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

    No. 87-998

I n  T h e

&itprm? (tart itf %  luttrii Stairs
O ctober T e r m , 1987

Cit y  of R ic h m o n d ,

v.
Appellant,

J.A. Croson  Co m p a n y ,
Appellee.

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

BRIEF OF THE NATIONAL LEAGUE OF CITIES,
U.S. CONFERENCE OF MAYORS,

NATIONAL ASSOCIATION OF COUNTIES, AND  
INTERNATIONAL CITY MANAGEMENT ASSOCIATION  

AS AM ICI CURIAE  IN SUPPORT OF APPELLANT

David A . Strauss 
University of Chicago 

Law School 
1111 East 60th Street 
Chicago, IL 60637 
(312) 702-9601

Ben n a  R uth  Solomon 
Chief Counsel 

State and  Local 
Legal Center 

444 N. Capitol Street, N.W. 
Suite 349
Washington, D.C. 20001 
(202) 638-1445 
Counsel of Record for the 

Amici Curiae

W il s o n  - Ep e s  P r in t in g  C o . ,  In c . -  7 8 9 - 0 0 9 6  - W a s h in g t o n , o . c . 2 0 0 0 1



QUESTION PRESENTED

Whether the Equal Protection Clause prohibits the 
City of Richmond from remedying the effects of racial 
discrimination on minority participation in city construc­
tion contracts by enacting a temporary program that, 
subject to a waiver provision, requires contractors to 
subcontract a portion of their contracts to minority busi­
ness enterprises.

1

(i)





Page
QUESTION PRESENTED....................... ......... ...........  j

TABLE OF AUTHORITIES .........................................  iv

INTEREST OF THE AMICI CURIAE ......... ............... 1
STATEMENT............................................................ _____ 2

SUMMARY OF ARGUMENT ........................................ 5
ARGUMENT...................................................................  7

RICHMOND’S MINORITY BUSINESS UTILIZA­
TION PLAN DOES NOT VIOLATE THE EQUAL 
PROTECTION CLAUSE..........................................  7
A. The Court Of Appeals’ Decision Is Inconsistent

With Fullilove v. Klutznick...........................    7
B. The Richmond Plan Promotes Compelling Gov­

ernment Interests And Does Not Impose Unfair 
Burdens On Nonminority Contractors. ....    14
1. The Richmond Plan promotes the compelling 

interest of remedying racial discrimination in
the construction industry.......................... __ 14

2. Richmond may enact a race-conscious remedy
for prior discrimination in the local construc­
tion industry without admitting complicity in 
racial discrimination....................................... 23 3

3. Richmond’s plan does not unfairly burden
nonminority contractors................................. 28

CONCLUSION .........       30

Appendix I
Minority Business Enterprise Programs of State 

Governments.........................................................  la
Appendix II

Minority Business Enterprise Programs of Mu­
nicipal and County Governments ......................  14a

TABLE OF CONTENTS

(iii)



IV

TABLE OF AUTHORITIES
CASES: Page

Andrus v. Allard, 444 U.S. 51 (1979) ............................  29
Associated General Contractors v. City and County of 

San Francisco, 813 F.2d 922 (9th Cir. 1987), petition
for rehearing pending............ ..................................... 10

Board of Directors v. Rotary Club, 107 S.Ct. 1940
(1987) ..........................................................................  23,24

Bob Jones University v. United States, 461 U.S. 574
(1983) ..................... ........... .........................................  23-24

Byrd v. Local No. 2i, IBEW, 375 F. Supp. 545 (D. Md.
1974) ...........................................................................  25

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41
(1986) ......................................................................... 19,20

Ethridge v. Rhodes, 268 F. Supp. 83 (S.D. Ohio 1967).... 25
Ex Parte Virginia, 100 U.S. (10 Otto) 339 (1880) ____ 11
FERC v. Mississippi, 456 U.S. 742 (1982) ............ ........  10
Firefighters Local Union No. 178U v. Stotts, 467 US

561 (1984) .............. ............................ ...... ______..... .....  28
Franks v. Bowman Transportation Co., 424 U.S. 747

(1976) ............ -...........................................................  28,29
Fullilove v. Klutznick, 448 U.S. 448 (1980) .......  passim
Furnco Construction Corp. v. Waters, 438 US 567

