Richmond v JA Croson Company Brief of Amici Curiae in Support of Appellant

    CL
No. 87-998

I n  T h e

Buprmt (Emtrt uf %  Hutto ilato
O cto ber  T e r m , 1987

C it y  o f  R ic h m o n d ,
Appellant,

J .A . Cro son  Co m p a n y ,
________ Appellee.

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

BRIEF OF AMICI CURIAE LAWYERS’
COMMITTEE FOR CIVIL RIGHTS UNDER LAW,
MEXICAN-AMERICAN LEGAL DEFENSE AND

EDUCATIONAL FUND, NOW LEGAL DEFENSE AND
EDUCATIONAL FUND, THE NATIONAL ASSOCIATION

FOR THE ADVANCEMENT OF COLORED PEOPLE,
AND WOMEN’S LEGAL DEFENSE FUND

IN SUPPORT OF THE APPELLANT

Conrad K. Harper 
Stuart J. Land 

Co-Chairmen 
Norman Redlich 

Trustee
William L. Robinson 
Judith A. Winston 

Lawyers’ Committee for 
Civil Rights Under Law 

1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

A ntonia Hernandez 
Richard E. Larson 

Mexican-A merican 
Legal Defense and 
Educational Fund 

634 South Spring Street 
Los Angeles, California 90014 
(213) 629-2512

Stephen J. Pollak *
James R. Bird 
Paula A. Sweeney 

Shea & Gardner 
1800 Massachusetts Ave., N.W. 
Washington, D.C. 20036 
(202) 828-2000

Grover Hankins 
Joyce Knox 

National A ssociation 
for the Advancement 
of Colored People 

4805 Good Hope Drive 
Baltimore, Maryland 21215 
(301) 243-9191

Judith L. Lichtman 
Claudia W ithers 

Women ’s Legal 
Defense F und 

2000 P Street, N.W. 
Washington, D.C. 20036 
(202) 887-0364

Attorneys for  Amici Curiae

April 21,1988
* Counsel of Record

W il s o n  -  E p e s  P r in t in g  C o . ,  In c . -  7 8 9 -0 0 9 6  -  W a s h in g t o n , D .C . 20001



TABLE OF AUTHORITIES....... ............. ........ ........ . iii

INTEREST OF AMICI CURIAE ....... ...... ............ . l

STATEMENT OF THE CASE .......... ..... ............. ...... . 2

INTRODUCTION AND SUMMARY OF ARGU­
MENT ......................... ..... .......... .................. ............. 5

ARGUMENT ____ ____________ __________ ____ _______ g
I. THE CONSTITUTION DOES NOT FORBID 

STATE AND LOCAL GOVERNMENTS FROM 
TAKING RACE-CONSCIOUS ACTION TO 
CURE DISCRIMINATION AND ITS EF­
FECTS IN INDUSTRIES WITH WHICH 
THEY DO BUSINESS ....... ....................... ..... . 8
A. State and Local Governments, Like Con­

gress, May Constitutionally Undertake Af­
firmative Action to Cure the Effects of Past 
Discrimination Whether or Not They Have 
Participated in Such Discrimination...........  8

B. State and Local Governments Participate
in Discrimination When They Award Con­
tracts to a Construction Industry Charac­
terized by Discrimination ............... .... .... .....  18

II. THE FOURTH CIRCUIT IMPROPERLY 
HELD THAT RICHMOND HAD NO FIRM 
BASIS FOR BELIEVING REMEDIAL AC­
TION WAS REQUIRED ............................. ......  m
A. The District Court’s Finding that the City 

Had Adequate Support for Believing that 
Its Public Contracting Awards Were Per­
petuating Effects of Discrimination Should
Be Sustained........................ ........ ...... ....  Ig

B. The Council Had a Reasonable Basis to Be­
lieve that the City Itself Had Discrimi­
nated ............... .......... ....... ....... ........... ............  22

TABLE OF CONTENTS
Page



ii

III. THE RICHMOND PLAN IS NARROWLY 
TAILORED TO ACHIEVE ITS REMEDIAL 
GOAL OF ENDING RACIAL EXCLUSION IN 
PUBLIC CONTRACTING...  .....................  24
A. The City Council Considered Alternatives.... 25
B. The Set-Aside Program Is Limited in Dura­

tion __ __ ____________ ___ ______ ______ ___ 26
C. The Council Selected a Reasonable Figure

for the Set-Aside Percentage..... ..... ........ .....  26
D. The Richmond Plan Provides for an Ade­

quate Waiver ................... .............. ......... .... . 27
E. The Burden on Non-Minorities Is Consistent

with Fundamental Fairness ______ ______ ___ 28

CONCLUSION_________ _____ _________ ______ _________ 80

TABLE OF CONTENTS—Continued
Page



iii

Cases:
TABLE OF AUTHORITIES

Page
Anderson v. Bessemer City, 470 U.S. 564 (1985).. 18
Assoc. Gen. Contr. of Cal. v. City & County of

San Francisco, 818 F.2d 922 (9th Cir. 1987).... 12
Board of Directors of Rotary International v.

Rotary Club of Duarte, 107 S. Ct. 1940 (1987).. 14
Bradley v. School Board of Richmond, Virginia,

345 F.2d 310 (4th Cir. 1965), vacated on pro­
cedural grounds, 382 U.S. 103 (1965) ........ ......  3

Bradley v. School Board of Richmond, Virginia,
462 F.2d 1058 (4th Cir. 1972), aff’d, 412 U.S.
92 (1973) ________ _____________ _________ 24

Burton v. Wilmington Parking Authority, 365
U.S. 715 (1961) _____ ___ ____________ ___ _ 15

Carson v. American Brands, Inc., 606 F.2d 420
(4th Cir. 1979), rev’d, 450 U.S. 79 (1981).......  3

City of Richmond v. United States, 422 U.S. 358
(1975) ........... :.................... ............ ............... . 24

City of Rome v. United States, 446 U.S. 156
(1980)  __ _________________________ _______  m

Constructors Assoc, of Western Pa. v. Kreps, 441
F. Supp. 936 (W.D. Pa. 1977), a#'d,"573 F.2d
811 (1978) ........ ...... ...... ...... ............. ............. . 26

Denton V. International Broth, of Boilermakers,
650 F. Supp. 1151 (D. Mass. 1986)________ _ 22

Ethridge v. Rhodes, 268 F. Supp. 83 (S.D. Ohio
1967) _______ _____ ____ ___ _______ ________ ___ 14-15

Evans v. Laurel Links, Inc., 261 F. Supp. 474
(1966) ...... .............. ............. ....................... .........  3

Franks v. Bowman Transportation Co., 424 U S.
747 (1976).................. ......... ...... ......................... 24

Fullilove v. Kreps, 584 F.2d 600 (2d Cir. 1978), 
aff’d sub nom. Fullilove v. Klutznick, 448 U.S.
448 (1980) ...... ..... ................ ............. ...............

Grant v. Bethlehem Steel Corp., 635 F.2d 1007 
(2d Cir. 1980), cert, denied, 452 U.S. 940 
(1981) ........... ..........

passim

22
J. A. Croson Co. v. City of Richmond, 779 F.2d 

181 (4th Cir. 1985), vacated and remanded, 
106 S.Ct. 3327 (1986), on remand, 822 F.2d 
1355 (1987) ..........................................................-



IV

Johnson v. Tramp. Agency, Santa Clara Cty.,
Cal, 107 S. Ct. 1442 (1987) ....... ...... ....... ........ passim

Local 28 of Sheet Metal Workers V. E.E.O.C., 478
U.S. 421, 106 S. Ct. 3019 (1986)_____ ________ 5

Local Number 93 V. City of Cleveland, 478 U.S.
501, 106 S. Ct. 3063 (1986)________________ _ 5

Local Union No. 35, Etc. V. City of Hartford,
625 F.2d 416 (2d Cir. 1980), cert, denied, 453
U.S. 913 (1981) ....................... ......... ..... .............  22

Michigan Road Builders Ass’n, Inc. v. Milliken,
834 F.2d 583 (6th Cir. 1987) ............. ...............  12

National Black Police Ass’n, Inc. v. Velde, 712 
F.2d 569 (D.C. Cir. 1983) cert, denied, 446 U.S.
963 (1984) ________ ______ _____________ _____  15

Ohio Contractors Ass’n V. Keip, 713 F.2d 167 (6th
Cir. 1983) __________ ________ ____ ____ ____ .. 18

Patterson v. American Tobacco Co., 634 F.2d 744
(4th Cir. 1980), vacated, 456 U.S. 63 (1982).... 3

Percy v. Brennan, 384 F. Supp. 800 (S.D. N.Y.
1977) ........ ....... ........... ........ ................ ............... . 15

Pullman-Standard v. Swint, 456 U.S. 273 (1982).. 18,24 
Quarles V. Philip Morris, Incorporated, 279 F.

Supp. 505 (E.D. Ya. 1968) ................... .............  3
Roberts v. United States Jaycees, 468 U.S. 609

(1984) _____________________ ________ _____ _. 14
Schmidt v. Oakland Unified School Dist., 662 F.2d 

550 (9th Cir. 1981), vacated and rev’d, 457
U.S. 594 (1982) ................. ................ ............ 13,20,27

South Carolina V. Katzenbach, 383 U.S. 301
(1966)................. ....... .............. ................. .......... . 14

South Fla. Chap. V. Metropolitan Dade County,
Fla., 723 F.2d 846 (11th Cir.), cert, denied, 469
U.S. 871 (1984) .......................... ....... ......... ...... . 20, 27

Southwest Washington Chapt., Nat’l Elec. Contr.
Assn. v. Pierce Cty., 667 P.2d 1092 (Wash.
1982).......... ........ ............... ....... ....... ......... .......... . 18, 27

Steelworkers v. Weber, 443 U.S. 193 (1979)____passim
Teamsters v. United States, 431 U.S. 324 (1977).. 19-20 
United Jewish Organizations V. Carey, 430 U.S.

