Richmond v JA Croson Company Brief of Amicus Curiae

    No. 87-998

In The

&uprrm? (Emtrt of tifr Hnttrfc Stairs
October T erm, 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 OF
THE MARYLAND LEGISLATIVE BLACK CAUCUS 

AS AMICUS CURIAE IN SUPPORT OF APPELLANT

Kotfx.es Alexander > ,i 
(Counsel of Record) 
Bernadette Gartrell 
Gartrell & Alexander 
Lee Plaza—Suite 203 
8601 Georgia Avenue 
Silver Spring, Maryland 20910 
(301) 589-2222 
Attorneys for Maryland 

Legislative Black Caucus

W il s o n  - « p * s  Pn in t in o  C o . .  In c . - 7 M -O O B 6  - W a s h in o t o n . D .C . «O OO I



QUESTION PRESENTED

Whether the Equal Protection Clause compels a City 
Council or any state or local legislative body to admit it 
actually discriminated and compile findings in support of 
that admission as a predicate to enacting race conscious 
remedial legislation.



TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................  *

TABLE OF CONTENTS ............................................... m

TABLE OF AUTHORITIES.........................................  *v

CONSENT OF THE PARTIES...................................  1

INTEREST OF THE MARYLAND LEGISLATIVE
BLACK CAUCUS ......................................................  1

STATEMENT OF THE CASE ...................................  1

SUMMARY OF ARGUMENT .....................................  7

ARGUMENT................................................................... 9
I. THE CITY OF RICHMOND MINORITY BUSI­

NESS UTILIZATION PLAN DOES NOT VIO­
LATE THE EQUAL PROTECTION CLAUSE.. 11
A. The Equal Protection Clause does not re­

quire a governmental unit that voluntarily 
seeks to eliminate the effects of racial dis­
crimination to admit that it had actually en­
gaged in discriminatory practices...............  IB

B. The holding below unnecessarily imposes on 
every legislative body seeking to voluntarily 
remedy racial discrimination the same fact­
finding standards as are imposed upon j udicial 
and administrative bodies, and therefore 
strains the separation of powers balance be­
tween the judicial and legislative branches
of government at every level....................... 22

CONCLUSION ...............................................................  28

(Hi)

Page



IV

TABLE OF AUTHORITIES
CASES Page

Alexander v. Gardner-Denver Co., 415 U.S. 36
(1974) ..................................................................  13

Associated General Contractors v. City and
County of San Francisco, 813 F.2d 922 (9th Cir.
1987), rehearing denied .....................................  6

Barenblatt v. United States, 360 U.S. 109 (1959).. 25
Bi-Metallic Investment Co. v. State Board of

Equalization, 239 U.S. 441 (1915) ...................... 24
Bradley v. School Board, 462 F.2d 1058 (4th Cir.

1972) ; afT’d, 412 U.S. 92 (1973) ........................ 20
Brown v. Board of Education, 347 U.S. 483

(1954)................................................................... 7,9
Butchers’ Benevolent Ass’n v. Crescent City Live­

stock Landing & Slaughterhouse Co., (The 
Slaughterhouse Cases), 83 U.S. (16 Wall.) 36
(1873) .................................................................  10

Califano v. Webster, 430 U.S. 313 (1977)...........  17
Carmichael v. Southern Coal & Coke Co., 301 U.S.

495 (1937) ........................................................... 24,25
City of Renton v. Playtime Theatres, 475 U.S. 41

(1986) ..................................................................  20
City of Richmond v. United States, 422 U.S. 358

(1975) .................................................................  20
Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421

(1952) ..................................................................  24,26
Dayton Board of Education v. Brinkman, 433 U.S.

406 (1977) .........................................................  16
Dennis v. United States, 341 U.S. 494 (1951).........  26
Detroit Police Officers’ Ass'n v. Young, 608 F.2d 

671 (6th Cir. 1979), cert, denied, 452 U.S. 938
(1981) .................................................................  24

Dred Scott v. Sandford, 60 U.S. (19 How.) 393
(1857) ..................................................................  9

Ferguson v. Skrupa, 372 U.S. 726 (1963)................  26
Fullilove v. Klutznick, 448 U.S. 448 (1980)......... passim
Green v. New Kent County School Board, 391 U.S.

430 (1968) .........................................................  6,10

v

H.K. Porter Co., Inc. v. Metropolitan Dade County,
825 F.2d 324 (11th Cir. 1987)..........................  6

Heart of Atlanta Motel, Inc. v. United States, 379
U.S. 241 (1964) ............................................ -....  26

Hornbeck v. Somerset County Board of Education,
295 Md. 597, 458 A.2d 758 (1983) ................... 6

J. Edinger & Son v. City of Louisville, 802 F.2d
213 (6th Cir. 1986) ............................................  6

J.A. Croson v. City of Richmond, 822 F.2d 1355
(4th Cir. 1987)..................................  passim

James v. Strange, 407 U.S. 128 (1972)...............  25
Johnson v. Transportation Agency, Santa Clara

County, California, -----  U.S. ----- , 107 S. Ct.
1442 (1987) ............................  passim

Katzenbach v. McClung, 379 U.S. 294 (1964).... 24
Katzenbach v. Morgan, 384 U.S. 641 (1966) ..13,18, 26 
Korematsu v. United States, 323 U.S. 214 (1944).. 10
Kromnick v. School District of Philadelphia, 739

F.2d 894 (3rd Cir. 1984) .................................  16
Lawrence v. State, 51 Md. App. 575, 444 A.2d 478 

(1982) ; aff’d, 295 Md. 557, 457 A.2d 1127 (Md.
1982) ...................................................................  6

Lee v. Washington, 390 U.S. 333 (1968) ............  10
Local 28, Sheet Metal Workers’ International As­

sociation v. EEOC, -----  U.S. ----- , 106 S. Ct.
3019 (1986) ......................................................... passim

Local 35, IBEW v. City of Hartford, 625 F.2d 416
(2nd Cir. 1986) ..................................................  24

McDaniel v. Barresi, 402 U.S. 39 (1971) .............  10,16
McGowan v. Maryland, 366 U.S. 420 (1961)....... 24
Michigan Road Builders Ass'n, Inc. v. Milliken,

834 F.2d 583 (6th Cir. 1987) ...........................  6
Minnesota v. Clover Leaf Creamery Co., 449 U.S.

456 (1981) .......................................................... 23
Montgomery County v. Fields Road Corp., 282

Md. 575, 386 A.2d 344 (1978)........................... 10
North Carolina State Board of Education v.

Swann, 402 U.S. 43 (1971) ..............................  10

TABLE OF AUTHORITIES—Continued
Page



VI

TARLE OF AUTHORITIES—Continued
Page

Ohio Contractors Ass’n v. Keip, 713 F.2d 167 (6th
Cir. 1983) ............................................................ 3,10

Oregon v. Mitchell, 400 U.S. 112 (1970) ..............  24
Perez v. United States, 402 U.S. 146 (1971)......  24,25
Plessy v. Ferguson, 163 U.S. 537 (1896) ............  9
Railway Mail Ass’n v. Corsi, 326 U.S. 88 (1945).. 16
Regents of the Univ. of California v. Bakke, 438

U.S. 265 (1978) .................................................passim
Schlesinger v. Ballard, 419 U.S. 498 (1975)......  17
South Carolina v. Katzenbach, 383 U.S. 301

(1966) .................................................................  26
South Florida Chapter of Associated General Con­

tractors of America, Inc. v. Metropolitan Dade 
County, 723 F.2d 846 (11th Cir.), cert, denied,
469 U.S. 871 (1984) ...........................................  3,16

Southwest Washington Chapter National Electri­
cal Contractors Ass’n v. Pierce County, 100
Wash.2d 109, 667 P.2d 1092 (Wash. 1983)......  3

State v. Good Samaritan Hospital, 299 Md. 310,
473 A.2d 892 (1984)...........................................  6

Swann v. Charlotte—Mecklenburg Board of Edu­
cation, 402 U.S. 1 (1971)..............................  6,9,10

United Jewish Organizations v. Carey, 430 U.S.
144 (1977)........................................................... 16

United States v. Carotene Products Co., 304 U.S.
144 (1938) ..........................................................  25

United States v. O'Brien, 391 U.S. 367 (1968).... 25
United States v. Paradise, -----  U.S. ----- , 107

S. Ct. 1053 (1987)................................................passim
United States v. Wood, Wire & Metal Lathers 

Int’l Union, Local Union No. 46, 471 F.2d 408 
(2nd Cir.), cert, denied, 412 U.S. 939 (1973).... 18

United Steelworkers of America v. Weber, 443
U.S. 193 (1979) ..................................................passim

Valentine v. Smith, 654 F.2d 503 (8th Cir. 1981) .. 16
Vance v. Bradley, 440 U.S. 93 (1979) .................... 24,26
Wygant v. Jackson Board of Education,----- U.S.