(1978) .........................................................................  17
Green v. County School Board, 391 U.S. 430 (1968) ...... 23
Hughes v. Alexandria Scrap Corp., 426 U S 794

(1976) .........................................................................  24
International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977)......... ........................... i6) 17> 18
James v. Ogilvie, 310 F. Supp. 661 (N.D. 111. 1970) ’ ’ 25
Johnson v. Transportation Agency, 107 S.Ct. 1442
v  l198?  T .............................. ......... ..................... 13> 16> 18, 28Katzenbach v. Morgan, 384 U.S. 641 (1966) ..................  H
Local No. 98, Firefighters v. Cleveland, 478 US 501

(1986) .................................................................    2g
Local 28 of Sheet Metal Workers v. EEOC 106 S Ct

3019 (1986) ............................................’ ........ ' i 7 25 28
McDaniel v. Barresi, 402 U.S. 39 (1971) ’ ’ 25



V

Page
National Black Police Association v. Velde, 712 F.2d 

569 (D.C. Cir. 1983), cert, denied, 466 U.S. 963
(1984) .............................. ,..........................................  25

North Carolina State Board of Education v. Swann, 402
U.S. 43 (1971)......................................................... 23,25,26

Norwood v. Harrison, 413 U.S. 455 (1973) ..................  25
Percy v. Brennan, 384 F. Supp. 800 (S.D.N.Y. 1977).... 25
Railway Mail Association v. Corsi, 326 U.S. 88 (1945).. 24
Reeves, Inc. v. Stake, 447 U.S. 429 (1980) ....................  24
Regents of the University of California v. Bakke, 438

U.S. 265 (1978) ................ ..............................  11,27,28
Roberts v. United States Jaycees, 468 U.S. 609 (1984).. 24
Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303

(1927) .......................................................................  29
Runyon v. McCrary, 427 U.S. 160 (1976) ....................... 24
Schlesinger v. Reservists Committee to Stop the War,

418 U.S. 208 (1974) .......................... .......... .............. 21
Steelworkers v. Weber, 443 U.S. 193 (1979) .............16, 18, 28
Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971) .................... ................................ 25-26
The Slaughter-House Cases, 83 U.S. (16 Wall.) 36

(1872) .......................................................................... 11
United States v. Paradise, 107 S.Ct. 1053 (1987) .....14, 25, 28
White v. Massachusetts Council of Construction Em­

ployers, 460 U.S. 204 (1983)  ........   24
Wygant v. Jackson Board of Education, 476 U.S. 267

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

CONSTITUTIONAL AND STATUTORY 
PROVISIONS:

U.S. Const. Amend V, Due Process Clause ............  7
U.S. Const. Amend. XIV

Equal Protection Clause .........    7
Section 5 ........... ..................................... 10-11, 12,13

Public Works Employment Act of 1977, Section
103(f)(2), 42 U.S.C. 6705(f)(2) ........... 7,8,9,10,12

TABLE OF AUTHORITIES—Continued



V I

TABLE OF AUTHORITIES—Continued

CONGRESSIONAL MATERIALS: Page
Cong. Globe, 39th Cong., 1st Sess. 2768 (1866) .....  11

BOOKS:
H. Flack, The Adoption of the Fourteenth Amend­

ment (1965) ......................................................... 11
J. Gillies & F. Mittelbach, Management in the

Light Construction Industry (1962) ..................  18
R. Glover, Minority Enterprise in Construction

(1977) ..........................................   18
R. Harris, The Quest for Equality (1960) ............... 11
J. tenBroek, The Antislavery Origins of the Four­

teenth Amendment (1951) .................................  11



I n  T h e

fhtpratt? ( t a i l  at %  T&nltih
October T e r m , 1987

No. 87-998

Cit y  of R ic h m o n d ,
v Appellant,

J.A. Croson  Co m p a n y ,
_________ Appellee.

