Richmond v JA Croson Company Brief Appellant

    In  T he

î upran? (Emtrt nf %  InitPiJ BtatvB
October T erm , 1987

City  of R ichm ond ,
Appellant,

V.

J.A. Croson Com pan y ,
Appellee.

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

BRIEF OF APPELLANT CITY OF RICHMOND

O f  C o u n se l :

J o h n  P a yto n  *
M a rk  S. H ersh
P eter  L. Ka h n  

W il m e r , Cutler  & P ickering  
2445 “ M ”  Street, N .W . 
W ash ington , D.C. 20037 
(2 0 2 ) 663-6000

Drew St . J. Carneal 
C ity A ttorney

M ic h a e l  L . Sarah an  
A ssistant C ity A ttorn ey

M ichael  K. Ja ck so n  
A ssistan t C ity A ttorn ey

John H. Pickering Room 300, City Hall
W ilmer, Cutler & Pickering 900 E. Broad Street 
2445 “ M” Street, N .W . Richmond, Virginia 23219
Washington, D.C. 20037 (804) 780-7940

April 21 ,1988

A t t o r n e y s  f o r  A p p e lla n t  

* Counsel of Record

W ils o n  - Epcs  Pr in t in g  Co . .  In c . - 7 8 9 -0 0 9 6  . W a s h in g t o n . D .C . 20001



TABLE OF CONTENTS

OPINIONS BELOW .................................................................  1

JURISDICTION.......................................................................... 2

CONSTITUTIONAL PROVISION AND ORDI­
NANCE INVOLVED ............................................................ 2

STATEMENT OF THE CASE .............................................  3

A. Enactment Of The Minority Business Utiliza­
tion Ordinance................................................................ 3

B. The Ordinance’s Provisions ........................................  7

C. The Ordinance Applied To Croson ......................  9

D. The Proceedings Below ...............................................  10

SUMMARY OF ARGUMENT ..............................................  14

ARGUMENT..............................................................................  17

I. RICHMOND HAS A COMPELLING INTER­
EST IN REMEDYING THE EFFECTS ON 
ITS PUBLIC WORKS PROGRAM OF RACIAL 
DISCRIMINATION IN THE LOCAL CON­
STRUCTION INDUSTRY .........................................  19
A. Racial Discrimination In The Local Con­

struction Industry Had Substantially Fore­
closed Minority Access To City Contracting 
Opportunities ......................................................  20

B. Like Congress, Richmond Had A Compelling
Interest In Remedying The Effects Of Iden­
tified Discrimination On Its Own Public 
Works Program ......................................................  28

Page

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

(iii)



iv

C. Richmond’s Remedial Action Is Justified 
Without Evidence Of Its Own Discrimina­

TABLE OF CONTENTS— Continued
Page

tion ........................................................................  33
D. Wygant v. Jackson Board of Education Does

Not Control This Case ..................................... 38

II. THE RICHMOND ORDINANCE IS SUFFI­
CIENTLY NARROWLY TAILORED TO 
ACHIEVE ITS REMEDIAL PURPOSE ............ 41

A. The Richmond Ordinance Is Necessary To
Remedy The Effects Of Racial Discrimina­
tion On City Construction Contracting And 
Has Minimal Adverse Impact On Non- 
Minorities .............................................................  42

B. The Ordinance Is Designed To Be Reason­
able, Flexible And Tem porary.....................  45

CONCLUSION ....................................................................... 47

v
TABLE OF AUTHORITIES

Cases Page
American Textile Manufacturer’s Institute v.

Donovan, 452 U.S. 490 (1981) .............................  27
Board of Directors of Rotary International v.

Rotary Club of Duarte, 107 S. Ct. 1940 (1987).. 29
Bradley v. School Board, 462 F.2d 1058 (4th Cir.

1972) (en banc) aff'd by an equally divided
Court, 412 U.S. 92 (1973) (per curiam )............. 26

Brown v. Board of Education, 347 U.S. 483
* (1954 )..........................................................................  18

City of Renton v. Playtime Theatres, Inc., 475
U.S. 41 (1986) ........................................................  26

City of Richmond v. United States, 422 U.S. 358
(1975) ..........................................................................  26

Dothard v. Rawlinson, 433 U.S. 321 (1977)......  34
Fullilove v. Klutznick, 448 U.S. 448 (1980)......passim
International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977)...................................21,27,46
Johnson v. Transportation Agency, Santa Clara

County, 107 S. Ct. 1442 (1987) ................................passim
Local 28 of Sheet Metal Workers’ International 

Association v. EEOC, 478 U.S. 421, 106 S. Ct.
3019 (1986)......................................................18,19,38,43

Members of City Council v. Taxpayers for Vin­
cent, 466 U.S. 789 (1984)......................................  30

Memphis Light, Gas & Water Division v. Craft,
436 U.S. 1 (1978) ...................................................  7

NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974).... 43
Railway Mail Association v. Corsi, 326 U.S. 88

(1945 ).......................................................................... 29
Regents of the University of California v. Bakke,

438 U.S. 265 (1978) ................................................ passim
Rhode Island Chapter, Associated General Con­

tractors of America v. Kreps, 450 F. Supp. 338
(D.R.I. 1978) ............................................................  24

Roberts v. United States Jaycees, 468 U.S. 609
(1984) ..........................................................................  29

Runyon v. McCrary, 427 U.S. 160 (1976) ........   31
Schmidt v. Oakland Unified School District, 662 

F.2d 550 (9th Cir. 1981), vacated on other 
grounds, 457 U.S. 594 (1982)................................ 28



VI

Slaughterhouse Cases, 83 U.S. (16 Wall.) 36
(1872).............................................................. ........... 37

South Florida Chapter of Associated General Con­
tractors of America v. Metropolitan Dade 
County, 723 F.2d 846 (11th Cir.), cert, denied,
469 U.S. 871 (1984) ........ .'...................................... 11,28

United States v. Paradise, 107 S. Ct. 1053 (1987) ..passim 
United Steelworkers of America v. Weber, 443

U.S. 193 (1979) ..............................................24, 30, 34, 37
Wygant v. Jackson Board of Education, 476 U.S.

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

Constitutional Provisions, Statutes and Ordinances
U.S. Const, amend. X IV ................................................
28 U.S.C. § 1254(2) (1982).........................................
42 U.S.C. § 1981 (1982)................................................
42 U.S.C. § 1983 (1982) ..... .........................................
42 U.S.C. § 2000d (1982) .............................................
42 U.S.C. § 2000e (1982) ..............................................
Va. Code Ann. § 11-44 (Repl. 1985)...........................
Minority Business Utilization Plan, codified at 

Richmond, Va. Code ch. 24-1, art. 1(F) (Part 
B) H 27.10-27.20, art. VIII-A (1983)...................

Regulations and Legislative Materials
41 C.F.R. § 60-4 (1987)................................................. 35, 46
Notice, 45 Fed. Reg. 65979 (1980)..............................  35, 46
S. Rep. No. 415, 92d Cong. 1st Sess. 10 (1971).... 31
H.R. Rep. No. 1791, 94th Cong., 2d Sess. 182

(1977) ......................................................................6,25,27

Executive Orders
Exec. Order No. 11,114, 3 C.F.R. 774 (1959-63)....
Exec. Order No. 11,246, 3 C.F.R. 339 (1964-65)....
Exec. Order No. 12,086, 3 C.F.R. 230 (1979)........

Other Authorities
Days, Fullilove, 96 Yale L.J. 453 (1987)..................
J. Ely, Democracy and Distrust (1980).................

TABLE OF AUTHORITIES— Continued
Page

6
6
6

24
18

2
2

10
10
10
30
31

2,7

vu

TABLE OF AUTHORITIES—Continued
Page

H. Hill, Black Labor and the American Legal Sys­
tem: Race, Work, and the Law (1985) ............ 24

M. Karson & R. Radosh, “ The AFL and the Negro 
Worker, 1894-1949,” in The Negro and the 
American Labor Movement (J. Jacobson ed.
1968) ........................................................................... 24

R. Marshall, “ The Negro in Southern Unions,” in 
The Negro and the American Labor Movement
(J. Jacobson ed. 1968) ........................................... 24

G. Myrdal, An American Dilemma: The Negro
Problem and Modem Democracy (1962 )............. 24

Report of the National Advisory Commission on 
Civil Disorders (1968) ............................................ 32

R. Rowan & L. Rubin, Opening the Skilled Con­
struction Trades to Blacks: A Study of the 
Washington and Indianapolis Plans for Minority 
Employment (1972) ................................................  24

S. Spero & A. Harris, The Black Worker: The
Negro and the Labor Movement (1931) ............. 24

Sullivan, Sins of Discrimination: Last Term’s 
Affirmative Action Cases, 100 Harv. L. Rev. 78
(1986) ......................................................................... 34

L. Tribe, American Constitutional Law (2d ed.
1988) ................................   18

United States Bureau of the Census, May Report:
“ Value of New Construction Put in Place”
(1986) .......................................................................... 44

United States Bureau of the Census, PC(1)-B48, 
General Population Characteristics, Virginia,
1970 Census of Population (1970) .....................  46

IV United States Commission on Civil Rights, The 
Federal Civil Rights Enforcement Effort— 1974
(1975) .......................................................................... 32

United States Commission on Civil Rights, “ Reve­
nue Sharing Program— Minimum Civil Rights
Requirements”  (1971) ...........................................  32

R. Weaver, Negro Labor: A National Problem
(1946)..........................................................................  24



In T he

ftafirm? (Emtrt of %  Imteii
O c t o b e r  T e r m , 1987

No. 87-998

C i t y  o f  R i c h m o n d ,

Appellant,

J .A . C r o s o n  C o m p a n y ,

________  Appellee.

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

BRIEF OF APPELLANT CITY OF RICHMOND

OPINIONS BELOW

The opinion of the United States Court of Appeals for 
the Fourth Circuit from which this appeal is taken is 
reported at 822 F.2d 1355 (4th Cir. 1987). It is repro­
duced at page la in the appendices attached to the Juris­
dictional Statement (“J.S. App. la ” ). The order of the 
court of appeals denying the Petition for Rehearing with 
Suggestion for Rehearing En Banc is unreported and is 
reproduced at page 27a of the appendices attached to the 
Jurisdictional Statement. An earlier opinion of the court 
of appeals, which was vacated by this Court, is reported 
at 779 F.2d 181 (4th Cir. 1985) and is reproduced at 
page one of the supplemental appendices to the Jurisdic­
tional Statement ( “J.S. Supp. App. 1” ). The decision of 
this Court granting certiorari, vacating the earlier judg-



2

ment of the court of appeals and remanding to the court 
of appeals is reported at 106 S. Ct. 3327 (1986) and is 
reproduced at page 31a in the appendices attached to the 
Jurisdictional Statement. The opinion of the district 
court is unreported and is reproduced at page 112 of the 
supplemental appendices to the Jurisdictional Statement.

JURISDICTION

The decision of the court of appeals declaring the Rich­
mond ordinance unconstitutional and remanding to the 
district court for determination of appropriate relief was 
issued on July 9, 1987. J.S. App. la. A petition for re­
hearing with suggestion for rehearing en banc, filed on 
July 23, was denied on September 18, 1987, by a vote of 
6-5. Id. at 27a. A notice of appeal to this Court was filed 
with the court of appeals on November 18, 1987. Id. at 
29a. This Court entered an order noting probable juris­
diction in this case on February 22, 1988.

On March 7, 1988, the Clerk of this Court granted ap­
pellant City of Richmond an extension of time for filing 
its brief until April 21, 1988, pursuant to Rule 29.4 of 
this Court. The jurisdiction of this Court is invoked 
under 28 U.S.C. Section 1254(2) (1982).

