Richmond v JA Croson Company Brief of Amicus Curiae

    E L L !$
No. 87-998

In  the

gatprrmr Court of %  Itutrfi ^tatro
October Term, 1987

City of R ichmond,
Appellant,

v.

J.A. Croson Company,
Appellee.

on appeal from the united states court of appeals

FOR THE FOURTH CIRCUIT

BRIEF AMICUS CURIAE FOR THE NAACP 
LEGAL DEFENSE & EDUCATIONAL FUND, INC.

Julius L. Chambers 
Charles Stephen R alston 
R onald L. E llis 
E ric Schnapper 
Napoleon B. W illiams, III  
Clyde E . M urphy*

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Counsel for Amicus 

*Counsel of Record



QUESTION PRESENTED
Whether the Fourteenth Amendment 

prohibits a Municipality from enacting an 
ordinance requiring prime contractors to 
subcontract a portion of their city con­
tracts to minority businesses.

1



QUESTION PRESENTED .................... i
INTEREST OF AMICUS ................... 1
SUMMARY OF ARGUMENT ................... 3
ARGUMENT .............................  5
I. Municipalities Have A Suffi­

ciently Weighty State Interest
In Programs That Give Minority 
Communities Independent Economic 
Viability ........................ 5

II. The Fourteenth Amendment Sup­
ports The Use of Government
Programs To Improve Economic 
And Other Opportunities For
Racial Minorities ...............  11

III. The Goal Of Minority Set-aside
Programs Is To Expand The Eco­
nomic Viability Of The Black
Community, Not Simply To Appor­
tion Opportunities To A Limited 
Number Of Existing Minority 
Concerns.......................... 27

CONCLUSION ...........................  41

TABLE OF CONTENTS
Page

ll



TABLE OF AUTHORITIES
Cases Page
Brown v. Board of Education, 347

U.S. 483 (1954) .............  12
Fullilove v. Klutznick, 448

U.S. 448 (1980).......... 3,10,28,33
35,35,36,37,38

Railway Mail Assn. v. Corsi, 326
U.S. 88 (1945)   40

Strauder v. West Virginia, 100 U.S.303 (1880) .................  12
United Jewish Organizations of

Williamsburgh, Inc. v. Carey,
430 U.S. 144 (1977)..........  12

United States v. Paradise, 107
S.Ct. 1053 (1987)   8

University of California Regents 
v. Bakke, 438 U.S. 265 
(1978)   10,40

Wygant v. Jackson Board of Educa­
tion, 476 U.S. ___, 90
L. Ed. 2d 260 (1986)  7,9,26

iii



12 Stat., c.33 at 650 (1863) .... 16
12 Stat., c.103 at 796 (1863) ....  16
13 Stat., c.90 at 508 (1865)   17
13 Stat., c.92 at 511 (1865)   16
14 Stat., c.200 at 174 (1866) ....  14,15
14 Stat., c.296 (1863) .......... 16
15 Stat., Res. 4 at 20 (1876) ....  16
15 Stat., Res. 25 at 26 (1867) .... 15
16 Stat., c. 14 at 8 (1869)   17
16 Stat., c.114 at 506 (1871)   17
17 Stat., 366 at 528 (1872)   17
Fourteenth Amendment to the U.S. 
Constitution....................... Passim

STATUTES Page

iv



123 Cong. Rec. H 5098 (1977)   33,35
G. Bently, A History of the

Freedmen's Bureau (1955)   17

OTHER AUTHORITIES Page

Brief of NAACP Legal Defense and
Educational Fund, Inc.,
Amicus Curiae, The Regents 
of the University of 
California v. Allan Bakke,No. 76-811 ................... 11

Current Population Survey, U.S.
Census Bureau (Mar. 1987). 8

Federal Assistance Programs for
Minority Enterprises (1977) .. 32

H. Flack, The Adoption of the 
Fourteenth Amendment
(1908)   18,23

H. R. 63, 39th Cong., 1st Sess.
(1866) Globe 1034 ........  20,21,22

23,24,25
H. Rep. 92-1615 ................  6,29
H. Rep. 94-468 .................  7,30
H. Rep. 94-1791 ................  31
HR Conf Rep No. 95-230, (1977).. 34
S Conf Rep No. 95-110 ............  34
S. Rep. 91-1343, (1970)   31

v



OTHER AUTHORITIES Page
II J. Blaine, Twenty Years in

Congress 164 (1886)   17
II W. Fleming, Documentary History

Reconstruction (1906).......  15
II O. Howard, Autobiography, (1907). 17
Report of the Commissioner of the 

Bureau of Refugees, Freedmen 
and Abandoned Lands, H.R. Exec. 
Doc. No. 11, 39th Cong. 1st
Sess. 4-5 (1865) .............  17