----- , 106 S. Ct. 1842 (1986) passtm

vn

TABLE OF AUTHORITIES—Continued
Constitutional Provisions Page

U.S. Const. Art. I, Sec. 2, cl. 3 ................................  9
U.S. Const. Art. I, Sec. 9, cl. 1 ...........................  9
U.S. Const. Art. IV, Sec. 2, cl. 3 ..............................  9
U.S. Const. Amend. XIII (1865) ............................  9
U.S. Const. Amend. XIV (1868)......... passim
U.S. Const. Amend. XV (1870) ...............................  9
U.S. Const. Amend. XXIV (1964)...........................  9
Maryland Constitution, Declaration of Rights,

Art. 24..................................................................  6

Statutes and Ordinances
Minority Business Enterprise Provision of the 

Public Works Employment Act of 1977, 91 Stat.
116 [42 U.S.C. Section 6705(f)(2) (Supp. Ill
1979) ] .................................................................  17

Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
Section 2000d, et seq. (1976), Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. Section
2000e, et seq. (1976) .........................................passim

Minority Business Utilization Plan, codified at 
Richmond, VA Code Ch. 24.1, art 1(F) (Part
B) 27.10-27.20, art. VIII-A (1983) ...................passim

D.C. Code, Section 1-1142(8) ................................  3
Maryland’s Minority Business Enterprise Law,

Md. Code, State Finance and Procurement Ar­
ticle, Section 11-148............................................  2

Executive Order 11246 (1965)    9
Executive Order 11375 (1967) ................................  9
Executive Order 11518 (1970) .......................   9
Executive Order 11625 (1971)   9

Miscellaneous
A. Bickel, The Least Dangerous Branch (1962) ... 26
Alfange, The Relevance of Legislative Facts in 

Constitutional Law, 114 U. Pa. L. Rev. 637
(1966)  ................................................................  8,26

Coleman, Equality-Not Yet, N.Y. Times (July 
13, 1981) ....... ............................... .................... 9



viii

TABLE OF AUTHORITIES—Continued
Page

Comment, Minority Construction Contracts, 12
Harv. C.R.—C.L.L. Rev. 693 (1977) ................  3

Comment, Reverse Discrimination: The Supreme 
Court Defines a Significant Limitation on the 
Permissible Use of Race in Affirmative Action,
26 Washburn L. J. 618 (1987)..........................  18

Comment, The Constitutionality of Affirmative 
Action in Public E7np1oyment: Judicial Defer­
ence to Certain Politically Responsible Bodies,
67 Va. L. Rev. 1235 (1981) ................................ 14,23

Controller General, Minority Firms on Local Pub­
lic Works Project— Mixed Results (1979)......  3

Cox, The Supreme Court, 1965 Term—Forward: 
Constitutional Adjudication and the Promotion 
of Human Rights, 80 Harv. L. Rev. 91 (1966).. 26

Days, Fullilove, 96 Yale L. J. 453 (1987).............  20
EDA, U.S. Dept, of Commerce, Local Public 

Works Program Interim Report: Fostering the 
Development and Expansion of Minority Firms 
in Construction and Related Industries (Sept.
1978) .................................................................  4

Fisher, Constitutional Interpretation By Members
of Congress, 63 N.C.L. Rev. 707 (1985) ..........  27

Hearings on Procurement Assistance Programs 
of the Small Business Administration Before 
the Senate Committee on Small Business, 94
Cong., 1st Sess. (1975).......................................  5

Hearings on SBIC and SBLC Programs and Se­
lected SBA Activities Before the Subcommittee 
on SBA Oversight and Minority Enterprises of 
the house Committee on Small Business, 94th
Cong., 1st Sess. (1976) ....................................... 5

Hearings on the Small Business Administration 
Sec. 8(a) Contract Procurement Program before 
the Senate Committee on Small Business, 94th
Cong., 2nd Sess. (1976) ......................................  5

Karst, Legislative Facts in Constitutional Litiga­
tion, Supreme Court Review 75 (1966) ..........  28

IX

TABLE OF AUTHORITIES—Continued
Tage

L. Hand, The Bill of Rights (1958)....................... 26
Larson, Race Consciousness in Employment After

Bakke, 14 Harv. C.R.—C.L.L. Rev. 215 (1979).. 18
Levinson, A Study of Preferential Treatment:

The Evolution of Minority Business Enterprise 
Assistance Programs, 49 Geo. Wash. L. Rev. 61
(1980) .................................................................  3

Memorandum of Office of Audits and Investiga­
tions, Prince George’s County, Maryland, Mi­
nority Contracting (Nov. 9, 1987) ....................  5

Notes, A Madisonian Interpretation of the Equal 
Protection Doctrine, 91 Yale L. J. 1403 (1982).. 23

Office of Legislative Oversight, Montgomery 
County, Maryland, A Description and Evalua­
tion of the County and Bi-County Minority 
Procurement Utilization Programs (R. No. 88-
1) —(1988) .......................................................... 5

Oversight Hearings on Small Business Adminis­
tration Programs and Activities Before the 
Subcommittee on SBA Oversight and Minority 
Enterprises of the House Committee on Small
Business, 94 Cong., 1st Sess. (1976)................. 5

The Supreme Court Review— 1979 Term, 94 Harv.
L. Rev. 75 (1980).................................................... 17

Tribe, Constitutional Choices (1985) .......................... 10



In The

^itjtrrmf (Emtrt nf tljr lu itrii ^tatra
October Term, 1987

No. 87-998

City of Richmond,
Appellant,

J.A. Croson Company,
Appellee.

On Appeal from the United States Court of Appeals 
for the Fourth Circuit

BRIEF OF
THE MARYLAND LEGISLATIVE BLACK CAUCUS 

AS AMICUS CURIAE IN SUPPORT OF APPELLANT

CONSENT OF THE PARTIES
Petitioners and Respondents have consented to the fil­

ing of this brief and their letters of consent have been 
filed with the Clerk of the Court.

INTEREST OF
THE MARYLAND LEGISLATIVE BLACK CAUCUS
The Maryland Legislative Black Caucus (“MLBC” or 

“Amici” ) is a non-profit corporation organized under the 
laws of the State of Maryland. Its membership is com­
prised of the elected Black senators and delegates of the 
Maryland Legislative Assembly, and are as follows: Sen­
ator Decatur Trotter, Chairman, Prince George’s County; 
Senator Clarence W. Blount, Baltimore City; Senator 
Nathan C. Irby, Jr., Baltimore City; Senator Troy F. 
Brailey, Baltimore City; Senator Albert R. Wynn, Prince



2

George’s County; Senator Larry Young, Baltimore City; 
Delegate Elijah E. Cummings, Baltimore City; Delegate 
Ruth N. Kirk, Baltimore City; Delegate Tony Fulton, 
Baltimore City; Delegate Ralph M. Hughes, Baltimore 
City; Delegate Howard P. Rawlings, Baltimore City; 
Delegate Margaret H. Murphy, Baltimore City; Delegate 
Nathaniel T. Oaks, Baltimore City; Delegate Frank 
Boston, Baltimore City; Delegate Curtis S. Anderson, 
Baltimore City; Delegate Kenneth C. Montague, Jr., 
Baltimore City; Delegate Hattie N. Harrison, Baltimore 
City; Delegate Clarence Davis, Baltimore City; Delegate 
John W. Douglass, Baltimore City; Delegate Richard 
N. Dixon, Baltimore and Carroll Counties; Delegate 
Nathaniel Exum, Prince George’s County; Delegate 
Sylvania W. Woods, Jr., Prince George’s County; Dele­
gate Ulysses Currie, Prince George’s County; Delegate 
Juanita Miller, Prince George’s County; Delegate 
Christine M. Jones, Prince George’s County; Delegate 
Gloria Lawlah, Prince George’s County; and Delegate 
John Jefferies, Baltimore City. MLBC was organized 
with the principle concern of legislatively protecting the 
civil rights of Maryland’s Black citizens and eliminating 
discrimination throughout state and local government.

