Richmond v JA Croson Company Brief for Appellee

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I ABI 1. Ol ( ON I I M  S

I* age
(Questions Presented..................................... i
I able ol Authorities..................................... in
Slalcmcnl ol the Case.................................  I
Summary of Argument................................ Ill
Argument....................................................  II

i im :  l o c a l  p r o i ix r ioN
( LA U S I Rl QLIIRI S A OOVIRN- 
IN(i BODY TO SHOW I HA I I I
b l a r s  i h i : r l s p o n s i b i i  i i y  i o r
RA C IA L  D ISCRIM INATION B IO R L  
I I IMPOSITS A RACIAT C l ANSI I 1 
CATION IN m i :  AW ARD Ol PUB
1.1C CONTRACTS................................ II
a . i h i : a p p l l l a n i s

AR( iU M I N I  ASSUMITS I AC I S 
WHICH ART NOI IN I III
RI-CORI)......................................... II

B. n i l .  Rl ( ORI)  SH O ULD  LS I  AB 
L ISH  I HL RLSPO N S IB II  I I Y Ol 
T I IL  (iOVI RNINO BODY IO R  
l ll i: D ISCRIM INATION BL IN D  
Rl Ml 1)1! I ) ....................................  LI

( ’. SOCII-TAI. D ISCRIMINA HON IS 
TOO U N R L V L A I  INCi TO PI R 
M i l  A ( iO V IR N IN O  BODY K )
ADOPT A Rl Ml DIAL RAC IAL
( I ANSI I 1C A 1 ION......................... IX

I). I III ( O U R  I SHOULD  RI OU IRL  
I HAT 1 III ( .OVI RNINO BODY 
HAS A COM PI I I INC I N I I R  
LS I  IN ADOPTINO 1111 
RACI AI ( I ASSII  ICA I ION .........  O

II



II T il l :  RECORD M UST PRO V ID E 
PO S IT IV E  A SSU RA N C E TH AT T H E  
RA C IA L  C LA SS IF IC A T IO N S  W I RE 
•NECESSARY AS A N A RRO W LY  
T A ILO R ED  R EM ED Y  EOR 
D ISC R IM IN A T IO N  EOR W H ICH  
T H E  G O V ER N IN G  BODY IS
R E S P O N S IB L E ...................................  26

Conclusion...................................................  31

TABLE OF AUTHORITIES

Cases

Associated General Contractors of Califor­
nia City and Counts’ of San Francisco,
813 E.2d 992 (9th Cir. 1987)....................... 17

liazemore r. t riday, 478 U.S. 385, 106
S.Ct. 3000(1986)....................................... 18,20

Del unis v. Odegaard, 416 IJ.S. 312 (1974). . 16
I allilove v. Klutznick, 448 U.S. 448 (1980). . passim
General Building Contractors v. Pennsylva­

nia, 458 U.S. 375 (1982)..........................  20, 26
Hazelwood School District v. United

States, 433 U.S. 299 (1977).....................  16, 18
International Brotherhood of Teamsters v.

United States, 431 U.S. 324 (1977)............  16,
Janowiak v. The Corporate City of South

Bend, 836 I .2d 1034 (7th Cir. 1987)......... 17, 24, 25
./. Fdinger X Son v. City of Louisville, 802

E.2d 922 (9th Cir. 1987)............................  17,
Johnson v. Transportation Agency, Santa

Clara Counts’, 107 S.Ct. 1442 (1986).......16, 24, 25,

iii

Local 2S of the Sheet Meted Workers Int I 
Ass'n v.E .E .O .C ., 478 U.S. 421. 106
S.Ct. 3019 (1986)......................................  16,23

Michigan Bond Builders r. Millikcn, 571 I-.
Supn. 173 (E  D. Mich. 1983), rev'it 834
E.2d 583 (6th Cir. 1987)............................  17, 24

National Black Media Coalition v. L X  A .,
775 E.2d 342 (D C. Cir. 1985)................  15

Roberts r. United States Jaycees, 468 U.S.
609(1984).................................................  25.

S.E.C. v. Chenery Corp., 332 U.S. 194
(1946)........................................................  15.

Swann r. C harlotte—Mecklenherg Bel. of
Ed tic., 402 U.S. I (1971)..........................  18. 20

United States v. Starrett Cits’ Associates,
840 E.2d 1096 (2nd Cir. 1988) ................  17

United States v. Paradise, 107 S.Ct. 1053
(1987)........................................................  16, 22. 23,

Univ. of California Regents v. Bakke, 438
U.S. 265 (1978)........................................  19.

Wygant v. Jackson Bd. oj Lditc.. 476 U.S.
267(1986).................................................  passim

CONSTITUTIONAL PROVISIONS, STATUTES, AND 
ORDINANCES

U.S. Const. Amend. X IV ............................  passim
5 LJ.S.C. Section 553(c)...............................  15
42 U.S.C. Section 1981...............................  26
Surface Transportation Act. Pub. L. No.

100-17, 101 Stat. 132 (1988).....................  30
Minority Business Utilization Plan, codilied 

at Richmond, Va. Code ch. 24.1. art. 1(1 ) 
(Part B) Paragraph 27.10-27.20, art. V III 
A (1983) ...................................................

IV



Richmond. V;i.. Ordinance No. X2-294-270 
( I K'ccmhcr 20. 19X2)...............................  I

REGULATIONS AND I IGISLATIVE MATERIALS
49 ( | R Pari 23 (19X7).............................. 29
52 I ed keg. 39, 227 119X7)........................  29
19X7 U S. Code C ong. & Admin. News. 76. 31

OTHKR AUTHORITIES
C'hoper, Continued Uncertainty as to the 

Constitutionality of Remedial Racial 
( lassifiidtions: Identifying The Pieces of 
the Picric, 72 Iowa L. Rev. 255 (19X7)... 15,17,

Days, Tullilovc. 96 Yale L. J. 453 (19X7) . . .  21,
I Iv. Reverse Racial Discrimination, 41 U.

( hi 1 Rev. 723 (1974)............................  23.
Madison. The Tcdcralist, No. 10 (2d ed.

Johns Hopkins Univ. Press 723) (1974) .. . 22,23

I

STATEMENT <)E THE CASE

A.

D i ia i i  s or Tin I’i an an o  O roinanc i

The City Minority Utilization Plan requires non­
minority race contractors who are awarded construction 
contracts by the City to subcontract at least 3()9f of the 
dollar value of the contract to Minority Business Enter­
prises (M BEs). J. S. Supp. App. II at 247.1 If the prime 
contractor is a minority business enterprise, the require­
ment that 309? be subcontracted to M BEs is inapplica­
ble. Id.

The City's Plan was the product of two ordinances. 
The second ordinance, providing most of the Plan as it 
now stands, was adopted by the Council on April I I .  
1983. J. S. Supp. App. H at 233, 249. It was an amend­
ment to the City's general procurement procedures for 
purchasing the City's materials and services, which hail 
been first adopted live months earlier. See Richmond, 
Va., Ordinance No. X2-294-270 (December 20. 19X2). 
Code Ch. 24.1.