Report of the Task Force on Educa­
tion and Training for Minority 
Business Enterprise, (1974).... 31

Schnapper, Affirmative Action and
the Legislative History of the 
Fourteenth Amendment, 71 Virginia 
L. Rev. 753 (June 1985) ......  11

Survey of Minority-Owned Business
(U.S. Census Bureau 1982) ....  8

Economic Census (U.S. Bureau 1982).. 8
J. tenBroek, Equal Under Law 201 

(1965) .................... 19



No. 87 - 998

IN THE
SUPREME COURT of the UNITED STATES 

OCTOBER TERM, 1987

CITY OF RICHMOND
Appellant,

v.
J .A . CROSON COMPANY,

Appellee.

ON APPEAL FROM THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

BRIEF AMICUS CURIAE FOR THE NAACP 
LEGAL DEFENSE & EDUCATIONAL FUND, INC.

IN SUPPORT OF APPELLANT

INTEREST OF AMICUS
The NAACP Legal Defense and 

Educational Fund, Inc., is a non-profit 
corporation formed to assist blacks to 
secure their constitutional and civil 
rights by means of litigation. Since 1965 
the Fund's attorneys have represented



2
plaintiffs in several hundred employment 
discrimination actions under Title VII and 
the Fourteenth Amendment, including many 
of the employment discrimination cases 
decided by this Court. In attempting to 
frame remedies to redress, prevent and 
deter discrimination, we have repeatedly 
found, as have the courts hearing those 
cases, that race-conscious numerical 
remedies are, for a variety of pragmatic 
reasons, a practical necessity. The Legal 
Defense Fund believes that its experience 
in this area of litigation and the 
research it has done will assist the Court 
in this case. The parties have consented 
to the filing of this brief and letters of 
consent have been filed with the Clerk.



3
SUMMARY OF ARGUMENT

In the years since this Court's 
decision in Fullilove v. Klutznick. 448 
U.S. 448 (1980), . minority- set-aside
programs have been widely adopted by state 
and local governments. Many of these 
programs, including the program at issue 
here, were modeled on the federal program 
upheld in Fullilove. The decision of the 
Fourth Circuit, invalidating Richmond's 
program, challenges the authority of state 
and local governments to prohibit 
discrimination by private parties 
contracting with the city, and accordingly 
to remedy the effects of that 
discrimination.

The Fourteenth Amendment does not 
provide a basis for this limitation of the 
power of state and local governments. 
Indeed, state and local authorities have



4
an important and compelling interest in 
addressing economic disparities in their 
communities. This interest is
particularly compelling when that 
d i s p a r i t y  is r o o t e d  in racial 
discrimination.

The legislative history of the 
Fourteenth Amendment unambiguously 
establishes the permissibility of racial 
classifications offered to remedy the 
effects of invidious discrimination. 
Significantly, the Congress which passed 
the Amendment also adopted a number of 
race-conscious laws designed to ameliorate 
the economic condition of blacks during 
the post Civil War period.

The focus of state and local minority 
set-aside programs, using the federal 
program as a model, has been aimed at 
similar problems. Where Congress found a 
national pattern of exclusion of blacks



5
from government contracts and the 
attendant inhibitions to the development 
of black business, state and local 
governments have found the same. Where 
Congress moved to remedy this economic 
disparity, state and local governments 
have made similar efforts.

Such voluntary initiatives by state 
and local governments, which have adopted 
as their own the national goal of equal 
opportunity, should not be thwarted.

ARGUMENT
I.

MUNICIPALITIES HAVE A SUFFI­
CIENTLY WEIGHTY STATE INTEREST 
IN PROGRAMS THAT GIVE MINORITY 
COMMUNITIES INDEPENDENT ECONOMIC VIABILITY

Federal, State and Municipal 
governments have a sufficiently weighty



6

strength of the minority community,
whether that interest is defined as
"compelling" or "important". This is
particularly the case where, as here, the
obstacles facing minority business persons
have their roots in historical patterns of
racial discrimination.

"These problems, which are 
economic in nature, are the 
result of past social standards 
which linger as characteristics 
of minorities as a group."1
Notably, this Court has indicated

that there may be several ways in which to
define a state's interest in affirmative
action efforts, which do not necessarily
require a determination of discrimination.

. . . [Although its precise
contours are uncertain, a state 
interest in the promotion of 
racial diversity has been found

state interest in increasing the economic

1 Subcommittee on Minority Small 
Business Enterprise of the House Small 
Business Committee H. Rep. 92-1615, p. 3.



7
sufficiently "compelling" at 
least in the context of higher 
education, to support the use of 
racial considerations in 
furthering that interest. See. 
e.g., Bakke. 438 U.S. at 311-315 
. . . (Opinion of Powell, J.,) .
. . And certainly nothing the
Court has said today necessarily 
forecloses the possibility that 
the Court will find other 
governmental interests which 
have been relied upon in the 
lower courts but which have not 
been passed on here to be 
sufficiently "important" or 
"compelling" to sustain the use 
of affirmative action policies.