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

BRIEF OF THE NATIONAL LEAGUE OF CITIES,
U.S. CONFERENCE OF MAYORS,

NATIONAL ASSOCIATION OF COUNTIES, AND  
INTERNATIONAL CITY MANAGEMENT ASSOCIATION  

AS AM ICI CURIAE  IN SUPPORT OF APPELLANT

INTEREST OF THE AM ICI CURIAE
The amici, organizations whose members include mu­

nicipal and county governments and officials throughout 
the United States, have a strong interest in legal issues 
that affect state and local governments. This case con­
cerns the constitutionality of a temporary minority sub­
contracting program adopted by the City of Richmond, 
Virginia. The program provides that any firm awarded 
a construction contract by the City shall, unless it re­
ceives a waiver, subcontract 30% of the value of the 
contract to minority business enterprises.

This is a case of great importance to the amici. Pro­
grams comparable to Richmond’s are very common 
among state and local governments. After the Court 
noted probable jurisdiction in this case, we undertook 
a survey of state, municipal, and county governments; 
the results are reproduced in the appendices to this brief.

The survey identifies 36 States and 190 local govern­
ments throughout the Nation that have adopted programs



that use a variety of devices, including numerical goals 
or targets, to expand minority access to government con­
tracts. The vast majority of these programs were adopted 
after this Court’s decision in Fullilove v. Klutznick, 448 
U.S. 448 (1980), which upheld a similar program enacted 
by Congress. Many of the programs, including Rich­
mond’s, were modeled on the federal program upheld in 
Fullilove. As we explain below (pages 7-10), the decision 
of the court of appeals in this case imposes more strin­
gent requirements on state and local governments than 
Fullilove imposed on the federal government. Many state 
and local programs, therefore, would be jeopardized by 
the approach taken by the court of appeals, if it were to 
prevail.

These efforts by state and local governments represent 
a practical and constructive attempt to deal with the 
effects of discrimination at the level of government where 
such problems are best addressed. Because amici believe 
that it is exceptionally important that those efforts not 
be jeopardized, we offer this brief to assist the Court in 
its resolution of this case.1

STATEMENT

1. In April 1983, the Richmond City Council adopted 
a Minority Business Utilization Plan. The Plan provides 
that a contractor who is awarded a construction contract 
by the City shall, unless granted a waiver, subcontract 
at least 30% of the value of the contract to minority 
business enterprises (MBEs).2 J.S. App. 2a. The City 
will grant a waiver if a “ sufficient [number of] . . .

1 The parties’ letters of consent to the filing of this brief have 
been lodged with the Clerk.

2 The Plan contains a detailed definition of which businesses 
qualify as minority business enterprises. These provisions require 
that the firm be owned by members of minority groups and that it 
be either controlled or operated by minority group members. See 
J.S. Supp. App. 115-116, 251-252. A general contractor that is 
itself a minority business enterprise need not subcontract 30% of 
its contract to other MBEs. Id. at 247. The Plan requires the City 
to verify that an enterprise claiming to be an MBE is not a sham. 
See id. at 62.

. 2



3

qualified [MBEs] . . . are unavailable or are unwilling 
to participate in the contract.” J.S. Supp. App. 67-68. 
The Plan is explicitly “ remedial” {id. at 248) and tem­
porary; it expires at the end of June 1988 {ibid.).

The City Council adopted the Plan after holding a 
hearing during which it received testimony and informa­
tion about the history of public construction contracting 
in Richmond. The Council learned that during the pre­
ceding five years, only two-thirds of 1% of the dollar 
value of construction contracts awarded by Richmond 
was awarded to MBEs. J.S. Supp. App. 38, 115. The 
population of Richmond is approximately 50% minority. 
Ibid. The City Manager and a member of the City 
Council stated, on the basis of their experience, that 
there was widespread discrimination in the construction 
industry in general and in Richmond in particular; op­
ponents of the Plan within the Council, and representa­
tives of contracting associations who spoke at the hear­
ing, did not dispute these statements. Id. at 38, 164-165.

2. In September 1983, the City invited bids on a proj­
ect that involved the installation of certain plumbing 
fixtures in the City Jail. Appellee was the only bidder. 
After the bidding was closed, appellee sought a waiver 
of the requirement that it subcontract with an MBE.
J.S. App. 2a-3a; J.S. Supp. App. 120-124. The City 
declined to grant the waiver and, when appellee sought 
to increase the price of its contract with the City, the 
City reopened the bidding on the contract. The City 
invited appellee to submit a new bid. J.S. App. 3a.