144 (1977)

TABLE OF AUTHORITIES—Continued
Page

6



V

United States v. Paradise, 107 S. Ct. 1053 (1987) ..passim 
University of California Regents v. Bakke, 438

U.S. 265 (1978)........ ......................................... .passim
Wygant v. Jackson Board of Education, 476 U.S.

267 (1986) ................... ........ .......... ..... __.....  ....passim

Constitutions, statutes, and regulations:
U.S. Const, amend. X IV ................................ .... ....... passim
Public Works Employment Act of 1977, Pub. L.

No. 95-28, § 103(f) (2), 91 Stat. 116, 117 (codi­
fied at 42 U.S.C. § 6705(f) (2) (1982)) ...........  2

F.R. Civ. P. 52(a) ....... ........ ......... ................  lg
45 Fed. Reg. 65976 et seq. (Oct. 3,1980) ___ ______  21, 27
Virginia Public Procurement Act, § 11-48, Va.

Code Ann. -§ 11-48 (1984) _____ ___ _________  5
Human Rights, Richmond, Va., Code -§ 17.2

(1975) _____ __ ___________ __ _______ ______ _ 5
Minority Business Utilization Plan, § 27.10-20, art.

VIII-A, Richmond, Va., Ordinance 83.69-59 
(April 11, 1983) ...................... ......... ....... ......... passim

Miscellaneous:

TABLE OF AUTHORITIES—Continued
Page

Schnapper, Affirmative Action and the Legisla­
tive History of the Fourteenth Amendment, 
71 Va. L. Rev. 753 (1985) ................................ .



I n  T h e

B n p x m x  (tart of tljr Imtpft Stairs
O c to ber  T e r m , 1987

No. 87-998

C it y  of  R ic h m o n d ,
Appellant,

J.A. Croson  C o m p a n y ,
________  Appellee.

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

BRIEF OF AMICI CURIAE LAWYERS’
COMMITTEE FOR CIVIL RIGHTS UNDER LAW, 
MEXICAN-AMERICAN LEGAL DEFENSE AND  

EDUCATIONAL FUND, NOW LEGAL DEFENSE AND 
EDUCATIONAL FUND, THE NATIONAL ASSOCIATION 

FOR THE ADVANCEMENT OF COLORED PEOPLE, 
AND WOMEN’S LEGAL DEFENSE FUND 

IN SUPPORT OF THE APPELLANT

INTEREST OF AMICI CURIAE1

The five amici curiae who submit this brief2 have of­
ten appeared in this Court, both as amici and on behalf 
of minorities and women, in civil rights cases involving 
discrimination in voting, education, employment and 
housing. They have a direct interest in supporting the 
principle that, consistent with the Equal Protection 
Clause, state and local governments may establish reme­

1 Pursuant to Rule 36.2, written consents of the parties to the 
submission of this brief have been filed with the Clerk of the Court.

2 A  description of each amicus organization is set forth in Ap­
pendix No. 1.



2
dial programs to eradicate discrimination and the contin­
uing effects of prior discrimination. The experience of 
the amici in a broad range of discrimination and affirma­
tive action litigation may enable amici to illuminate for 
the Court some of the issues presented by this case.

STATEMENT OF THE CASE

This case involves the constitutionality of the Minority 
Business Utilization Plan adopted by the City of Rich­
mond.8 We generally adopt the statement of the case pro­
vided by Richmond in its brief. What follows represents 
an amplified description of the City Council proceedings 
leading to adoption of the plan.

In 1977, the Congress adopted a Minority Business En­
terprise ( “ MBE” ) set-aside plan as part of the Public 
Works Employment Act of 1977. 42 U.S.C. § 6705(f) (2) 
(1982). This statute required state and local government 
applicants for federal public works funds to guarantee 
that 10% of the funds would be expended through MBEs. 
Shortly thereafter, this Court upheld against constitu­
tional challenge Congress’ choice of the MBE plan “ to 
ensure that [minority firms] were not denied equal op­
portunity to participate in federal grants to state and 
local governments . . . .” Fullilove v. Klutznick, 448 U.S. 
448,478 (1980) (plurality).

Following the national lead, the Richmond City Coun­
cil undertook an examination of the exclusion of minori­
ties from participation in its own public contracting. 
Council members had been concerned about minority par­
ticipation in public contracting for some time. Votes on 
a remedial set-aside at two meetings were postponed al­
lowing further research and analysis, J.A. 25-27.

During the postponements, council members, city ad­
ministrators and the city attorney worked on the matter 3 * * *

3 Minority Business Utilization Plan, §27.10-20, art. VIII-A,
Richmond, Va., Ordinance 83.69-59 (April 11, 1983) (hereinafter
“ ordinance” or “plan” ). Reproduced in Supplemental Appendices to
the Jurisdictional Statement. J.S. Supp. App. 233-58.



3

over “ a number of sessions.”  J.A. 26-27. Their work in­
cluded review of city construction contracts for the pre­
vious five-year period and analysis of Fullilove and other 
decisions passing on the legality of set-aside programs of 
various configurations. J.A. 14-16, 24-27, 43. On April 
11, 1983, after hearing and public debate, the Council 
adopted the Minority Business Utilization Plan.4

The City Council’s purpose in enacting the ordinance 
was explicitly “ remedial . . . for the purpose or [sic] 
promoting wider participation by minority business en­
terprises in the construction of public projects, either as 
general contractors or subcontractors.” 5 * * Councilman 
Henry Marsh, a sponsor of the ordinance, stated, in urg­
ing adoption of the set-aside plan, that the Richmond 
construction industry was characterized by racial dis­
crimination and “ exclusion on the basis of race”  and that 
the need for remedial action was “ not open to question.” 
J.A. 41.'8 These views were echoed by the City Manager, 
Manuel Deese. J.A. 42. Statistics presented to the Coun­

4 Richmond was not alone in this approach. Since Fullilove, at 
least 32 states and 160 local governments have "adopted minority 
set-aside requirements as part of their public contracting programs. 
See Motion for Leave To File Brief of the National League o f Cities, 
et al., in Richmond v. Croson Co., No. 87-998, dated January 16, 
1988, at p. 2.

5 Quoting the text o f the ordinance as reproduced in an appendix 
to the opinion of the District Court. J.S. Supp. App. 248.

« In formulating and supporting the plan, Mr. Marsh drew on 22 
years of experience in Richmond as a practicing attorney, Mayor 
and member of the City Council. He had accumulated detailed 
knowledge of the extent and effects o f racial discrimination by pri­
vate and public entities in Richmond as lead counsel for plaintiffs 
in numerous lawsuits, including: Patterson v. American Tobacco 
Co., 634 F.2d 744 (4th Cir. 1980), vacated, 456 U.S. 63 (1982)
(employment); Carson v. American Brands, Inc., 606 F.2d 420 (4th 
Cir. 1979), rev’d, 450 U.S. 79 (1981) (employment); Quarles v. Philip 
Morris, Inc., 279 F.Supp. 505 (E.D. Va. 1968) (employment); 
Evans v. Laurel Links, Inc., 261 F.Supp. 474 (E.D. Va. 1966)
(public facilities); Bradley v. School Board of Richmond, Virginia, 
345 F.2d 310 (4th Cir. 1965), vacated on procedural grounds, 382 
U.S. 103 (1965) (education).



4

cil showed that, from 1978 to 1983, when Richmond had 
a minority population of 50%, two-thirds of 1% of the 
$124 million of public construction contracts let had been 
awarded to minorities. J.A. 12, 18, 41, 43.

Seven persons testified before the City Council on the 
set-aside plan, including representatives of various asso­
ciations of contractors opposing the proposal. J.A. 17-40. 
None of those witnesses disputed either the fact of past 
racial discrimination in the Richmond construction indus­
try or its continuing effects. Nor did any witnesses dis­
pute the remedial purpose of the set-aside plan. Rather, 
these witnesses expressed concern over the lack of local 
minority subcontractors, the possibility that sham minor­
ity businesses would be awarded subcontracts, the poten­
tial that the plan would lead to increased construction 
costs, and the plan’s possible anti-competitive effects. 
J.A. 20, 28, 31-36, 38-39.

Aware that this Court had approved a set-aside plan, 
the authors of the Richmond plan carefully modeled it 
after the federal one approved in Fullilove. J.A. 14-16, 
24-27. The Council included a waiver and limited the 
plan’s duration. J.A. 12, 14-15. The city attorney ex­
plained :

“ The reason for that and the suggestion that a date 
be put in, was that the federal cases that approved 
this sort of set-up have said that it’s remedial legis­
lation, and the purpose is to remedy past discrimi­
nation. And hopefully, in some period of time, this 
program will cause that to happen. Five years was 
deemed to be a period of time with which that would 
happen in all likelihood. It can be judged at that 
time and either continued— it may expire before 
that. It’s an ordinance that can be amended by 
Council at any time. That was deemed to be a fair 
date to evaluate the effects of the program rather 
than leave it open-ended.” J.A. 14-15.

The Council considered the efficacy of the set-aside as 
a remedy for the present effects of past discrimination. 
An ordinance prohibiting race discrimination in the



5

award of city contracts had been on the books since 
1975,7 yet the facts showed that minorities had nonethe­
less been essentially excluded from public contracts from 
1978 through 1983. In contrast, Council was advised that 
the city’s community development block grant program 
had utilized a set-aside requirement and achieved partici­
pation by minorities exceeding the goals of that plan. 
J.A. 41; see also- J.A. 12-13, 16.