CONSTITUTIONAL PROVISION AND 
ORDINANCE INVOLVED

This appeal involves (1) the Equal Protection Clause 
of the Fourteenth Amendment to the United States Con­
stitution, which provides that no state shall “ deny to any 
person within its jurisdiction the Equal Protection of the 
laws,” and (2) Richmond’s Minority Business Utilization 
Plan, codified at Richmond, Va., Code ch. 24.1, art. 1(F) 
(Part B) H 27.10-27.20, art. VIII-A (1983). This plan is 

reproduced at page 233 of the supplemental appendices to 
the Jurisdictional Statement.

3

STATEMENT OF THE CASE
This case will decide the constitutionality of an ordi­

nance enacted by appellant City of Richmond to remedy 
the effects on its public works program of racial discrim­
ination in its local construction industry. Before the en­
actment of the ordinance, the Minority Business Utiliza­
tion Plan, minority-owned businesses had been receiving 
virtually none of Richmond’s public construction con­
tracts even though the population of Richmond was half 
minority. The ordinance requires recipients of city con­
struction contracts to subcontract at least thirty percent 
of the dollar amount of their contracts to qualified mi­
nority-owned businesses.

Appellee J.A. Croson Co. ( “ Croson” ) is a non-minority 
contractor that was denied a city construction contract 
because it refused to comply with the ordinance’s sub­
contracting requirement. The district court upheld the 
ordinance but the court of appeals reversed, finding the 
ordinance in violation of the Equal Protection Clause of 
the Fourteenth Amendment.

A. Enactment Of The Minority Business Utilization 
Ordinance

The Minority Business Utilization Plan was conceived 
and enacted as a remedy for racial discrimination in 
Richmond’s construction industry that had all but ex­
cluded minority businesses from the City’s public works 
program. Expressly designated “ remedial,” it promotes 
wider participation by minority businesses in the City’s 
construction projects. J.S. Supp. App. 248.

Prior to the ordinance, Richmond had been awarding 
more than 99 percent of its construction business to 
white-owned firms. Data compiled by the City’s Depart­
ment of General Services in early 1983 indicated that in 
the five previous years, two-thirds of one percent—essen­
tially none— of the City’s $124 million in construction 
contracts had been awarded to minority-owned busi­



4

nesses.1 At that time, Richmond’s population was ap­
proximately half minority, primarily black.2

The City’s elected leadership concluded that this de­
plorable situation was a direct result of racial discrimina­
tion in Richmond’s construction industry. On April 11, 
1983, the Richmond City Council held a public hearing 
and the merits of the proposed ordinance were vigorously 
debated.8 9 In addition to information about the negligible 
minority participation in the City’s public construction 
contracts, the City Council heard evidence that the major 
construction trade associations in the Richmond area con­
tained virtually no black members. The Associated Gen­
eral Contractors of Virginia had 600 members, including 
more than 130 in Richmond, but no black members;4 the 
American Subcontractors Association had 80 members in 
the Richmond area but no black members;6 the Richmond 
chapter of the Professional Contractors Estimators As­
sociation had 60 members but only one black member; 8 
the Central Virginia Electrical Contractors Association 
had 45 members but only one black member;7 and the 
Virginia Chapter of the National Electrical Contractors

‘ Joint Appendix ( "J .A .” ) 41. The data indicated that 0.67 per­
cent of the value of the City’s construction contracts went to 
minority-owned firms. See also J.S. Supp. App. 115.

8 J.A. 12, 29. The district court took judicial notice of the fact 
that most minorities in Richmond were black. J.S. Supp. App. 207.

* In its opinion below, the court of appeals stated that the debate 
occurred “at the very end of a five-hour council meeting.” J.S. 
App. 6a. In fact, as appellee J.A. Croson Company stated in its 
brief to the court of appeals, the debate lasted approximately one 
hour and forty-five minutes. Brief of Appellant/Cross-Appellee at 
23, J.A. Croson Co. v. City of Richmond, No. 85-1002 (L ) No. 85- 
1041 (4th Cir. Mar. 18, 1985).

4 J.A. 27-28.

® Id. at 36.

« Id. at 39.

1 Id. at 40.

5

Association had 81 members but only two black mem­
bers.8

Representatives of each of these trade organizations 
appealed at the public hearing and spoke against the pro­
posed ordinance. They claimed, among other things, that 
there was an insufficient number of minority contractors 
in the Richmond area to make the law work, and that 
those available would be more expensive and less relia­
ble.® Supporters of the ordinance replied that similar 
arguments had long been used to limit minority partici­
pation in other endeavors, and often had proven un­
justified.10 In Richmond’s own recent experience such 
arguments had been made when the City began to ad­
minister federal Community Development Block Grants, 
which required minority participation in federally funded 
construction and other projects. Those arguments were 
proven unfounded.11 One of the ordinance’s sponsors also 
pointed out that the very purpose of the ordinance was 
to provide opportunities for minority businesses to gain 
experience and prove their capabilities.12

The existence of discrimination in Richmond’s con­
struction industry— the core of the problem being ad­
dressed was discussed at the public hearing and not dis­
puted. One council member, a former Richmond mayor, 
drew on his own long experience with the Richmond con­
struction industry. He stated “without equivocation”

8 Id. at 34.

9 Id. at 31-32 (statement of Mr. Beck); id. at 33-34 (statement 
of Mr. S inger); id. at 35-37 (statement of Mr. M urphy); id. at 
38-39 (statement of Mr. Shuman).

10 Id. at 37 (statement of Mr. Kenney); id. at 43-44, 48 (state­
ment of Mr. Richardson).

" I d .  at 41 (statement of Mr. Marsh). Mr. Marsh explained 
that the percentage of minority participation in Community De­
velopment Block Grants "exceeded the numbers specified and the 
problems anticipated had not been realized.”

12 Id. at 43-44 (statement of Mr. Richardson).



6

that the industry is one in which “ race discrimination 
and exclusion on the basis of race is widespread.” 18 
Richmond’s City Manager, who has oversight responsi­
bility for city procurement matters, concurred in these 
remarks.13 14 No one denied that discrimination in the in­
dustry was widespread,15 16 although some of the trade as­
sociation representatives denied that their particular or­
ganizations engaged in discrimination.18

The City Council also was aware that there has been 
pervasive racial discrimination in the nation’s construc­
tion industry. In 1977, the United States Congress had 
enacted a federal set-aside plan for minority contractors 
based on findings that the nation’s construction industry 
is “ a business system which has traditionally excluded 
measurable minority participation,” 17 18 and that industry 
discrimination had severely limited minority participa­
tion in public contracting at the federal, state and local 
level.18 In Fullilove v. Klutznick, 448 U.S. 448 (1980), 
this Court upheld the constitutionality of the federal set- 
aside plan, finding that Congress had “ abundant evi­

13 Id. at 41 (statement of Mr. Marsh). Aside from his time in 
public office in Richmond, Councilman Marsh has been practicing 
law in Richmond since 1961.

14 Id. at 42 (statement of Mr. Deese).

13 J.S. Supp. App. 164-65.

16 J.A. 20 (statement of Mr. W a tts); id. at 39 (statement of 
Mr. Shuman).

17 H.R. Rep. No. 1791, 94th Cong., 2d Sess. 182 (1977) (quoted 
in Fullilove v. Klutznick, 448 U.S. 448, 466 n.48 (1980) (plurality 
opinion); id. at 505 (Powell, J., concurring).

18 Years earlier, the President of the United States had issued 
an executive order authorizing affirmative action policies in federal 
contract procurement as a means to remedy the effects of discrimi­
nation. Exec. Order No. 11,114, 3 C.F.R. 774 (1959-63). This 
program was continued with Exec. Order No. 11,246. See Exec. 
Order No. 11,246, 3 C.F.R. 339 (1964-65) as amended by Exec. 
Order No. 12,086, 3 C.F.R. 230 (1979).

7

dence” of racial discrimination in the construction indus­
try to support its remedial action. Id. at 477-78 (plural­
ity opinion). The Richmond ordinance was drafted with 
the Fullilove decision, and the findings of discrimination 
discussed therein, in mind. J.A. 14-15, 24-25.

At the end of the public hearing, the City Council 
voted six to two, with one abstention, to enact into law 
the Minority Business Utilization Plan.19

B. The Ordinance’s Provisions

The Minority Business Utilization Plan requires con­
tractors to whom the City awards prime contracts to 
subcontract at least thirty percent of the dollar amount 
of the contracts to minority business enterprises (MBEs), 
unless the prime contractor is itself an MBE or the City 
waives the requirement. The ordinance is designed to 
expire on June 30, 1988.20

Because the ordinance does not set aside prime con­
tracts for minority businesses, the competitiveness of the 
bidding process is preserved. Since a prime contractor 
normally must make subcontracting arrangements before 
it can calculate its bid, the ordinance contemplates that 
minority subcontractors will be participants in the com­
petitive bidding process. Once the bids are opened, the 
apparent low bidder is given ten days to submit a satis­
factory Minority Business Utilization Commitment Form, 
containing information about the MBE subcontractor or

19 Richmond, Va. Code ch. 24.1, art. 1 (F ) (Part B) If 27.10-27.20 
(1983). The plan actually was enacted pursuant to two ordinances. 
See J.S. Supp. App. 233, 249.

20 Of course, the expiration of the Minority Business Utilization 
Plan does not moot this case. There remains a live controversy 
between the parties over whether Richmond’s refusal to award 
Croson a contract was unlawful and entitles Croson to damages. 
Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 8-9 (1978).



8

subcontractors, or to seek a waiver of the minority sub­
contracting requirement. J.S. Supp. App. 60-61, 69.21

The ordinance authorizes the Director of the Depart­
ment of General Services to promulgate regulations 
“ which . . . shall allow waivers in those individual situa­
tions where a contractor can prove to the satisfaction of 
the director that the requirements herein cannot be 
achieved.” 22 According to these regulations, the thirty 
percent requirement will be waived or lowered in the fol­
lowing circumstance:

To justify a waiver, it must be shown that every 
feasible attempt has been made to comply, and it 
must be demonstrated that sufficient, relevant, quali­
fied Minority Business Enterprises (which can per­
form subcontracts or furnish supplies specified in 
the contract bid) are unavailable or are unwilling 
to participate in the contract to enable meeting the 
30% MBE Goal.

Id. at 67-68. The denial of a waiver may be appealed 
under the City’s normal appeals procedures for disap­
pointed bidders. Id. at 192.

The ordinance defines a Minority Business Enterprise 
as a business at least fifty-one percent of which is owned 
and controlled by minority group members.23 * The ordi­

21 Since the time that Croson brought this lawsuit, that procedure 
has been changed. The new requirement is that a prime contractor 
must submit a Minority Business Utilization Form or a waiver 
request with its bid or the bid will be considered non-responsive.

22 J.S. Supp. App. 247. The City Council contemplated that the 
regulations would be similar to -the waiver provisions used in the 
City’s administration of Community Development Block Grants. 
J.A. 12-13.

23 J.S. Supp. App. 251. The requirement that the business be 
controlled as well as owned by minority group members was added 
by amendment to the plan in June 1983. See id. at 217-18. Minority
group members are defined as “ [c]itizens of the United States who
are Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or

’ Aleuts." Id. at 252.

9

nance’s regulations require a city administrative officer 
to verify that minority businesses seeking to participate 
in a city construction contract are in fact owned and 
controlled by minorities, so that “ sham” MBEs cannot 
take advantage of the plan. Id. at 62. The regulations 
also list the names and phone numbers of five Richmond 
agencies that will assist contractors in locating qualified, 
bona fide minority businesses to participate in a con­
struction contract. Id. at 67.