The expressly stated purpose of the Plan was:
“ This article is remedial and is enacted lor the 
purpose of promoting wider participation by 
minority business enterprises in the construc­
tion of public projects, either as general con-

1 References to the Appendices will follow the form used In 
Appellant. T he Joint Appendix, which contains the transcript ot the 
hearing before (Tty Council prior to adoption of the Ordinance at 
issue, is cited J. A. at . . .  The Appendix to the Jurisdictional 
Statement, which contains the Opinion of the Court of Appeals, is 
cited J. S. App A at . . a The Supplemental Appendix to the 
Jurisdictional Statement, which contains lower court opinions and 
the Ordinance, is cited .1. S. Supp. App at . References to 
the record will be cited by Exhibit number Ex



11aclois or subcontractors." .1. S. Supp. App. II
;il MX.

I lie Plan defines an M BE as “ a business at least 
lilts one percent minor ity-owned and operated by minor­
ity group members or. in the case of a stock corporation, 
id least filly-one percent of the stock of which is owned 
and controlled by minority group members.”  J. S. Supp. 
App. II ;it 24X. The Plan defines “ minority group mem­
bers”  as “ citizens of the United States who are Blacks, 
Spanish-speaking, Orientals, Indians, Eskimos, or 
Aleuts.”  Richmond, Va. Code ch'. 24-1, art. 1(F) (Part B) 
Paragraph 27.20, and Vlll-A (19X3); J. S. Supp. App. H 
iit 241. A bidder, who is not otherwise a minority, has ten 
days alter notification that he is the low bidder to submit 
a completed form designating the minority contractor 
whose work will constitute 30% of the contract. Ex. 14.

I he Plan lacks a number of features which others 
use to avoid imposing rigid numerical quotas. ( I)  By 
administrative policy, waivers of the 30% utilization 
requirement are to be granted only when every feasible 
ell oil has been made to comply and qualified M BEs are 
unavailable or unwilling to participate. Ex. 14. (2) There 
is no requirement that the minority contractor or sub­
contractor perform any useful service on the contract, 
just that he receive 30% of the contract amount. (3) 
Nothing in the Plan precludes a minority from subcon­
tracting its share back to a non-minority firm. (4) The 
plan includes racial minorities without regard to their 
economic oi social status—there are no limitations on 
net worth or gross sales. (5) There is no “ graduation 
requirement”  for any firm which becomes able to com­
pete without the protection of preferences. (6) There is 
no limitation on residency, which would focus the reme­
dial elfort on the Richmond area.

B.

T hf B id d in g  Pr o c iss  and  W a iv i k A m  ic a i io n .

This appeal presents challenges to the adequacy of 
the required factual predicate for adopting the ordinance 
and the failure to adapt its provisions to remedy an 
identified problem. But the facts bearing on the admin­
istration of the ordinance remain important because they 
show how inflexibly civil servants administer such a law 
once it is enacted. The difficulty imposed on a bidder 
who is not a member of one of the races selected for 
inclusion in the law is also illustrated.

There is no issue as to the good faith of either party.
Appellee J. A. Croson Company (“ Croson” ), an 

Ohio corporation, is a contractor which submitted the 
low bid on a project to install stainless steel plumbing 
fixtures in the Richmond City Jail. Croson had not done 
business with the City before. Deposition of Eugene 
Bonn, Ex. 17c at 4. Croson was awarded the contract 
contingent on complying with the minority utilization 
requirement.

The fixtures were especially designed for use in a 
penal institution, so that only two manufacturers met the 
required specifications. The cost of the fixtures repre­
sented approximately 75% of the cost of the project. 
Croson’s regional manager, Eugene Bonn, determined 
that the only way in which to satisfy the City’s require­
ment that 30% of the contract be awarded to a minority 
owned firm was to obtain a minority supplier for the 
fixtures. .1. S. Supp. App. Ci at 121. Bonn had prior 
knowledge that there were no minority suppliers. The 
project had been out for bid previously, and although 
Croson had not submitted a bid, Bonn testified that he 
had then contacted minority suppliers in Pittsburgh and 
North Dakota in an unsuccessful attempt to secure 
minority participation by minority suppliers. Deposition



4

of I ugene Bonn. I a . 17c ;»t 14-15.
On September 50. the day lie received the bid 

documents. Bonn contacted a number of minority busi­
nesses listed as plumbing suppliers with the Virginia 
( Hlice of Minority Business Enterprise, the Richmond 
Human Relations Commission, and the Richmond Rede­
velopment and Housing Authority. He informed the 
firms about the project and how to obtain the specifica­
tions necessary to quote a price on the fixtures. Deposi­
tion of Eugene Bonn. Ex. 17c at 21; J. S. Supp. App. G
; 11 121 Bonn contacted the referrals again on October 12, 
the last day on which bids could be submitted, to inquire 
whether any would be quoting him a price. No minority 
linn quoted a price, so Bonn submitted his bid of 
512b.5.50.(HI using a quote from a non-minority firm 
which regularly supplied such items. Bonn had received 
quotes directly from three non-minority suppliers. Bonn 
l)cp at 7. Testimony showed that none of the minority 
linns contacted by Bonn were suppliers of plumbing 
equipment made by the two manufacturers of the spec­
ified product. Deposition of Curtis Johnson, Ex. I7d at 
I M 2; Deposition of Wallace Green, Ex. I7f at 4, 6; 
Deposition of Donald Sparrow, Ex. 17a at 22, 54. None 
testified that they knew that they could have arranged to 
supply the product.

Melvin Brown, a principal in a Richmond business 
called Continental Metal Hose, Inc., was contacted by 
Croson on October 12. There was a conflict in testimony 
as to whether Continental had been contacted on 
September 50 to quote a price. Bonn produced telephone 
toll records to show that he had contacted the other firms 
on his list on September 50 and had notes (Ex. I I )  
showing that Continental Metal Hose was on his list. At 
least one of the firms contacted returned calls to Bonn. 
Deposition of Wallace Green, Ex. 17 at 10. Bonn testified

s

as to the content of his conversations with Brown. Since 
Continental Metal Hose was a local firm, there was no 
toll record.

The District court found it unnecessary to resolve 
the conflict in testimony. J. S. Sup. App. G at 190.2

On October 12, Bonn gave Brown the name of a 
distributor from whom Brown could obtain prices. I he 
distributor refused because Brown had not established 
credit and the purchase price was in excess of $80,000. 
Deposition of Melvin Brown, Ex. 17(b) at 15, 22. Brown 
also requested prices from a supplier who had already 
quoted a price to Bonn and was refused. J. S. Supp. App. 
G at 125. Brown attended the bid opening on October 15 
and advised Bonn that he would attempt to supply the 
fixtures. Brown gave Bonn literature which described 
Continental Metal Hose as a dealer in metal pipes and 
hoses. Transcript of hearing, United States District 
Court, February 20, 1984, at II. Bonn advised Brown of 
the names of two manufacturers of approved products. 
Id. at 13. In order to be able to supply the fixtures. 
Brown would have to be approved as a supplier by one of 
the two manufacturers of the approved products. Id. at 
19.

