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, 387, 98 S.Ct. 2733, 2798, 57 L.Ed.2d 750, 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 classwide 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 classwide
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, *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 387, 98 S.Ct. at 2798 (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 these
subclasses is equally entitled to reparations from the United States
Government. [FN8]
FN8. 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.
**2806 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. [FN9] A random*539 distribution to a
favored few is a poor form of compensation for an injury shared by many.
FN9. For a similar reason, the discrimination
against males condemned in Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021,
51 L.Ed.2d 270, 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, 94 S.Ct. 1734, 40 L.Ed.2d 189] 416 U.S., at 354, 94
S.Ct., at 1737. 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 221, 97
S.Ct., at 1034 (STEVENS, J., concurring in judgment).
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 MARSHALL 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 *540 programs.
[FN10] 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 **2807 lack of any contrary evidence in the legislative record, it is
appropriate to presume that the law has generally been obeyed.
FN10. "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.
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; [FN11] (4) firms that
have tried to obtain public business but were unsuccessful for reasons that are
unrelated to the racial characteristics of their stockholders; *541 and (5) those firms that have been victimized
by racial discrimination.
FN11. Although the plain language of the statute
appears to include such firms, as I have already noted, n. 7, supra, the EDA
guidelines may consider such newly formed firms ineligible for the statutory
set‑aside.
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, [FN12] it seems inappropriate to regard the preference as a
remedy designed to redress any specific wrongs. [FN13] In any event, since it
is highly unlikely that the composition of the fifth category is at all
representative of the entire class of firms to which the statute grants a
valuable preference, it is ill‑fitting to characterize this as a
"narrowly tailored" remedial measure. [FN14]
FN12. See University of California Regents v.
Bakke, 438 U.S., at 418‑ 421, 98 S.Ct., at 2813‑2815 (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).
FN13. I recognize that the EDA has issued a
Technical Bulletin, relied on heavily by THE CHIEF JUSTICE, ante, at 2770‑2771,
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.
FN14. See THE CHIEF JUSTICE's opinion, ante, at
2776.
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 *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, 96
S.Ct. 2673, 49 L.Ed.2d 547, however, the award of such contracts may become a
form of political patronage that is dispensed by the party in power. [FN15] Although
the practice of awarding such contracts to political allies may be as much a
part of our history as the employment **2808 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.
FN15. "Nonofficeholders may be the
beneficiaries of lucrative government contracts for highway construction,
buildings, and supplies." 427 U.S., at 353, 96 S.Ct., at 2680.
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 *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 *544 problem [FN16]
and at the other extreme, **2809 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.
FN16. 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. 79‑48, pp. 26‑27 [446 U.S.
608, 100 S.Ct. 1905, 64 L.Ed.2d 548].
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 *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. [FN17] 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.
FN17. See United Jewish Organizations v. Carey,
430 U.S. 144, 173‑174, 97 S.Ct. 996, 1014, 51 L.Ed.2d 229 (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."
*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 **2810
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. *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. [FN18] But the
creation of new barriers can only frustrate true progress. For as Mr. Justice
POWELL [FN19] and Mr. Justice Douglas [FN20] 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. [FN21] For this reason, I am firmly convinced *548 that this
"temporary measure" will disserve the goal of equal opportunity.
FN18. "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, 342, 94 S.Ct. 1704, 1718, 40 L.Ed.2d 164 (Douglas, J., dissenting).
FN19. See University of California Regents v.
Bakke, 438 U.S., at 298, 98
S.Ct., at 2753.
FN20. DeFunis v. Odegaard, supra, at 343, 94
S.Ct., at 1719 (dissenting opinion).
FN21. 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 295, 98 S.Ct. at 2751.
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 295, n. 35, 98 S.Ct., at 2751, n. 35.
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 **2811 and citizens. See Hampton v. Mow Sun Wong, 426 U.S. 88, 101‑102,
n. 21, 96 S.Ct. 1895, 1904, n. 21, 48 L.Ed.2d 495. [FN22] 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.
FN22. This preferential set‑aside
specifically discriminates in favor of citizens of the United States. See
supra, at 2804.
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. [FN23] *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. [FN24]
FN23. "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, 103, 96 S.Ct. 1895, 1905, 48 L.Ed.2d 495.
"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 105, 96 S.Ct., at 1906.
FN24. 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.)
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, [FN25]
and was not the subject **2812 of any testimony or inquiry *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 97, 97 S.Ct., at 925.
FN25. 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 Indians‑‑with
exceptionally high structural unemployment levels‑‑were awarded
projects at a per capita value far in excess of non‑Indian
communities." S.Rep.No.95‑38, p. 3 (1977).
The Court quotes three paragraphs from a lengthy
Report issued by the House Committee on Small Business in 1977, ante, at 2768,
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 n. 6, supra.
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.
[FN26] Whenever *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. [FN27]
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." [FN28] Cf. THE CHIEF JUSTICE's opinion,
ante, at 2775‑2776; Mr. Justice MARSHALL's opinion concurring in the
judgment, ante, at 2797. If the general language of the Due Process Clause of
the Fifth Amendment *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‑**2813 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. [FN29]
FN26. "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.
FN27. 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."
FN28. "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).
FN29. 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 2781
(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.
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. [FN30] The risk that habitual attitudes toward *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.
FN30. 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?
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. [FN31] When the classification is defined in racial terms, I believe
that such particular identification is imperative.
FN31. "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, 53, 98 S.Ct. 95,
99, 54 L.Ed.2d 228.
"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, 312, 98 S.Ct. 1067, 1079, 55 L.Ed.2d 287 (STEVENS, J.,
dissenting).
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 inthe
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
*554 may notice judicially provides any support for such a proposition. It is
up to Congress **2814 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.