Wygant v. Jackson Board of Education. 476
U.S. ___, ___ , 90 L. Ed. 2d 260, 276-277
(1986).

In 1975 the Subcommittee on Minority
Small Business Enterprise of the House
Small Business Committee observed that,

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.2

2 H. Rep. 94-468, pp. 1-2.



8
The problem there identified continues to 
plague the minority community today. That 
is, while minority persons comprise 15.2%3 
of the nation's population, the latest 
economic figures available show that only 
approximately 5% of businesses are owned 
by minorities and that they receive only 
1-2% of the gross receipts from all 
contracting.4

It is now well established that 
governmental bodies ". . . may
c o n s t i t u t i o n a l l y  e m p l o y  racial 
classifications essential to remedy 
unlawful treatment of racial or ethnic 
groups subject to discrimination". United 
States v. Paradise. 107 S.Ct. 1053, 1063
(1987). Indeed the Court's commitment to

Current Population Survey, U.S. Census Bureau (Mar. 1987).
Survey of M i n o r i t y -Owned 

Business (U.S. Census Bureau 1982) ; 1982
Economic Census (U.S. Census Bureau 1982).



9
this principle has substantially 
diminished the difference between whether 
the government's interest in remedying 
such discrimination is "compelling" or 
"important". See Wycrant v. Jackson Board 
of Education. 90 L. Ed. 2d 260, 268
(1986)(opinion of Powell, J.,)(the means 
chosen must be "narrowly tailored" to 
achieve a "compelling government 
interest"); id., at 276, (O'Connor, J. 
concurring)("The Court is in agreement 
that . . . remedying past or present
racial discrimination. . . is a
sufficiently weighty state interest to 
warrant the remedial use of a carefully 
constructed affirmative action program"); 
id., at 286, (Marshall, J., dissenting, 
joined by Brennan, J. and Blackmun, 
J.)(remedial use of race permissible if it 
serves "important governmental objectives"



10
and is "substantially related to 
achievement of those objectives").

It follows that the attempts, whether 
by Congress, or by State or Municipal 
legislatures, to prevent the perpetuation 
of discrimination in the construction 
industry, satisfies the governments' 
"legitimate and substantial interest in 
ameliorating, or eliminating where 
feasible, the disabling effects of 
identified discrimination". University of 
California Regents v. Bakke. 438 U.S. 265, 
307 (1978) (Opinion of Powell, J.)

The use of such race-conscious 
measures here, as in the federal acts 
approved by this Court in Fullilove v. 
Klutznick. 448 U.S. 448 (1980), and as
replicated by cities and municipalities 
around the country as they have tried to 
deal with similar problems of discrim­
ination, is with consistent with the use



11
of such measures as envisioned by the 
Congress which fashioned the Fourteenth 
Amendment.

II.
THE FOURTEENTH AMENDMENT 
SUPPORTS THE USE OF GOVERNMENT 
PROGRAMS TO IMPROVE ECONOMIC AND 
OTHER OPPORTUNITIES FOR RACIAL MINORITIES5

The Congress which fashioned the 
Fourteenth Amendment sguarely considered 
the propriety of race-conscious remedies 
in support of black victims of racial 
discrimination. Thus while the Amendment

D For an extensive discussion of 
the Fourteenth Amendment and the series of 
social welfare laws adopted by the 
Congress which fashioned that amendment 
See, Brief of the NAACP Legal Defense and 
Educational Fund, Inc., as Amicus Curiae, 
The Regents of the University of 
California v. Allan Bakke, No. 76-811; See 
also. Schnapper, Affirmative Action and 
the Legislative History of the Fourteenth 
Amendment. 71 Virginia L. Rev. 753 (June 
1985).



12
p l a i n l y  p r o h i b i t s  a ny racial 
classification which has the purpose or 
effect of stigmatizing as inferior any 
racial or ethnic group,6 the history of