On October 19, Bonn requested that the City waive 
its 30% minority utilization requirement on grounds that 
no qualified minority supplier was available. Waivers 
were required to be obtained within 10 days tit the bid 
opening, or the contractor would be deemed to be in 
noncompliance; the City has three days to act on a

2 The District Court also stated that under hullilovc it would not 
be unconstitutional if. after every feasible effort to obtain minority 
participation had been made, the ordinance peimittcd a minority to 
appear after bids were opened and force the contractor to rework his 
bid. J. S. Supp. App. Ci at 229, n. 14, citing Fullilove. 448 U S. at 
492-93.



icquest lor waiver. I \. 14. ( )n October 27, the day 
Blown learned Croson had asked lor a waiver ol the 
MBI icquiiemenl. Brown asked Bonn lor the name ol 
the second manufacturer's representative. J. S. Supp. 
App ( ia l 124. On October 41, hrown submitted a quote 
based on prices supplied by the second manufacturer s 
representative. .1. S. Supp. App. (i at 124-125. On that 
date. Hrown called the Director of Purchasing and Stores 
lor the City, and advised him that he had obtained a 
price. .1. S. Supp. App. at 125. Hrown added a $7,663.15 
markup to his quote to Croson* which was $6,183.29 
higher than the customary mark-up and Bonn’s other 
quote. Iranseript. Circuit Court of City of Richmond Ex. 
18 at 45-46. Honn advised the City that not only was 
Hrown not a qualified supplier, but that the price he did 
quote was unreasonably high.

On November 18. the City advised Croson that it 
was cancelling the bills and was rebidding the contract. 
Honn sought to appeal the decision and was advised that 
there was no appeal of a decision to rebid a contract. J. 
S Supp. App. Ci at 129; Ex. 9. On December 16, Brown 
was notified by the manufacturer’s representative that he 
was approved as a distributor . . in the event they are 
the successful bidder with respect to the replacement 
plumbing fixtures lor the Richmond ( ity Jail. fix. 16.

At the hearing on motion for preliminary injunction 
m the Circuit Court of the City of Richmond prior to 
removal upon motion ol the City to the United States 
District Court, the City testified that, since Continental 
Metal Hose was listed as a plumbing supplier with the 
various minority business referral sources it consulted, 
Continental Metal Hose was deemed to be an available 
minority business enterprise (M BE ), and that no effort 
was made to ascertain whether Brown was in fact able to 
supply the equipment. Transcript, Ex. 18, at 21-22. The

7

City further testified that the price a minority contractor 
quoted was of no concern to the City. Deposition ol 
Vernon Williams, Ex. 17(g) at 48-49; Deposition ol H R. 
Wall, Ex. 17(h) at 56-57.

Brown testilied that he was charging " . . .  whatever 
the market will bear.”  Transcript, fix. 18 at 91.

C.

A i>o p iio n  or Tm  O k o in a n i i

The most that can be said for the process employed 
by C’ity Council is that it afforded the public the chance 
to comment on the Plan before it was put to a vote.

At the conclusion of a five hour Council meeting, the 
C ity held a two hour hearing in which five persons spoke 
against and two spoke for the need for the Plan. The 
hearing was the public hearing required by law, upon live 
days notice, for the adoption of any city ordinance after 
the ordinance has been introduced. Sec Richmond C ity 
Charter, Section 4.10, Acts of Assembly |Virginial eh. 
120 (1964). The hearing was not held for the purpose of 
ascertaining the nature of any problem which may re­
quire remedial action. Council debate is not a required 
part of the hearing. J.A . at 17.

The Plan was introduced by one of its two sponsors 
(Council members Richardson and Marsh) who de­
scribed its purpose as being “ to have those dollars 
recycled back to minority businesses . . J.A . at 12. 
No testimony from the citizens who spoke in favor ol the 
Plan identified any basis for enacting the ordinance. 
Neithei of the two proponents was connected with the 
construction industry. I he tenor ol the remarks ol the 
first speaker was that other cities hail such Plans and it 
was time for Richmond to have one. J.A . at 18-19. I he 
other mentioned “ a kind ol closed atmosphere to enter­
taining new companies and new ideas and new vendors



X

here in the Richmond area." J.A . at 17. One of the 
sponsors of the Plan commented that blacks were vic­
tims of discrimination "in the construction industry in 
this area." J.A . at 41. No explanation of the nature of the 
discrimination was offered and this remark came in 
debate among Council members after the close of testi­
mony. J.A . at 41. Apparently failing to recognize that 
opponents had no further opportunity to speak. Judge 
Sprouse's dissent described this as "unchallenged state­
ments of council members." J. S. App. A at 16a. The 
sponsor then handed the clerk a listing ot the contract 
amounts which had been awarded from 1978 through the 
first two months of 1983. That list (and a subsequently 
prepared list of prime contractors who received the 
contracts) appears as Kxhibit 20. The list represents the 
only data that Council had before it. No speaker saw it. 
The sponsor stated at that time that only .67% of the 
City's prime contracts had been awarded to minority 
firms. No documentation of this was provided. The list of 
contractors does not indicate which were MBEs. J.A . at 
41. The figure was not made available prior to the 
hearing. J. S. App. A at 16a.

There was no identification of the basis for choosing 
a 30% set-aside figure.

The vote in favor of adopting the Plan was along 
racial lines with the five black members and one of the 
four white members of the Council voting for it. J.A . at 
40.

In contrast to the City's historical experience with 
prime contractors, City Officials were aware that the 
prime contractors were utilizing minority subcontractors 
at a significantly greater rate. In reply to a question from 
a council member, the City Manager stated that the 
City's experience with minority utilization was about 7 
or 8% of the total. J.A . at 16. On the Community

9

Development Block Grant Program, which had a 10% 
utilization goal, minority utilization was between 17% 
and 22%. J.A . at 16. When the discussion among council 
members turned to the level ot activity of subcontiac­
tors, one of the sponsors of the Plan suggested that the 
public hearing should continue. J.A . at 17.

Opponents of the Plan testified that the Plan would 
be counterproductive because of the lack ot available 
minority subcontractors. The hick of available local 
qualified contractors to work on fixed price government 
contracts was attributed to licensure requirements (J.A. 
at 32), lack of ability to estimate costs (J.A . at 36), 
bonding requirements and financial capabilities. J.A . at 
37. Most of the trade associations which spoke men­
tioned efforts to recruit minority members. None were 
accused of discrimination by any speaker or member of 
Council, nor were they afforded the opportunity to 
respond to the broad allegations of racism and discrimi­
nation leveled at them for the first time in the City's 
brief.

The City’s position in its "Petition for Rehearing 
and Suggestion for Hearing in Banc" in the Court of 
Appeals was that ( I ) it has the right to rely on the 
congressional findings of private and governmental dis­
crimination (Petition at 9); and (2) that the discrimi­
natory barriers" that the City seeks to address through 
racial classification include:

The M BE must also overcome proven obstacles 
to market entry, obstacles identified and dis­
cussed in FuHilove, including obtaining the nec­
essary working capital, insurance, and bonding, 
as well as developing a "track record.' If the 
MBH does not overcome each of the obstacles, 
the City of Richmond’s hands are tied. It has no 
contracting choice but to deal almost exclu-



ID

sivcly. with nonminority contractors, as was 
the city's experience until the very recent 
past." Petition lor Rehearing at 12.'