The Council was also aware that other cities, including 
Oakland, Cleveland, Toledo, and Boston, had adopted 
minority set-aside programs similar to the plan before 
it. J.A. 16, 18-19. In addition, the Legislature of the 
State of Virginia in 1982 had authorized public bodies to 
establish programs to facilitate minority participation.8 
The State also had established a Department of Minority 
Public Enterprise.’9

INTRODUCTION AND SUMMARY OF ARGUMENT

This case calls upon the Court to consider once again 
the vexing issue of race-conscious remedies for the pres­
ent effects of discrimination.10 These remedies have been 
considered necessary to avoid perpetuating the effects of 
past discrimination.11 Yet, the Court has recognized that

7 Human Rights, Richmond, Va. Code § 17.2 (1975), attached 
hereto as Appendix No. 2.

8 Virginia Public Procurement Act, § 11-48, Va. Code Ann. § 11.48 
(1984).

0 Id.

10 See, e.g., United States v. Paradise, 107 S.Ct. 1053 (1987); 
Johnson v. Transp. Agency, Santa Clara Cty., Cal., 107 S.Ct. 1442 
(1987); Local Number 93 v. City of Cleveland, 478 U.S. 501, 106 
S.Ct. 3063 (1986); Local 28 of Sheet Metal Workers v. E.E.O.C., 
478 U.S. 421, 106 S.Ct. 3019 (1986); Wygant v. Jackson Board of 
Education, 476 U.S. 267 (1986); Fullilove, supra; Steelworkers v. 
Weber, 443 U.S. 193 (1979); University of California Regents v. 
Bakke, 438 U.S. 265 (1978).

11 E.g., Wygant, 476 U.S. at 280-82 (plurality),



such remedies, focusing as they do on race, are them­
selves problematic.12

Perhaps because of the clash of these competing values, 
the affirmative action cases that have come before the 
Court have generally been resolved by combinations of 
concurring opinions applying differing constitutional 
tests. Although the requirements of these tests differ, 
they reflect the common objective of achieving an appro­
priate balance between substantial but competing rights. 
Three types of such requirements are significant to the 
resolution of this case: (1) limitations on the kinds of 
discrimination a government may take affirmative action 
to remedy, (2) requirements for supporting evidence that 
the requisite discriminatory effects exist, and (3) require­
ments that the remedy be “narrowly tailored” to achieve 
its purpose.

The uncertainty created by the absence of a single ap­
proach in affirmative action cases was minimized in Fulli- 
love, where six members of the Court approved the chal­
lenged minority set-aside. While the concurring Justices 
employed differing requirements, each opinion exhibited a 
sensitivity to the particular context and avoided cate­
gorical rules that would skew the balance of important 
interests involved.

The remedial program challenged here, like numerous 
similar state and local programs, was adopted, and ap­
proved by the District Court, in compliance with the most 
restrictive standard articulated by the Justices concurring 
in Fnllilove, the strict scrutiny applied by Justice Powell.

We show below that the Fourth Circuit reversed the 
District Court on the basis of principles derived from the 
plurality opinion in Wygant v. Jackson Board of Educa­
tion, 476 U.S. 267 (1986). Wygant, however, dealt with 
governmental action dissimilar in purpose, operation and

6

112 E.g., United Jewish Organizations V. Carey, 430 U.S. 144, 
172-75 (1977) (Brennan, J., concurring in part).



7

impact on non-minorities. The Fourth Circuit opinion 
effectively abandons the balance struck in Fullilove and 
should be reversed.

1. The Court of Appeals held that the City could 
adopt a set-aside plan only to remedy its own past dis­
crimination. This categorical limitation, not imposed in 
FvMlom, adds no significant protection against abuse 
yet would prohibit a uniquely effective remedy for iden­
tified discrimination in the City’s construction industry. 
This Court should reject it. In any event, the City of 
Richmond should be permitted to adopt the plan to avoid 
perpetuating the effects of that discrimination in its pub­
lic contracting.

2. The Court of Appeals’ restrictive review of the evi­
dence supporting Richmond’s plan disregarded this 
Court’s precedents and usurped the fact-finding function 
of the District Court. The District Court properly found 
that the evidence supported Richmond’s action. If this 
Court should change the applicable law and then conclude 
that the District Court findings are inadequate, the case 
should be remanded for further fact-finding by the Dis­
trict Court.

3. The Court of Appeals employed an analysis incon­
sistent with this Court’s precedents in holding that Rich­
mond’s plan was not “narrowly tailored.” Richmond’s 
plan meets the tailoring requirements identified in this 
Court’s cases.

The limits imposed by the Fourth Circuit have no sound 
analytical foundation, contradict the persuasive and au­
thoritative holding joined by six Justices in Fullilove, 
and would upset the structure of remedial action by state 
and local governments that has been erected on the foun­
dation of Fullilove over almost a decade.



8

ARGUMENT

I. THE CONSTITUTION DOES NOT FORBID STATE 
AND LOCAL GOVERNMENTS FROM TAKING  
RACE-CONSCIOUS ACTION TO CURE DISCRIMI­
NATION AND ITS EFFECTS IN INDUSTRIES 
WITH WHICH THEY DO BUSINESS.

The Court of Appeals held Richmond’s set-aside plan 
unconstitutional because the Council lacked “a firm basis 
for believing that such action was required based on prior 
discrimination by the locality itself.”  822 F.2d at 1360. 
That Court believed that the plurality in Wygant required 
“prior discrimination by the government unit involved” 
before an affirmative action plan could be upheld. Id. at 
1358, quoting 476 U.S. at 274 (plurality) (emphasis 
added by Fourth Circuit). But Wygant imposed no such 
requirement. Furthermore, if such a requirement were 
appropriate, it is satisfied when state and local govern­
ments award contracts to a construction industry they 
know is characterized by discrimination.

A. State and Local Governments, Like Congress, May 
Constitutionally Undertake Affirmative Action to 
Cure the Effects of Past Discrimination Whether or 
Not They Have Participated in Such Discrimination.

This Court has recognized that both Congress and 
state governments have a substantial interest in remedy­
ing the continuing effects of discrimination.18 The Court, 13

13 E.g., Bakke, 438 U.S. at 307 (Powell, J.) ( “ The State certainly 
has a legitimate and substantial interest in ameliorating, or elimi­
nating'where feasible, the disabling effects of identified discrimina­
tion” ) ; id. at 369 (Brennan, White, Marshall, Blackmun, JJ.) ( “ a 
state government may adopt race-conscious programs if  the purpose 
of such programs is to remove the disparate racial impact its 
actions might otherwise have and if  there is reason to believe that 
the disparate impact is itself the product of past discrimination, 
whether its own or that of society at large” ) ; Fullilove, 448 U.S. at 
473 (plurality) (objective of ensuring that grantees electing to 
participate in Federal program “ would not employ procurement 
practices that Congress had decided might result in perpetuation 
of the effects of prior discrimination which had impaired or fore­



9

however, has not reached agreement on the kinds of dis­
crimination that justify use of race-conscious remedies. 
Among the Justices approving such remedies, Justice 
Powell has applied the most restrictive test. In his opin­
ions in Bakke and Fullilove, Justice Powell wrote that 
race-conscious remedies that aid some persons “ at the 
expense of other innocent individuals” can be justified 
only to cure the effects of “ identified discrimination” as 
opposed to “ ‘societal discrimination,’ an amorphous con­
cept of injury that may be ageless in its reach into the 
past” ; and that such remedies must be based on “judi­
cial, legislative, or administrative findings of constitu­
tional or statutory violations.” University of California 
Regents v. Bakke, 438 U.S. 265, 307 (1978); see Fulli­
love, 448 U.S. at 497-98 (Powell, J., concurring).14

Notably absent from Justice Powell’s formulation was 
any requirement that the “ identified discrimination” 
found by the authoritative body be attributable to the 
governmental unit adopting the remedy. Indeed, in Fulli­
love, Justice Powell found his “strict scrutiny” require­
ments satisfied by congressional findings~of actions by 
private parties and governmental units other than Con­
gress—actions that would, “ depending upon the identity 
of the discriminating party, violate Title VI of the Civil

closed access by minority businesses to public contracting oppor­
tunities” is within congressional pow er); id. at 497 (Powell, J.) 
(citing Bakke, 438 U.S. at 307); Paradise, 107 S.Ct. at 1064 
(plurality) ( “ It is now well established that government bodies, 
including courts, may constitutionally employ racial classifications 
essential to remedy unlawful treatment o f racial or ethnic groups 
subject to discrimination, [citations omitted].” ).

14 Justices Brennan, White, Marshall, and Blackmun and Chief 
Justice Burger all recognized that race-conscious remedies require 
some heightened scrutiny. Bakke, 438 U.S. at 358-62 (Brennan, 
White, Marshall, Blackmun, J J .) ; Fullilove, 448 U.S. at 480 (Burger, 
C. J . ) ; id. at 519 (Marshall, J .). These Justices took the position 
in those opinions, however, that the concerns requiring heightened 
scrutiny could be adequately taken into account without the special 
limitations imposed by Justice Powell.



10

Rights Act of 1964, 42 U.S.C. § 2000d et seq., or 42 U.S.C. 
§ 1981, or the Fourteenth Amendment.” 448 U.S. at 506. 
Justice Stewart complained in dissent that “there is no 
evidence that Congress has in the past engaged in racial 
discrimination in its disbursement of federal contracting 
funds.” Id. at 528.