Certainly a perception of the 
unconstitutionality of invidious and 
stigmatizing racial classifications was at 
the heart of this Court's landmark 
decision in Brown v. Board of Education. 
347 U.S. 483 (1954). See also. Strauder
v. West Virginia. 100 U.S. 303, 308
(1880). Cf. United Jewish Organizations 
of Williamsburqh, Inc, v. Carev. 430 U.S. 
144 (1977), there, three members of the
Court found New York's redistricting plan 
constitutionally acceptable despite the 
fact that the State "used race in a 
purposeful manner" because "its plan 
represented no racial slur or stigma with 
respect to whites or any other race" - the 
S t a t e ' s  a c t i o n  was thus "not 
discrimination violative of the Fourteenth 
Amendment." 51 L.Ed. 2d at 246 (opinion 
of Justice White for the Court) . Two 
other members of the Court agreed that 
"[u]nder the Fourteenth Amendment the 
question is whether the reapportionment 
plan represents purposeful discrimination 
against white voters . . . .  The clear 
purpose with which the New York 
Legislature acted - in response to the 
position of the United States Department 
of Justice under the Voting Rights Act- 
forecloses any finding that it acted with 
the invidious purpose of discriminating 
against white voters." 51 L.Ed. 2d at 254- 
255 (concurring opinion of Justice



13
the Fourteenth Amendment demonstrates that 
the framers intended it to legitimate and 
to allow implementation of race-specific 
remedial measures where a substantial need 
for such programs was evident. Indeed, 
Congress believed that such programs were 
not merely permissible but necessary.

From the closing days of the Civil 
War until the end of civilian 
Reconstruction, Congress adopted a series 
of social welfare laws expressly 
delineating the entitlement of blacks to 
participate in or benefit from various 
programs. Congress adopted these race- 
specific measures over the objections of 
critics who opposed such special 
assistance for a single racial group. The 
most far reaching of these programs, the 
1866 Freedmen's Bureau Act, was enacted 
less than a month after Congress approved

Stewart)



14
the Fourteenth Amendment, and there is 
substantial evidence that a major reason 
Congress adopted the Amendment was to 
provide a clear constitutional basis for 
such race-conscious remedies. -

The range and diversity of these 
measures is striking. However, they share 
the clear aim of assisting and encouraging 
blacks in attaining some measure of 
economic independence, notwithstanding the 
ravages and consequences of slavery. The 
Bureau of Refuges, Freedmen and Abandoned 
Lands, (popularly known as the Freedman's 
Bureau) was authorized by Congress in 1866 
to provide land and buildings and spend 
designated funds for "the education of the 
freed people,"7 but could provide no such 
aid to refugees or other whites. The same 
statute conveyed a number of disputed

7
(1866) . 14 Stat., c.200 at 174, 176



15
lands to "heads of families of African 
races" and authorized the sale of some 
thirty-eight thousand other acres to black 
families who had earlier occupied them 
under authority of General Sherman.8 
Congress in 1867 made special provision 
for disposing of claims for "pay, bounty, 
prize-money, or other moneys due . 
colored soldiers, sailors, marines, or 
their legal representatives".9 It awarded 
federal charters to organizations 14 15

14 Stat., c.200 at 174, 175
(1866). The statute referred simply to 
"such persons and to such only as have 
acquired and are now occupying lands under 
and agreeably to the provisions of General 
Sherman's special field order, dated at 
Savannah, Georgia, January sixteenth, 
eighteen hundred and sixty-five." That 
order, as Congress well knew, provided 
that the land in question in South 
Carolina Georgia was "reserved and set 
apart for the settlement of the negroes 
now made free by the acts of war and the 
proclamation of the President of the 
United States". II w. Fleming,
Documentary History of Reconstruction 350 (1906) .

15 Stat., Res. 25 at 26 (1867).



16
established to "suppor[t] . . . aged or 
indigent and destitute colored women and 
children,"10 to serve as a bank for 
"persons heretofore held in slavery in the 
United States, or their descendants,"11 
and to "educate and improve the moral and 
intellectual condition of the 
colored youth of the nation"12. These 
youths were also provided assistance in 
the form of funds12 * 15 and land grants.1  ̂
Express appropriations were made for "the 
relief of freedmen or destitute colored 
people in the District of Columbia,"15 and

12 Stat., c.33 at 650 (1863).
13 Stat., c.92 at 511 (1865). 
12 Stat., c.103 at 796 (1863).

J 14 Stat., C.296, 317,(1863). 
Such assistance continued after the end of Reconstruction.

12 Stat., c. 3 3 at 650 (1863). 
Such assistance continued after the end of Reconstruction.

15 15 Stat., Res. 4 at 20 (1867).



17
for a hospital for freedmen established in 
the District.16 No comparable federal 
programs existed or were established for 
whites, although a few programs, while 
open to all blacks, were also available to 
a limited group of whites, the unionist 
refugees who fled to the North during the 
Civil War. Such white refugees were 
entitled, along with the freedmen, to up 
to 4 0 acres of land from among property- 
seized by the United States from 
confederate sympathizers.17

Xfc) See e.q.. 16 Stat., c.14, 8 
(1869); 16 Stat., c.114 at 506-507 (1871); 
17 Stat., 366, 528 (1872). In years prior 
to these appropriations the hospital was 
supported by the Freedman's Bureau.