Appellee does not question the entitlement of the City to 
address such race-neutral harriers, hut disputes the use 
of racial classifications as the means of doing so.

The City attorney expressly disavowed “intentional 
discrimination [hy the Cityl in any particular case hut 
relied on general discrimination hy the construction 
industry cited in Full Hove. J.A . at 15.

SUMMARY OF ARGUMENT
This case presents to the court the narrow' issue 

whether showing that a low percentage of awards of 
prime contracts to minority race contractors justifies 
adoption of a requirement that non-minority contractor 
subcontract 30% of the contracts to minority businesses.

It is assumed for purposes of argument that local 
governments can in proper circumstances adopt percent­
age requirements for the use of minority subcontractors. 
Appellee contends that in this case the record fails to 
disclose a proper basis for adoption of the racial classi­
fication.

Evaluating the constitutionality of race-conscious 
legal remedies under the equal protection clause of the

1 Othei documents produced hy the City in discovery showed 
that construction purchase orders (under $10,000) were awarded to 
minority firms at a 10. rate It was known to counsel for both 
parties at trial that the City had active programs of minority 
utilization that were producing results significantly in excess of the 
representation ol minority firms in the general population. That is 
why, at trial, there were no references to discrimination hy the City 
or the construction industry. The references in the Brief on hehalf of 
the City that minorities had been receiving “ virtually none of 
Richmond’s public construction contracts”  are both inaccurate and 
not supported hy the record. Brief on Behalf of Appellant, at 3.

fourteenth amendment requires a two-part analysis: first, 
that there be a compelling interest in adopting the 
remedy; and, second, that the remedy adopted be sub­
ject to strict scrutiny to assure that it is narrowly tailored 
to achieve the remedial purpose. Societal discrimination 
does not constitute a compelling interest in adopting the 
remedial racial classification.

It cannot be said that City Council was acting to 
remedy past discrimination by the City because the 
assumed societal discrimination is not probative of dis­
crimination by the City. In addition, no effort was made 
to conform the terms of the remedy to any identified 
problem.

ARGUMENT

I

The Equal Protection C lause Requires a Governing Body to Show 
That It Bears the Responsibility for Racial Discrimination Before It 
Imposes a Racial Classification In the Award of Public Contracts.

A.

T h e  A p p e i l a n t ’s A rg u m en t  A ssu m es  P acts W u k  h A re Not 
in i he R ec o r d .

This case presents issues, in a very precise factual 
context, regarding the extent to which governments may 
adopt racial classifications in the award of public con­
tracts. A City Council member stated that .67% of the 
City’s prime contracts had been awarded to minority 
contractors, and the Appellee has accepted the represen­
tation. (In Fullilove, .65%' of contracts had been awarded 
minorities. 488 U.S. at 465.) However the Appellant and 
several briefs amicus curiae ask this Court to attribute a 
significance to the low rate of participation of minority 
firms which is unsupported by the record. This is not to



underestimate the impaet ol societal discrimination. 
However, this does not establish the Appellant s allega­
tions. raised for the first time in this Court, of "a 
distribution of public contracts only to businesses owned 
by whites”  or of’ “ identified local industry discrimina­
tion.”  or “ that minority businesses were receiving vir­
tually none of the City's public construction contracts.”  
Uriel'of Appellant at 14, 17. 19.

This belies the unfounded assertion now contained 
m the Appellant 's brief of such charges as “ longstanding 
pervasive racial discrimination in the construction indus­
try" (Brief on Behalf of Appellant, at 14), that there was 
“ identified local industry discrimination”  (Id. at 15), 
“ exclusion by unlawful racial discrimination”  (Id. at 15), 
“ pervasive unlawful industry discrimination" (Id. at 16); 
“ a distribution of public contracts only to businesses 
owned by whites" (hi. at 17); “ minority businesses were 
receiving virtually none of the City's public construction 
contracts" (hi. at 19.) Comments by a sponsor of the 
Plan are presented in the Appellant’s Brief as “ including 
the testimony of a former Richmond mayor. Id. at 23. 
f rom the fact that discrimination was not mentioned by 
any of the citizens who spoke at the hearing, the City’s 
Brief infers “ identified, pervasive, unlawful discrimina­
tion on its public works program.”  Id. at 33. In the 
District Court none of these charges were made.

Of course to reach the conclusion that the Flan was 
needed, the City Council needed to ignore the testimony 
of all the speakers, none of whom ever referred to the 
existence of discrimination. That a sponsor of the Plan 
mentioned Ins knowledge of discrimination in the con­
struction industry adds nothing.

Thus, the pertinent facts are that the Plan was 
adopted upon a belief that .67% of $124 million of certain 
of the City's contracts were being awarded to minority

l i

prime contractors. There is no other information in the 
record about that figure that adds anything to the recog­
nition of societal discrimination.

Obviously, since the law would require non­
minority firms to subcontract 30% of the contract price 
to minorities, the only useful statistics would be a 
comparison of participation of minority firms as subcon­
tractors in relation to their availability. This would 
establish the parameters of any problem and would 
provide guidance as to the desirable terms of any law 
which would be enacted.

The use of the .67% figure simply fails to compare 
relevant populations. The threshold rule is that relevant 
populations must be compared in order to have a basis 
for further inquiry into the existence and nature of a 
problem. No decision of this Court has approved a race 
conscious legal remedy absent discrimination traceable 
to [the governmental agency’sl own actions. Wygant, 
476 U.S. at 266 (O’Connor J., concurring).

Since the ordinance imposes a subcontracting re­
quirement, it is possible that the quota could be achieved 
and the number of awards to prime contractors could be 
unaffected. In the instant case, the minority supplier was 
being “ approved”  as a distributor for this one project 
only, and only if Croson were to be awarded the contract 
by the City. Ex. 16. Not only does it serve no business 
interest for a contractor to purchase the product for 
$6,000 more from one who is not his regular supplier, but 
there was nothing about this contract which would 
encourage the minority business to become a prime 
contractor appearing on a list like that introduced at the 
hearing before City Council.

The factors identified by the City Attorney as barri­
ers to entry (supra, p.9) were experience, financing, 
insurance, and bonding. I he same factors weie identified



14

in testimony at the hearing. J. A. at 32. 36. 37. The 
Record is equally probative of nondiscrimination. The 
laws prohibiting discrimination have been on the books 
for many years and there is no reported case brought 
against the City for discrimination in the award of City 
contracts. Nor have there been any relevant actions 
against the City by contractors alleging discrimination in 
the award of public contracts. See Fullilove. 448 U. S. at 
540 (Stevens, J., dissenting.)

U. .

I ni Ri.t o r i) S h o u i o lis i a b i ism Thf. R e s p o n s ib il it y  or Tun 
(iov iRNiNo Hods I or t in D isc r im in a t io n  B f in o  R e m e d ie d .