In Wygant, Justice Powell applied his test to a collec­
tive bargaining agreement between a school board and a 
teachers’ union that required, in the event of layoffs, that 
more senior non-minority employees be laid off before 
minority employees. The purpose of this provision was 
to preserve the attainments of an affirmative action hir­
ing program. The lower courts, effectively by-passing the 
issue whether the school board had itself discriminated, 
upheld the lay-off provision on the basis of a need for 
minority “ role-models” on the faculty to remedy the ef­
fects of “ societal discrimination.”  476 U.S. at 274. The 
number of desired role-models was keyed to the percent­
age of minority students. Id. In rejecting the “role-model” 
justification, Justice Powell stated:

“This Court never has held that societal discrimi­
nation alone is sufficient to justify a racial classifi­
cation. Rather, the Court has insisted upon some 
showing of prior discrimination by the governmental 
unit involved before allowing limited use of racial 
classifications in order to remedy such discrimina­
tion.” Id.

The Fourth Circuit interpreted this language to add 
to the standard announced by Justice Powell in Bakke 
and applied in Fullilove a requirement that the “ iden­
tified discrimination” be discrimination by the govern­
mental unit undertaking the affirmative action. 822 F.2d 
at 1358. But neither Justice Powell, nor Justice O’Connor, 
who stated the new requirement less ambiguously,1® 15

15 Wygant, 476 U.S. at 288 (defining “ societal discrimination”  as 
discrimination not traceable to [the governmental unit’s] own 
actions” ).



11
acknowledged any intention to change the standard or 
made any attempt to distinguish Fullilove or to articu­
late what useful purpose was served by the additional 
limitation.

We believe the most likely explanation for the language 
in Wygant relied on by the Court of Appeals lies in the 
particular facts of that case. Discrimination by the school 
board itself was the most obvious, if not the only, “iden­
tifiable” discrimination in the materials before the Court. 
The Court simply did not have before it the situation that 
was presented in Fullilove and is presented by this case— 
identifiable discrimination by a party other than the gov­
ernmental unit adopting the remedy.16 17 18 The requirement 
of findings of “identified discrimination,” without the 
further limitation to discrimination by the governmental 
unit undertaking the plan, adequately satisfies Justice 
Powell’s concern that the “role model theory” and com­
parison of the percentages of minority faculty and stu­
dents were insufficient predicates for the race-conscious 
action.17

The language suggesting this new aspect of Justice 
Powell’s test was neither adopted by a majority of the 
Court in Wygant, nor necessary to the result under any 
of the opinions in that case.1'8 Nevertheless, as the opin­

16 Justice O’Connor’s discussion of Wygant in Johnson, 107 S.Ct. 
at 1462, contrasts “ societal discrimination”  with “ past and present 
discrimination by the employer”  (emphasis added). Since prime 
contracting firms are employers, Justice O’Connor’s test in Johnson 
could be satisfied under the facts here without discrimination by 
the City.

17 According to Justice Powell, the “ role model theory” has “ no 
logical stopping point” and would allow the Board to discriminate 
“ long past the point required by any legitimate remedial purposes.” 
He also believed it could be used to “ escape the obligation to rem­
edy” relevant statistical imbalances indicative o f discrimination. 
476 U.S. at 275-76.

18 Because of the status of the record and the proceedings 
below, all three opinions supporting the result rested not on the 
absence of a finding that the School Board had itself discriminated, 
but on the inappropriate nature o f the remedy. 476 U.S. at 278



12

ion below illustrates, the Wygant dicta has had an im­
pact on the courts of appeal.* 19

Neither the Fourth Circuit nor any other court over­
turning a set-aside plan on the basis of the Wygant dicta 
has explained how limiting States and localities to curing 
their own identified discrimination, as opposed to identi­
fied discrimination by others, would improve the balance 
between the competing interests involved. This Court 
should now reject that restriction.

The Fourth Circuit suggests that the limitation serves 
some purpose in preserving the “ line between remedial 
measures and political transfers,” 822 F.2d at 1360, but 
does not explain what, if any, additional protection the 
new limitation adds to the requirement that the discrimi­
nation to be cured be “ identified.” The Court’s justifica­
tion ignores identified discrimination by others and as­
sumes that the only alternative to discrimination by the 
locality itself is unidentified “ societal discrimination.”

The Fourth Circuit’s attempt to distinguish Fullilove 
on the basis of “ the special competence of Congress,” 822 
F.2d at 1360, turns the structure of the Constitution on 
its head. While Congress must find an affirmative basis 
for its authority in the Constitution,20 the Constitution 
leaves States free to exercise all powers subject to ex­
pressed limitations. Although Congress needed special 
authorization to pass legislation enforcing the equal pro­
tection guarantees of the Fourteenth Amendment, the

(plurality); id. at 293-94 (O’Connor, J., concurring in part and in 
judgm ent); id. at 294-95 (White, J., concurring in judgment).

19 See, e.g., Michigan Road Builders Ass’n, Inc. v. Milliken, 834 
F.2d 583, 589-90 (6th Cir. 1987); Assoc. Gen. Contr. of Cal. v. City 
& County of S.F., 813 F.2d 922, 929-30 (9th Cir. 1987).

20 This special need to explain the basis of federal authority 
accounted for extended discussion in Fullilove. 448 U.S. 473-80 
(plurality); id. at 499-502 (Powell, J .).





14

crimination by those in the construction industry. In the 
absence of such curative action, Richmond’s “ facially 
neutral” awards of public contracts inevitably perpetuate 
the effects of past discrimination. This Court in Fulli- 
love recognized the importance of eliminating such state 
involvement. Chief Justice Burger stated: “ [Congres­
sional authority extends beyond the prohibition of pur­
poseful discrimination to encompass state action that has 
discriminatory impact perpetuating the effects of past 
discrimination. South Carolina v. Katzenbach, 383 U.S. 
301 (1966) ; cf. City of Rome [v. United States, 446 U.S. 
156, 176-77 (1980)].”  448 U.S. at 477 (plurality). He 
emphasized that “ traditional procurement practices, when 
applied to minority businesses, could perpetuate the ef­
fects of prior discrimination,” and approved a minority 
set-aside program “to ensure that those businesses were 
not denied equal opportunity to participate in federal 
grants to state and local governments, which is one as­
pect of the equal protection of the laws.” Id. at 478.

Subsequent cases have recognized the States’ interest 
in ensuring public access to commercial opportunities— 
including those in the private sector— free from the 
taint of discrimination. Roberts v. United States Jaycees, 
468 U.S. 609 (1984) ; Board of Directors of Rotary In­
ternational V. Rotary Club of Duarte, 107 S.Ct. 1940 
(1987). States have an even greater interest in assur­
ing nondiscriminatory access to commercial opportunities 
they themselves provide.

A governmental entity that participates in “business 
as usual” by awarding public contracts with knowledge 
of discrimination in the industry performing them vio­
lates the Fourteenth Amendment. The entity under such 
circumstances is a “ joint participant in a pattern of 
racially discriminatory conduct. . . .” Ethridge v. Rhodes, 
268 F. Supp. 83, 87 (S.D. Ohio 1967). There the court 
granted an injunction against a state construction proj­
ect because minorities “will not be able to get jobs.”  Id.



15

Although it was the union that refused to refer blacks, 
the court rejected the state’s defense that there was no 
state action:

“ [W]hen a state has become a joint participant in 
a pattern of racially discriminatory conduct by plac­
ing itself in a position of interdependence with pri­
vate individuals acting in such a manner—that is, 
the proposed contractors acting under contract with 
unions that bar Negroes— this constitutes a type of 
‘state action’ proscribed by the Fourteenth Amend­
ment. Burton v. Wilmington Parking Authority, 
[365 U.S. 715 (1961)]. Thus, . . . where a state 
through its elected and appointed officials, under­
takes to perform essential governmental functions— 
herein, the construction of facilities for public edu­
cation— with the aid of private persons, it cannot 
avoid the responsibilities imposed on it by the Four­
teenth Amendment by merely ignoring or failing to 
perform them.” Id.

Other courts have accepted the “state action” theory ar­
ticulated in Ethridge. Nat. Black Police Ass’n, Inc. v. 
Velde, 712 F.2d 569, 580-83 (D.C. Cir. 1983) (federal 
agency had constitutional duty to terminate funds to local 
agencies known to be engaging in discrimination) ; Percy 
v. Brennan, 384 F. Supp. 800, 811-12, (S.D.N.Y. 1977) 
(government acquiescence in racially discriminatory prac­
tices by construction industry is a statutory and constitu­
tional violation).

Limiting the power of States and localities to remedy 
the effects of past discrimination to those situations 
where the entity has itself discriminated does not meas­
urably advance the goals of equal protection. This Court 
should recognize that, at the very least, governments are 
not barred from attempting to free their own public con­
tract awards from the taint of discrimination, whether 
their own or that of the industry that bids on the 
contracts.



16

II. THE FOURTH CIRCUIT IMPROPERLY HELD 
THAT RICHMOND HAD NO FIRM BASIS FOR 
BELIEVING REMEDIAL ACTION WAS REQUIRED.

We have considered the kinds of discrimination that 
can justify a set-aside plan. We now examine the sup­
port for a conclusion that discrimination of the requisite 
nature existed here.

The District Judge determined after review of the ap­
plicable law and the evidence before him that

“ the evidence before the City Council when it en­
acted the ordinance supports the conclusion that par­
ticipation of minority businesses in the Richmond 
area construction industry in general, and the City’s 
construction contracting in particular continues to 
be adversely affected by past discrimination.” J.S. 
Supp. App. 163-64.

Although the District Court unambiguously found dis­
crimination in the construction industry, id. at 163, its 
findings are less explicit with respect to intentional dis­
crimination by the City itself (aside from the City’s 
perpetuation of discrimination by others through its pub­
lic contracting). At the time of its decision, Wygant had 
not been decided and more precision on this issue was 
unnecessary.