The MLBC is extremely concerned about the issues 
presented by this appeal because both the Fourteenth 
Amendment to the U.S. Constitution and the Maryland 
Constitution charge the State of Maryland with the duty 
to enforce the protections guaranteed by that amendment. 
Indeed, the resolution of these issues will have a direct 
bearing on whether the State of Maryland, its localities, 
and municipalities may voluntarily adopt remedial legis­
lation aimed at eliminating the tragic legacy of racial 
discrimination.1 * Moreover, in the view of the MLBC,

1 See, e.g., Md. Code, State Finance and Procurement Article,
Sec. 11-148 tb ).

3

set-aside legislation : such as that adopted by the City of 
Richmond provides one of the most constructive and effec­
tive means for minority businesses to establish their 
presence in the mainstream of American economic life.®

Figures revealing the lack of Black participation within 
the construction industry in Richmond, or, for that mat­
ter, the State of Maryland, cry out for assistance of the 
type provided by set-aside programs.4 One of the primary

2 A “set-aside” program can require a majority prime contractor 
to award a certain percentage of his subcontracts or the total value 
of the contract to minority business. See, e.g., J. A. Croson v. City 
of Richmond, 822 F.2d 1355, 1356 (4th Cir. 1987). Another type of 
set-aside would reserve a certain percentage of public contracts to 
be bid on by minority businesses only. See, e.g., Ohio Contractors 
Ass'n v. Keip, 713 F.2d 167, 168-169 (6th Cir. 1983). At least one 
federal court has seen no constitutional or operational difference 
between the former program, which is similar to that upheld by the 
U.S. Supreme Court in Fullilove v. Klutznick, 448 U.S. 448 (1980), 
and the latter, which is more akin to a "sheltered market” program. 
■See, Ohio Contr. Assoc., supra, 713 F.2d at 173. District of Colum­
bia minority contracting law defines "sheltered market” as “a 
process whereby contracts or subcontracts are designated, before 
solicitation of bids, for limited competition from minority business 
enterprises on either a negotiated or competitive bid process.” D C. 
Code, Section 1-1142(8). For other types of set-aside programs. 
See, South Florida Chapter of Associated General Contractors of 
America, Inc. v. Metropolitan Dade County, 723 F.2d 846 (11th 
Cir.), cert, denied, 469 U.S. 871 (1984); Southwest Washington 
Chapter National Electrical Contractors Ass’n v. Pierce County, 100 
Wash.2d 109, 667 P.2d 1092 (Wash. 1983).

3 Levinson, A Study of Preferential Treatment: The Evolution of 
Minority Rusiness Enterprise Assistance Programs, 49 Ceo. Wash. 
L. Rev. 61 (1980) ; and Controller General. Minority Firms on Local 
Public Works Project—Mixed Results, p. 9 (1979).

4 See, Comment, Minority Construction Contracts, 12 Harv. C.R.- 
C.L.L. Rev. 693 n.3 (1977). (“Although discrimination against 
minority construction firms is difficult to document statistically, a 
number of studies have confirmed the existence of such discrimina­
tion. See, e.g., R. Clover, Fostering Minority Enterprise in Con­
struction (April 1975) (Report for the Center for the Study of 
Human Resources, University of Texas, at Austin, on file with the



4

reasons for set-aside programs was best stated in a De­
partment of Commerce report, which states:

The purpose of |the Set-Aside] requirement, which 
was introduced hy Congressman Parren Mitchell of 
Maryland, was to help eliminate discrimination in 
construction and related industries and to bring mi­
nority firms into the mainstream of those industries. 
The extent to which minority firms have been ex­
cluded from these industries in the past is illustrated 
hy data from the 1972 Census of Construction Indus­
tries and the 1972 Survey of Minority-Owned Busi­
nesses. These reports reveal that minorities owned 
only 4.3 percent of the construction firms in opera­
tion in 1972. Furthermore, minorities received only 
one percent of the $164.5 billion earned by all con­
struction firms in 1972. The figures are similar with 
respect to those industries that provide supplies and 
equipment for construction firms. Minority firms rep­
resented only 1.9 percent of the total number of 
establisments in the wholesale trade industry in 1972 
and received only 0.3 percent of the gross receipts. 
Minority firms’ participation in Federal construction 
procurement in 1977 was also disproportionately low, 
with such enterprises performing only 1.2 percent of 
Federal contracts. In addition, minority and female- 
owned firms received less than seven tenths of one 
percent of all contracting dollars spent by those state 
and local governments that responded to a 1973 U.S. 
Civil Rights Commission survey.6

Although the case before this Court does not directly 
address a state’s authority to voluntarily remedy race

Harvard Civil Rights-Civil Liberties Law Review); S. Taylor, 
Catching Up: A Study of Behavior and Experiences of Minority 
Construction Contractors in Nine American Cities (May 1973) (Re­
port for the Charles F. Kettering Foundation, on file with the 
Harvard Civil Rights-Civil Liberties Law Review)”).

® EDA, U.S. Dept, of Commerce, Local Public Works Program In­
terim Report: Fostering the Development and Expansion of Minor­
ity Firms in Construction and Related Industries, at 1 (Sept. 1978).

5

discrimination, how the Court decides this case will un­
doubtedly have an impact on the ability of the Maryland 
Legislative Assembly, or any state or local legislative 
body, to eradicate racial discrimination. It is for this 
and two other reasons that Amici seek to participate in 
this case.

First, Amici recognize from personal experience as 
legislators the need for clearly defined remedial measures 
to combat racial discrimination. The MLBC has sought 
to enact race conscious remedies at both the state and 
local level, but its efforts have been stifled by the lack of 
clarity from this Court. While some governmental bodies 
prefer voluntary (non-statutory I set-aside programs, 
such measures have repeatedly fallen short of their 
goals.® In contrast, mandatory set-aside legislation that 
compels such action produces substantial results and 
propels minority enterprises toward the economic main­
stream.7

Second, the MLBC believes that the elimination of racial 
discrimination is of paramount importance to the State

® See Memorandum of Office of Audits and Investigations, Prince 
George’s County, Maryland, Minority Contracting, dated Novem­
ber 9, 1987; Office of Legislative Oversight, Montgomery County, 
Maryland, A Description and Evaluation of the County and Bi- 
County Minority Procurement Utilization Programs (R. No. 88-1) 
(1988); Hearing on the Small Business Administration Sec. 8(a) 
Contract Procurement Program Before the Senate Committee on 
Small Business, 94th Cong., 2d Sess. (1970); Hearings on SB/C and 
SBLC Programs and Selected SB A Activities Before the Subcom­
mittee on SBA Oversight and Minority Enterprises of the House 
Committee on S7nall Business, 94th Cong., 1st Sess. (1970); Over­
sight Hearings on Small Business Administration Programs and 
Activities Before the Subcommittee on SBA Oversight and Minority 
Enterprises of the House Committee on Small Business, 94th Cong., 
1st Sess. (1976); and Hearings on Procurement Assistance Pro­
grams of the Small Business Administration Before the Senate 
Committee on Small Business, 94th Cong., 1st Sess. (1975).

7 See n.3, supra.



6
of Maryland as well as to society at large. To achieve 
this objective, state and local legislatures must have at 
their disposal a full range of race conscious remedies. 
The MLBC believes that if the Fourth Circuit’s decision 
is allowed to stand, it would severely restrict the at­
tempts of state and local legislatures to eradicate the 
lingering effects of prior discrimination. See e.g. Michi­
gan Road Builders Ass’n., Inc. v. Milliken, 834 F.2d 583 
(6th Cir. 1987) ; Assoc. Gen. Cqm.tr. v. City and County 
of San Francisco, 813 F.2d 922* (9th Cir. 1987) rehear­
ing denied; J. Edinger & Son v. City of Louisville, 802 
F.2d 213 (6th Cir. 1986). But see H. K. Porter Co., Inc. 
v. Metropolitan Dade County, 825 F.2d 324 (11th Cir. 
1987).

Thus, the perspective which Amici intend to convey to 
this Court is that of a legislative body which is con­
stitutionally charged with the responsibility of enforcing 
the Fourteenth Amendment through legislation.® * S. * *

8 This Court has, in the past, recognized a constitutional duty on 
the part of the individual state governments, under whose authority 
the local governments act, to “. . . take affirmative steps to eliminate 
the continuing effects of past unconstitutional discrimination.”
Wygant v. Jackson Board of Education, ------ U.S. ------, ------ , 106
S. Ct. 1842, 1856 (1986) (emphasis added) (O’Connor, J., concurring
in part and concurring in the judgment) citing as examples, Swann
v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 
(1971); and Green v. Ncu> Kent County School Board, 391 U.S. 430, 
437-38 (1968). For a view of how this recognition specifically affects 
Amici, see Maryland Constitution, Declaration of Rights, art. 24 
(Equal Protection); see also Hornbeck v. Somerset County Board 
of Education, 295 Md. 597, 458 A.2d 758 (1983) (held that the 
Equal Protection Clause of the Fourteenth Amendment and equal 
treatment guaranteed by article 24 of the Maryland Constitution’s 
Declaration of Rights were in pari materia and would most often be 
applied to the same extent); State v. Good Samaritan Hospital, 299 
Md. 310, 473 A.2d 892, appeal dismissed, 469 U.S. 802 (1984) 
(equal protection embodied by article 24); and Lawrence v. State, 
51 Md. App. 575, 444 A.2d 478 (1982), aff’d, 295 Md. 557, 457 A.2d 
1127 (1983) (U.S. Supreme Court’s interpretations of the Four­
teenth Amendment act as authority for interpretation of article 24 
of the Maryland Constitution).