17 13 Stat., c .9 0 at 508-509 
(1865); this 1865 program, however, was 
largely eliminated when President Johnson 
directed the return of most of the seized 
property to its original owners. See 
Report of the Commissioner of the Bureau 
of Refugees, Freedmen and Abandoned Lands, 
H.R. Exec. Doc. No. 11, 39th Cong. 1st 
Sess. 4-5 (1865); II O. Howard, 
Autobiography 229, 233, 235 (1907); II J. 
Blaine, Twenty Years in Congress 164



18
These racial distinctions imposed by 

Congress were neither inadvertent nor 
unopposed. A vocal minority in Congress, 
as well as President Johnson, criticized 
such proposals as class legislation 
discriminating against whites. A 
substantial majority of the Congress, 
however, believed such special treatment 
was appropriate and necessary to remedy 
the past mistreatment of blacks.

The Fourteenth Amendment was 
fashioned and approved by the same 
Congress that deliberately enacted race­
conscious remedies for the exclusive or 
primary benefit of blacks. Indeed, one of 
the chief purposes of the Fourteenth 
Amendment was to provide a constitutional

(1886) ; G. Bently, a History of the Freedmen's Bureau 89-96 (1955).



19
basis for the remedies which the Thirty-
Ninth Congress had already adopted.18

The one point upon which 
historians of the Fourteenth 
Amendment agree, and, indeed 
which the evidence places beyond 
cavil, is that the Fourteenth 
Amendment was designed to place 
the constitutionality of the 
Freedmen's Bureau and civil 
rights bills. . . beyond doubt.
. . .[T]he new amendment was
written and passed, at the very 
least, to make certain that that 
s t a t u t o r y  p l a n  w a s  
constitutional, to remove doubts 
about the adequacy of the 
Thirteenth Amendment to sustain 
it, and to place its substantive

xts See H. Flack, The Adoption of 
the Fourteenth Amendment 11 (1908):

"The legislation preceding the 
adoption of the Amendment will 
probably give an index to the objects 
Congress was striving to obtain or to 
the evils for which a remedy was 
being sought. . . This legislation, 
together with the debates in 
Congress, while being considered by 
that body, as well as the debates on 
the Amendment itself, should afford .
. . sufficient material and facts on 
which to base a fairly accurate 
estimate of what Congress intended to 
accomplish by the Amendment."



20
p r o v i s i o n s  i n  t h e  
Constitution.19
When President Johnson on February 

19, 1866, vetoed the first Freedmen's
Bureau Bill of 1866, he had questioned 
whether the measure was "warranted by the 
Constitution" and challenged in particular 
the authority of Congress to spend funds, 
at least outside the District of Columbia, 
for the assistance of any class of the 
needy. in that month, Congress was 
already debating an early draft of the 
Fourteenth Amendment, H.R. 63, which gave 
Congress the authority similar to that now 
contained in Section 5.^9 On February 28, * 20

J. tenBroek, Equal Under Law 201, 203 (1965) .
20 The Amendment then before the 

House provided, "The Congress shall have 
power to make all laws which shall be 
necessary and proper to secure the 
citizens of each State all privileges and 
immunities of citizens in the several 
States, and to all persons in the several 
States equal protection of the rights of 
life, liberty, and property". H.R. 63,



21
1866, nine days after the veto,
Congressman Woodbridge, after reciting the
need for federal aid to destitute
freedmen, argued:

But it may be said that all this 
may be done by legislation. I 
am rather inclined to think that 
most of it may be so 
a c c o m p l i s h e d .  But the
experience of this Congress in 
that regard has been most 
unfortunate. Sir, I cast no 
imputation upon the President of 
the United States . . . .  But 
inasmuch as the President, 
honestly, I have no doubt, has 
told us that there were 
constitutional difficulties in 
the way. I simply suggest that 
we submit the proposition to the 
people, that they may remove 
these objections by amending the 
instrument itself.^1
The Freedmen's Bureau Act of 1866, 

the Reconstruction measure which probably 
contained the most race-specific remedial 
legislation, was considered simultaneously 
in Congress with the Fourteenth Amendment.

39th Cong., 1st Sess. (1866) Globe 1034.
21 Id. at 1088.