Wygant v. Jackson Hoard of Education, 476 U.S. 
267 (1986) which is the fullest and most recent expression 
of a plurality of this Court, establishes an efficacious 
method of assuring that race-conscious legal remedies 
for discrimination adopted by local governing bodies are 
consistent with protections provided by the equal pro­
tection chose. That is, before an asserted governmental 
interest m adopting a racial preference can be accepted 
as “ compelling,” 4 * * there must be findings' of “ prior 
discrimination by the governmental unit involved.”  Wy- 
gant. 476 U.S. at 274 (Rowell, J., plurality opinion). And 
further, if this finding is to be drawn from mere statistical 
evidence, the evidence must focus on the population that 
is relevant for comparative purposes, such as the avail­
ability of qualified minorities in the relevant construction 
businesses. Id. at 275-26.'’

4 I lie use of the term compelling interest to describe the 
asserted governmental interest is set forth in Argument Ic, infra.

' See p. 2b. infra.
'’ The Court should reject appellant’s suggestion that il is 

unreasonable to require that a legislative body make a factual

15

Dean Choper has noted that

The extent to which the equal protection clause 
of the fourteenth amendment . . . permits gov­
ernment to use racial classification to remedy 
prior racial discrimination is one of the most 
significant and controversial issues of our time. 
Choper, Continued Uncertainty as to the Con­
stitutionality of Remedial Rac ial Classifica­
tions: Identifying the Pieces of the Puzzle, 72 
Iowa L. Rev. 255 (1987).

This Court has approved a number of voluntarily 
adopted racial classifications, but always in situations in 
which competent findings were made that the racial 
classification was to remedy discrimination by the actor 
involved. Wygant, 476 U.S. at 274 (Rowell, J . )7; F'ulli-

record. Since it is uncontested that the purpose for adopting the Plan 
is centeral to determination of its validity, it is natural that the City
must make a record which justifies the remedial purpose of the Plan.
In administrative law there is a clear parallel. S.h.C. r. Chenerv 
Carp.. 332 U.S. 194 (1946) acknowledged the ' fundamental'' rule 
that administrative agencies must clearly state the basis upon which 
their determinations and judgments rest This judge-made principle 
has been codified as part of the Administrative Procedure Act. 5 
U.S.C. Section 553(c); Cf. National Black Media Coalition v. 
F.C .C .. 775 F.2d 342 (l).C’. Cir. I9K5) (in holding that low minority 
employment is a basis for sanction, agency must oiler sufficient 
explanation to ensure court that it is not repudiating precedent 
simply to conform with a shifting political mood). Where no basis or 
an inadequate basis is offered, the court is not at liberty to substitute 
its own basis. Chenerv, 332 U.S. at 196.

7 Appellant has suggested that there was a burden on the party 
attacking the racial classification to rebut (he “ inference of discrim­
ination" created by the statistics. Brief of Appellant at 27. However, 
the plaintiff adduced all of the reasons given by the City for enacting 
(he ordinance and introduced (hem into evidence. Plaintiff argued 
the reasons to be insufficient in law in part because the comparison



16

love . 448 U.S. at 497 (Powell, J. concurring) Voluntarily 
imposed race-based classifications as remedies for one s 
own discrimination is perhaps an evolution away from 
the views of Justice Douglas, who rejected the idea that 
racial set-asides in law school admissions could be 
justified by a “ compelling interest;”

“ If discrimination based on race is constitution­
ally permissible when those who hold the reins 
can come up with ‘compelling' reasons to jus­
tify it, then constitutional guarantees acquire an 
accordianlike quality.”  DeFunis v. Odegaard,
4IP U.S. 312, 341 (1974) (Douglas, J., dissent­
ing.)

Justice Douglas, urged that remedial efforts be race 
neutral. Id. at 340.

That the principles articulated by the Wygant plu­
rality have proved practical is seen in their application to 
uphold remedial classifications in United States v. Par­
adise, 107 S. Ct. 1053 (1987); Johnson v. Transportation 
Agency, Santa Clara Comity, 107 S. Ct. 1442 (1986); and 
Local 2H of the Sheet Metal Workers Int'l Ass'n v. 
E.E .O .C ., 478 U.S. 421 (1986).

of minority participation with general population statistics is not 
competent to justify adoption of a race-conscious legal remedy. The 
City disagreed and decided not to introduce additional evidence 
where the prollerred statutes were incompetent. In Hazelwood, the 
plaintiff was not required to go forth with additional evidence where 
the profferred statistics were incompetent. 433 U.S. at 303-04. 
employment cases which have attached weight to the low represen­
tation of minorities in the work force are distinguishable on a 
number of grounds— most importantly that the proof was not being 
offerred to justify imposition of a race-conscious legal remedy tor 
societal discrimination. See. e.g. International Brotherhood of 
teamsters v. United States. 431 U.S. 324 (1977) (use of statistics 
plus anecdotal evidence); Johnson v. transportation Agency. Santa 
Clara Counts'. 107 S.C'I. 1442 (1987) (sex as a factor in selection.)

17

In addition, those circuits which have considered 
the issue since Wygant have uniformly rejected the 
argument that a race conscious remedy is justified upon 
a recognition of generalized discrimination or by unre­
fined statistical comparisons showing a low participation 
by minorities. Such statistics merely reflect to an un­
known extent the existence of the same societal discrim­
ination. See Michigan Road Builders Association, Inc. 
v. Milliken, 834 F.2d 583 (6th Cir. 1987); Associated 
General Contractors of California v. City and County of 
San Francisco, 813 F.2d 922 (9th Cir. 1987) (failure to 
consider awards of contracts to minority subcontractors 
as well as minority prime contractors); J. Edinger & Son 
v. City of Louisville, 802 F.2d 213 (6th Cir. 1986); 
Janowiak v. City of South Bend 836 F.2d 1034 (7th Cir. 
1987). The Wygant analysis was applied to strike down a 
requirement of racial quotas favoring whites in public 
housing in United States v. Starrett City Associates. 840 
F.2d 1096 (2d Cir. 1988).

The point is not that the governmental body must 
conclude that it is guilty of discrimination. Nor can it 
relieve itself from scrutiny of the constitutional question 
by admitting discrimination. Wygant, 476 U.S. at 279, 
n.5. (Powell, J.). Rather, if the race-based action is taken 
to remedy past discrimination by the governmental 
body, then a fact finder must be able to determine 
whether the employer was justified in instituting a reme­
dial plan. Ihid. As Dean Choper has written, “ In other 
words, the trial court must find that the government 
agency was attempting to remedy its prior unlawful 
conduct.”  Choper, supra, at 265-266. No such finding is 
present in this case. The trial court held that the City was 
remedying “ present adverse effects of past discrimina­
tion in the construction industry. J. S. Supp. App. C at 
163.



IS

I tins, this Court has required that care he taken to 
establish that an identified disparity is in fact caused by 
discrimination. Hazelwood School District v. United 
Slates. 433 U.S. 299, 308, n. 13 (1977) identified the 
inadequacy of comparing percentages of teachers with 
the representation of' minorities in the general popula­
tion; Swann v. Charlotte-Meeklenhurf> Hoard of Educa­
tion. 402 U.S. I (1971) approved a race-conscious legal 
remedy ordered by a court where discrimination by the 
governing body had been established. The Court criti­
cized the concept of remedial racial quotas;

If we were to read the holding of the District 
Court to require, as a matter of substantive 
constitutional right, any particular degree of 
racial balance, or mixing, that approach would 
be disapproved. . . . Id. at 24.