7

STATEMENT OF THE CASE
Amicus curiae adopts the facts as presented in the 

Brief for the City of Richmond as well as its State­
ment of the Case.

SUMMARY OF ARGUMENT
For over thirty years since Brown v. Board of Educa­

tion, 347 U.S. 483 (1954), this nation has chartered a 
direct course toward eradicating the vestiges of racial 
discrimination from every aspect of public and private 
life. In achieving this objective, this Court has consist­
ently supported the concept that both public and private 
institutions should voluntarily seek to eliminate the ef­
fects of discrimination. And, while this Court has not 
spoken with a single voice as to what level of scrutiny 
should be applied to analyze the use of race conscious 
remedies, one thing is certain: racial equality should be 
facilitated in the least abrasive manner possible.

Recognizing the development of this fundamental na­
tional policy, the Fourth Circuit’s decision erects a barrier 
that frustrates more than facilitates the achievement of 
racial equality. In effect, the court of appeals’ decision 
extends the mandate of the Fourteenth Amendment and 
Wygant far beyond what this Court has actually re­
quired of a legislative body by holding that the constitu­
tionality of a race conscious remedy turns on an admis­
sion of prior discrimination by the governmental body 
itself and the volume and specificity of those findings 
which support that admission. Neither the Constitution 
nor Wygant require a state or local legislature to admit 
that it has actually discriminated against minorities. 
Moreover, allowing the court of appeals’ decision to stand 
will no doubt have a chilling effect upon the voluntary 
efforts of public and private institutions to eliminate 
racial discrimination within and without their spheres of 
influence.



8

When the court below reached its decision, it failed 
not only to consider the principles that were established 
in Fullilove, and later reiterated in Johnson v. Transpor­
tation Agency, Santa Clara County, California, ------
U .S .------, 107 S. Ct. 1442 (1987) but, also, to recognize
the distinguishing characteristics of the legislative fact­
finding process. See, e.g., Alfange, The Relevance of Leg­
islative Facts in Constitutional Law, 114 U. of Pa. L. 
Rev. 637, 640 (1966). As a result, the court of appeals 
was unable to discern the factual and institutional dis­
tinctions between the findings involved in Wygant and 
those of the Richmond City Council.

Finally, by requiring a legislative body to make find­
ings of its own acts of discrimination the court below 
imposed on legislatures a findings requirement similar to 
that of a judicial or administrative body. By elevating 
legislative findings to such standards the decision unnec­
essarily results in an intrusion by the judiciary into the 
legislative process, thereby upsetting the balance of gov­
ernmental powers in our nation. Such imposition pre­
sents a clear threat to the legislative process that this 
Court has on numerous occasions fought to prevent.

If the decision below is allowed to stand it would not 
only impede the achievement of an important public pol­
icy, that is, the elimination of racial discrimination, but 
would also begin to erode accepted separation of powers 
principles.

9

ARGUMENT

In a color-blind society, a “race conscious remedy” 
would have no application or meaning. See e.g., Char- 
lotte-Mecklenburg, supra, 402 U.S. at 1, 28. Unfortu­
nately, America’s past has exemplified anything but a 
color-blind society.® Bred Scott v. Sandford, 60 U.S. (19 
How.) 393, 407 (1857); Plessy v. Ferguson, 163 U.S. 
537, 559-60 (1896) (Harlan J., dissenting). “For black 
Americans, racial equality is a tradition without a past.” 
Coleman, E quality— N ot Y e t , N. Y. Times, July 13, 
1981, at A15, Col.2. For over thirty years, since Brown 
v. Board of Education, supra, this Court, the Congress, 
the President, and the various branches of state and lo­
cal governments have struggled to make racial equality a 
tradition.8 * 10 The experience has not been without pain

8 See also U.S. Const, art. I, Sec. 2, cl. 3 (slaves relegated to 
status of three-fifths of a free human being); art. I, Sec. 9, cl. 1 
(slavery not to be prohibited by Congressional act before 1808); 
art. IV, Sec. 22, cl. 3 (runaway slaves to be returned to state of 
slavery); Amendment XIII (18G5) (slavery abolished, fifty-seven 
years after art. I, Sec. 9, cl. 3 made it possible); Amendment XIV 
(1868). (Due Process and Equal Protection clauses established with 
“one pervading purpose,” that being “. . . the freedom of the slave 
race, the security and firm establishment of that freedom, and the 
protection of the newly-made freeman and citizen from the oppres­
sions of those who had formerly exercised dominion over him.” 
Butchers’ Benevolent Ass'n v. Crescent City Livestock Landing & 
Slaughterhouse Co. (The Slaughterhouse Cases), 16 U.S. (Wall.) 
36, 71 (1873); Amendment XV (1870) (guaranteeing that disen­
franchised Blacks not be denied the right to vote based upon “race, 
color, or previous condition of servitude); and Amendment XXIV
(1964) (poll taxes abolished to ensure that disenfranchised Blacks 
not be denied the right to vote).

10 See, e.g., Judicial Branch: U.S. v. Paradise,------U .S .------- , 107
S. Ct. 1053 (1987); Executive Branch: Executive Orders 11246
(1965) , 11375 (1967), 11518 (1970), 11625 (1971); Legislative 
Branch: Title VI of the Civil Rights Act of 1964, as amended, 42 
U.S.C. Sec. 2000d et seq. (1976); Title VII of the Civil Rights Act 
of 1964, as amended, 42 U.S.C. Sec. 2000e et seq. (1976); and State



and conflict. The Fourth Circuit’s decision in Croson is 
no exception.

Instead of translating racial equality into a national 
policy in the least abrasive manner possible, the court 
below frustrates the process by creating tension between 
the legislative and judicial branches of government. The 
court of appeals accomplishes this obstruction by impos­
ing more stringent fact-finding requirements on a legis­
lative body than have ever been conceived by this Court. 
At the heart of the court of appeals analysis is a sub­
liminal struggle to apply color-blind principles, despite 
this Court’s previous holdings to the contrary.11 The de­
cision of the court below raises the very issue presented 
by all affirmative action cases, which is: how does our 
society reconcile the past with its egalitarian ideals.12

10

and Local governments: Ohio Contractors Ass’n, supra, 713 F.2d 
107 (1983), Montgomery County v. Fields Road Corp., 282 Md. 575, 
386 A.2d 344 (1978).

11 See Johnson, supra, 107 S. Ct. at 1450 (Brennan, J., delivering 
the opinion of the Court) (restated prior findings of this Court in 
United Steelworkers of America v. Weber, 443 U.S. 193 (1979), that 
taking race into account was consistent with Title V Il’s objective of 
"breakLingl down old patterns of racial segregation and hierarchy.” 
Citing Weber, supra, 443 U.S. at 208); Regents of the University 
of California v. Rakke, 438 U.S. 265, 287 (1978) (”. . . Title 
VI must be held to proscribe only those racial classifications that 
would violate the Equal Protection Clause or the Fifth Amend­
ment” ); Charlotte-Mecklenburg, supra, 402 U.S. at 28 (“ 'Racially 
neutral’ assignment plans . . . may (be inadequate) . . .  to counteract 
the continuing effects of past school segregation . . .”); and, North 
Carolina State Board of Education v. Swann, 402 U.S. 43, 46 (1971) 
(“Just 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.”). See also Korematsu v. 
United States, 323 U.S. 214, 216 (1944) and Lee v. Washington, 390 
U.S. 333, 334 (1968) (Black, Harlan, Stewart, J.J., concurring).

12 This Court has on numerous occasions held that in order to 
achieve true racial equality, racially neutral remedies would be
inadequate. See e.g., Green, supra, McDaniel v. Barresi, 402 U.S. 
39 (1971); and Charlotte-Mecklenburg, supra, 402 U.S. at 28.