22
The House passed the Amendment on May 10, 
1866, the Senate voted a modified version 
on June 8, 1866,, and the House acquiesced 
in the Senate changes on June 13.22 The 
House approved the second Freedmen's 
Bureau Act on May 29, 18 66, the Senate 
voted a modified version on June 26, 
1866,23 and the Conference Report was 
adopted on July 2 and 3, 1866. On several 
occasions the Act was debated in one House 
at the same time the Amendment was being 
debated in the other.24

Moreover, the same legislators who 
comprised the two-thirds majority 
necessary to override President Johnson's 
second veto of the Freedmen's Bureau Act 
of 1866 also composed the two-thirds

22 Id. at 2545, 3042, 3149.
23 Id. at 2773, 3413, 3524,
24 See e.q. . Id. at 27992869, 2977.



23
majority who approved the Fourteenth 
Amendment.25 The sponsors of the 
Amendment, Congressman Stevens and Senator 
Wade, as well as its apparent author, 
Congressman Bingham, all voted for the 
Freedmen's Bureau Act. The sponsors of 
the Act, Senator Trumbull and Congressman 
Eliot, voted for the Amendment; Eliot 
spoke at length in support of the 
Amendment,26 and Trumbull wrote and 
sponsored the 1866 Civil Rights Act whose 
substantive provisions were the basis of 
section 1 of the Amendment.27

Of the 33 Senators and 104 
Representatives who voted to override 
President Johnson's second veto of the 
Freedmen's Bureau Act, all who were 
present for the vote on the Fourteenth 
Amendment voted for it. Of the 33
Senators and 120 Representatives who voted 
for the Am e n d m e n t ,  all but 4 
representatives who were present for the 
vote or the veto voted to override it. 
Id. at 3042, 3149, 3842, 3850.

26 See, e.g.. id. at 2511-12.
27 See Flack, op. cit., at 55-97.



24
Congressman Stevens, introducing the 

Fourteenth Amendment to the House, 
described its basic purpose as providing 
for "the amelioration of the condition of 
the freedmen".28 These are exactly the 
same words which Congressman Moulton used 
only three months earlier to describe the 
object of the first Freedmen's Bureau Bill 
of 1866.29 This identity of phrasing 
reflects the similarity of purpose 
underlying the two measures. The
supporters of the Act and Amendment 
regarded them as both consistent and 
complementary, while opponents viewed the 
two, together with the Civil Rights Act of 
1866, as part of a single coherent, though 
in their view, undesirable, policy.30 No

28 Globe 2459.
29 Id. at 632.

Id. at 2501 (remarks of Rep. 
Shanklin); 2537-8 (remarks of Rep Rogers); 
2941 (remarks of Sen. Hendricks); App.



25
member of Congress intimated he saw any 
inconsistency between the Thirteenth 
Amendment, which advocates of the bill 
contended provided authority to establish 
and continue the Bureau, and the 
Fourteenth Amendment. During the debates 
on the Amendment, opponents frequently 
went out of their way to criticize the 
Freedmen's Bureau,31 while supporters of 
the Amendment praised the Bureau.32

The Thirty-Ninth Congress was fully 
aware of the race-conscious remedies and 
limitations contained in the Freedmen's 
Bureau Acts it passed in February and July 
of 1866. It could not conceivably have 
intended by its approval of the Fourteenth

239040 (remarks of Rep. Shanklin).
31 Globe at 2472 (remarks of Rep. 

W. Black); 2501 (remarks or Rep. 
Shanklin).

32 Id. at 1092 (remarks of Rep. 
Bingham 3034-35 (remarks of Sen. 
Henderson).



26
Amendment on June 12, 1866, to invalidate 
or forbid such remedies. The debates in 
that Congress literally ring with an 
uncannily modern reverberation: the
opposition to the Freedmen's Bureau Acts 
and other race specific remedies was 
expressed in much the same terms as 
contemporary arguments against such 
measures as the Appellant's set aside 
program. These opponents - then and now- 
have contended that government should be 
prevented from providing special 
assistance for racial groups whose members 
have for generations suffered invidious 
discrimination, although the lack of 
remedial treatment is likely, as here, to 
perpetuate the exclusion of these groups 
from important areas of American life. 
This view was repeatedly and resoundingly 
rejected over a hundred years ago, and



27
insofar as such arguments are now raised, 
they do not withstand analysis.

III.

THE GOAL OF MINORITY SET-ASIDE 
PROGRAMS IS TO EXPAND THE 
ECONOMIC VIABILITY OF THE BLACK 
COMMUNITY, NOT SIMPLY TO 
APPORTION OPPORTUNITIES TO A 
LIMITED NUMBER OF EXISTING MINORITY CONCERNS

The Fourth Circuit's application of 
Wygant assumes that the purpose of the 
program was to apportion business to 
already existing black enterprises. This 
approach ignores the principle aim of all 
set aside programs: that is, providing a 
fair opportunity for excluded segments of 
the community to compete, by compensating
for the competitive disadvantages they
face because of their virtual exclusion
from the marketplace. It follows that
essential to the achievement of this goal



28
are programs which create as well as 
perpetuate black businesses.

The philosophical underpinning for 
these programs is particularly evident in 
the federal model, which Richmond and 
other cities have tried to emulate, and 
which this Court approved in Fullilove v. 
Klutznick. 448 U.S. 448 (1980).