C. The Ordinance Applied To Croson
On September 6, 1983, Richmond invited bids for the 

installation of plumbing fixtures at the city jail. The bids 
were due by October 12. J.S. Supp. App. 120. Croson, a 
non-MBE mechanical, plumbing, and heating contractor 
based in Richmond, decided to bid on the project and de­
termined that it could meet the City’s minority subcon­
tracting requirement by purchasing certain plumbing 
fixtures from an MBE. Id. at 121.

Croson’s regional manager, Eugene Bonn, had brief 
telephone conversations with several MBE suppliers on 
September 30.21 On October 12, the day the bids were due, 
he contacted a local MBE, Continental Metal Hose ( “ Con­
tinental” ).25 * Continental’s president, Melvin Brown, told 
Bonn that he wished to participate in the project with 
Croson, but he could not state a firm price on such short 
notice because he could not get an immediate commit­
ment from suppliers. Id. at 122-23. Croson then sub-

24 Evidence in the record indicates that Croson’s efforts to make 
subcontracting arrangements with an MBE were less than diligent. 
Telephone records submitted to the district court indicated that 
the five conversations lasted a total of less than ten minutes. See 
id. at 8 n.4. According to testimony before the district court, two of 
these MBEs expressed interest in the project and requested bid 
specifications from Bonn, but never received them. Officers of a 
third testified that they never received Bonn’s call. Id.

25 Bonn claims to have telephoned Continental’s president on 
September 30, but the president denies this. Id. at 121-22.



10

mitted a bid using a quote for the plumbing fixtures re­
ceived from a non-minority firm. Id. at 124.

As it turned out, Croson was the only bidder and was 
awarded the contract subject to its commitment to sub­
contract with an MBE. Continental’s Brown attended 
the bid opening on October 13 and at that meeting was 
encouraged by Croson to continue trying to obtain a quote 
from suppliers. Id. at 123-24. Croson nevertheless re­
quested a waiver of the MBE requirement on October 19, 
indicating simply that Continental was “ unqualified” and 
that other MBEs contacted were “ non-responsive” or “ un­
able to quote.” Brown learned of the waiver request on 
October 27, at which point he contacted a city official and 
represented that Continental was available to provide the 
fixtures specified in the contract. Id. at 124-25.

The City denied Croson’s request for a waiver by 
letter dated November 2, and gave Croson ten more days 
to comply with the subcontracting requirement. By that 
time, Continental was able to quote a firm price, but it 
was higher than Croson had hoped. Croson again re­
quested a waiver, or, alternatively, an increase in the 
contract price. The City elected instead to rebid the 
project and invited Croson to submit another bid. Rather 
than submit a new bid, Croson brought this lawsuit. Id. 
at 126-29.

D. The Proceedings Below
In its complaint, Croson claimed that the Minority 

Business Utilization Plan violated the Equal Protection 
Clause of the Fourteenth Amendment and Virginia state 
law, and it sought an injunction, declaratory relief, and 
damages. After a bench trial, the district court held for 
Richmond on all counts.'26

28 Id. at 112. Croson also raised federal statutory claims based 
on 42 U.S.C. §§ 1981 and 1983 and Title V I of the Civil Rights 
Act of 1964, 42 U.S.C. § 2000d. However, Croson agreed these 

• claims had no basis in the absence of a valid equal protection claim, 
J.S. Supp. App. 222-23, and did not raise them on appeal.

11

After finding the Richmond ordinance permissible un­
der Virginia law, the district court considered Croson’s 
equal protection claim. J.S. Supp. App. 155. Since the 
appropriate constitutional standard for review of race- 
based remedial programs had been left unresolved by this 
Court in Fullilove and Regents of the University of Cali­
fornia v. Bakke, 438 U.S. 265 (1978), the district court 
relied on a three-part test synthesized from those cases 
by the Eleventh Circuit:

(1) that the governmental body have the authority 
to pass such legislation; (2) that adequate findings 
have been made to ensure that the governmental body 
is remedying the present effects of past discrimina­
tion rather than advancing one racial or ethnic 
group’s interest over another; (3) that the use of 
such classifications extend no further than the estab­
lished need of remedying the effects of past discrim­
ination.27

The district court determined that the Richmond ordi­
nance met all the requirements of this test, and thus 
comported with the decisions of this Court in Fullilove 
and Bakke.

The first element of the test was satisfied because Vir­
ginia law granted municipalities the authority to adopt 
such legislation. J.S. Supp. App. 162-63. The district 
court found the second element satisfied because the City 
Council had before it sufficient evidence to conclude that 
racial discrimination in the local construction industry 
had severely impaired minority participation in the in­
dustry and that minority participation in the City’s own 
public works program was negligible as a result. It cited 
the “ enormous disparities” between the percentage of 
city construction contracts awarded to minorities and the

27 J.S. Supp. App. 161-62 (quoting South Florida Chapter of 
Associated Gen. Contractors of Am. v. Metropolitan Dade County, 
723 F.2d 846, 851-52 (11th Cir.), cert, denied, 469 U.S. 871 (1984) 
(emphasis om itted)).



12

percentage of minorities in Richmond, the hearing testi­
mony of trade association representatives indicating that 
there were few minority businesses in the local construc­
tion industry, and the unrefuted hearing testimony about 
discrimination in that industry. Id. at 164-65. It also 
stated that Congress had “ already extensively documented 
the fact that low levels of minority business participation 
in the construction industry in general and government 
contracting in particular reflect continuing effects of past 
discrimination.” Id. at 165.

In considering the third element of the test, concern­
ing the means employed in the remedial ordinance, the 
district court relied on a five-factor inquiry derived from 
Justice Powell’s Fullilove opinion: (1) the reasonableness 
of the percentage chosen; (2) the adequacy of the waiver 
provision; (3) the consideration of alternative remedies; 
(4) the duration of the remedy; and (5) the ordinance’s 
effects on innocent third parties. The court did a careful 
analysis of each of these factors and concluded that the 
test was satisfied. Id. at 172-98. It also rejected the argu­
ment that the Richmond ordinance was “ overinclusive.” 
Id. at 198-209.

On appeal, the court of appeals affirmed the district 
court in all respects, with Judge Wilkinson dissenting. Id. 
at 1. It found that the district court was correct to review 
the Richmond ordinance under the equal protection stand­
ards established in Fullilove, and that the district court 
had appropriately applied those standards. Id. at 24-55.

Croson sought certiorari from this Court, which 
granted the writ, summarily vacated the judgment, and 
remanded the case for consideration in light of Wygant 
v. Jackson Board of Education, 476 U.S. 267 (1986). On 
remand, and without briefing or argument on the impact 
of Wygant, the original panel of the court of appeals 
reversed itself and found the Richmond ordinance un­
constitutional, Judge Wilkinson writing for a divided 
court over a dissent from Judge Sprouse. J.S. App. la.

13

As the court of appeals’ majority interpreted Wygant, 
Richmond was required to demonstrate a “compelling” 
interest in its ordinance, and could do that only by show­
ing that it “had a firm basis for believing [there was] 
prior discrimination by the locality itself.”  Id. at 9a. The 
majority considered the City’s statistical evidence “ spur­
ious” and the City Council hearing testimony “nearly 
weightless.” Id. at 8a. It concluded that the Richmond 
ordinance was predicated only on “ the loosest sort of 
inferences” of past discrimination by the City, and there­
fore was unconstitutional. Id. The majority also held, in 
the alternative, that the ordinance was not sufficiently 
“narrowly tailored” to meet its remedial goal. Id. at 11a.

The dissent argued that the majority “misconstrues and 
misapplies Wygant.” Id. at 14a. It stated that Wygant 
did not require evidence of discrimination in public pro­
curement by the City itself, but that this requirement had 
been satisfied in any event. Id. at 18a. It noted the history 
of pervasive racial discrimination in the nation’s con­
struction industry, id. at 19a, and it found that the dis­
parity between the percentage of Richmond’s construction 
contracts awarded to minority businesses and the per­
centage of minorities in Richmond was so dramatic as to 
“break [] the bounds of the sometimes suspect ‘science’ 
of statistics.” Id. at 21a.

The dissent concluded that the proof of governmental 
discrimination required by the majority “might be fatally 
counterproductive to the concept of affirmative action,” id. 
at 20a, and in any event is inappropriate “ in areas where 
discrimination had effectively prohibited the entry of 
minorities into the contracting business, as in Richmond.” 
Id. n .ll. It stated that the proof required by the majority 
“ would ensure the continuation of a systemic fait accom­
pli, perpetuating a qualified minority contractor pool that 
approximates two-thirds of one percent of the overall 
contractor pool.” Id. at 20a. The dissent also found the



14

Richmond ordinance sufficiently narrowly tailored to pass 
constitutional muster.

Richmond filed a petition for rehearing and suggestion 
for rehearing en banc. The court of appeals denied the 
petition by a vote of six to five. Id. at 27a.

SUMMARY OF ARGUMENT
The central issue in this case is whether the court of 

appeals erred in holding Richmond’s Minority Business 
Utilization Plan unconstitutional on the basis of language 
in the plurality opinion in Wygant v. Jackson, Board of 
Education, which it construed to require a governmental 
entity to demonstrate its own discrimination in order to 
justify an affirmative action plan. To reach this conclu­
sion, the court of appeals ignored relevant precedents of 
this Court, particularly FullUove v. Klutznick, which pre­
sented facts and legal issues very close to those presented 
here.

Upon analysis, it is clear that Wygant does not control 
this case and that Richmond’s remedial ordinance is en­
tirely consistent with the relevant precedents of this 
Court. The ordinance represents a responsible legislative 
effort to remedy the effects on the City’s public works 
program of longstanding, pervasive racial discrimination 
in the local construction industry. Richmond’s ordinance 
is well designed to achieve its remedial purpose and has 
only minimal impact on non-minorities.

In the five years prior to the enactment of the Minority 
Business Utilization Plan in 1983, Richmond, which has 
a population that is half minority, awarded more than 
99 percent of its $124 million in public construction con­
tracts to white-owned businesses. There is no serious dis­
pute that this fact reflects a local construction industry 
in which minority entry and advancement have been 
stymied by years of racial discrimination. The effects of 
this discrimination also are reflected in the virtual ab­
sence of black members in Richmond’s major construction

15

trade associations. At the public hearing on the merits of 
the ordinance, the City Council heard knowledgeable and 
unrefuted testimony about this industry discrimination. 
The City Council was well aware that Richmond was part 
of a longstanding pattern of racial discrimination 
throughout the nation’s construction industry.

Richmond had a compelling interest in remedying the 
effects of this identified local industry discrimination on 
its own public works program, much like the interest 
supporting the federal program in FullUove. Like Con­
gress, the City had been awarding its taxpayers’ dollars 
to a pool of contractors from which minorities had been 
substantially excluded by unlawful racial discrimination, 
and thus it had become a passive participant in that dis­
crimination. Like Congress, Richmond sought to put 
minority-owned construction firms on a more equitable 
footing with respect to public contracting opportunities. 
As this Court found in FullUove, this was an entirely 
appropriate use of affirmative action. Richmond needed 
to take race into account because race-neutral remedies 
would not overcome the disabling effects of past 
discrimination.

Richmond’s interest in its ordinance was especially 
compelling since if Richmond had not acted, there would 
have been no remedy. Though part of a national pattern, 
the effects of local construction industry discrimination 
on Richmond’s own public works program was Rich­
mond’s problem, peculiarly within the competence of 
Richmond’s legislative body. It would distort principles 
of federalism to deny Richmond the means effectively to 
address this problem, while permitting' the federal gov­
ernment to take similar remedial action under similar 
circumstances.