11

I. THE CITY OF RICHMOND MINORITY BUSINESS 
UTILIZATION PLAN DOES NOT VIOLATE THE 
EQUAL PROTECTION CAUSE.

To quote a well known constitutional scholar, Professor 
Laurence Tribe: “Race conscious remedies are now an 
accepted part of Fifth and Fourteenth Amendment juris­
prudence.” Laurence H. Tribe, Constitutional Choices 
(1985). The acceptance of race conscious remedies for 
past racial discrimination does not, however, resolve the 
question of what level of scrutiny is required to test their 
constitutionality. Local 28, Sheet Metal Workers' Inter­
national Association v. EEO C ,------U .S .------- , 106 S. Ct.
3019, 3052 (1986) (opinion of Brennan, J.) Wygant, 
supra, 106 S. Ct. at 1852 (O’Connor, J., concurring) ; Id., 
at 1867 n.7 (Marshall, J., dissenting). The only analyti­
cal agreement among members of this Court is that, when 
addressing “suspect classifications” such as race, judicial 
review of a challenge brought under the Equal Protection 
Clause requires a two-pronged analysis and that some 
level of heightened scrutiny is appropriate.13 Id., at 1852.

The first prong requires an inquiry into the govern­
mental interest being vindicated. Inclusive within the 
first prong is a determination of whether the govern­
mental entity adopting the race conscious remedy is com­
petent to make findings of racial discrimination to estab­
lish a sufficiently important or compelling governmental 
interest. See Paradise, supra, 107 S. Ct. at 1064 n.17; 
Wygant, supra, 106 S. Ct. at 1846 (plurality opinion);

13 Although Amici do not concede that affirmative action programs 
should be subjected to strict scrutiny, the Richmond Plan survives 
even the strictest scrutiny. See e.g., Paradise, supra, 107 S. Ct. 
at 1064 Sec. n.17 (1987) (plurality opinion); Sheet Metal Workers, 
supra, 106 S. Ct. at 3052-53 (plurality opinion); Bakke, supra, 438 
U.S. at 357-63 (Brennan, J., concurring in part and dissenting in 
part). Amici submits, however, that the intermediate level of 
scrutiny, which was endorsed by several members of this Court in 
Bakke and subsequent cases, should apply to affirmative action 
programs.



12

Id., at 1853 (O’Connor, J. concurring); Id., at 18G1-62 
(Marshall, J. dissenting) Id., at 1867-68 (Stevens, J. dis­
senting) ; Sheet Metal Workers, supra, 106 S. Ct. at 3034, 
3050 (pluarity opinion); and Id., at 3055 (Powell, J. 
concurring).

The second prong of the equal protection analysis fo­
cuses on whether the means chosen are sufficiently re­
lated to effectuating the governmental interest. Paradise, 
supra, 107 S. Ct. at 1064 (plurality opinion); Sheet 
Metal Workers, supra, 106 S. Ct. at 3052-53 (plurality 
opinion). This Court has established that race conscious 
relief need not be limited to victims of prior discrimina­
tion, and that “innocent persons may be called upon to 
bear some of the burden of the remedy.” Wygant, supra, 
106 S. Ct. at 1853-54 (opinion of O’Connor, J) ; Id., at 
1863 (opinion of Marshall, J.) ; Id., at 1867-68 (opinion 
of Stevens, J.) ; Id., at 1850 (opinion of Powell, J.) ; see 
also Sheet Metal Workers, supra, 106 S. Ct. at 3052-53 
(opinion of Brennan, J.) ; and Id., at 3054-57 (opinion of 
Powell, J .). These few established principles in what has 
become a complex area of the law are now jeopardized by 
the Fourth Circuit’s decision in this case.

The Fourth Circuit’s interpretation of Wygant makes 
unreasonable demands of a state or local government 
seeking to eradicate prior racial discrimination. First, 
the court below would require a governmental body to 
specifically admit or concede that it had affirmatively en­
gaged in discriminatory practices. This requirement has 
been specifically criticized by members of this Court in 
Wygant and other decisions.14 * Wygant, supra, 106 S. Ct.

14 In hor separate opinion in Wygant, Justice O’Connor discussed 
the chilling effect that such a requirement would exert upon volun­
tary compliance by governmental bodies acting as public employers. 
To quote Justice O’Connor:

. . .  r A ] requirement that public employers make findings that
they have engaged in illegal discrimination . . . would severely

13

at 1855. The court of appeals’ decision would have the 
practical effect of not only discouraging enforcement of 
the Fourteenth Amendment, but also severely curtailing 
the power of legislative bodies to combat racial discrimi­
nation since the legislative process is not particularly 
well suited for such individualized findings.16 Second,

undermine public employers’ incentive to meet voluntarily their 
civil rights obligations . . . .

Wygant, supra, 106 S. Ct. at 1855 (O’Connor, J., concurring in part 
and concurring in the judgment). See also n.20, infra. Justice 
O’Connor reaffirmed her position in a separate opinion to this 
Court’s decision in Johnson when she stated in reference to affirma­
tive action plans under a Title VII analysis, that:

. . . neither Wygant nor Weber places a burden on employers 
to prove that they actually discriminated against women or 
minorities [before enacting a voluntary remedial plan],

and that
. . . [ Because 1 this Court has long emphasized the importance 
of voluntary efforts to eliminate discrimination . . .  a contempo­
raneous finding of discrimination should not be required.

Johnson, supra, 107 S. Ct. at 1463 (O’Connor, J., concurring in the 
judgment). This recognition of the potentially stifling effect which 
such a strict requirement would have on voluntary remedial action 
by public bodies is also addressed in the context of school desegre­
gation by other members of the Court in Wygant in the following 
manner:

The real irony of the argument urging mandatory, formal 
findings of discrimination lies in its complete disregard for a 
longstanding goal of civil rights reform, that of integrating 
schools without taking every school system to court.

Wygant, supra, 106 S. Ct. at 1863 (Marshall, J., with whom Brennan 
and Blackmun, J. J., join dissenting). See also, e.g., Johnson, supra, 
107 S. Ct. at 1451 n.8, and 1457; Weber, supra, 443 U.S. at 204; and 
Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974).

15 Fullilnve, supra, 448 U.S. at 503 (Powell, J., concurring) (legis­
lative bodies have a “broader mission to investigate and consider all 
facts and opinions that may be relevant . . .” ). See also Katzen- 
bach v. Morgan, 384 U.S. 641, 668-69 (1966) (Harlan, J., whom 
Stewart, J., joins, dissenting) (provides examples of the general



14
the Fourth Circuit further misapplied Wygant by hold­
ing that the Richmond Plan was not sufficiently “nar­
rowly tailored” to meet its remedial goal.'" If the court 
of appeals decision is allowed to stand it would so nar­
rowly tailor race conscious remedies as to render such 
remedies ineffective, despite this nation’s commitment to 
making racial equality a tradition.

As part of the legislative process, Amici believe that 
the Fourth Circuit’s decision. effected an unprecedented 
burden upon legislative bodies not contemplated by this 
Court in Wygant nor by the framers of the Fourteenth 
Amendment. Because of the unprecedented barriers to 
the implementation of affirmative action programs cre­
ated by the court of appeals’ decision, Amici will focus 
their attention on the first prong of the court of appeals’ 
decision.17 * * *

scope of legislative fact-finding); and Note, The Constitutionality 
of Affirmative Action in Public Employment: Judicial Deference to 
Certain Politically Responsible Bodies, 67 Va. L. Rev. 1235, 1240-41 
(1086) (legislative body conducts fact-finding “subject to political 
constraints”).

tn determining whether race conscious remedies are appropri­
ately tailored, this Court has examined such factors as the necessity 
for relief, the flexibility and duration of the relief, the relation­
ship of any numerical goals to the relevant labor market, and the 
impact on non-minorities. See, Sheet Metal Workers, supra, 106 
S. Ct. at 3052-53 (opinion of Brennan, J . ) ; Id., at 3054-55 (opinion 
of Powell, J .); Wygant, supra, 106 S. Ct. at 1850-52 (opinion of 
Powell, J .); Id., at 1857; Id., at 1857-58 (White, J., concurring in 
judgment) ; Id., at 1864-65 (Marshall, J., dissenting); Id., at 1869-71 
(Stevens, J., dissenting).

17 Amici have chosen to focus on the Fourth Circuit’s implemen­
tation of the first prong of its equal protection analysis because that
use strikes at the very heart of the legislative process. Amici do
not. however, concede the correctness of the court of appeals’ usage 
as to the second prong of its equal protection analysis. Amici
therefore defers to the views of the City of Richmond and other 
supportive amici, who more than adequately address the court of 
appeals’ analysis of the second prong.

15
A. The Equal Protection Clause does not require a 

governmental unit that voluntarily seeks to elimi­
nate the effects of racial discrimination to admit 
or concede it actually engaged in discriminatory 
practices.