Instead, appellee brought this action, which was re­
moved to the United States District Court for the East­
ern District of Virginia. Appellee sought injunctive and 
declaratory relief and damages, claiming, among other 
things, that the Plan violated its rights under the Equal 
Protection Clause of the Fourteenth Amendment, The 
district court rejected appellee’s claims (J.S. Supp. App. 
110-232), and the court of appeals affirmed {id. at 1- 
109). This Court granted appellee’s petition for a writ 
of certiorari, vacated the judgment of the court of ap­



4

peals, and remanded the case for reconsideration in light 
of Wygant v. Jackson Board of Education, 476 U.S. 267 
(1986). See 106 S.Ct. 3327 (1986).

3. On remand, a divided court of appeals reversed the 
judgment of the district court and held the Plan uncon­
stitutional. J.S. App. la-26a. The majority acknowl­
edged that a City may use a racial preference in order 
to “redress a practice of past wrongdoing” (J.S. App. 
14a). But the majority ruled that the Richmond Plan 
was invalid because there was “no record of prior dis­
crimination by the city” in this case. Id. at 6a. The ma­
jority explained that, for example, “ [tjhere has been no 
showing that qualified minority contractors who sub­
mitted low bids were passed over . . . [or] that minority 
firms were excluded from the bidding pool.”  Id. at 8a.

The majority further asserted that the statements 
made during the City Council hearing were not sufficient 
to support the Plan because they were “conclusory” and 
“ highly general” (J.S. App. 6a). The majority also 
rejected as “ spurious” {id. at 8a) the City’s argument 
that an inference of discrimination was raised by the 
virtual absence of city contracts awarded to minorities, 
even though minorities constituted half the City’s popula­
tion. The majority stated that this disparity did not 
“demonstrate discrimination” because “ [t]he appropri­
ate comparison is between the number of minority con­
tracts and the number of minority contractors” {id. at 
7a; emphasis in original).

Finally, the majority concluded that even if the Plan 
were supported by the need to remedy past discrimina­
tion, it would be unconstitutional because “ it is not nar­
rowly tailored to that remedial goal.”  J.S. App. 11a. 
The majority asserted that the 30% figure was chosen 
“arbitrarily” ; that the definition of an MBE was not 
narrowly tailored; that the provision for a waiver was 
too “ restrictive” ; and that the temporary nature of the 
plan was immaterial because “ [w]hether the . . . 
[P]lan will be retired or renewed in 1988 is, at this 
point, nothing more than speculation.” Id. at lla-13a.



Judge Sprouse dissented. J.S. App. 14a-26a. The 
court of appeals denied rehearing en banc by a vote of 
6-5. Id. at 27a-28a.

SUMMARY OF ARGUMENT

A. The decision of the court of appeals is inconsistent 
with Fullilove v. Klutznick, 448 U.S. 448 (1980). Fulli­
love upheld a federal program that is indistinguishable 
from Richmond’s Minority Business Utilization Plan in 
every relevant respect. Moreover, the evidence support­
ing the Richmond Plan is stronger than the evidence 
adduced in Fullilove.

Fullilove cannot be distinguished on the ground that 
it involved the exercise of congressional power under Sec­
tion 5 of the Fourteenth Amendment. The basis of Con­
gress’s broad Section 5 power is the concern that the 
States might fail to act against discrimination. Here, 
Richmond has acted to remedy discrimination. It would 
be paradoxical to interpret the grant of power to Con­
gress in the Fourteenth Amendment in a way that re­
duces the authority of state and local governments to 
remedy racial discrimination. In addition, state and lo­
cal remedies for discrimination have many practical ad­
vantages over remedies imposed by the more remote and 
less knowledgeable federal government.

B. Although Fullilove is sufficient to dispose of this 
case, the Richmond Plan also satisfies the standards pre­
scribed in this Court’s other decisions concerning race­
conscious measures.

1. Richmond has a strong basis for concluding that 
racial discrimination in the construction industry af­
fected minorities’ access to City contracting opportu­
nities. The most compelling evidence is that minorities, 
who are half of Richmond’s population, received less than 
one percent of public construction contracting funds. 
The court of appeals’ dismissal of that evidence is mani­
festly erroneous. In addition, Richmond had nonstatis- 
tical evidence of discrimination from several sources.