The problems of minority business 
became a major federal priority in 1969 
when President Nixon signed Executive 
Order 11458, providing for the development 
of a national program to assist "the 
e s t a b l i s h m e n t ,  preservation and 
strengthening of minority business 
enterprise." Section 1(a) (i). In 1971 
and 1972 the subcommittee on Minority 
Small Business Enterprise of the House 
Small Business Committee conducted 
extensive hearings on the obstacles facing 
minority businesses. It concluded that



29
the obstacles had their roots in past 
racial discrimination. "These problems, 
which are economic in nature, are the 
result of past social standards which 
linger as characteristics of minorities as 
a group." H. Rep. 92-1615, p.3. The 
"long history of racial bias" to which 
minorities had been subjected invariably 
led, it found, to the lack of capital and 
experience which seriously handicapped the 
efforts of minority entrepreneurs. Id. at 
3-4 .

In 1975 that House subcommittee again 
conducted several days of hearings on this 
subject, and found the continuing problems 
of minority businesses to have the same 
origin.

The effect 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



30
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 the present 
economic inequities.33
The subcommittee reiterated that

conclusion on January 3, 1977, two years
later:

The very basic problem 
disclosed by the testimony is 
that, over the years, there has 
developed a business system 
which has traditionally excluded 
m e a s u r a b l e  m i n o r i t y  
participation. In the past more 
than the present, this system of

33 H. Rep. 94-468, pp. 1-2.



31
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 
s o c i a l  a n d  e c o n o m i c  
discrimination is presently 
operating, in effect, to 
p e r p e t u a t e  t h e s e  p a s t  inequities.34

This latter report was issued less than 
two months before the adoption of the MBE 
provision by the House.

To eliminate the continuing effects 
on minority businesses of past 
discrimination, the federal government had 
adopted over 100 programs to aid minority 
businesses. These programs included

H. Rep. 94-1791, p. 182; see 
also S. Rep 91-1343, p. 45 (1970). A
federal task force reached the same 
conclusion. Report of the Task Force on 
Education and Training for Minority 
Business Enterprise. p. 17 (1974)
("Decades of prejudice, poor educational 
opportunity, limited access to real 
management positions within American 
business and industry have conspired to 
restrict the entry of minorities into the 
mainstream of the nation's free enterprise 
system.")



32
financial, marketing and business 
management assistance.35 But despite the 
substantial federal efforts to create and 
sustain minority businesses, those firms 
received less than one percent of all 
federal contracts.

The Minority Business Enterprise 
Amendment was introduced by Congressman 
Parren Mitchell of Maryland. In his 
remarks on the floor of the House, 
Congressman Mitchell plainly stated that 
the developmental purposes of the setaside 
program, and the wide ranging benefits he 
saw as flowing from that development.

The Congress concerns 
itself with the fiscal problems 
of the cities, crime, and 
unemployment. I submit to my 
c o l l e a g u e s  t h a t  u r b a n  
development and fiscal stability 
is tantamount to minority 
business development; reductions

U.S. Department of Commerce, Office of Minority Business Enterprise.
Federal_Assistance Programs for MinorityEnterprises (1977).



33
in crime and a reevaluation in 
the value of life is tantamount 
to m i n o r i t y  b u s i n e s s  
development; and reductions in 
unemployment causing additional 
demand and growth are directly 
related to minority business 
development.

I urge my colleagues to 
support my amendment and promote 
growth in the minority business community.36
As the history of the Minority 

Business Enterprise Amendment makes plain, 
Congress did not intend to wed the reach 
of the amendment to the artificially 
restricted pool of existing minority 
businesses. For example, as recounted by 
the Chief Justice in Fullilove. the Senate 
version of the MBE amendment, introduced 
by Senator Brooke of Massachusetts, 
contained a provision not included in the 
House version. Senator Brooke's provision 
sought to insure that the 10% figure did

123 Cong. Rec. H 5098 (remarks 
of Rep. Mitchell)(daily ed. Feb. 23, 
1977) .



34
not constitute an inflexible quota in the 
face of a minority population which was 
fewer than 10%, by keying the set-aside to 
the number of minority businesses in the 
relevant community.

Senator Brooke's amendment would have 
tied the set-aside to the actual number of 
contractors only when the minority 
population was significantly less than 
10%; however, even this limited effort to 
link the set-aside with the actual number 
of minority businesses as opposed to the 
percentage of minority population was 
rejected by the Conference Committee. 
Rather, as observed by Chief Justice 
Burger, "The Conference Committee Reports 
added only the comment: 'This provision 
shall be dependent on the availability of 
minority business enterprises located in 
the project area'". 448 U.S. at 462. 
[quoting S Conf Rep No. 95-110, p.ll



35
(1977); HR Conf Rep No. 95-230, p.ll 
(1977). The Conference Committee bill was 
agreed to by the Senate, 12 3 Cong. Rec 
12941-12942 (1977), and by the House, id., 
at 13242-13257, and was signed into law on 
May 13, 1977.]