The court of appeals below nevertheless held Rich­
mond’s ordinance unconstitutional because it was not 
predicated on Richmond’s own discrimination against



16

minority contractors. This requirement was based en­
tirely on language in the plurality opinion in Wygant. 
Not only did this language not receive the support of a 
majority of this Court, but even the plurality did not de­
cide that a government always must demonstrate its own 
discrimination in order to enact an affirmative action 
plan. Governmental discrimination was not a decisive is­
sue in Wygant, both because the evidence in the record 
was not probative of any sort of discrimination, and be­
cause layoffs were determined to be an inappropriate 
means to achieve even a compelling purpose. Wygant 
does not control the result here.

The court of appeals’ “ governmental discrimination” 
requirement is wholly inappropriate because pervasive, 
unlawful industry discrimination, and its profound effect 
on Richmond’s public works program, provided an ade­
quate basis for remedial action. Requiring evidence of 
governmental discrimination under these circumstances is 
unnecessary and beside the point. Moreover, because proof 
of governmental discrimination is elusive where industry 
discrimination has largely prevented minority businesses 
from even competing for city construction contracts, this 
requirement would preclude any remedy for this most 
effective and pernicious discrimination.

Finally, the minority business utilization ordinance is 
carefully designed to meet its remedial goal with minimal 
impact on non-minorities. By teaming up minority sub­
contractors with more established, white-owned firms, the 
ordinance removes obstacles that have kept minority 
businesses out of public contracting and provides them 
with valuable experience, credibility, and an opportunity 
to develop business relationships with more established 
firms. The ordinance’s impact on non-minorities is slight 
since no prime contracts are set aside for minorities, the 
subcontracting requirement does not unsettle any vested 
right or expectation, and thirty percent of city construc­

17

tion contracts represents only a tiny fraction of all con­
struction contracting opportunities in Richmond. In addi­
tion, the ordinance is temporary, contains a reasonable 
waiver provision, and is designed to root out “ sham” 
minority businesses.

ARGUMENT

Racial inequality remains a scourge of our society. 
Cities, states, and the federal government each have a 
crucial role to play in the effort to rid our country of 
racial discrimination and its continuing effects.

Richmond, like other cities, has accepted that respon­
sibility. In 1983, in response to clear evidence that ra­
cial discrimination in its local construction industry had 
resulted in a nearly all-white industry, and consequently 
a distribution of public construction contracts only to 
businesses owned by whites, Richmond enacted the Mi­
nority Business Utilization Plan. This ordinance requires 
contractors to whom the City awarded prime contracts 
to subcontract at least thirty percent of the dollar amount 
of their city contracts to minority businesses.

This case tests whether the Constitution forbids Rich­
mond from enacting this remedial legislation. More par­
ticularly, it tests whether the court of appeals was cor­
rect in relying on language in Wygant to the exclusion 
of a line of more relevant precedents of this Court, es­
pecially Fullilove. When the Richmond ordinance is ana­
lyzed in light of its purpose and those precedents, it is 
clear that it is constitutional and that the court of ap­
peals’ reliance on Wygant was misplaced.

The level of constitutional scrutiny to be applied to 
remedial legislation like the Richmond ordinance has not 
been determined by this Court.1* Appellant submits that 28 *

28 “ [A lth ou gh  this Court has consistently held that some elevated
level of scrutiny is required when a racial or ethnic distinction is



18

an intermediate level of scrutiny, as endorsed by several 
members of this Court, is the appropriate standard to be 
applied in this case because racial classifications are not 
inherently suspect where they are used as part of a rem­
edy for the effects of identified racial discrimination.* 28 *

made for remedial purposes, it has yet to reach consensus on the 
appropriate constitutional analysis." United States v. Paradise, 
107 S. Ct. 1053, 1064 (1987) (plurality opinion). See also id. n.17; 
Local 28 of Sheet Metal Workers’ Int’l Ass’n v. EEOC, 106 S. Ct. 
3019,3052-53 (1986) (plurality opinion) (“ We have not agreed . . . 
on the proper test to be applied in analyzing the constitutionality 
of race-conscious remedial measures” ).

28 “ Government may take race into account when it acts not to 
demean or insult any racial group, but to remedy disadvantages 
cast on minorities by past racial prejudice. . . .”  Bakke, 438 U.S. 
at 325 (Brennan, White, Marshall, and Blackmun, JJ., concurring 
in the judgment in part and dissenting in part). See also Wygant, 
476 U.S. at 296 (Marshall, J., dissenting); id. at 313 (Stevens, J., 
dissenting); Fullilove, 448 U.S. at 507 (Powell, J., concurring); 
id. at 519 (Marshall, J., concurring in the judgm ent); id. at 550- 
554 (Stevens, J., dissenting); Bakke, 438 U.S. at 305 (opinion of 
Powell, J .) ;  id. at 359 (Brennan, White, Marshall, and Blackmun 
JJ., concurring in the judgment in part and dissenting in part).

The Equal Protection Clause of the Fourteenth Amendment does 
not require strict scrutiny of affirmative action measures. Its core 
purpose is not to prohibit the use of racial classifications per se, but 
to prohibit their use to subjugate or disadvantage on the basis of 
race. See Brown v. Board of Education, 347 U.S. 483, 493-94 (1954)
(racial segregation in public schools violates the Equal Protection 
Clause because it “ generates a feeling of inferiority" in the hearts 
and minds of black children). See also J. Ely, Democracy and Dis­
trust 135-36, 152-53 (1 9 8 0 ); L. Tribe, American Constitutional Law 
1514-21 (2d ed. 1988). Whites as a racial group historically have not 
been subjugated or disadvantaged by non-whites, and affirmative 
action does not have such a purpose or effect. Where, as here, it 
appears that racial classifications are being used to remedy past 
discrimination against non-whites, an intermediate level of judicial 
scrutiny is sufficient to ensure that they are not actually serving 
some improper purpose and that the effect that they have on whites
Is not unreasonably burdensome.

19

Even under strict scrutiny, however, the Minority Busi­
ness Utilization Plan passes constitutional muster.

Whatever the level of scrutiny, the constitutional in­
quiry has two prongs: 1) whether the affirmative action 
plan serves interests sufficiently “ important”  or “ com­
pelling” to justify the use of racial classifications; and 
2) whether the plan is adequately tailored to serve its 
purpose without unnecessarily harming the interests of 
non-minorities.30 Richmond’s minority business utiliza­
tion ordinance satisfies both of these requirements. It is 
legislation designed to remedy the effects of identified 
racial discrimination in Richmond’s construction industry 
that substantially had foreclosed minority access to con­
tracting opportunities with the City, and it is a tempor­
ary, flexible plan that imposes little burden on non­
minorities.

I. RICHMOND HAS A COMPELLING INTEREST IN 
REMEDYING THE EFFECTS ON ITS PUBLIC 
WORKS PROGRAM OF RACIAL DISCRIMINATION 
IN THE LOCAL CONSTRUCTION INDUSTRY

State and local governments unquestionably have “a 
legitimate and substantial interest in ameliorating, or 
eliminating where feasible, the disabling effects of iden­
tified discrimination.” 31 * 81 Richmond’s City Council adopted 
its Minority Business Utilization Plan because racial 
discrimination in Richmond’s construction industry long 
had impaired minority entry and advancement in the in­
dustry, and, as a consequence, minority businesses were 
receiving virtually none of the City’s public construction 
contracts. This factual predicate was found by the dis­
trict court to be amply supported and has not seriously 
been contested.

30 See Paradise, 107 S. Ct. at 1064 & n.17 (plurality opinion); 
Sheet Metal Workers, 106 S. Ct. at 3052-53 (plurality opinion).

81 Bakke, 438 U.S. at 307 (opinion of Powell, J .).



20

Whether this predicate of discrimination justifies Rich­
mond’s ordinance is the critical issue in this case. The 
court of appeals held that the only predicate that would 
justify the ordinance is the City’s own discrimination. 
Richmond submits that it has a compelling interest in 
remedying the effects of identified construction industry 
discrimination on its public works program regardless of 
whether the City itself has discriminated. Richmond’s 
remedial action represents a considered decision by Rich­
mond’s elected legislative body, which is fully aware of 
its responsibilities to all the people of Richmond, and 
constitutes an appropriate use of affirmative action.

A. Racial Discrimination In The Local Construction 
Industry Had Substantially Foreclosed Minority 
Access To City Contracting Opportunities

In 1983, one-half of the population of Richmond was 
minority, primarily black. In the five years prior to 1983, 
two-thirds of one percent—practically none— of the City’s 
$124 million in construction contracts was awarded to mi­
nority-owned businesses. As both the City Council and the 
district court concluded, this disturbing fact was a direct 
consequence of pervasive racial discrimination in Rich­
mond’s local construction industry that had impaired 
minority entry and advancement and had substantially 
foreclosed minority opportunities to compete for city con­
struction contracts.

This conclusion has abundant support in the facts of 
this case. The disparity between the percentage of city 
contracts awarded to minority businesses and the percent­
age of minorities in Richmond— less than one percent ver­
sus fifty percent—is so enormous that by itself it creates 
a strong inference of discrimination. In a city that is half 
minority and that awards $124 million in city construc­
tion contracts over a five-year period, one would expect

21

minority businesses to be awarded much more than two- 
thirds of one percent of those contracts, absent discrimi­
nation.32 Because the number of minority contractors in 
Richmond was “quite small,” J.S. App. 7a, this discrimi­
nation must have been in the industry itself.

When this evidence is combined with other facts, the 
inference of discrimination becomes so powerful that “ in­
nocent” explanations of the meager minority participa­
tion in Richmond’s city construction contracts seem far­
fetched at best.33 * * * As the City Council learned, and as 
the following chart demonstrates, in 1983 there were lit­
erally no black members in one of Richmond’s principal 
construction trade associations, the Associated General 
Contractors, and virtually no black members in other 
major construction trade associations in the Richmond 
area:

See International Brotherhood of Teamsters v. United States, 
431 U.S. 324, 339-40 & n.20 (1977) (statistics showing racial im­
balance between work force and general population may reflect dis­
crimination).

33 The probativeness of the statistical evidence here is illustrated 
by comparison to the statistical evidence of discrimination in Fulli- 
love v. Klutznick, 448 U.S. 448 (1980). In enacting the minority 
set-aside provision of the Public Works Employment Act of 1977, 
Congress also relied on a disparity between the percentage of 
federal contracts awarded to minority businesses and the percentage 
of minorities in the general population. Id. at 459 (plurality 
opinion). The level of minority participation in federal contracts 
was also less than one percent, but minorities comprised only 15-18 
percent of the nation’s population, compared to 50 percent in Rich­
mond. Chief Justice Burger nevertheless cited this disparity as a
key piece of evidence in upholding Congress’ findings on the effects
of racial discrimination in the nation’s construction industry. Id. at
478 (plurality opinion).



22

BLACK M EM BERSHIP IN  RICHM OND’S MAJOR  
CONSTRUCTION TR ADE ASSO CIATIO N S IN 1983 84

Organization
Total

Membership
Black

Membership

Associated General
Contractors
(Virginia)

600 0

Associated General
Contractors
(Richmond)

130 0

American
Subcontractors
Association
(Richmond)

80 0

Professional
Contractors
Estimators
Association
(Richmond)

60 1

Central Virginia 
Electrical 
Contractors 
Association

45 1

National
Electrical
Contractors
Association
(Virginia)

81 2

Like the negligible minority participation in the City’s 
construction contracts, the near absence of minority mem­
bers in these trade organizations is a manifestation of 
pervasive racial discrimination in Richmond’s local con-

34 This chart lists those trade associations whose representatives 
testified at the City Council hearing on the Minority Business 
Utilization Plan and provided information on black membership. 
J.A. 27-28, 34, 36, 39-40. The Richmond Builders Exchange, the 
Richmond Plumbing, Heating and Cooling Contractors Association 
and Richmond Area Municipal Contractors Association also were 
represented at the hearing but provided no information on black 
membership.