The Fourth Circuit on remand held the plan uncon­
stitutional because the record failed to satisfy the re­
quirement, derived from the Wygant dicta, for evidence 
that the plan was adopted to cure the City’s own dis­
crimination. Rather than remanding to allow the District 
Court to consider the case under this new standard, the 
majority resolved the factual issues under that standard 
itself, without briefing by the parties. 822 F.2d at 1358- 
60. In contrast, the dissent concluded that “ the Richmond 
Council had a firm basis for believing it had engaged in 
past discrimination in awarding public contracts ” Id 
at 1364.

This Court’s determination of the kinds of discrimi­
nation that can justify a set-aside plan will frame the



17

relevant evidentiary issues. If this Court holds that 
Richmond was permitted to adopt a set-aside remedy to 
avoid perpetuating through award of public contracts the 
effects of past discrimination in the construction indus­
try, then the District Court’s finding quoted above should 
be adequate to support that purpose. That finding should 
be affirmed unless clearly erroneous. Alternatively, if this 
Court should require that the City itself discriminated, 
the Court would have to determine whether the District 
Court made an adequate finding on that issue. If so, that 
finding should be upheld unless clearly erroneous. If not, 
the case should be remanded to the District Court for 
reconsideration in light of the standard announced by the 
Court.

Regardless of how this Court resolves the issues in 
Part I, the Fourth Circuit’s treatment of the evidentiary 
issues was erroneous. The Court of Appeals violated three 
principles derived from this Court’s prior cases that 
should govern consideration of the evidentiary issues in 
this case: (1) to preserve the incentive for voluntary 
remedial action by a party in jeopardy of suits from op­
posing sides, contemporaneous self-incriminatory findings 
will not be required;2® (2) legislative action does not re­
quire record support of the formality necessary to sustain 
judicial or administrative action;23 24 and (3) the district

23 The adverse impact on incentives for voluntary action “ cannot 
. . . be justified by reference to the incremental value a contem­
poraneous findings requirement would have as an evidentiary safe­
guard” . Wygant, 476 U.S. at 289-91 (O’Connor, J., concurring). 
See Bakke, 438 U.S. at 364 (Brennan, White, Marshall, Blackmun, 
J J .) ; Johnson, 107 S.Ct. at 1450-51. Accordingly, the Court has 
required at most a “ firm basis for concluding that remedial action 
was appropriate.”  Wygant, 476 U.S. at 292-93 (O’Connor, J . ) ; id. 
at 277 (plurality).

24 Fullilove, 448 U.S. at 478 (plurality); id. at 502 (Powell, J.). 
Rather than “confin[ing] its vision to the facts and evidence ad­
duced by particular parties,”  a legislative body has the “broader 
mission to investigate and consider all facts and opinions that may 
be relevant to the resolution of an issue.”  Id. at 502-03. The “ in­
formation . . . expertise [and] experience”  of legislators are an



18
court plays the dominant role in finding facts.215

A. The District Court’s Finding that the City Had 
Adequate Support for Believing that Its Public 
Contracting Awards Were Perpetuating Effects of 
Discrimination Should Be Sustained.

If this Court holds that the Constitution permits Rich­
mond to take affirmative action either to cure the effects 
of discrimination in the construction industry or to pre­
vent the perpetuation of those effects through award by 
the City of public contracts, it will then have before it a 
clear finding by the District Court, supra, p. 16, that the 
City Council had sufficient support for either purpose. 
That finding is not “ clearly erroneous” ; indeed, it is 
clearly correct.

1. The Council had before it a striking statistical dis­
parity: from 1978 to 1983, less than 1% of city con­
struction contracts, a figure approaching “ the inexorable

“ appropriate source.”  Id. at 503. See Ohio Contractors Ass’n v. 
Keip, 713 F.2d 167, 171 (6th Cir. 1983) (legislators deemed to be 
aware of prior judicial findings, executive investigations and prior 
legislative work regarding discrimination); Southwest Washing­
ton Chap., Nat’l Elec. Contr. Assn. v. Pierce Cnty., 667 P.2d 1092, 
1100 and n.2 (Wash. 1983) (recognizing that the work o f local 
legislative bodies occurs at meetings and conferences but that local 
bodies “ cannot be expected to undertake the expense o f detailed 
recordkeeping comparable to Congress” ).

28 A district court’s determination whether or not discrimination 
occurred is a finding of fact subject to F. R. Civ. P. 52(a), and 
must be affirmed unless “ clearly erroneous”  or based on an incor­
rect legal standard. Pullman-Standard v. Swint, 456 U.S. 273, 289 
(19820 - When the district court either fails to make necessary 
findings or makes findings that are infirm because o f an error of 
law, a remand is “proper unless the record permits only one resolu­
tion of the factual issue.”  Id. at 291-92. A determination whether 
a legislative body had a sufficient basis for believing discrimination 
justifying affirmative action had occurred differs from a court’s 
determination that discrimination occurred. But the district court’s 
role is essentially the same— weighing the evidence according to 
appropriate legal standards— and the same institutional considera­
tions apply. See Anderson V. Bessemer City, 470 U.S. 564, 574-75 
(1985).



19

zero,” 28 were awarded to minority contractors in a city 
with a 50% minority population. The Fourth Circuit re­
jected this statistical evidence, characterizing the dispar­
ity as “ spurious” : “ [t]he appropriate comparison is be­
tween the number of minority contracts and the number 
of minority contractors . . . 822 F.2d at 1359 (em­
phasis in original).

Wygant, upon which the Fourth Circuit relied heavily, 
is readily distinguishable. There, this Court rejected the 
statistical relationship between minority teachers and 
minority students as a basis for a plan protecting minor­
ities from lay-offs. As this Court recognized, that statis­
tical relationship was not relevant to whether there had 
been discrimination against minority teachers. 476 U.S. 
at 274-76.26 27

By contrast, a comparison of the percentage of public 
contracts awarded to minorities with the percentage of 
minorities in the general population is relevant to a 
determination whether discrimination has occurred. Com­
parisons to groups narrower than the general population 
may as a general rule be preferable as evidence of dis­
crimination. Nevertheless, where racial discrimination at 
the “ entry level” has thwarted the development of minor­
ity businesses or prevented minorities from acquiring 
skills, this Court has approved the use of general popula­
tion statistics as a proxy for the number of minorities 
that would be present in the more narrowly defined pop­
ulation but for the effects of present and past discrimi­
nation. See Teamsters v. United States, 431 U.S. 324,

26 Johnson, 107 S.Ct. at 1465 (O’Connor, J .), citing Teamsters V. 
United States, 431 U.S. 324, 342, n.23 (1977).

27 Papers before this Court in Wygant indicated that in 1972, 
the percentage o f minority students, 16%, was dramatically higher 
than the percentage of minorities in the general community popula­
tion, about 4%. Minority teachers in 1972 represented 8% of the 
faculty and thus exceeded the minority representation in the com­
munity. Brief of amicus Anti-Defamation League in Wygant, pp. 
i, 12-13.



20

339-40 & n. 20 (1977); Steelworkers v. Weber, 443 U.S. 
193, 198-99 (1979) ; id. at 215 (Blackmun, J., concur­
ring) ; Johnson v. Transp. Agency, Santa Clara Cty., Cal., 
107 S. Ct. 1442, 1450 (1987), id. at 1462-1463 (O’Connor, 
J., concurring) ; United States v. Paradise, 107 S. Ct. 
1053, 1065 & n. 19 (plurality). Thus, in Fullilove itself, 
this Court accepted Congress’ comparison of the percent­
age of contracts awarded minority contractors, 1%, with 
the percentage of minorities in the general population, 15- 
18%, as “ evidence of a long history of marked disparity 
in the percentage of public contracts awarded to minority 
business enterprises.” 448 U.S. at 478 (plurality).

This Court has accordingly avoided the “gross anom­
aly” pointed out by the dissent below— “a proof scheme 
requiring a comparison of the percentage of contracts 
awarded with this small qualified pool of minority con­
tractors would ensure the continuation of a systematic 
fait accompli, perpetuating a qualified minority contrac­
tor pool [that reflects discriminatory barriers to entry].” 
822 F.2d at 1365 & n .ll. See Johnson*, 107 S.Ct. at 1462 
(O’Connor, J .)S8

Similar concerns have led the Office of Federal Con­
tracts Compliance Programs ( “OFCCP” ) of the U.S. De­
partment of Labor, the agency charged with assuring 
non-discrimination by federal contractors, to use the per­
centage of minorities in the general population as the 
basis for setting affirmative action employment goals to 
be met by federal construction contractors. 45 Fed. Reg. 
65976 et seq. (Oct. 3, 1980). Various contractors ob-

28 Other communities have used comparisons with the minority 
population in assessing the need for remedial set-asides. See, e.g., 
South Fla. Chap. v. Metropolitan Dade County, Fla., 723 F.2d 846, 
855 (11th Cir. 1984) (citing disparity between percentage of black 
county contractors (1% ) and the county’s general black population 
(1 7 % )) ; Schmidt V. Oakland Unified School Dist., 662 F.2d at 559 
( “ statistical disparity between the sizeable minority population of 
the community and the meager extent”  of minority participation in 
public contracts).



21

jected to establishment of goals on an industry-wide 
basis reflecting general population statistics, and made 
arguments similar to those accepted by the Fourth 
Circuit:

“ Contractors contended that the minority goals 
should be by individual trade/craft rather than a 
single goal for all crafts because to do otherwise 
ignores the unavailability of minority construction 
workers, both skilled and unskilled, and makes it 
virtually impossible for contractors to meet the goal.” 
Id. at 65983.