In Bazernore v. Friday, 478 U.S. 385, 106 S.Ct. 
3000. 3012 (1986), five justices held that the mere fact of 
low minority participation in voluntary clubs failed to 
establish the existence of discrimination in the activities 
of North Carolina’s Cooperative Extension Service. The 
Court also held that where the Service was administered 
by race-neutral programs low minority participation was 
not evidence of discrimination. Id. 106 S.Ct. at 3012. 
(White J., concurring).

C.

So ck  i m  D isc r im in a t io n  Is T oo U n r k v ea i in g  T o P i .r m ii A 
( lo v i r is in g  B ody  id  A dopt a R i m i d ia i R ac ia i

Cl ASSII ICAIION.

A disparity with general population statistics has 
never been held to establish discrimination under a

19

constitutional standard.8
Justice Powell has described societal discrimination, 

the belief that members of certain groups face discrimi­
nation in all their activity on a continuous basis, as an 
amorphous concept of injury that may be ageless m its 
reach into the past.”  University of California Regents v 
Bakke, 438 U.S. 265, 307 (1978) (Powell, J ). Societal 
discrimination is discrimination not traceable to a gov­
ernmental agency’s own action. See Wygant, 476 U.S. at 
266 (O’Conner, J.). Societal discrimination does not 
justify a classification that imposes disadvantages upon 
persons who bear no responsibility for whatever harm 
the minorities included in the coverage of the City s 
ordinance are thought to have suffered. Id. at 310. 
Accord Fidlilove, 448 U.S. 448 (1980) (Stevens, J.,
dissenting.). r.

The City would convert a remedy which the Court
has previously reserved for proven violations of legal 
rights into a privilege that could be granted to any group 
characterized by the City Council as victims of societal

- 8 In Fullilove. 448 U .S. at 448 (1980). the Court gave deference 
to the special competence of the Congress to correct soc.eta 
discrimination. Id. a. 472 (Burger, C J  ). noting .ha. the broad 
remedial powers of Congress were distinguishable from the hmi c 
remedial powers of a federal court. Id. at 482. The t  ourt a l »  no ed 
that the regulations implementing the Act were to benefit small and 
disadvantaged businesses owned by socially or economically r tsa 
vantaged persons and not just the specified minority groups. Id. . 
463 Members of the minority groups who were not disadvantaged 
were excluded. Id. at 466. 472. One barrier to minority firms being 
awarded federal contracts was the exercise of discretion by govu.D 
merit procurement officers to disfavor minority businesses. Id  at 
467 ‘Mn my view . . . Congress reasonably concluded that private 
and governmental discrimination had contnbuted to the negl.gi 
percentage of government contracts awarded minority contrac­
tors.”  Id. at 503 (Powell. J ).



disci iniiiiiition. The City lacks a compelling interest in 
such a policy:

"One such purpose appears to have been to 
assure to minority contractors a certain per­
centage of federally funded public works con­
tracts. But since the guarantee of equal protec­
tion immunizes from capricious governmental 
treatment persons'— not ‘races’— it can never 
countenance laws that seek racial balance as a 
goal in and of itself." Fullilove, 448 U.S. at 
529-30 (Stevens, J., dissenting), citing Bakke,
438 U.S. at 307 (Powell, J., concurring).

A major failing of societal discrimination as the basis 
for adopting racial preferences lies in that it has no outer 
limits. It allows the governing body to engage in discrim­
inatory relief long past the point required by an legiti­
mate remedial purpose. Wygant, 476 U.S. at 275 
(Powell, J.). Race-based allocations of public contracts 
should not be permitted after the discriminatory conduct 
ceases. See Swann, supra, 402 U.S. at 31-32.

Societal discrimination thus proves too much. As a 
test for adopting race-based classification it permits 
expansion beyond the carefully articulated exceptions 
recognized in the case law.

Describing the City’s role as one of passive partici­
pation, Brief for Appellant at 40-41, is not distinguishable 
from societal discrimination. Passive participation in 
discrimination should not be grounds for imposition of a 
race-based remedy. Vicarious liability is not grounds for 
imposition of racial classifications under civil rights acts, 
so it should not be permitted under the equal protection 
clause. See Raze more, supra 478 U.S. 385 (1986); Gen­
eral Building Contractors, infra at 26, 458 U.S. 375 
(1982).

20 21

The tendency of proponents of race conscious legal 
remedies to rely on broad brush assumptions of the effect 
of societal discrimination has been noted in Days, Fulli­
love, 96 Yale L .J. 453 (1987). The author, who repre­
sented the United States in its successful defense of the 
minority set-aside program in Fullilove, cogently argues 
that most minority set-asides developed after Fullilove 
have been poorly designed and implemented. He recog­
nizes the courts’ failure to compel heightened accounta­
bility on the part of federal, state, and local govern­
ments— by emphasizing competence, findings, and 
means:

" It  is difficult to criticize the efforts of people of 
goodwill seeking to rid our society of its unfor­
tunate legacy of racial discrimination. I would 
be the first to argue that minority business 
set-asides have been proposed, adopted and 
judicially sanctioned by people acting out of the 
very best of motives. But more than good 
motives should be required when government 
seeks to allocate its resources by way of an 
explicit racial classification system. It must be 
shown that such a system is responsive to 
findings of racial discrimination, is designed to 
redress that problem, and is employed only as 
long as necessary to achieve its remedial objec­
tive. These standards were not met by the 
Public Works Employment Act. of 1977. They 
were not demanded of Congress by the Su­
preme Court which upheld the Act in Fullilove, 
and they have not characterized subsequent 
set-aside programs at any level of government.
This is an indefensible state of affairs that 
threatens to undermine the principle of affir­
mative action and the appropriate use of ex­



plicit race-conscious remedies tor racial dis­
crimination. It ought to stop. Id. at 485.
Days writes in detail about deficiencies which fre­

quently are encountered in affirmative actions which 
allocate scarce resources: lack of scrutiny and testing of 
means to ends, failure to examine various remedies, and 
third, when such plans have become the subject of 
litigation, proponents of affirmative action in general 
have felt compelled to defend them in unqualified terms 
instead of helping the courts to develop criteria that 
separate permissible from impermissible programs, dif­
ferentiating the plans that are well designed to counteract 
discrimination from those that promise no such result. 
Id. at 459.

James Madison’s expression of the fear that govern­
ments with small constituencies are more likely to be 
oppressive is illustrative:

The smaller the society, the fewer probably will 
be the distinct parties and interests composing 
it; the fewer the distinct parties and interests, 
the more frequently will a majority be found of 
the same party; and the smaller the number of 
individuals composing a majority, and the 
smaller the compass within which they are 
placed, the more easily will they concert and 
execute their plans of oppression. Extend the 
sphere, and you take in a greater variety of 
parties and interests you make it less probable 
that a majority of the w hole will have a common 
motive to invade the rights of other citizens; or 
if such a common motive exists, it w ill be more 
difficult for all who feel it to discover their own 
strength and to act in unison with each other.
The f ederalist No. 10, at 22 (J. Madison) (2d 
ed. Johns Hopkins Univ. Press 1966).