The court of appeals ruled that this evidence was in­
adequate because the Richmond City Council did not

5



6
make a “ finding” or “ showing” that identified particular 
discriminatory acts. This Court’s decisions, however, 
establish that such findings are not required. In addi­
tion, requiring a government to identify discriminatory 
acts will inject an unnecessarily divisive and adversarial 
element into the process of designing remedies for racial 
discrimination.

A race-conscious remedy was a fully appropriate re­
sponse to the discrimination that Richmond identified in 
the construction industry. Simply requiring that firms 
in the industry not discriminate would not have been 
effective. Because of prior discrimination, minority firms 
now lack experience; they would accordingly be at a com­
petitive disadvantage even if there were no longer any 
discrimination at all. An effective remedy for the ves­
tiges of discrimination must provide a temporary way 
to overcome that competitive disadvantage.

2. Contrary to the court of appeals, Richmond was 
entitled to adopt a race-conscious remedy for discrimi­
nation in the construction industry even if the City itself 
did not discriminate. As this Court has often held, state 
and local governments have a compelling interest of the 
highest order in remedying private discrimination. That 
interest is even greater when the City is attempting to 
ensure that its own funds will not be spent in a way that 
supports, or perpetuates the effects of, private discrimi­
nation. A race-conscious measure will sometimes be the 
only effective means of promoting these exceptionally im­
portant government interests.

3. Richmond’s Plan does not unfairly burden non­
minority contractors. To a large extent, the burdens im­
posed by the Richmond Plan fall on the taxpayers. In 
that respect, the Plan is superior to nearly every other 
affirmative action measure that this Court has consid­
ered. The burden on nonminority subcontractors who 
compete with minority firms is limited and diffuse. 
Moreover, the Richmond Plan does not uproot settled ex­
pectations but only denies, at most, the contingent possi­
bility of future economic gain.



7

ARGUMENT

RICHMOND’S MINORITY BUSINESS UTILIZATION  
PLAN DOES NOT VIOLATE THE EQUAL PROTEC­
TION CLAUSE.

A. The Court Of Appeals’ Decision Is Inconsistent With 
Fullilove v. K lutznick.

1. In Fullilove v. Klutznick, 448 U.S. 448 (1980), this 
Court held that Section 103(f) (2) of the Public Works 
Employment Act of 1977, 42 U.S.C. 670 5 (f)(2 ), does 
not violate the equal protection component of the Fifth 
Amendment’s Due Process Clause. Section 103(f) (2) 
provided that 10% of the funds granted under the Act 
was to be used to procure services and supplies from 
MBEs. The Richmond Minority Business Utilization 
Plan was modeled on Section 103(f) (2), and it is indis­
tinguishable from Section 103(f) (2) in every relevant 
respect. Indeed, the arguments supporting the Richmond 
Plan are significantly stronger than those advanced in 
support of Section 103 (f) (2).

a. Section 103(f) (2) was supported by the same kind 
of statistical disparity as the Richmond Plan— a dispar­
ity between the percentage of minorities in the general 
population and the percentage of government contract 
funds received by minorities. The court below, without 
referring to Fullilove, condemned as “ spurious” and “ not 
. . . meaningful” the overwhelming disparity between 
the percentage of minorities in Richmond’s population 
and the percentage of Richmond’s public construction 
contract funds that had been awarded to minorities. J.S. 
App. 8a, 10a. But in Fullilove, a majority of the Mem­
bers of this Court relied on precisely the same statistical 
comparison to support their conclusion that Section 
103(f) (2) was a permissible remedy for past discrimi­
nation.3

3 See 448 U.S. at 459 (opinion of Burger, C.J.) (“ in fiscal year 
1976 less than 1% o f all federal procurement was concluded with 
minority business enterprises, although minorities comprised 15-



8
Indeed, in Fvllilove the statistical disparity— minori­

ties were 15% to 18% of the population and received 
less than 1% of public contracting funds— was far less 
dramatic than the 0.67% to 50% disparity that Rich­
mond faced. The conclusion that Richmond had an ade­
quate statistical basis for enacting a subcontracting re­
quirement therefore follows a fortiori from Fullilove.

b. The court of appeals ruled that the Richmond Plan 
was not narrowly tailored to its remedial objective be­
cause the City’s waivable 30% goal was an “ arbitrarjy]
. . . figure [that] simply emerged from the mists.”  J.S. 
App. 11a. Fullilove rejected just such an attack on the 
10% figure used by Congress. See, e.g., Brief for Peti­
tioner General Building Contractors, Fullilove v. Klutz- 
nick, No. 78-1007, at 22 ( “ Congress made a purely ar­
bitrary selection” of a 10% requirement).