Justice Powell's opinion similarly
recognized that it was a purpose of the
set-aside program to help "develop"
minority business. Quoting Congressman
Mitchell's description of his proposal,
Justice Powell observed:

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) .

448 U.S. at 504.



36
Regarding the reasonableness of the 

10% set-aside figure, Justice Powell 
plainly rejected the view that the set- 
aside had to be exactly related to the 
percentage of minority businesses already 
in existence.

Only 4% of contractors are 
members of minority groups, see 
Fullilove v. Kreps. 584 F2d 600,
608 (1978), although minority
group members constitute about 
17% of the national population, 
see Constructors Association of 
Western Pennsylvania v. Kreps.
441 FSupp 936, 951 (WD Pa 1977), 
affid, 573 F2d 811 (CA3 1978) .
The choice of a 10% set-aside 
thus falls roughly halfway 
between the present percentage 
of minority contractors and the 
percentage of minority group 
members in the Nation.

448 U.S. at 513-14.
Implicit in the Congressional

approval of the Minority Business
Enterprise Amendment as well as this
Court's sustaining of that measure, is an
understanding of the economic consequences



37
of g e n e r a t i o n s  of i n v i d i o u s  
discrimination.

Although the Act recites no 
preambulary "findings" on the 
subject, we are satisfied that 
Congress had abundant historical 
basis from which it could 
conclude that traditional 
procurement practices, when 
applied to minority businesses, 
could perpetuate the effects of 
p r i o r  d i s c r i m i n a t i o n .  
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.

448 U.S. at 478.(Berger, C.J.).
The ultimate goal of such programs is 

the achievement of an economic equilibrium 
in which the percentage of minority



38
businesses is roughly equal to the
percentage of minorities in the
population. Since we have not yet reached
that economic equilibrium, to limit the
goals of the setaside programs to the
number of existing minority businesses,
would mean locking in a structure of
inequality.37 Therefore, the goals must
be set so as to offset this imbalance, and
move toward providing a fair share of the
business opportunities available to the
minority community.

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

As noted by the dissent below, 
the result of the Fourth Circuit's 
analysis is "a proof scheme . . . [that]
would ensure the continuation of a 
systemic fait accompli. perpetuating a 
qualified minority contractor pool that 
approximates two—thirds of one percent of 
the overall contractor pool". (footnote 
omitted) 822 F.2d 1355, 1365 (4th Cir.1987).



39
racial classification, we cannot 
ignore the claims of those who 
still suffer from the effects of 
identifiable discrimination.

448 U.S. at 516, (Powell, J.).
No less than Congress, State and

local governments have a right and a
responsibility to cure the effects and
p r e v e n t  t h e  p e r p e t u a t i o n  of
discrimination, particularly where public
actions intersect with private enterprise.
Indeed this Court has consistently
recognized the power of the States to
prohibit discrimination by private parties
and to remedy the effects of such
discrimination.

A contrary position would 
conflict with the traditional 
understanding recognizing the 
competence of the States to 
initiate measures consistent 
with federal policy in the 
absence of congressional pre­
emption of the subject matter. 
Nothing whatever in the
legislative history of either 
the Fourteenth Amendment or the 
Civil Rights Act even remotely 
suggests that the States are



40
foreclosed from furthering the 
fundamental purpose of equal 
opportunity to which the 
Amendment and those Acts are 
addressed. Indeed, voluntary 
initiatives by the States to 
achieve the national goal of 
equal opportunity have been 
recognized to be essential to 
its attainment.

University of California Regents v. Bakke.
438 U.S. 265, 368 (1978)(Brennan, White,
Marshall and Blackmun, JJ.) (Concurring in
part and dissenting in part).

In Railway Mail Assn, v, Corsi. 326
U.S. 88 (1945), this Court established the
principle that a state could voluntarily
exceed the requirements of the Fourteenth
Amendment in eliminating private racial
discrimination. Concurring in that
judgment, Justice Frankfurter plainly
stated the rationale for that holding.

To use the Fourteenth Amendment 
as a sword against such State 
power would stultify that 
Amendment.

Id. at 98.



41

CONCLUSION

For the above reasons the decision of 
the court of appeals should be reversed.

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
RONALD L. ELLIS 
ERIC SCHNAPPER 
NAPOLEON B. WILLIAMS, III 
CLYDE E. MURPHY*

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Counsel for Amicus 
*Counsel of Record



Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.— (212) 966-4177