This Court tested a remedy formulated by a federal 
District Court in United States v. Paradise, 107 S. Ct. 
1053 (1987) under a compelling interest standard. I here 
would appear to be every reason to insist that a City be 
held to an equally high standard.

D.
T h i Co u r i S h o u ld  R i q iu r i t in R k o k d  T o S h o w  T h a i T ill 
G ovi kn in o  B ody  H as A C’omim i i ino  In i i ki s i in  A doim ino  

T in R ac ia i C i assii k a i io n .
This court should articulate that the interest re­

quired to justify enactment ol a race-conscious legal 
remedy must be narrowly tailored to achieve a ‘‘com­
pelling interest.”  This was the standard adopted by the 
plurality opinion in Wygant, 476 IJ.S. at 286 (O'Connor, 
J., concurring). The point is that it should be clear that 
the remedy in question is remedying discrimination. 
Professor Ely has described this process as “ insisting 
that the classification in issue lit a constitutionally per­
missible goal with greater precision than any permissible 
alternative.”  Ely, Reverse Racial Discrimination. 41 U. 
Chi. L. Rev. 723, 727, n. 26 (1974).

The compelling interest analysis was employed in 
the plurality opinion in United States v. Paradise. 107 
S.Ct. 1053 (1987) (Brennan, J., plurality opinion) to 
uphold a judicial remedy imposed by a court in a case of 
proven violations. Similarly, Local 2H of the Sheet Metal 
Workers International Ass'n. v. P.P.O.C .. 478 U.S. 421. 
106 S.Ct. at 3019 (1986). affirmed a court-ordered remedy 
which was found to be narrowly tailored to further the 
government’s “ compelling interest in remedying past 
discrimination.”  Id. 106 S.Ct. at 3053 (Brennan, J.. 
plurally opinion).

The City contends that the record in the instant case 
is adequate to establish the existence of a compelling 
interest. Brief for Appellant at 20. While some ol the

2*



hue Is amicus curiae on bchall ot the Appellant argue foi 
;i less restrictive standard, all concur in the Appellant’s 
argument that the low number of black prime contractors 
on certain projects creates a compelling interest in 
adopting the MY'/r minority subcontractor utilization 
requirement.1'

It is clear, in the case of a legislative enactment to 
remedy discrimination, that its failure to be narrowly 
tailored to achieve a compelling governmental interest”  
will result in adoption of race-conscious legal remedies 
without the requisite showing'that the action is really 
remedying past discrimination. Courts of Appeals are 
finding that legislative bodies enacting racial preferences 
pursuant to tests of a different label have given inade­
quate consideration to whether the plan in question was 
shown to be a remedy for past discrimination. In Wygant 
the Court of Appeals had tound the governmental inter­
est to be "sufficiently important." 476 U.S. at 274-78. 
Michigan Komi Builders v. Mil liken, 834 F.2d 583, 594 
(6th Cir., 1987). rejected the District Court’s holding that 
the State need only demonstrate "a  significant interest in 
ameliorating the present effects of past discrimination 
rather than the ‘compelling interest’ standard. Using 
the significant interest test the District Court had found 
the record sufficient to establish "past intentional dis­
crimination." Mic higan Road Builders v. Milliken, 571

“ Johnson i transportation Ancncy, Santa Clara County. 107 
S ( i. 1442 (1980) relied on the provisions of Title V II to hold that 
gender could he considered “ as one factor . Id. at 1455, where 
there were no women employees, if a “ manifest imbalance”  was 
determined by a comparison between the percentage ol minority as 
women in the employer s work force with those in the labor force 
who possess the relevant qualifications. Id. at 1452.

25

F. Supp. 173. 187 (E.D. Mich. 1983).10
This is not to say that there is a compelling interest 

in enacting racial classifications to remedy societal dis­
crimination.

A governing body which is otherwise competent to 
do so may have a compelling interest in adopting legis­
lative enactments which prohibit discrimination. Such 
was the case in Roberts v. United Slates Jaycees, 468 
U.S. 609 (1984), which involved a provision of the 
Minnesota Human Rights Act which makes it an “ unfair 
discriminatory practice”  to deny access to places of 
public accommodation based on sex. Id. at 615. The 
Supreme Court of Minnesota accepted certification from 
the District Court whether the Jaycees was a place of 
public accommodation. Id. at 616. This Court held that 
the Minnesota Act “  4 responds precisely to the substan­
tive problem which legitimately concerns’ the State and 
abridges no more speech or associational freedom than is 
necessary to accomplish that purpose.”  Id. at 6.9. 
Minnesota's "compelling interest”  in eradicating dis­
crimination justified enactment of the statute. Id. at 6.3.

However, this exercise of a compelling interest is 
significantly different from the showing of a compelling 
interest by a governing body seeking to impose a race­
conscious legal remedy in the absence of violation. I his 
is using a racial classification to exclude persons from a 
commercial benefit without a showing that any of the

^ ^ In la n o w ia k  v. The Corporate City South Bend. 836 I 2d 
1034 ,7th Cir 1987). the C ourt of Appeals ruled that an affirmative 
action plan, which resulted in a better qualified white worker being 
passed over by a minority, had been based on an inadequate factual 
predicate. This was vacated and remanded tor consideration in light 
of Wvgant and Johnson. 107 S. C .  1620 (1987). On remand the 
Court of Appeals held that there was no showing of prior discrimi­
nation by the City. Janowiak. 856 1 .2d at 1041-42.



excluded persons committed a wrong.
In (lenend Huildiny Contractors r. Pennsylvania, 

458 IJ.S. 375, 4(H) (19X2). this Court held that minority 
hiring quotas could not he imposed, under 42 U.S.C. 
Section 1981, upon a construction contractors’ trade 
association absent a finding of intentional discrimination.

In the instant case, the City imposed a remedy 
without first finding a violation, and in this it has no 
compelling interest.

II.

The Record Musi Provide Positive Assurance Thai Racial Restric­
tions Were Necessary As a Narrowly Tailored Remedy for Discrimi­

nation for W hich The Governing Body is Responsible.
The need for a race-conscious legal remedy to he 

narrowly tailored to achieve its remedial purpose is 
generally recognized in prior decisions of this Court. In 
Fullilove, Justice Powell articulated the factors to be 
included in the analysis in the employment context as 
being:

(i) the efficacy of alternative remedies;
(ii) the planned duration of the remedy;
(iii) the relationship between the percentage of mi­

nority participation and minority availability;
(iv) availability of waiver provisions;
(v) the effect on innocent third parties. Fn Hi love, 

44X U S. at 510-11, 514.
Similar criteria were employed in Paradise, supra 107 S. 
Ct. 1055. In the context of this case another requirement 
should be added; identification of the problem to be 
remedied.