The Fourth Circuit decision would essentially require 
every state or local legislative body to find that it had 
actually discriminated before implementing a race 
conscious remedy. The court of appeals’ conclusion radi­
cally expands Wygant and the Fourteenth Amendment 
far beyond what this Court intended and is without 
precedent.

According to the Fourth Circuit’s interpretation of this 
Court’s decision in Wygant, before a governmental in­
terest in a racial preference can be accepted as “compel­
ling,” “there must be findings of prior discrimination.” 
Croson, supra, 822 F.2d at 1358. Moreover, these find­
ings must be predicated on more than societal discrimi­
nation, instead they must concern prior discrimination 
“by the government unit involved.” Id., citing Wygant, 
supra, 106 S. Ct. at 1847. Against this background, the 
court of appeals found the Richmond City Council’s find­
ings seriously wanting and without foundation for estab­
lishing a compelling interest which would justify the use 
of racial classifications in its contracting program. The 
ruling by the court of appeals, however, totally ignores 
the principles established in Fullilove, which was de­
cided by this Court prior to Wygant, supra.

The requirements of finding discrimination and the cor­
responding authority or competence to engage in such 
remedial action were first raised by Justice Powell in 
Bakke18 and, later, more specifically addressed in Fulli­
love, when he said:

,s In Bakke, Justice Powell stated that a governmental race 
conscious remedy is only constitutional if a “competent” body makes 
sufficient “findings” of past discrimination justifying such program. 
He concluded that the Board of Regents of the University of Cali­
fornia was not competent to address societal discrimination, nor



16
. . . 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. 448 U.S. at 515-16 
n.14.

Justice Powell declined to answer the question he posed in 
Fullilove as to what degree of factual specificity is re­
quired to justify the use of race conscious remedies. One 
court has noted that “there is no consensus on what find­
ings of past discrimination justify remedial affirmative 
action.” Valentine v. Smith, 654 F.2d 503, 509 (8th Cir. 
1981). And, it was in this void that the court below 
sought to establish standards that exceeded those in 
both Wyqant and Fullilove™ A close examination of past 
affirmative action cases and particularly Fullilove reveals, 
however, that the degree of findings necessary for a legis­
lative body-'*’ to demonstrate a compelling government 
interest is not as rigorous as the court of appeals would 
have us accept.

In Fullilove, this Court ruled on the power of Congress 
to adopt a “Minority Business Enterprise” (MBE) pro-

did it make adequately specific findings to support its affirmative 
action program. Bakke, supra, 438 U.S. at 307-10 (opinion of 
Powell, J.).

10 The court of appeals cited Valentine v. Smith, supra, Kromnick 
v. School Dist. of Philadelphia, 739 F.2d 894 (3rd Cir. 1984), and 
Metropolitan Dade County, supra as examples of local governmental 
bodies making adequate findings of discrimination, thereby imply­
ing acceptance of the Richmond City Council’s competence to make 
findings of discrimination.

This Court has determined in Fullilove, supra, 448 U.S. at 478, 
that Congress has the competence to make such findings. In Dayton 
Board of education v. Brinkman, 433 U.S. 400 (1977), this Court 
determined that federal courts were also competent to make find­
ings. In United Jewish Organizations v. Carey, 430 U.S. 144 
(1977); McDaniel v. Barresi, supra; and Railway Mail Association 
v. Corsi, 326 U.S. 88 (1945) this Court held that states are also 
competent. And, in Metropolitan Dade County, supra this Court 
signaled that local city or county councils are also competent to 
make findings of discrimination.

17
vision of the Public Works Employment Act of 1977.21 
That program was not unlike the Richmond Plan and 
others. In upholding the constitutionality of the MBE 
provision, this Court approved Congress’ findings of past 
discrimination even though it had failed to make “speci­
fic factual findings” of statutory or constitutional viola­
tions. Fullilove, supra, 448 U.S. at 478. Indeed, the find­
ings that Congress did make presented no clear and spe­
cific evidence of racial discrimination by the federal gov­
ernment in the disbursement of federal contracting funds. 
See, Id., at 527 (Stewart J., dissenting). Interestingly, 
even Justice Powell implicitly ignored his own “specific 
findings” requirement by expressly adopting that portion 
of Chief Justice Burger’s opinion that endorsed Con­
gress’ findings. Id., at 453, 495.22 Moreover, Justice 
Powell and Chief Justice Burger found that the low num­
ber of public contracts awarded minority businesses con­
tained in the legislative history of the MBE provision, 
was sufficient to justify Congress’ remedial action. Id., at 
456-67 (opinion of Burger, C. J.) ; Id., at 502-06 (Powell, 
J., concurring). Implicit in this Court’s Fullilove decision 
was the reestablishment of the principle that race 
conscious remedies need not be dependent on finding the 
government .guilty of discrimination, but instead they 
must be directed at remedying the effects of discrimina­
tion within the particular governmental entity’s sphere of 
influence. This principle, which was set forth in Fullilove 
is not foreign,23 and it later resurfaced in Johnson, supra.

21 Pub. L. No. 95-28, 91 Stat. 110 (codified at 42 U.S.C. & 
6705(f)(2) (Supp. Ill 1979).

22 See also, The Supreme Court Review, 1979 Term—94 Harv. L. 
Rev. 75, 133 (1980).

23 Even prior to Bakke, there were several instances of judicial 
approval of programs that used racial classifications to ameliorate 
perceived discrimination, although actual prior discrimination had 
not been judicially ascertained. Moreover, even consent decrees 
have been issued to authorize race conscious remedies prior to mak­
ing specific findings of past discrimination. See e.g., Califano v. 
Webster, 430 U.S. 313 (1977); Schlesinger v. Ballard, 419 U.S. 498



18

In Johnson, this Court held that a public employer need 
not show that it had discriminated as a predicate to in­
stituting a voluntary affirmative action plan when chal­
lenged under Title VII of the Civil Rights Act of 1964. 
Johnson, supra, 107 S. Ct. at 1451. While a somewhat 
different standard of scrutiny is imposed under the Equal 
Protection Clause than under Title VII, the objective of 
both is the same, the eradication of racial discrimina­
tion."4 Moreover, the same reason advanced in Johnson 
for not requiring evidence of past discrimination, was ad­
vanced in Wygant as well by Justice O’Connor;26 in Bakke 
by Justices Brennan, White, Marshall, and Blackmun,

(1975); United States v. Wood Wire & Metal Lathers Int'l. Union, 
Local Union No. 1,6. 471 F.2d 408 (2nd Cir.), cert, denied, 412 U.S. 
959 (1975). See also, Katzenbach v. Morgan, supra, Larson, Race 
Consciousness in Employment After Ilakke, 14 llarv. C.R.-C.L.L. 
Rev. 215, 235 (1979); Comment, Reverse Discrimination: The 
Supreme Court Defines a Significant Limitation on the Permissible 
use of Race in Affirmative Action, 26 Washburn L.J. 618, 622 
(1987).

21 Justice Scalia, in Johnson joined by Chief Justice Burger and 
Justice White, acknowledged this point when he said that; “it is 
most unlikely that Title VII was intended to place a lesser restraint 
on discrimination by public actors than is established by the Con­
stitution.” 1U7 S. Ct. at 1442 (Scalia, J., dissenting) (emphasis in 
original). Justice O’Connor in Johnson also acknowledged that “the 
proper initial inquiry in evaluating the legality of an affirmative 
action plan by a public employer under Title VII is no different 
from that required by the Equal Protection Clause.” Id., at 1461 
(O’Connor, J., concurring). And, in Paradise, supra, 107 S. Ct. at 
1075 n .l, Justice Powell implied that the standards of analysis in 
Title VII and equal protection cases are similar, though not 
identical.

25 See, supra, note 14.
ae Bakke, supra, 438 U.S. at 364 (opinion of Brennan, White, 

Marshall, and Blackmun, J.J.) “. . • the requirement of a judicial 
determination of a constitutional or statutory violation as a predi­
cate for race-conscious remedial action . . . would severely undermine 
efforts to achieve voluntary compliance with the requirements of 
law”).

19
and finally in Weber by Justice Blackmun.27 Both Fulli- 
love and Johnson clearly established that neither a public 
nor private entity need admit its guilt or participation 
in discrimination as a predicate to establishing race con­
scious remedies. This Court realized that to establish 
such requirements would have a chilling effect on achiev­
ing the purposes of the Equal Protection Clause and Title 
VII. To the extent that findings are required, Fullilove 
only required that there be a relationship between the 
remedy and the discrimination being cured, and that the 
discrimination being cured be more than societal discrim­
ination. Despite this Court recognizing the problems in­
herent in admitting past discrimination, the court of 
appeals failed to recognize these concerns.