The OFCCP rejected this argument, relying on Weber:

“the single goal concept is predicated upon the prop­
osition that had it not been for the long-standing 
exclusion of minorities from the skilled construction 
crafts, minorities would be represented in those 
crafts at least to the extent of their representation 
in the total labor force in a given geographical area. 
(See United States Workers of America v. Weber, 
443 U.S. 193).”  Id.

2. The District Court, as did the Council, weighed as 
well other evidence indicating discrimination in the con­
struction industry. The Court of Appeals characterized 
that other evidence as “ meager,” consisting of “ some con- 
clusory and highly general statements.” 822 F.2d at 
1358. This characterization exemplifies the kind of 
overly-technical factfinding requirements condemned by 
this Court in Fullilove. 448 U.S. at 478-80 (plurality); 
id. at 502-03 (Powell, J.).129

As described in detail in the Statement, supra, pp. 2-5, 
the Council’s framing and adoption of the set-aside plan

80 See also Wygant, 476 U.S. at 289-91 (O’Connor, J ). It is re­
vealing to compare Judge Wilkinson’s majority opinion on remand 
with his dissent, which is more explicit about requiring “ detailed 
factual findings.”  E.g., 779 F.2d at 204. While the later opinion 
acknowledges the principles noted at pp. 17-18, supra, 822 F.2d at 
1359, its approach to the record belies its words.



22

were informed by the hearing proceedings30 31 and by the 
studies of Council members and city administrators and 
their wealth of experience with the extent and effects of 
prior segregation and discrimination in Richmond. This 
experience and evidence either were not considered or 
were rejected by the Fourth Circuit as “nearly weight­
less.” 822 F.2d at 1359.

In evaluating the Council’s action, the District Court 
took judicial notice of the congressional findings of dis­
crimination in the construction industry detailed by this 
court in Fullilove. J.S. Supp. App. 165-166.81

3. In sum, there is more than adequate support for 
the District Court’s finding that Richmond had suf­
ficient evidence to believe its action was necessary to cure 
the effects of discrimination in the construction industry, 
and, in particular, the perpetuation of those effects in the 
awarding of public contracts.

B. The Council Had a Reasonable Basis To Believe 
that the City Itself Had Discriminated.

If this Court should hold that in order to justify the 
set-aside plan, Richmond must demonstrate that there 
was a reasonable basis for believing that the City itself 
had discriminated, the existence of the requisite evidence 
and finding is not so clear. Two factors explain the am­

30 Opponents o f the ordinance had reviewed the proposed setaside 
and prepared for the Council debate in advance. Two construction 
industry organizations had retained counsel from a prominent 
Richmond law firm to present their case to the Council. J.A. 19.

31 Pervasive discrimination and racial exclusion in the construc­
tion industry have been so well documented by courts that this 
Court has found them to be a proper subject for judicial notice. 
Weber, 443 U.S. at 198 & n .l ( “ Judicial findings of exclusion from 
crafts on racial grounds are so numerous as to make such exclusion 
a proper subject for judicial notice.” ). See also Grant V. Bethlehem 
Steel Corp., 635 F.2d 1007 (2d Cir. 1980); Local Union No. 85 of 
IBEW  V. Hartford, 625 F.2d 416 (2d Cir. 1980); Denton v. Boiler­
makers, 650 F.Supp. 1151 (D. Mass. 1986).



23

biguity of the existing record and the District Court’s 
findings on the issue of the City’s own discrimination: 
members of the Council were reluctant to incriminate 
themselves or the City.32 33 and the precedents available to 
the Council and the District Court did not require any 
finding that the City itself had discriminated in order to 
justify such a program. See, supra, pp. 8-15.

Nevertheless, the District Court’s finding that “ the 
City’s construction contracting in particular continues to 
be adversely affected by past discrimination,” J.S. Supp. 
App. 164, could be read to mean that the City itself had 
discriminated. The dissent below so concluded.88 To find 
that discrimination by the City itself played no role in 
the past exclusion of minority contractors from public

32 One Council member expressed fear that adoption of a remedial 
program would expose the City to liability for past discrimination 
(J.A. 15):

“ CITY ATTORNEY: No, I don’t feel that we’re exposing
ourselves to liability, but the Supreme Court, when it approved 
the ten percent minority set-aside, specifically said that the 
justification was that it was remedial. We’ve reviewed the 
statistics of the construction contracts, and it certainly justifies 
that. We have tried to tailor this ordinance as closely to the 
federal ordinance, which was— or federal statute, which was 
upheld by the Supreme Court, as possible. And, yes, it is 
remedial. I don’t think that’s exposing us to any liability for 
prior acts.

“ COUNCIL MEMBER: . . .  Doesn’t the word remedial mean
to make special efforts at the moment and in the near future 
to make up for prior deficiencies?

“ CITY ATTORNEY: Yes. In the term remedial, we’re not
just implying that the City was intentionally discriminatory in 
the past. What we’re saying is there are statistics about the 
number of minorities that were awarded contracts in the past 
which would justify the remedial aspects of the legislation. 
We’re not saying there was intentional discrimination in any 
particular case. . . . And they allowed more use of broader 
statistics than they do in a lot of cases. I’m not saying that 
we have discriminated in any individual case in the past.”

33 “ The conclusions that emerged from the Council’s debate con­
cerned the City’s previous discrete discrimination in awarding con­
tracts for public construction projects,”  822 F,2d at 1366.



24

contracts would require closing one’s eyes to the history 
of Richmond’s pervasive purposeful discrimination that 
was all too familiar to the Council members.34

Should the Court conclude that the District Court’s 
findings cannot be read to support the City’s belief in 
its own discrimination, the proper course would be to 
remand to the District Court for appropriate findings un­
der the new standard imposed by the Court. See Pull­
man-Standard v. Swint, 456 U.S. 273, 291-92 (1982).

III. THE RICHMOND PLAN IS NARROWLY TAILORED  
TO ACHIEVE ITS REMEDIAL GOAL OF ENDING 
RACIAL EXCLUSION IN PUBLIC CONTRACTING.

We now consider the third criterion for evaluating the 
constitutionality of Richmond’s set-aside ordinance: the 
requirement that the plan be “narrowly tailored to the 
achievement of [its] goal.”  Fullilove, 448 U.S. at 480 
(plurality). In his concurrence in Fullilove, Justice 
Powell cautioned that this requirement does not restrict a 
legislature to the “ least restrictive” alternative. Id. at 
508. Rather, the legislature’s “ choice of a remedy should 
be upheld . . .  if the means selected are equitable and 
reasonably necessary to the redress of identified dis­
crimination.” Id. at 510. Justice Powell described the 
measure of discretion accorded Congress “ to choose a 
suitable remedy for the redress of racial discrimination” 
as similar to judicial discretion in choice of remedies— a 
balancing process left to the sound discretion of the trial 
court. Id. at 508, citing Franks v. Bowman Transp. Co., 
424 U.S. 747, 794 (1976) (Powell, J. concurring in part 
and dissenting in part). See also Paradise, 107 S.Ct. at 
1073-74 (plurality).

This Court has generally considered the five factors, 
originally identified by Justice Powell, in deciding 
whether a remedy is properly tailored: “ (i) the efficacy

34 See City of Richmond V. United States, 422 U.S. 358 (1975); 
Bradley v. School Board, 462 F.2d 1058 (4th Cir. 1972); aff’d by 
an equally divided Court, 412 U.S. 92 (1973) (per curiam).



25

of alternative remedies . . ., (ii) the planned duration 
of the remedy . . (iii) “ the percentage chosen for the 
set-aside . . (iv) “the availability of waiver . . .,”  and 
(v) “ the effect of the set aside upon innocent third par­
ties.” Fullilove, 448 U.S. at 510-14. See Paradise, 107 
S.Ct. at 1067; Johnson, supra. The Fourth Circuit mis­
applied these factors in reaching its alternative holding 
that Richmond’s program was not adequately tailored.

A. The City Council Considered Alternatives.

This Court in Fullilove indicated that Congress’ ex­
perience with other unsuccessful remedies demonstrated 
that it had adequately considered alternatives.

“ By the time Congress enacted [the set-aside] in 
1977, it knew that other remedies had failed to 
ameliorate the effects of racial discrimination in the 
construction industry. Although the problem had 
been addressed by antidiscrimination legislation, ex­
ecutive action to remedy employment discrimination 
in the construction industry, and federal aid to mi­
nority businesses, the fact remained that minority 
contractors were receiving less than T% of federal 
contracts.” 448 U.S. at 511 (Powell, J.).

Similarly, the Richmond Council had tried an anti- 
discrimination provision. In place since 1975, this prohi­
bition on discrimination in award of public contracts had 
not affected the barriers to entry preventing minority 
participation in public contracting. On the other hand, 
the Council was advised that a set-aside used in the 
community development block grant program had had 
more favorable results. See pp. 4-5, supra. The record 
shows that, based on their past experience, the council 
members selected a remedy they believed held more prom­
ise of success than other alternatives.3* 35

35 Because the set-aside effectively requires non-minority con­
tractors to work with MBEs, it is the only alternative which may 
overcome “ lack of confidence in minority business ability or racial



26

B. The Set-Aside Program Is Limited in Duration.

The set-aside adopted by Richmond is a temporary 
measure, expiring on June 30, 1988, five years after it 
became effective. J.S. Supp. App. 247-48. The Fourth 
Circuit treated the automatic expiration as something 
less than automatic— “ [w]hether the Richmond plan will 
be retired or renewed in 1988 is . . . nothing more than 
speculation.” 822 F.2d at 1361.

The duration factor is used to guarantee that the 
program in question is a temporary remedy to cure the 
effects of past discrimination rather than a permanent 
mechanism to maintain racial balance. In Johnson and 
Weber, this Court approved affirmative action plans as 
remedial and temporary in operation even though the 
plans contained no specific termination dates. Johnson, 
107 S.Ct. at 1456; Weber, 433 U.S. at 208-09. By con­
trast, the Richmond plan is explicitly temporary. See p. 
4, supra.

