Supreme Court of the United States
CITY OF CLEVELAND
Decided July 2, 1986
Justice O’Connor, Concurring
|Topic: Civil Rights*||Court vote: 6–3|
|Note: No other Justices joined this opinion.|
|Citation: 478 U.S. 501||Docket: 84–1999||Audio: Listen to this case's oral arguments at Oyez|
* As categorized by the Washington University Law Supreme Court Database
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JUSTICE O'CONNOR, concurring.
I join the Court's opinion. I write separately to emphasize that the Court's holding is a narrow one. The Court holds that the relief provided in a consent decree need not conform to the limits on court-ordered relief imposed by § 706(g), whatever those limits may be. Rather, the validity of race-conscious relief provided in a consent decree is to be assessed for consistency with the provisions of § 703, such as § 703(a) and § 703(d), which were at issue in Steelworkers v. Weber, 443 U. S. 193 (1979), and, in the case of a public employer, for consistency with the Fourteenth Amendment. As the Court explains, nonminority employees therefore remain free to challenge the race-conscious measures contemplated by a proposed consent decree as violative of their rights under § 703 or the Fourteenth Amendment. Even if nonminority employees do not object to the consent decree, a court should not approve a consent decree that, on its face, provides for racially preferential treatment that would clearly violate § 703 or the Fourteenth Amendment. Finally, the Court refrains from deciding
what showing [an] employer would be required to make concerning prior discrimination on its part against minorities in order to defeat a challenge by nonminority employees based on § 703.
Ante at 478 U. S. 517, n. 8.
It is clear, then, that the Court's opinion does not hold or otherwise suggest that there is no "necessary predicate for race-conscious practices... favoring one race over another," post at 478 U. S. 532 (WHITE, J., dissenting), when those practices are embodied in a voluntary settlement or in a consent decree, rather than ordered by the court over the objection of an employer or union. If Weber indicates that an employer's or union's "prior discriminatory conduct" is the necessary "predicate for a temporary remedy favoring black employees," post at 478 U. S. 532, the Court's opinion leaves that requirement wholly undisturbed. The Court leaves open the question whether the race-conscious measures provided for in the consent decree at issue here were permissible under § 703. I agree with the Court that it is not necessary to decide that question in the present posture of this case, and that any challenge petitioner may make to the consent decree on substantive grounds, whether based on § 703 or the Fourteenth Amendment, should be left for resolution on remand.
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