In fact, while the court below seemed to implicitly 
acknowledge Justice O’Connor’s concerns in Wygant, about 
the inherent problems presented by the findings require­
ment, it disregarded those concerns and instead placed 
heavy reliance on the following language of the plurality 
opinion:

This Court has never held that societal discrimina­
tion alone is sufficient to justify a racial classifica­
tion. Rather, the Court has insisted upon some show­
ing of prior discrimination by the governmental unit 
involved before allowing limited use of racial classi­
fications in order to remedy such discrimination. 
Wygant, supra, 106 S. Ct. at 1847 (pluiality
opinion).

In relying on this language the court below totally 
misapplied the intent of Wygant. In Wygant a plur 
ality of this Court held that societal discrimination alone 
was insufficient to justify race conscious remedies. Id., 
at 1847-48. The court of appeals, after examining how

B7 Weber, supra, 443 U.S. at 210 (Blackmun, J., concurring)
(“. . . voluntary compliance with Title VII . . . I places an em­
ployer! . . .  in profound jeopardy . . .  [in which the only way to 
protect themselves is ] . . .  to eschew all forms of voluntary affirma­
tive action”).



20

the Richmond City Council conducted its findings, con­
cluded that societal discrimination was the only basis for 
enacting the Richmond Plan. The court below reached 
this conclusion despite the Richmond City Council having 
held a hearing, heard testimony, and drawn on its own 
experience *8 and that of Congress,*8 to reach its findings. 
The cumulative result of these findings revealed the 
existence of purposeful discrimination within the con­
struction industry, and the City of Richmond’s passive 
participation in such discrimination by its awarding of

28 As this Court is well aware, the City of Richmond has ex­
perienced on numerous occasions the need to eradicate racial bar­
riers within its government and the community at large. See e.g., 
City of Richmond v. United States, 422 U.S. 358 (1975) (this case 
focused on the city’s annexation plan relative to its compliance 
with the Voting Rights Act); Bradley v. School Board, 462 F.2d 
1058, 1065 (4th Cir. 1972) (en banc) (this case involved school 
desegregation, where it was found that the city tended to "per­
petuate apartheid of the races”) ; aff’d by an equally divided 
Court, 412 U.S. 92 (1973) (per curiam).

28 In relying on Congress’ findings that; “there was direct evi­
dence . . . that . . . discrimination existed with respect to state and 
local construction contracting as well . . .”, the City Council was 
drawing upon a wide array of sources to reach its conclusion. The 
use of other sources of information to supplement a governmental 
entity’s own peculiar findings was recently upheld in City of 
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51 (1986). In City 
of Renton, this Court held that a city’s “substantial governmental 
interest” in regulating the time, place, or manner of protected 
speech may be established by findings and studies generated by 
other cities, “so long as whatever evidence the city relies upon is 
reasonably believed to be relevant to the problem that the city 
addresses.” 475 U.S. at 51-51. Further support for such “borrow­
ing” has also begun to gain acceptance from the academic com­
munity. See Days, Fullilove 96 Yale L. J. 453, 480 (1987) (the 
author in analyzing the necessity for findings states: “State and 
local agencies creating set-asides should, for example, be able to 
rely in part from federal legislative or agency findings and judicial 
determinations regarding nationwide discrimination against mi­
nority business enterprises as predicates for considering the pro­
priety of set-asides in their respective jurisdictions”).

21

construction contracts to that industry.30 In Wygant the 
Board of Education of Jackson, Michigan made no such 
findings, particularly of the degree accomplished by the 
Richmond City Council.

This Court found in Wygant that the Jackson Board 
of Education’s race conscious layoff plan was seriously 
wanting because it relied solely on a role model theory. 
Wygant, supra, 106 S. Ct. at 1848. Implicit in the use 
of the role model theory was reliance on the raw use of 
statistics. When these statistics were closely scrutinized 
by this Court it concluded that there was no additional 
evidence to show that the disparity between the percent­
age of minority students and the percentage of minority 
faculty was the result of prior discrimination by the 
Board. Id., at 1848 (opinion by Powell, J., joined by 
Burger, C. J., and Rehnquist, J .) ;  see also, Id., at 1854 
(O’Connor, J., concurring in the judgment). In essence, 
the factual support for the Richmond Plan was far more 
probative than that revealed in Wygant. Thus, the fac­
tual predicate established by the Richmond City Council 
was more than adequate to support the adoption of the 
Richmond Plan. Indeed, the facts revealed by the Rich­
mond City Council are inapposite to Wygant, and there­
fore rob the court of appeals’ decision of any basis for 
support.

B. The holding below unnecessarily imposes on every 
legislative body seeking to voluntarily remedy racial 
discrimination the same fact finding standards as 
are imposed on judicial and administrative bodies, 
and therefore strains the balance of powers between 
the judicial and legislative bodies of government at 
every level.

While the Fourth Circuit acknowledges that the Rich­
mond City Council should not be held to as rigorous a 
findings standard as a federal district court, its evalua­

40 The district court agreed with the City Council’s findings, after 
it had heard all of the facts.



22

tion of the City Council’s findings suggests otherwise.31 
How the court of appeals evaluated the Richmond City 
Council’s findings dramatically illustrates the imposition 
of judicial standards on a legislative body. This judicial 
imposition is, beyond question, an encroachment upon the 
legislative branch and can only lead to severe disruption 
of the balance of power between the judiciary and legis­
lature. See Fullilove, supra, 448 U.S. at 503 (Powell, J., 
concurring). This is particularly true in the area of 
race conscious remedies where the coordination of the 
branches at every level of government is extremely criti­
cal. This concern was not lost on Justice Powell in 
Fullilove.

In Fullilove, the petitioners contended that the legis­
lative history of the Public Works Employment Act of 
1977 (“PWEA” ) reflected no findings of statutory or 
constitutional violations. Id., at 502. In response, Justice 
Powell said:

Congress is not an adjudicatory body called upon to 
resolve specific disputes between competing adver­
saries. 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 
Sec. 103(f) (2) as the complete “record” of congres­
sional decision making underlying that statute is 
essentially a plea that we treat Congress as if 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 record-making that is 
appropriate to a judicial or administrative proceed­
ing. Congress has no responsibility to confine its 
vision to the facts and evidence adduced by particu­
lar parties. Instead, its special attribute as a legisla­
tive body lies in its broader mission to investigate

31 Croson, supra, 822 F.2d at 1359.

23

and consider all facts and opinions that may be rele­
vant to the resolution of an issue. Id., at 502-03.

He further states:
Acceptance of petitioners’ argument would force Con­
gress 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 tradi­
tion warrants such a constraint on the legislative 
process. I therefore conclude that wre are not con­
fined in this case to an examination of the legislative 
history of Sec. 103 (f) (2) alone. Rather, we properly 
may examine the total contemporary record of con­
gressional action dealing with the problems of racial 
discrimination against minority business enterprises. 
Id., at 503.

The significance of Justice Powell’s view is that he also 
recognized the evils in allowing courts to encroach upon 
the legislative fact finding process. And, while his opin­
ion in Fullilove may at first glance appear limited to 
Congress, upon closer scrutiny it appears to reflect a 
belief that legislative bodies are more competent than 
courts in making findings of broad-scale discrimination. 
The proposition that courts should give deference to legis­
lative findings is not without some basis in precedent."2

82 See, Comment, The Constitutionality of Affirmative Action in 
Public Employment: Judicial Deference, to Certain Politically Re­
sponsible Bodies, supra (the thrust of the Comment is that under 
Justice Powell’s analysis of equal protection, courts should defer to 
findings of discrimination by legislative bodies who are accountable 
to the electorate, but should scrutinize findings of discrimination by 
isolated public bodies). Cf. Notes, A Madisonian lnten>rrtation of 
the Equal Protection Doctrine, 91 Yale L. J. 1403 (1982) (the Note 
essentially agrees with the idea of judicial deference to findings of 
discrimination by Congress, but would apply a stricter standard of 
scrutiny on state and local governments, respectively, on the theory 
that the federal government is a better protector of minority rights 
than lower levels of government). See, e.g., Minnesota v. Clover 
Leaf Creamery Co., 449 U.S. 456, 470 (1981) (“it is not the



24

Justice Powell’s concern for maintaining a balance be­
tween the judiciary and the legislative branch was not 
lost on other members of this Court. Even more impor­
tant than the respect accorded the legislature by this 
Court, however, is the constitutional principle of the 
separation of powers.