23

struction industry. Moreover, because membership in 
these organizations represents a significant economic op­
portunity,35 these figures dramatically underscore the 
continuing effects of that discrimination.

At the City Council hearing, there was knowledgeable 
testimony, including the testimony of a former Richmond 
mayor, that discrimination in Richmond’s construction 
industry in fact was widespread.36 Moreover, while the 
merits of the ordinance were vigorously debated, no one 
denied that pervasive discrimination had occurred. It 
simply was beyond dispute that discrimination had denied 
minorities significant participation in the local construc­
tion industry, and therefore in Richmond’s public con­
struction contracts as well.37

Richmond’s experience is not unique. There is a long, 
well-documented history of racial discrimination through­
out the nation’s construction industry. Black workers for 
years have been excluded from the skilled construction 
trade unions and training programs and hired only for 
relatively unskilled positions.38 * * Whites have dominated

88 For example, members of the Associated General Contractors 
of America ( “AGC” ) perform almost 80 percent of all commercial 
construction work in this country, according to a brief filed by the 
AGC in the court of appeals below. See Motion of the Associated 
General Contractors of America, Inc. for Leave to File as an 
Amicus Curiae in Support of the Appellant/Cross-appellee at 3, 
J.A. Croson Co. v. City of Richmond, Nos. 85-1002, 85-1041 (4th 
Cir. Mar. 18, 1985). The AGC also points out that construction is 
one of the largest industries in the United States, representing 
approximately eight percent of the nation’s gross national product. 
Id.

38 See supra p. 5-6.

87 The record in this case contains no finding on the precise 
number of contractors in Richmond who were minority in 1983, 
though there has been no dispute that the number is “ quite small." 
J.S. App. 7a.

38 As this Court noted in a similar context, “ [j ] udicial findings of 
exclusion from crafts on racial grounds are so numerous as to make



24

the skilled construction trades, and blacks have been pre­
vented from following the traditional path from laborer 
to entrepreneur.08 Consequently, most construction busi­
nesses are owned and managed by whites, as in Rich­
mond.40 Those few minority-owned construction busi­
nesses that have been formed have faced formidable ob-

such exclusion a proper subject for judicial notice.” United. Steel­
workers of Am. v. Weber, 443 U.S. 193, 198 n .l (1979).

This exclusion of black workers from skilled construction crafts 
began over a hundred years ago. At the time of the Civil War, 
black workers constituted the majority of the skilled workers, 
including construction workers, in the South. H. Hill, Black Labor 
and the American Legal Syste7n: Race, Work and the Law 9-11 
(1 9 8 5 ); S. Spero & A. Harris, The Black Worker: The Negro and 
the Labor Movement 16 (1 9 3 1 ); G. Myrdal, An American Dilemma: 
The Negro Problem and Modern Democracy 1079-1124 (1 9 6 2 ); 
R. Weaver, Negro Labor: A National Problem 4-5 (1 9 4 6 ); R. 
Rowan & L. Rubin, Opening the Skilled Construction Trades to 
Blacks: A Study of the Washington and Indianapolis Plans for  
Minority Employment 10-15 (1972). A fter the Civil War, and 
particularly after Reconstruction, black workers were systematically 
evicted from their craft positions in favor of white workers and 
barriers were erected to prevent black workers from entering those 
crafts in the future. Hill, supra at 12-34, 235-47; Myrdal, supra at 
228-29. Construction historically is an industry from which blacks 
have been excluded by law and by the dominance of racially restric­
tive unions. M. Karson & R. Radosh, "The A F L  and the Negro 
Worker, 1894-1949," in The Negro and the American Labor Move­
ment 157-58 (J. Jacobson ed. 1968 ); Marshall, “ The Negro in 
Southern Unions,” in The Negro and the American Labor Move­
ment 145 (J. Jacobson ed. 1968).

38 Fullilove, 448 U.S. at 511-12 (Powell, J., concurring); Rhode 
Island Chapter, Associated Gen. Contractors of Am. v. Kreps, 450 
F. Supp. 338, 356 (D.R.I. 1978); Days, Fullilove, 96 Yale L J ’ 453 
477 (1987).

40 J.S. App. 7a. According to testimony at the City Council hear­
ing by a representative of the American Subcontractors Association, 
the latest Bureau of Census figures indicated that 4.7 percent of 
construction firms in this country are minority-owned, and 41 per­
cent of these are concentrated in California, Illinois, New York, 
Florida and Hawaii. J.A. 36.

25

stacles, rooted in discrimination, that have impaired their 
ability to compete.41 As one report of the United States 
House of Representatives stated, “ The very basic prob­
lem . . .  is that, over the years, there has developed a 
business system which has traditionally excluded meas­
urable minority participation.” 42 This discrimination has 
as an inevitable corollary minimal participation by 
minority-owned businesses in public construction con­
tracting opportunities.

This history of racial discrimination in the construc­
tion industry and its effects on public contracting are sig­
nificant here because Richmond obviously has been part 
of this national pattern. The drafters of Richmond’s 
Minority Business Utilization Plan in fact consulted 
this Court’s decision in Fullilove, which discussed findings 
by the United States Congress that the effects of industry 
discrimination have not been confined to federal contract­
ing. J.S. Supp. App. 165. The Fullilove plurality stated: 
“ IT]here was direct evidence before the Congress that 
this pattern of disadvantage and discrimination existed 
with respect to state and local construction contracting 
as well.” 43 The congressional findings further support

41 In Fullilove, this Court explained some of the barriers that 
minority businesses have faced in gaining access to government 
contracting opportunities at the federal, state and local levels:

Among the major difficulties confronting minority businesses 
were deficiencies in working capital, inability to meet bonding 
requirements, disability caused by an inadequate ‘track record,’ 
lack of awareness of bidding opportunities, unfamiliarity with 
bidding procedures, preselection before the formal advertising 
process, and the exercise of discretion by government procure­
ment officers to disfavor minority businesses.

448 U.S. at 467 (plurality opinion).

42 H.R. Rep. No. 1791, 94th Cong., 2d Sess. 182 (1977) (quoted in 
Fullilove, 448 U.S. at 466 n.48 (plurality opinion) and at 505 
(Powell, J., concurring)).

43 448 U.S. at 478 (plurality opinion). This Court has held that 
a city’s "substantial governmental interest” in regulating the time,



26

the conclusion that the enormous racial disparity in the 
awarding of city construction contracts was a consequence 
of racial discrimination in Richmond’s local construction 
industry.'14

The Richmond City Council, based upon the evidence of 
discrimination outlined above and also upon its own 
familiarity with the economic and social history of Rich­
mond in general and the local construction industry in 
particular,* 44 45 had abundant reason to conclude that racial 
discrimination was responsible for the problem that it 
faced. Its conclusion that discrimination had occurred is 
unassailable. Richmond’s local construction industry

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.” City of Renton v. Playtime 
Theatres, Inc., 475 U.S. 41, 51-52 (1986). It follows that Richmond 
should be able to rely on findings relevant to its problem made by 
the United States Congress and found by this Court to be supported 
by direct evidence.

44 The facts supporting the Richmond ordinance are thus funda­
mentally different from the statistical evidence found insufficient
to support the remedial plan in Wygant. In Wygant, the statistical 
evidence was not probative of discrimination. See infra p. 39.
Here the extraordinary size of the disparity combines with other
facts to compel the conclusion that discrimination had occurred.

48 “ No race-conscious provision that purports to serve a remedial 
purpose can be fairly assessed in a vacuum.” Wygant, 476 U.S. 
at 296 (Marshall, J., dissenting). As this Court well knows, Rich­
mond had confronted in its recent past the need to break down 
racial barriers in various other segments of its society and in the 
city government itself. See, e.g., City of Richmond v. United States, 
422 U.S. 358 (1975) (concerning the City’s annexation plan and 
its compliance with the Voting Rights A c t) ; Bradley v. School 
Board, 462 F.2d 1058, 1065 (4th Cir. 1972) (en banc) (school 
desegregation case, finding that “ within the City of Richmond 
there has been state . . . .  action tending to perpetuate apartheid 
of the races . . .” ), aff'd by an equally divided Court, 412 U.S. 92 
(1973) (per curiam).

27

clearly has been “ a business system which has tradition­
ally excluded measurable minority participation.” 4®

Once Richmond established a basis for its remedial 
action, the ultimate burden of proving the plan invalid 
was on Croson. Johnson v. Transportation Agency, Santa 
Clara County, 107 S. Ct. 1442, 1449 (1987); Wygant, 
476 U.S. at 277-78 (plurality opinion). Croson did not 
meet this burden. It could do nothing to rebut the com­
pelling inference that racial discrimination was respon­
sible for the “glaring absence” of construction contracts 
awarded to minority contractors. International Brother­
hood of Teamsters, 431 U.S. at 342, n.23 (“ [F]ine tuning 
of the statistics could not have obscured the glaring 
absence of minority line drivers . . . .  [T]he company’s 
inability to rebut the inference of discrimination came 
not from a misuse of statistics but from ‘the inexorable 
zero’ ” ) (quoted in Johnson, 107 S. Ct. at 1465 (O’Connor, 
J., concurring in the judgment)). No other explanation 
even would have been plausible.

The district court heard all the facts and agreed that 
they supported an inference of discrimination. In a 
thorough opinion, it explicitly found “ ample evidence” to 
conclude that the minimal minority participation in Rich­
mond construction contracting reflected pervasive racial 
discrimination in the local construction industry.47 48 The

46 Fullilove, 448 U.S. at 466 n.48 (quoting H.R. Rep. No. 1791, 
94th Cong., 2d Sesa. 182 (1 977)).

47 J.S. Supp. App. 165-66, 172. A  factual predicate for an af­
firmative action plan properly is established when, after the plan 
is challenged in court, the trial court finds “a strong basis in 
evidence" for the remedial action. Wygant, 476 U.S. at 277 
(plurality opinion); see also id. at 286 (O ’Connor, J., concurring 
in part and concurring in the judgment) (contemporaneous finding 
not required as long as there is “ firm basis for believing that 
remedial action is required” ). Because the district court below 
properly applied the “strong basis in evidence" test, its finding is 
entitled to deference. Cf. American Textile M fr’s Inst. v. Donovan, 
452 U.S. 490, 529-30 (1981) (“ Whether or not in the first instance 
we would find the Secretary’s conclusions supported by substantial



28

court of appeals did not question the conclusion that dis­
crimination had occurred, holding instead that the Rich­
mond plan was unconstitutional because there was no find­
ing of discrimination by Richmond itself. J.S. App. at 9a. 
Because the factual predicate for the Richmond ordinance 
has more than adequate support in the record of this case, 
the district court’s findings should not be disturbed on this 
appeal.

B. Like Congress, Richmond Had A Compelling In­
terest In Remedying The Effects Of Identified Dis­
crimination On Its Own Public Works Program

The Minority Business Utilization Plan was enacted 
after the City found itself doing business only with con­
struction firms owned by whites, as a consequence of per­
vasive racial discrimination in Richmond’s local construc­
tion industry. The City had a compelling interest in end­
ing this appalling state of affairs and creating opportu­
nities in its own public works program that had been 
unavailable to minorities due to that racial discrimination.

State and local governments* 48 unquestionably have a 
compelling interest in remedying the effects of discrimina­
tion and providing equal protection of the laws in their

evidence, we cannot say that the court of appeals in this case 
‘misapprehended or grossly misapplied’ the substantial evidence 
test").