Identification of the Problem. Analysis of the cor­
relation between remedy and problem is rendered dif­
ficult by the fact that there was no attempt to narrowly 
tailor the Plan. As Judge Wilkinson noted in dissent in

27

the original decision of the Court of Appeals,

“ Though factual findings alone do not ensure a 
“ narrowly tailored" remedy, the absence of 
such findings makes it impossible to limit the 
remedy appropriately, for there is no evidence 
of the scope of past discrimination at which the 
program is aimed. A court can determine that 
the remedy substantially furthers its asserted 
purpose only if it is certain that the persons 
enacting the remedy know what it is that they 
intended to redress. J. S. Supp. App. E  at 
102-03.
The only intent evidenced by the record in this case 

was to adopt the same provision, without the underlying 
system of administration, which had been approved in 
Fullilove. J.A . at 15. The process which was followed 
excluded any careful attention to the scope of the prob­
lem. In fact, no particular race-based problem was 
identified. In this case an ordinance was drafted, a 
perfunctory hearing was held on short notice, the testi­
mony at the hearing was ignored, a sponsor said he knew 
there was discrimination in the construction industry and 
announced that he had figures which showed that .67%" 
of prime contracts were awarded to minorities. The 
figures were neither given to any Council member nor 
otherwise made public. I he only causes of the low 
representation to be identified were barriers to entry 
which were not race-related.

The Court of Appeals has correctly noted that the 
procedures followed in enacting the Richmond Ordi- 11

11 Appellee does nol contest the .67'/? for purposes of this case, 
hut docs contend that there is nothing about the way the numbers 
were calculated or used that says anything about the fact of 
discrimination.



nance constitute the most casual deployment of race in 
the dispensation of public benefits. Croson. .1. S. App. A 
at 14a. It is for this reason that the Court of Appeals 
concluded, 'll this plan is supported by a compelling 
governmental interest, then so is every other plan that 
has been enacted in the past or that will he enacted in the 
future."  Id. at 10a.

Correlation of Availability. Any correlation between 
the thirty percent figure and the actual capability of 
minority subcontractors and suppliers in the City of 
Richmond is purely accidental. “ The figure simply 
emerged from the mists.”  Id. at I la. I he City made no 
determination of their capacity either to identify the 
scope of the alleged problem or determine how to 
address it. This is important because, as noted in litlli- 
lovc. 44S U.S. at 536. n. 7 (Stevens. J , dissenting) if the 
existing successful minority businesses expanded to per­
form the work, no remedial purpose would be achieved. 
More money would flow through minority businesses, as 
was stated by the sponsor when Richmond's Plan was 
introduced, but this is not a compelling interest.

Idfcet on Innocent Third Parties. This failure to 
consider the adequacy of the 30% requirement further 
serves to impose an unduly harsh competitive burden on 
non minority contractors. As was observed by the Court 
of Appeals, subcontracting exactly thirty percent of a 
contract is often impossible. Croson. J. S. App. A at I la. 
I he ease at issue is instructive; Croson would have had 
to subcontract seventy-five percent of the project in 
order to meet the thirty per cent quota.12

2X

1 Normally the purchase of supplies hy the general contractor 
would not he a subcontract, hut the parties regarded this as an 
acceptable method of satisfying the 300 subcontract requirement. 
Hy contrast. Regulations of the Department of Transportation would 
allow the full amount of purchases from minority suppliers to satisfy

Failure to comply with the City's requirement that 
the fixtures be purchased from the supplier who was 
willing to supply them thus meant that the contractor 
was denied the ability to perform the work. The racial 
classification employed here meant that the regular sup­
plier who submitted the low quote lost the order. Fur­
thermore, the thirty percent set aside does not apply to 
minority prime contractors, which only serves to further 
disadvantage non-minority contractors. In other words, 
non-minority contractors are faced with submitting bids 
containing minority subcontractors' uncompetitive bids 
while minority contractors can seek competitive bids 
from non-minority subcontractors. The effect is not help 
to the poor or the disadvantaged but to transfer public 
monies anyone who happens to be one of the minorities 
selected for inclusion in the protected category. The 
resulting impact on third parties is too great in compar­
ison to the benefit that might be gained by the set aside. 
No effort was made to include limiting provisions de­
signed to assure that the plan would aid only those 
minorities who had been subjected to discrimination for 
which the City is responsible, see p......... supra.

The City’s plan is similarly overbroad in its defini­
tion of the minorities to be included. This Court in 
Wygant looked disfavorably upon an almost identical, 
overlybroad definition of minority. 476 U.S. at 2X4, n. 13 
(Powell. J.). “ Because the layoff provision here acts to 
maintain levels of minority hiring that have no relation to 
remedying employment discrimination, it cannot be ad­
judged narrowly tailored . . Id. 476 IJ.S. at 266 
(O ’Connor. J ). Richmond City Council in adopting the

minority participation goals only it the supplier performed a ''com­
mercially useful function'' and is a "regular dealer. Participation of 
Minority Business bnlerprise in Department of Transportation 
Programs. 49 CI R Part 23. 52 Fed. Reg. 39. 227 (October 31. 19X7).



(0

plan did not give duo consideration to eithci methods ol 
identil'ying the particular minorities included in the def­
inition or to whether m fact all of the groups had in fact 
been purposefully discriminated against in the past.
| hus. the definition adopted impacts innocent third 
parties to such an extent that it is not narrowly tailored 
enough to achieve the objective ol the plan.

Waiver ami Partition. I he Court ol Appeals cor­
rectly noted that the plan's validity is not enhanced by 
the presence of the so-called waiver provision and the 
live-year duration. J. S. App. A at 13a.

I anally, both the waiver provision and the length ol 
time iluring which the plan is to be effective aie not 
closely enough fitted to the objective of the plan. I he 
waiver provision is a waiver in name only, since it is only 
involved when no qualified minority is available. Not 
only is the waiver to be granted "only in exceptional 
circumstances," but the contractor is also shouldered 
with the burden of showing a lack ol available minority 
participants, who may come in alter the bids are 
opened." The plan is to be effective for five years, and 
there is no limitation provided on City Council’s ability 
to renew the plan indefinitely without reexaming the 
need for the race conscious plan. By contrast, the plan 
approved by this Court in I  n llilo vc  was limited to a four 
month period. The temporary nature of that plan com­
pared with the long term nature ol the Richmond plan 
demonstrates the objectionable length of the ordinance 
at issue."

"  this was a finding ol I he District C oui't. .Sec Note 2 supra.
"  that minority participation programs are not short term 

remedies is seen in the legislative history of the Surface Transpor­
tation Act. I’ I 100-17. 101 Slat H2 which extended the minority 
participation program of the IS»S2 Surface Transportation Assistance- 
Act, on grounds that while the programs have been helplul "barriers

CONCLUSION
For the foregoing reasons the judgment of the ( outt 

of Appeals should be affirmed and the case remanded to 
the District Court for determination of damages.

j. A. C roson , Co m pa n y , 
Appellee

By /s/ W ai tdr H. Ky i and  
Counsel of Record

W ai tkr H. Ry i and
Williams, Mullen, Christian &  Dobbins, P C. 

1021 East Cary Street 
P.O. Box 1320
Richmond, Virginia 23210-1320 
(804) 643-1991

still remain. . .”  1987 U S. Code Cong. &  Admin. News 76. 
Women-owned businesses participate in that program. Id. at 78. I he 
list of minorities who participate is taken from that which was 
adopted in 1978 and approved in htllilove. Id. at 76.