C. The Council Selected a Reasonable Figure for the 
Set-Aside Percentage.

Richmond established a 30% set-aside goal based on a 
50% general minority population. The Fourth Circuit 
criticized the 30% goal as arbitrary. 822 F.2d at 1360. 
This criticism is unfounded.36

_ In establishing the 30% goal, Richmond applied Jus­
tice Powell’s approach in Fullilove to the local circum­
stances. Justice Powell approved “ [t]he choice of a 10% 
set-aside [falling] roughly halfway between the present 
percentage of minority contractors and the percentage of

prejudice and misconceptions.” Constructors Assoc, o f Western Pa. 
V. Kreps, 441 F. Supp. 936, 953 (W.D. Pa. 1977).

36 Judge Sprouse, dissenting, said that “ judging the set-aside 
percentage by referring to the small proportion of existing MBEs 
m the economy would perpetuate rather than alleviate past dis­
crimination.”  822 F.2d at 1367.



27

minority group members in the Nation.” 448 U.S. at 
513-14. Although the specific number of minority con­
tractors in Richmond is not contained in the record, the 
City Council was informed by the representatives of the 
construction industry who testified on the plan that there 
were few. J.A. 27, 33-36, 40, 44. The 30% figure falls 
roughly halfway between the minority participation rate, 
below 1%, and the minority population of 50%.137

Buttressing the reasonableness of the percentage chosen 
by the Council is the related action of the OFCCP which 
set employment goals for the construction industry sub­
stantially equal to the minority population percentage. 
See p. 21, supra.

D. The Richmond Plan Provides for an Adequate 
Waiver.

In order to assure that its plan was flexible, Richmond 
incorporated a waiver provision.37 38 A non-minority con­
tractor may obtain a waiver of the 30% subcontracting 
requirement on a showing that despite best efforts there 
are no minority subcontractors available or willing to 
participate. The District Court, applying Fullilove found 
the waiver sufficient to protect against rigid application. 
J.S. Supp. App. 175-93.

37 See Southwest Washington Chav. v. Pierce Cnty., supra, 667 
P.2d at 1101 (approved MBE goal “ slightly less than the minority 
population in Pierce County” ) ; Schmidt v. Oakland Unified School 
Dist., supra, 662 F.2d at 559 (approving 25% MBE goal where city 
population was 34.5% minority).

88 The standard for waiver is as follows :
“ . . . it must be shown that every feasible attempt has been 
made to comply, and it must be demonstrated that sufficient, 
relevant, qualified Minority Business Enterprises (which can 
perform subcontracts or furnish supplies specified in the con­
tract bid) are unavailable or unwilling to participate in the 
contract to enable meeting the 30% MBE goal.”  J.S. Supp. 
App. at 68.



2 8

The Fourth Circuit rejected the waiver because it is 
limited to “ ‘exceptional circumstances/ ” and is a matter 
of “administrative discretion” and because the prime 
contractor bears the “burden of obtaining the waiver.” 
822 F,2d at 1361. The Richmond “waiver provisions were 
purposely drawn to parallel those approved in Fullilove,”  
822 F.2d at 1367 (Sprouse, J., dissenting), and the 
waiver' approved in Fullilove was also available only 
“under exceptional circumstances.” Compare J.S. Supp. 
App. 67 ivith 448 U.S. at 494. In Fullilove, as here, the 
waiver decision was an exercise of administrative dis­
cretion. Id. at 468-72. Finally, in each case the entity re­
sponsible for complying with the percentage set-aside 
(i.e., the State or locality in Fullilove and the contractor 
here) is the entity that may seek the waiver. J.S. Supp. 
App. at 189. In sum, the Fullilove standard was followed 
and the contractors are given “the opportunity to demon­
strate that their best efforts” will not achieve the “target 
for minority firm participation.” 448 U.S. at 488 (plu­
rality) .

E. The Burden on Non-Minorities Is Consistent with 
Fundamental Fairness.

Inherent in the set-aside concept is the “ [f]ailure of 
non-minority firms to receive certain contracts . . ., an in­
cidental consequence of the program.” Id, at 484 (plu­
rality). This burden is to be assessed to determine 
whether “the effect of the set-aside is limited and so 
widely dispersed that its use is consistent with funda­
mental fairness.” Fullilove, Id. at 515; Wygant, 476 
U.S. at 282-83. The Fourth Circuit erroneously con­
cluded that the Richmond set-aside “ imposes an overbroad 
competitive burden on non-minority businesses.” 822 F.2d 
at 1361.

The burden imposed by the Richmond set-aside is lim­
ited in scope and duration. The set-aside applies only to 
subcontracts and not to prime contracts. Since it applies 
to all non-minority contractors, the burden is shared by



29

many. Those who share this limited burden inevitably 
include many who benefitted from prior discrimination. 
Because these contracts represent only a fraction of con­
struction projects, the set-aside affects “ only one of sev­
eral opportunities.” m Wygant, 476 U.S. at 283.

Finally, this set-aside, unlike the lay-offs disapproved 
in Wygant, does not disturb any “ firmly rooted expecta­
tion.” Johnson, 107 S. Ct. at 1455.

In sum, review of the Richmond set-aside plan in light 
of the five factors articulated by this Court compels the 
conclusion that the ordinance was narrowly tailored to 
achieve its remedial purpose.

39 Using- census data, the City in its brief to this Court has 
calculated that city projects accounted for only 10% o f all con­
struction contracts during 1978 to 1983. The set-aside thus affects 
only three percent of local contracting opportunities. Because non­
minorities can participate as a 49% owner in an MBE or can form 
a 51%-49% joint venture with an MBE and still receive a set- 
aside, the opportunities affected are reduced even further.



30

CONCLUSION

For the reasons stated above, we urge the Court to 
reverse the decision below of the Court of Appeals for 
the Fourth Circuit and uphold the Richmond Minority 
Business Utilization Plan as constitutional.

Conrad K. Harper 
Stuart J. Land 

Co-Chairmen 
Norman Redlich 

Trustee
William L. Robinson 
Judith A. Winston 

Lawyers’ Committee for 
Civil Rights Under Law 

1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

A ntonia Hernandez 
Richard E. Larson 

Mexican-A merican 
Legal Defense and 
Educational Fund 

634 South Spring Street 
Los Angeles, California 90014 
(213) 629-2512

Attorneys for

Respectfully submitted,

Stephen J. Pollak *
James R. Bird 
Paula A. Sweeney 

Shea & Gardner 
1800 Massachusetts Ave., N.W. 
Washington, D.C. 20036 
(202) 828-2000

Grover Hankins 
Joyce Knox 

National A ssociation 
for the A dvancement 
of Colored People 

4805 Good Hope Drive 
Baltimore, Maryland 21215 
(301) 243-9191

Judith L. Lichtman 
Claudia W ithers 

Women’s Legal 
Defense Fund 

2000 P Street, N.W. 
Washington, D.C. 20036 
(202) 887-0364 

Amici Curiae
* Counsel o f Record

April 21,1988



APPENDICES



la

Description of Amici Organizations

The Lawyers’ Committee for Civil Rights Under Law 
is a nonprofit organization established in 1963 at the 
request of the President of the United States to involve 
leading members of the bar throughout the country in a 
national effort to insure civil rights to all Americans. 
Through its national office in Washington, D.C., and its 
local Lawyers’ Committees such as the Washington, D.C. 
Lawyers’ Committee for Civil Rights Under Law, the 
organization has over the past 25 years enlisted the serv­
ices of thousands of members of the private bar in ad­
dressing the legal problems of minorities and the poor in 
voting, education, employment, housing, municipal serv­
ices, the administration of justice, and law enforcement.

The Mexican-American Legal Defense and Educational 
Fund is a national civil rights organization founded in 
1967. Its principal objective is to secure, through litiga­
tion and education, the civil rights of Hispanics in the 
United States.

The NOW Legal Defense and Education Fund (“ NOW 
LDEF” ) is a nonprofit civil rights organization that per­
forms a broad range of legal and educational services 
nationally in support of women’s efforts to eliminate sex- 
based discrimination and secure equal rights. NOW 
LDEF was established in 1970 by leaders of the National 
Organization for Women. In seeking to eliminate bar­
riers that deny women economic opportunities, NOW 
LDEF has participated in numerous cases to secure full 
enforcement of laws prohibiting employment discrimina­
tion, including cases before this Court involving chal­
lenges to the use of affirmative action remedies to achieve 
equal employment opportunity.

The National Association for the Advancement of 
Colored People is a New York nonprofit membership cor­

APPENDIX NO. 1



2a

poration founded in 1909. The principal objective of the 
NAACP is to ensure the political, educational, social and 
economic equality of minority group citizens and to 
achieve equality of rights and eliminate race prejudice 
among the citizens of the United States. The General 
Counsel’s office represents the 1800 branches in litigation 
involving voting, housing, school desegregation and em­
ployment discrimination.

The Women’s Legal Defense Fund (“WLDF” ) is a 
nonprofit, tax-exempt membership organization founded 
in 1971 to provide legal assistance to women who have 
been discriminated against on the basis of sex. The Fund 
devotes a major portion of its resources to combatting 
sex discrimination in employment, through litigation of 
significant employment discrimination cases, operation of 
an employment discrimination counselling program, pub­
lic education, and advocacy before the EEOC and other 
federal agencies charged with enforcement of equal op­
portunity laws. In its pursuit of equality for both women 
and minorities, WLDF is committed to the use of af­
firmative action to achieve equal employment opportuni­
ties.