48 A local government derives its powers from the state. The 
manner in which a state chooses to delegate its powers to its 
political subdivisions is a question of state law. Bakke, 438 U.S. at 
366 n.42 (opinion of Brennan, J., White, J., Marshall, J. and 
Blackmun, J., concurring in the judgment in part and dissenting 
in p a rt); South Florida Chapter of the Associated Gen. Contractors 
of Am. v. Metropolitan Dade County, 723 F.2d at 852; Schmidt v. 
Oakland Unified School Dist., 662 F.2d 550, 558 (9th Cir. 1981), 
vacated on other grounds, 457 U.S. 594 (1982). The district court 
found that the City Council had the authority under state law to 
enact the Minority Business Utilization Plan. J.S. Supp. App. 141- 
154. The court of appeals did not disturb this finding.

29

jurisdictions.4® This Court has held that this compelling 
governmental interest extends to ensuring that publicly 
available commercial opportunities are not denied to seg­
ments of the population on the basis of race, gender, or 
ethnic origin. See Roberts v. United States Jaycees, 468 
U.S. 609 (1984).60 In so holding, the Court stressed “ the 
importance, both to the individual and to society, of re­
moving the barriers to economic advancement and political 
and social integration that have historically plagued cer­
tain disadvantaged groups . . . .”  Id. at 626.

This case does not test the boundaries of this govern­
mental interest, for at the very least a municipal govern­
ment has a compelling interest in eradicating the effects 
of discrimination and ensuring equal opportunity in its 
own public works program. This interest is equivalent to

40 For example, in Railway Mail Ass’n v. Corsi, 326 U.S. 88 
(1945), this Court held that the states constitutionally could enact 
legislation prohibiting discrimination by labor organizations.

eo In Roberts, this Court unanimously held that the Minnesota 
Human Rights Act, which prohibits discrimination in places of 
public accommodation, constitutionally could be applied to forbid 
the Jaycees from excluding women from full membership. The 
Court stressed that the exclusion of women from the Jaycees de­
prived them of business contacts, employment promotions and other 
commercial advantages that were publicly available to men. 468 
U.S. at 626. The Court concluded that the state’s interest in break­
ing down traditional barriers to opportunity was so compelling that 
it justified some infringement on the Jaycee male members’ first 
amendment rights of free association. Id. at 623-626. Justice 
O’Connor, concurring, did not find an infringement of any rights 
of association, but agreed with the Court that a compelling govern­
mental interest was involved. She stressed the importance of "the  
power of States to pursue the profoundly important goal of ensur­
ing nondiscriminatory access to commercial opportunities in our 
society.” Id. at 632 (O ’Connor, J., concurring in part and con­
curring in the judgment). See also Board of Directors of Rotary 
Int’l v. Rotary Club of Duarte, 107 S. Ct. 1940 (1987).



30

that which survived “ a most searching examination” by 
this Court in Fullilove.51 Like Congress, Richmond deter­
mined that minority businesses were receiving practically 
none of its public construction contracting funds as a 
result of racial discrimination in the construction indus­
try. Like Congress, Richmond “has not sought to give 
select minority groups a preferred standing in the con­
struction industry, but has embarked on a remedial pro­
gram to place them on a more equitable footing with 
respect to public contracting opportunities.” 448 U.S. at 
485-86 (plurality opinion). Ensuring nondiscriminatory 
access to government contracting opportunities is, this 
Court has stated, “one aspect of the equal protection of 
the law’s.” Id. at 478 (plurality opinion).

Like Congress, the City needed to take race into account 
in fashioning its remedy.52 Simply prohibiting discrimi­
nation by its public contractors would have served little 
purpose, since the discrimination was already unlawful.63

31448 U.S. at 491 (plurality opinion). See also id. at 496 
(Powell, J., concurring) (upholding the federal program "under 
the most stringent level of review” ).

82 A local government’s action is not unconstitutional merely be­
cause it has some negative impact on individuals’ constitutional 
rights. See, e.g., Members of City Council v. Taxpayers for Vincent, 
466 U.S. 789 (1984) (a city’s interest in advancing esthetic values 
is sufficiently compelling to justify some curtailment of speech pro­
tected by the first amendment).

83 Exclusion from a construction trade union on racial grounds 
constitutes a violation of Title V II of the Civil Rights Act of 1964, 
42 U.S.C. § 2000e (1982). See United Steelworkers of America v. 
Weber, 443 U.S. 193, 198 n.l (1979) (judicial findings under Title 
VII of “exclusion from crafts on racial grounds are so numerous as 
to make such exclusion a proper subject for judicial notice” ). Other 
forms of employment discrimination in the construction industry 
also violate Title VII, and employment discrimination by a recipient

31

Moreover, prohibiting future discrimination does nothing 
to remedy the disabling effects of past discrimination. In 
Richmond, years of purposeful racial discrimination in 
the local construction industry had left white contractors 
with overwhelming advantages in the competition for pub­
lic construction contracts and the industry generally. The 
negligible participation of minorities in the City’s con­
struction contracts certainly gave no indication that this 
state of affairs was going to change by itself any time 
soon. Like Congress, the City determined that affirmative 
action was necessary to create opportunities for minor­
ity businesses in public contracting and help them be­
come more competitive. Otherwise, the City faced the 
likely prospect of continuing indefinitely to distribute its 
taxpayers’ dollars to a pool of construction contractors 
from which minorities had been effectively excluded.

The importance to Richmond of ensuring that govern­
ment contracts are awarded without the taint of racial 
discrimination cannot be overstated. Like discrimination 
by the government itself, discrimination that forecloses 
access to government benefits “ creates mistrust, aliena­
tion, and all too often hostility toward the entire process 
of government.” 64 The City, by continuing to award con­
struction contracts to a pool of contractors from which 
minorities had been practically excluded, in effect had be­
come a passive participant in a system based on dis­
crimination, and was helping to perpetuate that system. 
There was great potential for mistrust of and hostility 
toward the city government under these circumstances,

of a Virginia public contract violates Virginia law as well. Va. Code 
Ann. § 11-44 (Repl. 1985). In addition, a white-owned construction 
firm’s refusal on racial grounds to do business with a minority- 
owned firm violates 42 U.S.C. § 1981 (1982), which prohibits dis­
crimination in contracting. See Runyon v. McCrary, 427 U.S. 160 
(1976).

84 Wygant, 476 at 290 (O ’Connor, J., concurring) (quoting from 
S. Rep. No. 415, 92d Cong., 1st Sess. 10 (1 9 7 1 )).



32

and Richmond’s interest in taking remedial action was 
substantial.

Furthermore, had Richmond not acted to remedy the 
problem, there would have been no remedy. Though part 
of a national pattern, the negligible minority participation 
in Richmond’s public works program was Richmond’s 
problem, to be addressed by Richmond. No other govern­
mental entity has the same interest in this problem, and 
certainly no other governmental entity has the same com­
petence to recognize the problem and fashion an appro­
priate remedy. No other governmental program in fact 
addresses the problem. It would be a perversion of fed­
eralism to hold that the federal government has a com­
pelling interest in remedying the effects of racial discrim­
ination on its own public works program, but a city gov­
ernment does not.55

Finally, there should be no question that the Richmond 
City Council was an appropriate governmental unit to 
take action in furtherance of the City’s remedial interest. 
As the City’s legislative body accountable to the Richmond 
public, the City Council was competent to identify the 
existence of discrimination in Richmond’s construction 
industry and its effects on the City’s own public works 65

65 The United States Commission on Civil Rights has urged that 
“ States and their subdivisions must, at a minimum, enact laws 
which provide for their citizens the same level of protection offered 
by Federal statutes, executive orders, court decisions, and executive 
policy pronouncements.” IV United States Commission on Civil 
Rights, The Federal Civil Rights Enforcement Effort— 1974, at 
129 n.32 (1975) (emphasis added) (quoting United States Commis­
sion on Civil Rights, “ Revenue Sharing Program— Minimum Civil 
Rights Requirements” (1 9 7 1 )) . And the Report of the National 
Advisory Commission on Civil Disorders (1968) (the “ Kerner Com­
mission” ), established to study the causes and solutions to the 
urban riots of 1967, was emphatic that “ [b]ecause the city is the 
focus of racial disorder, the immediate responsibility rests on com­
munity leaders and local institutions.” Report of the Kerner Com­
mission at 229.

33

program, and to determine that the City should enact 
appropriate remedial legislation.

C. Richmond’s Remedial Action Is Justified Without 
Evidence Of Its Own Discrimination

The court of appeals below held Richmond’s Minority 
Business Utilization Plan unconstitutional because it was 
not predicated on “prior discrimination by the locality 
itself.” J.S. App. 9a. This requirement was unwarranted 
because pervasive local industry discrimination had pre­
vented minority businesses even from competing for city 
contracts, and thus provided an adequate predicate for 
the remedial ordinance. Requiring evidence of the City’s 
own discrimination in these circumstances would only 
permit this pernicious industry discrimination, and its 
effects on public contracting, to go unremedied. The court 
of appeals’ requirement is incompatible with the prece­
dents of this Court.56

The decision below rested on the premise that remedy­
ing a government’s own discrimination is the only gov­
ernmental interest that will support affirmative action 
policies. This case shows that this premise is untenable. 
As explained above, Richmond has a compelling interest 
in its remedial plan because of the profound effects of 
identified, pervasive, unlawful discrimination on its public 
works program. This interest is compelling regardless of 
whether the City itself discriminated against minorities 
in construction procurement.

Focusing on whether the City itself discriminated 
misses the point. Because racial discrimination in the 
local construction industry had substantially foreclosed 
minority access to city contracting opportunities, it had 
the same effect as discrimination by Richmond itself. In 
either case, the end result is the same— negligible minor- 68

68 The court of appeals derived the requirement from language 
in the plurality opinion in Wygant. As explained in part D below, 
Wygant does not control this case. See infra p. 38-41.



34

ity participation in the City’s public construction con­
tracts.67

The court of appeals’ approach is unsound and leads to 
an anomalous result. It held that the City should have 
compared “ the number of minority contracts and the num­
ber of minority contractors, taking into account other 
relevant variables such as experience and specialties.” 
J.S. App. 7a (emphasis in original). This comparison 
never will be probative of governmental discrimination 
where, as here, industry discrimination has prevented 
minority contractors from even competing for city con­
tracts.68 The court of appeals’ approach would permit

47 See, Sullivan, Sins of Discrimination: Last Term’s Affirmative 
Action Cases, 100 Harv. L. Rev. 78 (198G) (arguing that affirma­
tive action plans may serve a variety of important goals other than 
remedying the past discrimination of the entity adopting the 
plan).

48 As the district court found, the low number of minority con­
tractors indicates “ that past discrimination has stymied minority 
entry into the construction industry in general, as well as participa­
tion in government contracting in particular.” J.S. Supp. App. 167.

In this sense, this case is like United Steelworkers of Am. v. 
Weber, 443 U.S. 193 (1979). In Weber, this Court held that a 
private employer’s aflirmative plan was justified by a showing of 
a “conspicuous . . . imbalance in traditionally segregated job cate­
gories,” 443 U.S. at 209, rather than a disparity between the per­
centage of black skilled craft workers hired and the percentage in 
the area labor market. In discussing this aspect of Weber, the 
Court in Johnson stated:

Such an approach reflected a recognition that the proportion 
of black craft workers in the local labor force was likely as 
miniscule as the proportion in Kaiser’s work force. The Court 
realized that the lack of imbalance between these figures would 
mean that employers in precisely those industries in which 
discrimination has been most effective would be precluded 
from adopting training programs to increase the percentage 
of qualified minorities.