The Constitution does not require a legislature to con­
duct hearings, build a record, and make formal findings 
when it passes a law. Perez v.' United States, 402 U.S. 
146, 156-157 (1971); Oregon v. Mitchell, 400 U.S. 112, 
147 (1970) (Douglas, J., concurring in part and dissent­
ing in part) ; Katzenbach v. McClung, 379 U.S. 244, 299 
(1964); Carmichael v. Southern■ Coal & Coke Co., 301 
U.S. 495 (1937); Ri-Metallic Investment Co. v. State 
Hoard of Equalization, 239 U.S. 441 (1915) (Holmes, 
J .) . The rule derives from basic separation of powers 
principles embodied in the Constitution.

This Court has uniformly held that a statute “will not 
be set aside if any state of facts reasonably may be con­
ceived to justify it.” McGowan v. Maryland, 366 U.S.

function of the courts to substitute their evaluation of legislative 
facts for that of the legislature”). See also, Id., at 468-70. But, see 
Id., at 478 n.2 (Stevens, J., dissenting). Politically responsible 
legislative bodies are better suited to correcting broad-scale dis­
crimination than courts for two reasons: First, broad-scale societal 
discrimination is often not provable according to judicial standards. 
Second, the number of parties involved in a determination of prior 
widespread discrimination would impose a strain on court proce­
dures: even a class action lawsuit might be difficult to conduct, and 
furthermore, a class action would not be proper if individual claims 
differed widely. See, Vance v. Bradley, 440 U.S. 93, 111 (1979); 
Day-Britc Lighting, Inc. v. Missouri, 342 U.S. 421, 425 (1952). 
See also, Local 35, IREW v. City of Hartford, 625 F.2d 416 (2nd 
Cir. 1980) (the Sixth Circuit upheld an affirmative action ordi­
nance adopted by the City Council of Hartford, Connecticut). 
Cf. Detroit Police Officers’ Association v. Young, 608 F.2d 671 (6th 
Cir. 1979), cert, denied, 452 U.S. 938 (1981) (the court of appeals 
rejected the district court’s failure to accept the findings of minority 
under-representation by a Board of Police Commissioners).

25

420, 426 (1961); James v. Strange, 407 U.S. 128, 133 
(1972). In the absence of any legislative history, both 
the existence of facts supporting the legislature’s judg­
ment and its awareness of those facts will be presumed. 
United States v. Carolene Products Co., 304 U.S. 144, 
152 (1938); Carmichael, supra, at 509-10. Indeed, even 
if the resulting statute is constitutionally supportable, 
and the legislative history or other evidence indicate that 
Congress may have acted for improper reasons, this Court 
found it to be constitutionally irrelevant.33 While this 
Court has not necessarily adhered to these long standing 
principles when addressing suspect classifications it has 
not totally disregarded the rationale underlying the prin­
ciples. In essence, these cases establish a principle that 
as long as a legislative body acts within the scope of its 
constitutional powers it is not the province of this Court 
to instruct it on the kind of hearings it must bold or the 
“findings” it must make. As such Amici submits that 
where race conscious remedial legislation is involved, def­
erence should remain the rule until a party can prove 
that it has been impermissibly discriminated against by 
the legislation. In this instant the appellee failed to es­
tablish on all levels impermissable discrimination. See, 
Wyant, supra, 106 S. Ct. at 1853-54. By placing the 
initial burden on the legislature, however, the decision 
below allows for groundless claims to stifle the legislative 
process, and involves the courts in legislative judgments.

33 See, e.g„ United States v. O’Rrien, 391 U.S. 367, 383-84 (1968) 
(‘‘Inquiries into congressional motives or purposes are a hazardous 
matter. When the issue is simply the interpretation of legislation, 
the Court will look to statements by legislators for guidance as to 
the purpose of the legislation. . . .  It is entirely a different matter 
when we are asked to void a statute that is, under well-settled 
criteria, constitutional on its face, on the basis of what fewer than 
a handful of Congressmen said about it.” ) ; Rarenblatt v. United 
States, 360 U.S. 109, 132 (1959) (“So long as Congress acts in 
pursuance of its constitutional power, the Judiciary lacks authority 
to intervene on the basis of the motives which spurred the exercise 
of that power”).



26

While the judgments of Congress, as opposed to those 
of a city council or a state legislature, are accorded par­
ticular deference, courts do not have carte blanche au­
thority to second-guess state and local legislative judg­
ments. Vance, supra; Ferguson v. Skrupa, 372 U.S. 726 
(1963) Day-Brite, supra. Judicial restraint in the re­
view of state or local statutes or ordinances follows nat­
urally from the realization that courts are not represen­
tative bodies. Alfange, supra,-at 640-41). As Justice 
Frankfurter noted, courts “are not designed to be a good 
reflex of a democratic society.” Dennis v. United States, 
341 U.S. 494, 525 (1951) (Frankfurter, J., concurring). 
See also, L. Hand, The Bill of Rights, 11-18 (1958); A. 
Bickel, The Least Dangerous Branch (1962). In review­
ing civil rights legislation, this Court has often recognized 
the competence of state or local governments to make 
findings with respect to the effects of identified past dis­
crimination and its discretionary authority to take ap­
propriate remedial measures. Johnson, supra; Paradise, 
supra; Bakke, supra at 302 n.41 (Powell, J.) ; Kaizen- 
bach v. Morgan, supra, at 648-653; South Carolina v. 
Katzenbach, supra, at 325-27; and Heart of Atlanta 
Motel, Inc. v. United States, 379 U.S. 241 (1964).

Respect for the democratic process and the separation 
of powers is not the only reason courts do not require 
legislatures to hold hearings or make detailed findings:

The principle fof separation of power] is not merely 
one of deference to Congress or the states. It rests 
upon appreciation of the fact that the fundamental 
basis for legislative action is the knowledge, experi­
ence, and judgment of the people’s representatives 
only a small part, or even none, of which may come 
from the hearings and reports of committees or de­
bates upon the floor. Cox, The Supreme Court, 1965 
Term-Forward: Constitutional Adjudication and the 
Promotion of Human Rights, 80 Harv. L. Rev. 91, 
105 (1966).

27

Legislatures are not courts. Courts develop law through 
reason derived from precedent. They are a reactive body, 
deciding only those cases and controversies before them 
on the basis of a record generally supplied by the parties. 
Legislatures, by contrast, create laws through a process 
of bargaining and compromise. They are by their very 
nature a diverse body whose task it is to make laws that 
may not please members of the judiciary or the public, 
but stand nonetheless as expressions of the will of the 
electorate. A legislature acts affirmatively, drawing in­
formation and ideas not merely from hearings, debates, 
and committee reports but also from constituents, inter­
est groups, and the executive branch. Fisher, Constitu­
tional Interpretation By Members of Congress, 63 N.C.L. 
Rev. 707 (1985). “In the nature of the case [a legisla­
ture] cannot record a complete catalog of the considera­
tions which move its members to enact laws.” Car­
michael, supra, at 301 U.S. at 510.

Lumping legislative determinations with administra­
tive and judicial findings is therefore inappropriate. 
Legislative bodies cannot be expected to conduct them­
selves like courts because they were not created to func­
tion as such. FullUove, supra, 448 U.S. at 503 (Powell, 
J., concurring). Imposing judicial formalities upon leg­
islatures will not insure the integrity of legislation. Re­
quiring a state or local government to produce detailed 
findings prior to enacting legislation could only result in 
undesired consequences. Amici believe that one of the side- 
effects of the court of appeals’ decision is that it will 
force legislatures to focus attention and financial re­
sources on the preparation of legislative findings, rather 
than more careful consideration of the text of pending 
legislation. Such detailed findings can only lead to more 
involvement of the courts in trying to ascertain the gen­
uineness of the legislation.



28

Justice Powell concluded in Fullilove, that requiring 
Congress to make more specific findings would put an un­
warranted “constraint on the legislative process. Id., 
at 503. This Court and various scholars have on numer­
ous occasions recognized the need for maintaining a ba - 
ance between the judicial and legislative branches. Karst, 
Legislative Facts in Constitutional Litigation, Supreme 
Court Review 75 (1960). This respect for separation of 
powers principles and concern* for burdening the legisla­
tive process was entirely lost on the court of appeals.

CONCLUSION

For the several reasons presented above, the judgment 
below must be reversed.

Respectfully submitted,

Koteles Alexander 
(Counsel of Record) 
B ernadette Gartrell 
Gartrell & Alexander 
Lee Plaza—Suite 203 
8601 Georgia Avenue 
Silver Spring, Maryland 20910 
(301) 589-2222 
Attorneys for Maryland 

Legislative Black Caucus
April 21, 1988

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