Fullilove v. Klutznick

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 (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.1

I

In Bakke, I joined my Brothers Brennan, White, and Blackmun in articulating the view that “racial classifications are not per se invalid under [the Equal Protection Clause of] the Fourteenth Amendment.” Id., at 356 (opinion concurring in judgment in part and dissenting in part) (hereinafter cited as joint separate opinion).2 We acknowledged that “a *518government 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. 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.

"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.3 Such classifications may disadvantage some whites, but whites as a class lack the “ ‘traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.’ ” Id., at 357 (quoting San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 28 (1973)). See also United States v. Carotene Products Co., 304 U. S. *519144, 152, n. 4 (1938). Because the consideration of race is relevant to remedying the continuing effects of past racial discrimination, and because governmental programs employing racial classifications for remedial purposes can be crafted to avoid stigmatization, we concluded that such programs should not be subjected to conventional “strict scrutiny”— scrutiny that is strict in theory, but fatal in fact. Bakke, supra, at 362 (joint separate opinion).

Nor did we determine that such programs should be analyzed under the minimally rigorous rational-basis standard of review. 438 U. S., at 358. We recognized that race has often been used to stigmatize politically powerless segments of society, and that efforts to ameliorate the effects of past discrimination could be based on paternalistic stereotyping, not on a careful consideration of modem 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.

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. “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.

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.

*520As Mr. Chief Justice Burger demonstrates, see ante, at 456-467, it is indisputable that Congress’ articulated purpose for enacting the set-aside provision was to remedy the present effects of past racial discrimination. See also the concurring opinion of my Brother Powell, ante, at 503-506. Congress had a sound basis for concluding that minority-owned construction enterprises, though capable, qualified, and ready and willing to work, have received a disproportionately small amount of public contracting business because of the continuing effects of past discrimination. Here, as in Bakke, 438 U. S., at 362 (joint separate opinion), “minority under-representation is substantial and chronic, and . . . the handicap of past discrimination is impeding access of minorities to” the benefits of the governmental program. In these circumstances remedying these present effects of past racial discrimination is a sufficiently important governmental interest to justify the use of racial classification. Ibid. See generally id., at 362-373.4

Because the means chosen by Congress to implement the set-aside provision are substantially related to the achieve*521ment of its remedial purpose, the provision also meets the second prong of our Bakke test. Congress reasonably determined that race-conscious means were necessary to break down the barriers confronting participation by minority enterprises in federally funded public works projects. That the set-aside creates a quota in favor of qualified and available minority business enterprises does not necessarily indicate that it stigmatizes. As our opinion stated in Bakke, “[f]or purposes of constitutional adjudication, there is no difference between” setting aside “a predetermined number of places for qualified minority applicants rather than using minority status as a positive factor to be considered in evaluating the applications of disadvantaged minority applicants.” Id., at 378. The set-aside, as enacted by Congress and implemented by the Secretary of Commerce, is carefully tailored to remedy racial discrimination while at the same time avoiding stigmatization and penalizing those least able to protect themselves in the political process. See ante, at 480-489. Cf. the concurring opinion of my Brother Powell, ante, at 508-515. Since under the set-aside provision a contract may be awarded to a minority enterprise only if it is qualified to do the work, the provision stigmatizes as inferior neither a minority firm that benefits from it nor a nonminority firm that is burdened by it. Nor does the set-aside “establish a quota in the invidious sense of a ceiling,” Bakke, supra, at 375 (joint separate opinion), on the number of minority firms that can be awarded public works contracts. In addition, the set-aside affects only a miniscule amount of the funds annually expended in the United States for construction work. See ante, at 484-485, n. 72.

In sum, it is clear to me that the racial classifications employed in the set-aside provision are substantially related to the achievement of the important and congressionaily 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.

*522Ill

In my separate opinion in Bakke, 438 U. S., at 387-396, I recounted the “ingenious and pervasive forms of discrimination against the Negro” long condoned under the Constitution and concluded that “[t]he position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment.” Id., at 387, 395. I there stated:

“It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America. For far too long, the doors to those positions have been shut to Negroes. If we are ever to become a fully integrated society, one in which the color of a person’s skin will not determine the opportunities available to him or her, we must be willing to take steps to open those doors.” Id., at 401-402.

Those doors cannot be fully opened without the acceptance of race-conscious remedies. As my Brother Blackmun observed in Bakke: “In order to get beyond racism, we must first take account of race. There is no other way.” Id., at 407 (separate opinion).

Congress recognized these realities when it enacted the minority set-aside provision at issue in this case. Today, by upholding this race-conscious remedy, the Court accords Congress the authority necessary to undertake the task of moving our society toward a state of meaningful equality of opportunity, not an abstract version of equality in which the effects of past discrimination would be forever frozen into our social fabric. I applaud this result. Accordingly, I concur in the judgment of the Court.

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 (opinion of Brennan, White, Marshall, and Blackmun, JJ.); id., at 287 (opinion of Powell, J.).

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 ease, the issue is whether the minority set-aside provision violates the equal protection component of *518the 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 (joint separate opinion) (quoting Buckley v. Valeo, 424 U. S. 1, 93 (1976) (per curiam)).

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 (joint separate opinion); id., at 305-306 (opinion of Powell, J.).

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 antidis-crimination 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 (joint separate opinion).

See also ante, at 478; the concurring opinion of my Brother Powell, ante, at 502-503.