107 S. Ct. at 1453 n.10. Cf. Dothard v. Rawlinson, 433 U.S. 321, 
330 (1977) (in establishing a prima facie case of employment dis-

35

this pervasive, unlawful industry discrimination to go 
unremedied. It would virtually guarantee the perpetua­
tion of the status quo.6®

Nothing in this Court’s decisions requires evidence of 
Richmond’s own discrimination. In Fullilove, there was 
no evidence that the federal government itself had en­
gaged in racial discrimination in its disbursement of fed­
eral contracting funds. 448 U.S. at 527 (Stewart, J., 
dissenting). This Court’s judgment did not depend on 
evidence of governmental discrimination of any type. 
The Court upheld the federal plan as a remedy for the 
effects of discrimination in limiting public contracting 
opportunities for minorities; though some of that dis­
crimination was committed by state actors, nothing in 
either plurality opinion suggests that this was essential to 
the result.60 * 60

crimination, plaintiff could rely on statistics concerning general 
population rather than applicant pool, where discriminatory prac­
tices may have discouraged persons from even entering applicant 
pool).

5» In its affirmative action program for construction contractors, 
the federal government relies on general population statistics for 
precisely this reason. The Department of Labor concluded that it 
would not consider particular trades or crafts as the relevant labor 
pool, since minorities had been excluded from those trades and 
crafts by discrimination. See 41 C.F.R. § 60-4 (1 9 8 7 ); Notice, 45 
Fed. Reg. 65983 (1980).

60 For Justice Powell, the result in Fullilove clearly turned on the 
existence of identified, illegal discrimination, whether committed by 
private or state actors. He stated in his concurring opinion: 
“ [T]he distinction between permissible remedial action and im­
permissible racial preference rests on the existence of a constitu­
tional or statutory violation. . . .” 448 U.S. at 498. Congress’ action 
was permissible in his view because refusals to subcontract to 
minority contractors could violate Title VII of the Civil Rights 
Act of 1964 or the Fourteenth Amendment, depending on the 
identity of the discriminating party. Id. at 506. It was also signifi-



36

In Johnson, this Court held that Title VII of the Civil 
Rights Act of 1964 does not require a public employer’s 
voluntary affirmative action plan to be predicated on its 
own discrimination. 107 S. Ct. at 1451. To justify its 
affirmative action plan, an employer need not show that 
it has committed even an “ arguable violation” of Title 
VII; all that is required is a showing of a manifest 
imbalance in a traditionally segregated job category. Id. 
at 1451-52. This is the requirement under Title VII even 
where, as in Johnson, the court affirmatively finds that 
the employer has not engaged in discrimination. Id. at 
1466 (Scalia, J., dissenting).

A significantly different requirement should not be 
imposed under the Equal Protection Clause. Even if the 
prohibitions of Title VII and the Equal Protection Clause 
are not identical, a point about which there has been some 
dispute, they serve similar purposes.61 In Johnson, this

cant that Congress was a competent body to remedy the effects of 
this discrimination. Id. at 498 (Powell, J., concurring).

Justice Powell had applied the same rationale in Bakke, conclud­
ing that the state medical school’s use of race-conscious measures 
was unconstitutional because it was not predicated on findings of 
identified discrimination made by a governmental body competent 
to make such findings. Bakke, 438 U.S. at 307-09. See also Fullilove, 
448 U.S. at 498.

«i Moreover, Title V II contains a prohibition on racial discrimina­
tion that is far more specific than the language in the Equal Pro­
tection Clause. Therefore, as Justice Scalia stated in Johnson, 
joined by Chief Justice Rehnquist and Justice White, “ it is most 
unlikely that Title V II was intended to place a lesser restraint on 
discrimination by public actors than is established by the Constitu­
tion.” 107 S. Ct. at 1469 (Scalia, J., dissenting) (emphasis in 
original). Justice O’Connor in Johnson also stated her view that 
"the proper initial inquiry in evaluating the legality of an affirma­
tive action plan by a public employer under Title V II is no different 
from that required by the Equal Protection Clause." Id. at 1461 
(O ’Connor, J., concurring). In Paradise, 107 S. Ct. at 1075 n.l 
(Powell, J., concurring), Justice Powell indicated his belief that 
the standards of analysis in Title VII and Equal Protection cases 
are similar, though not identical.

37

Court reasoned that requiring employers to present evi­
dence of even an “arguable violation” of law could thwart 
voluntary affirmative action efforts, which can play a 
critical role in furthering Title VII’s objective of 
“ ‘break [ing] down old patterns of racial segregation and 
hierarchy.’ ”  Id. at 1450-51 (quoting Weber, 443 U.S. at 
208).62 * The Equal Protection Clause of the Fourteenth 
Amendment, ratified into law as centuries of slavery were 
coming to an end, had an objective similar to and no less 
compelling than that of Title VII.“  Requiring a munic­
ipality to present evidence of its own discrimination would 
undermine the goals of the Equal Protection Clause, just 
as it undermines the goals of Title VII.64 Such a require-

62 The Richmond City Council in fact was very concerned that 
its enactment of a remedial plan not be construed as an admission 
of liability for past discrimination. When one Council member 
expressed concern that characterizing the plan as “ remedial” might 
give rise to liability, the City’s attorney responded:

In the term remedial, we’re not just implying that the City 
was intentionally discriminatory in the past. W hat we’re say­
ing is that there are statistics about the number of minorities 
which were awarded contracts in the past which would justify  
the remedial aspects of the legislation. W e’re not saying there 
was intentional discrimination in any particular case.

J.A. 15.
os See Bakke, 438 U.S. at 291 (Powell, J.) (the Fourteenth 

Amendment’s “ ‘one pervading purpose’ was ‘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 
oppressions of those who had formerly exercised unlimited dominion 
over him’ ” ) (quoting from Slaughterhouse Cases, 83 U.S. (16 
W all.) 36, 71 (1 8 7 2 )) . It would be ironic to use the amendment 
to prevent the states from achieving that original purpose. “ Those 
original aims persist. And that, in a distinct sense, is what af­
firmative action,’ in the face of proper facts, is all about.” Bakke, 
438 U.S. at 405 (opinion of Blackmun, J .).

o< Not only would such a requirement generate concerns about 
legal liability, but the process of requiring public officials to reopen 
the past could be painful and divisive to the community as a whole. 
A  municipality that wishes to achieve racial equality should not 
have to take such risks in order to do so.



38

ment would be a dramatic departure from this Court’s 
reasoning in Johnson.™

D. Wygant v. Jackson Board of Education Does Not 
Control This Case

The sole support cited by the court of appeals for its 
“governmental discrimination” requirement is language 
in the plurality opinion in Wygant. The portion of the 
opinion on which it relied is as follows:

This Court never has 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.

476 U.S. at 274 (plurality opinion). See J.S. App. 5a. 
The court of appeals incorrectly concluded that this lan­
guage dictates the result in this case.

The language quoted above did not receive the support 
of a majority of this Court in Wygant, and in any event 
had little to do with even the holding of the plurality. 65 * * *

65 In Local 28 of the Sheet Metal Workers’ Int'l Ass'n v. EEOC,
106 S. Ct. 3019 (1986), this Court reaffirmed the proposition that
there is a compelling governmental interest in remedying the effects 
of identified racial discrimination even where the government itself 
has not discriminated. The Court held that a district court was 
not statutorily or constitutionally prohibited from ordering a union 
and its apprenticeship committee to implement affirmative action 
policies to improve minority membership. The union and ap­
prenticeship committee had been found guilty of egregious viola­
tions of Title V II by discriminating against racial minorities in
recruitment, selection, training and admission to the union. Be­
cause of this discrimination, which was wholly private, the court’s 
order survived even Justice Powell’s strict scrutiny under the 
Equal Protection Clause. He stated that the finding of egregious 
Title VII violations “establishes, without a doubt, a compelling 
governmental interest sufficient to justify the imposition of a 
racially classified remedy.” 106 S. Ct. at 3055 (Powell, J., con­
curring).

39

In contrast to Fullilove, Wygant involved issues very dif­
ferent from those presented here. Not only did it concern 
a layoff scheme in a school employment context, but the 
governmental interest supporting the layoffs was nothing 
like that supporting the Richmond plan. The court of 
appeals below simply misapplied Wygant to the facts of 
this case.

The court of appeals in Wygant had upheld a race­
conscious layoff provision on the theory that a school 
board had an interest in providing minority role models 
for its minority students in order to alleviate the effects 
of societal discrimination. A plurality of the Court re­
jected the court of appeals’ approach, reasoning that 
“ [s]ocietal discrimination, without more, is too amorphous 
a basis for imposing a racially classified remedy.”  476 
U.S. at 276. Moreover, the key evidence in the record in 
Wygant simply was not probative of any sort of discrimi­
nation. As Justice Powell explained, “ [tjhere are numer­
ous explanations for a disparity between the percentage 
of minority students and the percentage of minority 
faculty, many of them completely unrelated to discrimi­
nation of any kind. In fact, there is no apparent connec­
tion between the two groups.”  Id.

There thus was an absence of identified discrimina­
tion in Wygant; the Court never considered whether a 
local governmental body always must demonstrate its 
own discrimination in order to establish an “ important” 
or “compelling” interest in its remedial plan.86 It cer­
tainly never considered “governmental interest” issues in 
the public contracting context. The critical issues in the 
present case were neither addressed nor resolved in 
Wygant.

88 The Court did not consider the school board’s claims that it in 
fact had engaged in past discrimination because a plurality of the 
Court found the school board’s layoff provision an unconstitutional 
means to implement affirmative action policies in any event See 
Wygant, 476 U.S. at 277 (plurality opinion).



40

At most, the plurality in Wygant held that societal dis­
crimination alone, as exemplified by the lower court’s role 
model theory, is insufficient to justify a racial classifica­
tion.67 The entire Court also reaffirmed the proposition 
that “ remedying past or present racial discrimination by 
a state actor is a sufficiently weighty state interest” to 
justify a racial classification. Id. at 286 (O’Connor, J., 
concurring in part and concurring in the judgment) 
(emphasis added). However, Wygant decided little or 
nothing about governmental interests that lie between 
these two extremes.68

Fvllilove clearly is the precedent most relevant to this 
case. The governmental interest here is practically the 
same as that at issue in Fullilave, and is fundamentally 
different from that at issue in Wygant. Richmond’s ordi­
nance was not a remedy for “ societal discrimination.” It 
was predicated on identified, purposeful discrimination in 
Richmond’s construction industry that had caused an 
extraordinary racial imbalance in the awarding of city 
construction contracts. The City was a passive partici­
pant in that discrimination almost every time it awarded

87 Id. at 274-76 (plurality opinion). As the term had been used 
in Bakke, “societal discrimination” simply meant unidentified dis­
crimination by society at large. See, e.g., 438 U.S. at 307 (Powell, 
J .). Prior to Wygant, the term had not been used to refer to all 
discrimination not committed by a state actor. In fact, this Court 
in Fullilove held that the interest in remedying private identified 
discrimination may support a government’s use of racial classifica­
tions. See supra p. 35 & note 60.

88 As Justice O’Connor pointed out in her separate opinion: 
[C]ertainly nothing the Court has said today necessarily fore­
closes the possibility that the Court will find other govern­
mental interests which have been relied upon in the lower 
courts but which have not been passed on here to be suffi­
ciently ‘ important’ or ‘compelling’ to sustain the use of affirma­
tive action policies.

Id. at 286 (O ’Connor, concurring in part and concurring in the 
judgment).

41

a construction contract. Under these circumstances, 
Richmond had a substantial interest in opening for mi­
nority businesses the public contracting opportunities that 
long had been closed to them.

II. THE RICHMOND ORDINANCE IS SUFFICIENTLY 
NARROWLY TAILORED TO ACHIEVE ITS REME­
DIAL PURPOSE

A state or local government must choose appropriate 
means to implement the ends of its affirmative action plan. 
This Court has identified a number of factors to be con­
sidered in determining whether a race-conscious plan 
employs constitutionally acceptable means to achieve its 
purpose. These include:

the necessity for the relief and the efficacy of alter­
native remedies; the flexibility and duration of the 
relief, including the availability of waiver provi­
sions; the relationship of the numerical goals to the 
relevant labor market; and the impact of the relief 
on the rights of third parties.