3a

APPENDIX NO. 2

Human Rights Code of the City of Richmond 

Sec. 17-1. Short title.

The chapter shall be known and may be cited as the 
“ Human Rights Code of the City of Richmond, Virginia.” 
(Code 1975, § 17.1-1)

Sec. 17-2. Policy.

The city council declares that each citizen deserves to 
be accepted on the basis of his ability, qualifications and 
responsibility. In pursuing that goal that council de­
clares :

(1) That, except as hereinafter provided, it is and 
shall be the policy of the city, in the exercise 
of its police power and all other powers it may 
possess, to protect the safety, health, peace, 
good order, comfort, convenience, morals and 
welfare of its inhabitants, to assure all quali­
fied persons the opportunity to obtain housing, 
credit, city contracts, and city employment, 
without regard to race, color, sex, religion, na­
tional origin, marital status, age, or handicap 
due to physical, mental, or developmental 
causes hereafter referred to as protected 
classes;

(2) That to carry out these goals and policies it is 
and shall be the policy of the city generally, ex­
cept as hereinafter provided, to prohibit dis­
crimination against the protected classes in 
housing, credit, city contracts and city employ­
ment.

(Code 1975, § 17.1-2)



4a

Sec. 17-3. Definitions.

The following words and phrases, when used in this 
chapter, shall have the meanings respectively ascribed to 
them:

Affirmative action employment program means a posi­
tive program for city employees and city contracts de­
signed to insure that a good faith effort will be made to 
employ qualified applicants without regard to race, sex, 
color, religion, and national origin. Such program, to be 
developed by the city manager and approved by city 
council, and monitored by the human relations commis­
sion, shall include, where applicable but shall not be lim­
ited to, the following: recruitment and recruitment ad­
vertising, selection and selection criteria, upgrading, pro­
motion, demotion or transfer, lay-off or termination, 
rates of pay or other forms of compensation, other terms 
or conditions of employment and selection for training, 
including apprenticeship; and shall include realistic and 
attainable goals, methodology and timetable for imple­
mentation of the program.

*  *  *  *

Sec. 17-5. City employment practices.

(a) Except as provided in subsection (b) of this sec­
tion, it shall be unlawful:

(1) For the city to fail or refuse to hire or to dis­
charge any qualified person or otherwise to 
discriminate against any qualified person with 
respect to hiring, training, tenure, compensa­
tion, promotion, discharge or any other terms, 
conditions or privileges directly or indirectly 
related to employment for the sole reason that 
he or she is a member of a protected class;

(2) For the city to publish or circulate, or to cause 
to be published or circulated with intent to cir­
cumvent the spirit and purpose of this section,



5a

any notice or advertisement relating to employ­
ment or membership which indicates any pref­
erence, limitation, or discrimination based on 
being a member of a protected class or an in­
tention to make any such preference, limita­
tion, or discrimination;

(3) For the city to fail or refuse to accept, regis­
ter, classify properly or refer for employment 
or otherwise to discriminate against any quali­
fied person because of being a member of a 
protected class;
For the city to discriminate against any quali­
fied person because he has opposed any prac­
tices forbidden by this section or because he has 
made a complaint or testified or assisted in any 
manner in any investigation or proceeding 
under this chapter relating to the provisions 
of this section.

(b) Nothing in subsection (a) of this section shall 
apply to:

(1) Any type of employment, occupation or posi­
tion where the job involves a bone fide occupa­
tional qualification requiring the employment of 
a person or persons of a particular sex, age, or 
physical and mental qualification where such 
qualifications is reasonably necessary to the 
normal operation of that department, agency 
or program.

(2) Any employment practice based upon appli­
cable laws or regulations established by the 
United States or any agency hereof, the state, 
or any political subdivision of the state having 
jurisdiction in the city;

(3) The city terminating employment or otherwise 
taking action concerning a person under the



6a

terms of the city’s personnel manual concerning 
retirement, pension, or disability plan for 
group or employee insurance plan;

(4) Agreements or contracts concerning contribu­
tion rates for the city or its employees for 
group insurance, when such contribution rate 
can be affected by marital status or number of 
dependents;

(5) Any city employment program providing serv­
ices only to elderly persons or to minors; pro­
vided, however, that no discrimination be made 
based on race, color, sex, religion, ancestry, 
national origin, marital status, or handicap due 
to physical, mental or developmental causes.

(c) The city manager shall establish an affirmative 
action employment program as defined in section 17-3 for 
city employees. The human relations commission shall re­
view this program and shall report to city council regard­
ing the status of same, at least twice a year.
(Code 1975, § 17.1-5)

Sec. 17-6. City contracts.

(a) Any contract entered into by the city under which 
the city expends ten thousand dollars ($10,000.00) or 
more of its funds shall include the following provisions 
for equal employment opportunity:

(1) The contractor agrees not to discriminate 
against any qualified employee or applicant for 
employment for the sole reason that he is a 
member of a protected class, except as is other­
wise provided by law. In addition, once pro­
tected class members are employed, they will 
be treated during employment, without regard 
to their membership in such protected class. As 
used herein, the word “treated” shall include,



7a

without limitation, the following: recruited,
whether by advertising or other means; com­
pensated, whether in the form of rates of pay 
or other forms of compensation; selected for 
training, including apprenticeship; promoted; 
upgraded; demoted; downgraded; transferred; 
laid off; and terminated.

(2) The contractor agrees to implement an affirma­
tive action employment program as defined in 
section 17-3.

(3) The contractor agrees during the life of any 
contract to include in all solicitations or adver­
tisements for employees placed by or in behalf 
of the contractor the words “Equal Opportunity 
Employer” or a symbol, approved by the com­
mission meaning same.

(4) The contractor agrees during the life of a con­
tract to notify each labor organization or repre­
sentative of employees with which the con­
tractor is bound by a collective bargaining 
agreement or other contract of the contractor’s 
obligations pursuant to this section.

(5) The contractor agrees during the life of any 
contract to submit to the city’s human relation 
commission upon request, but at least annually, 
a copy of the regular equal employment op­
portunity reports (EEO-1) which the contrac­
tor is required to submit to the equal employ­
ment opportunity commission; provided, how­
ever, that the executive director may request 
more frequent special reports of particular 
contractors provided the commission has found 
such contractors to have previously violated 
any provision of this chapter. If the contractor 
is not required to file EEO-1 forms with the 
equal opportunity commission, he shall file this



8a

information on a form to be provided by the 
human relations commission.

(6) The contractor agrees during the life of any 
contract to post in conspicuous places, avail­
able to employees and applicants for employ­
ment, notices setting forth the provisions of 
this section and/or notices required to be posted 
by Title VII of the Civil Rights Act of 1964, 
as amended.

(7) The contractor agrees to include the provisions 
of subsections (1) through (6) above in every 
subcontract with persons meeting the definition 
of subcontractor contained in section 17-3 so 
that such provisions will be binding upon each 
subcontractor.

(8) The contractor agrees that if the contractor’s 
noncompliance with any provision of this equal 
employment opportunity clause, upon a finding 
of such noncompliance by the city’s human re­
lations commission and certification of such 
finding to the city manager, the city manager 
may terminate or suspend or not renew, in 
whole or in part, this contract.

(b) Contract compliance requirements:
(1) All notices to prospective bidders published on 

behalf of the city shall include as part of the 
contract specifications the condition that all 
bidders will be required to comply with the 
“ Richmond Human Rights Ordinance” regard­
ing equal employment opportunity.

(2) All reports required herein shall be submitted 
in duplicate to the department of general serv­
ices, unless otherwise directed herein.

(3) Each bidder shall file with the department of 
general services as part of bid documents cop­



9a

ies for the preceding two (2) years of the regu­
lar equal employment opportunity reports 
(EEO-1) which the contractor has been re­
quired to submit to the equal employment op­
portunity commission. If the contractor is not 
required to file EEO-1 forms with the equal 
employment opportunity commission, he or she 
shall file this information on a form to be pro­
vided by the human relations commission.

(4) Following receipt from the department of gen­
eral services of the employment information 
submitted by bidder, the commission on human 
relations shall review and determine whether 
or not the successful bidder has complied with 
this ordinance and shall submit the commis­
sion’s determination and recommendation 
thereon to the city manager, director of the 
department involved, and the department of 
general services. At the request of any bidder, 
contractor or subcontractor, the human rela­
tions commission shall provide advice and as­
sistance regarding methods for adopting and 
implementing an affirmative action employment 
program or regarding any other aspect of com­
pliance with this section.

(c) The executive director of the commission on 
human relations is hereby authorized to:

(1) Review the performance of any contractor who 
has a contract with the city with respect to the 
provisions of subsection ( a ) ;

(2) Request equal employment opportunity reports 
from any contractor pursuant to subsection 
( a ) (5);

(3) Upon a finding of probable cause to believe a 
violation of any provision of subsection (a)



10a

has occurred, file a complaint with the com­
mission pursuant to section 17-10.

(d) The commission on human relations is hereby 
authorized to:

(1) Review any complaint in accordance with pro­
cedures set forth in this chapter;

(2) Upon a finding of the commission that any con­
tractor is in noncompliance with the provisions 
of subsection (a), the commission shall report 
such findings to the city manager, department 
of general services, and the contracting depart­
ment.

(e) The city manager shall terminate or suspend or 
not renew, in whole or in part, as appropriate, the con­
tractual relationship with the contractor; further pro­
vided, however, that the city manager may defer tem­
porarily a suspension or termination if he finds that 
such suspension or termination may disrupt or curtail a 
vital public service, or would otherwise not be in the best 
interest of the city, in which case the city manager shall 
indicate a certain date when the relationship will be sus­
pended or terminated, or when the practice complained 
about will be remedied.
(Code 1975, § 17.1-6)

*  *  *  *