City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)
City of Richmond v. J.A.
Does the Equal Protection Clause require strict scrutiny for state and local racial set-aside programs, and did Richmond demonstrate a constitutionally sufficient compelling interest and narrow tailoring to justify its 30% MBE subcontracting requirement?
All racial classifications imposed by state and local governments are subject to strict scrutiny. To survive, the government must demonstrate: (1) a compelling interest, which in the remedial context requires a strong basis in evidence of prior discrimination by the governmental unit itself or of its passive participation in a discriminatory system within its jurisdiction; generalized assertions of societal discrimination and comparisons to overall population demographics are insufficient; and (2) narrow tailoring, which demands a tight fit between means and ends, serious consideration of race-neutral alternatives, flexibility (including meaningful waivers), limited duration, careful selection of beneficiaries closely tied to the identified injury, and a relationship between any numerical target and the actual availability of qualified minority firms. Federal programs may rest on Congress's unique Section 5 enforcement power (Fullilove), but state and local programs do not share that constitutional latitude.
Yes, strict scrutiny applies to state and local racial set-aside programs. Richmond failed to show a compelling interest supported by a strong basis in evidence and did not narrowly tailor its 30% MBE requirement. The ordinance violated the Equal Protection Clause.
Croson established that strict scrutiny governs all state and local race-based contracting programs and articulated the modern template for assessing remedial affirmative action outside the federal context. It requires a strong evidentiary foundation—often prompting jurisdictions to conduct detailed disparity studies—and careful, flexible tailoring that prioritizes race-neutral measures. The decision narrowed Fullilove's reach to Congress and foreshadowed Adarand, which later extended strict scrutiny to federal programs. For law students, Croson is essential to understanding compelling interest analysis (strong basis in evidence), narrow tailoring in remedial contexts, and the limits of quota-like remedies under the Equal Protection Clause.