Paradise, 107 S. Ct. at 1067 (plurality opinion).69 When 
considered in light of these factors, the Richmond ordi­
nance is sufficiently narrowly tailored to pass constitu­
tional muster. It is a temporary, flexible plan that is 
designed to fit its remedial purpose and have minimal 
impact on the interests of non-minorities.70

88 These factors are almost identical to those set forth by Justice 
Powell in his concurring opinion in Fullilove, see 448 U.S. at 510- 
11, and considered by the district court below. See supra p. 12.

70 The plan also was reasonably applied to appellee Croson. The 
district court so found after conducting an evidentiary hearing on 
the circumstances surrounding the refusal to award Croson a con­
tract. J.S. Supp. App. 209-214 & n.20. The court of appeals did 
not disturb this factual finding.



42

A. The Richmond Ordinance Is Necessary To Remedy 
the Effects Of Racial Discrimination On City Con­
struction Contracting And Has Minimal Adverse 
Impact On Non-Minorities

Once Richmond identified the problem that it faced, it 
enacted an ordinance that was well designed to correct 
that problem. The ordinance has minimal impact on non­
minorities, and it preserves the competitiveness of the 
bidding process for city construction contracts.

As Congress found and this Court acknowledged in 
Fullilove, minority opportunities in public construction 
contracting have been limited by business practices that 
effectively perpetuate the effects of longstanding racial 
discrimination.71 This clearly is the case in Richmond. 
Like Congress, the Richmond City Council had good rea­
son to believe that there could be no change in the status 
quo without race-conscious affirmative action to break 
down barriers to minority opportunity in its public works 
program.

Richmond’s ordinance was well designed to remedy the 
problems faced by minority-owned construction firms. 
These firms needed an opportunity to develop so that 
they could better compete in the marketplace, includ­
ing the market for the City’s construction contracts. 
Accordingly, none of the City’s prime construction con­
tracts have been set aside for minority businesses. Rather, 
the City more realistically chose to ensure opportunities 
for minorities at the subcontracting level. By teaming 
up minority businesses • with more established, white- 
owned firms, the ordinance removes some obstacles that 
had kept existing minority firms out of public contract­

71 See Fullilove, 448 U.S. at 478 (plurality opinion) ( “a long his­
tory of marked disparity in the percentage of public contracts 
awarded to minority business enterprises . . . result[s] . . . from 
the existence and maintenance of barriers to competitive access 
which had their roots in racial and ethnic discrimination. .

43

ing, such as lack of a track record, access to financing to 
meet bonding requirements, and purposeful racial dis­
crimination within the industry. See supra note 41. It 
also aids these firms by providing a source of revenue, 
giving them greater experience and credibility, and cre­
ating an opportunity to develop relationships with the 
more established contractors.

In addition, the ordinance encourages the formation of 
contracting firms by minorities that previously had seen 
little opportunity in construction contracting in Richmond. 
As this Court has stated: “ Affirmative action ‘promptly 
operates to change the outward and visible signs of yes­
terday’s racial distinctions and thus, to provide an impetus 
to the process of dismantling the barriers, psychological 
or otherwise, erected by past practices.’ ” Sheet Metal 
Workers, 106 S. Ct. at 3037 (plurality opinion) (quoting 
NAACP v. Allen, 493 F.2d 614, 621 (5th Cir. 1974)). In 
short, racial discrimination had created a “business sys­
tem” 12 that had largely excluded minorities and had en­
abled white-owned firms to dominate the competition for 
city construction contracts; the Minority Business Utili­
zation Plan was well designed to remedy the effects of 
this discrimination by bringing minority contractors into 
the business system and thus into a position to compete 
for city contracts.

The ordinance also has only a minor impact on non­
minority contractors. Unlike white teachers who are laid 
off because of preferences given to minorities, see Wy- 
gant, 476 U.S. at 272 (plurality opinion), no contractor 
has a vested right to a public construction contract, or a 
portion thereof. Nor does the Richmond ordinance un­
settle any contractor’s “ legitimate firmly rooted expecta­
tion.” Johnson, 107 S. Ct. at 1455. As this Court recog­
nized in Fullilove, the actual “ burden” shouldered by 
non-minority firms is very light when the amount spent

72 See supra note 42 and accompanying text.



by the City on construction contracting is compared 
with overall construction opportunities.’ 3 Moreover, as 
this Court also observed in Fullilove, it is not unreason­
able to assume “ that in the past some non-minority busi­
nesses may have reaped competitive benefit over the years 
from the virtual exclusion of minority firms from these 
contracting opportunities.” 448 U.S. at 485 (plurality 
opinion). In view of these considerations, any slight bur­
den that the ordinance imposes on this group is constitu­
tionally acceptable.

Because it does not set aside prime contracts for minor­
ity businesses, the ordinance also preserves the competi­
tiveness of the bidding process for city construction con­
tracts. It contemplates that minority businesses will be 
involved in this process as subcontractors. A minority 
contractor has every interest in making its price com­
petitive, since that will enhance the prospect that its 
prime contractor will receive the contract. The ordinance 
therefore does not give minority firms any monopoly 
power.73 74 * Indeed, by opening up the pool of competitors, 
the ordinance is likely in the long run to increase the

73 448 U.S. at 484 (plurality opinion). In the five years preceding 
the enactment of the Minority Business Utilization Plan, the City 
spent $124 million, or approximately $25 million per year, on con­
struction contracts. According to the United States Bureau of the 
Census, between $220 and $280 million was spent each year on 
new construction projects in Richmond between 1978 and 1983. 
United States Bureau of the Census, May Report: “Value of New 
Construction Put in Place” (1986). These figures indicate that city 
construction projects account for approximately ten percent of all 
construction in Richmond. This means that the thirty percent 
minority subcontracting requirement accounts for only three per­
cent of all construction contracting opportunities in Richmond.

74 As the district court found, even if a minority business did
have some monopoly power and tried to extract an unreasonably 
high price, the City could exclude that business from participation
on the ground that it is not a "responsible” business. J.S. Supp.
App. 186. The City has every financial incentive to ensure that
minority businesses do not abuse the plan to obtain unfair profits.

competition for city contracts, and thus reduce costs to 
the city.78

B. The Ordinance Is Designed To Be Reasonable, 
Flexible And Temporary

The Minority Business Utilization Plan does not estab­
lish unreasonable, rigid quotas for the participation of 
minority-owned businesses in city construction contracts. 
Its waiver provision permits the plan to be applied in a 
flexible manner and limits its impact on non-minority con­
tractors. In addition, the Richmond ordinance is tem­
porary and benefits only bona fide minority-owned busi­
nesses.

The ordinance provides for five agencies to assist con­
tractors in locating qualified minority businesses to par­
ticipate in a construction contract. J.S. Supp. App. 67. If 
a prime contractor demonstrates that compliance with the 
subcontracting requirement is not feasible because suffi­
cient qualified minority businesses are not available, the 
City wolves or lowers the thirty percent requirement 
as appropriate. Id. at 65-70. The thirty percent require­
ment therefore is not a rigid numerical quota, but a goal 
that is waived or lowered in instances where it unduly 
burdens non-minority prime contractors and serves no 
remedial purpose.76 *

Particularly in light of the waiver provision, the choice 
of the thirty percent figure was reasonable. Tying the 
subcontracting requirement to the percentage of minority 
contractors in Richmond was not a viable option. Be­
cause the percentage of minority contractors was itself

78 For precisely this reason, the district court concluded that the 
Richmond ordinance was consistent with competitive principles. 
Id. at 142-46.

78 The City also has a procedure whereby a disappointed bidder 
may protest an award or a decision to award a contract. As the 
district court found, this procedure may be used to protest the 
denial of a requested waiver once the contract has been awarded. 
See J.S. Supp. App. 192.



low as a result of discrimination, that approach only 
would have perpetuated that discrimination. Instead, the 
thirty percent figure is approximately midway between 
one percent—the percentage of city contracts awarded to 
minorities— and fifty percent—the percentage of minori­
ties in Richmond. The ten percent set-aside upheld in 
Fullilove rested on similar logic. Justice Powell explained 
that the set-aside was reasonable because the figure “ falls 
roughly halfway between the present percentage of minor­
ity contractors and the percentage of minority group 
members in the Nation.” 448 U.S. at 513-14 (Powell, J., 
concurring). Arriving at the thirty percent figure 
“ ‘necessarily involve[d] a degree of approximation and 
imprecision,’ ” 77 but the choice was a reasonable one.78

The fact that the Richmond ordinance is temporary fur­
ther enhances its reasonableness. The expiration date is 
consistent with the remedial nature of the ordinance. 
Because the ordinance was designed to last only five years, 
and virtually no minority firms had been receiving city 
construction contracts, it was highly unlikely that the 
ordinance would outlive its remedial purpose. J.A. 14. 
The ordinance is designed merely to attain a better racial 
balance in the awarding of city construction contracts, 
rather than to maintain a particular balance. See John­
son, 107 S. Ct. at 1456.

77 Paradise, 107 S. Ct. at 1072 (quoting International Brother­
hood of Teamsters, 431 U.S. at 372).

78 A similar choice for a similar purpose was made by the Office 
of Federal Contracts Compliance of the U.S. Department of Labor 
( ‘‘OFCCP” ). OFCCP in 1980 set employment goals for the con­
struction industry for standard metropolitan statistical areas 
(“ SM SA” ) through the United States. 41 C.F.R. § 60-4 (1987); 
Notice, 45 Fed. Reg. 65984-91 (1980). It adopted a goal of 24.9%  
minority employment for the Richmond SMSA which, according to 
the 1970 census figures used by OFCCP, had a minority population 
of 25.5% . 45 Fed. Reg. at 65981, 65985. See U.S. Bureau of the 
Census, PC(1)-B48, General Population Characteristics Virginia, 
1970 Census of Population (1970).

Finally, the Richmond ordinance has administrative 
provisions which, as the district court found, require the 
city contracting officer to deny minority business status 
to firms unless they are majority owned and actually 
controlled by minorities. J.S. Supp. App. 62, 215-19. 
The purpose of these provisions is to ensure that busi­
nesses participating in the plan are not “sham” minority 
businesses in fact controlled by whites. Id. at 218. The 
City takes this provision seriously, as illustrated by Mega 
Contractors v. City of Richmond, Civ. No. 84-0022-R 
(E.D. Va. Dec. 3, 1984), the companion case to this one 
below. In that case, the district court found that the City 
acted reasonably in denying minority business status to 
a contracting firm that was nominally owned by a minor­
ity group member but actually controlled and operated 
by whites. See J.S. Supp. App. 215-22.

CONCLUSION
For the reasons stated herein, this Court should reverse 

the decision of the court of appeals and uphold the con­
stitutionality of Richmond’s Minority Business Utilization

Respectfully submitted,

John Payton *
Mark S. Hersii 
Peter L. Kahn 

Wilmer, Cutler & Pickering 
2445 “ M” Street, N.W. 
Washington, D.C. 20037 
(202) 663-6000

Drew St . J. Carneal 
City Attorney

Michael L. Sarahan 
Assistant City Attorney 

Michael K. Jackson 
Assistant City Attorney 
Room 300, City Hall 
900 E. Broad Street 
Richmond, Virginia 23219 
(804) 780-7940 

Attorneys for Appellant

* Counsel of Record

Of Counsel:
John H. Pickering 

Wilmer, Cutler & Pickering 
2445 "M ” Street, N.W. 
Washington, D.C. 20037

April 21,1988