Justice Powell explained in Fullilove why Congress’s 
choice of a 10% requirement was reasonable, and his ex­
planation fully justifies the waivable 30% figure chosen 
by Richmond. Justice Powell explained that the 10% 
requirement of Section 103 (f)(2 ) was warranted be­
cause that figure fell approximately “halfway between 
the present percentage of minority contractors and the 
percentage of minority group members in the Nation.” 
448 U.S. at 513-514 (Powell, J., concurring). See also 
id. at 488-489 (opinion of Burger, C.J.). There were 
almost no minority contractors in Richmond (see J.S. 
Supp. App. 164), which has a minority population of 
50%. The City’s choice of a waivable 30% goal is there­
fore firmly supported by Justice Powell’s reasoning.

18% of the population” ) ;  id. at 562-563 ( “ [The] 10% MBE par­
ticipation requirement . . . was thought [by Congress] to be 
required to [avoid] . . . repetition of the prior experience . . . 
[in which] participation by minority business accounted] for 
an inordinately small percentage of government contracting.” ) ; 
id. at 511 (Powell, J., concurring) ( “ By the time Congress en­
acted § 103(f)(2 ) in 1977, it knew that other remedies had failed 
. . . [because] the fact remained that minority contractors were 
receiving less than 1% of federal contracts.” ) ; id. at 520 (Marshall, 
J., concurring in the judgment).



9
c. The court of appeals’ approach to the nonstatisti- 

cal bases of the Richmond Plan is similarly irreconcil­
able with FvMlove. The court of appeals discounted the 
statements, made during the Richmond City Council’s 
hearing, that the construction industry in Richmond had 
been marked by discrimination, on the ground that these 
statements were “ conclusory,” “general,”  and often made 
by supporters of the Plan. J.S. App. 6a. But in Fulli- 
love, a majority of the Members of this Court relied 
extensively on statements of comparable generality made 
by supporters of Section 1 0 3 (f)(2 ). Indeed, the state­
ments on which the Court relied in Fullilove were, for 
the most part, made in connection not with Section 
103 (f)(2 ) but with other federal programs to aid mi­
nority enterprises. See 448 U.S. at 458-463 (opinion of 
Burger, C.J.) ; id. at 504 (Powell, J., concurring) ; id. at 
520 (Marshall, J., concurring in the judgment).

d. The court of appeals ruled that the City’s plan was 
invalid because the City had not made “ showing[s]” 
(J.S. App. 8a) or “particularized findings”  of prior dis­
crimination (id. at 5a). But Chief Justice Burger ex­
plicitly noted in Fullilove that Section 103 (f)(2 ) “ re­
cites no preambulary ‘findings’ ” (448 U.S. at 478). 
Indeed, a majority of the Members of the Court empha­
sized that it is inappropriate to require a legislative body 
to produce specific findings to support the actions it 
takes.4

In Fullilove, of course, the question was whether Con­
gress should be required to make specific findings. But

4 See 448 U.S. at 478 ( “ Congress, of course, may legislate with­
out compiling the kind of ‘record’ appropriate with respect to 
judicial or administrative proceedings.” ) ; id. at 502-503 (Powell, 
J., concurring) (“ Congress is not expected to act as though it were 
duty bound to find facts and make conclusions of law. . . . [F]ore- 
ting] Congress to make specific factual findings with respect to 
each legislative action . . . would mark an unprecedented imposi­
tion of adjudicatory procedures upon . . .  the legislative process.” ) ; 
id. at 520 n.4 (Marshall, J., concurring in the judgment) (The 
“view [that] Congress must make particularized findings . . .  is



10
imposing such requirements on a state or local legisla­
tive body is at least as intrusive and unjustifiable. Cf. 
FERC v. Mississippi, 456 U.S. 742, 777-778 (1982) 
(O’Connor, J., dissenting). The inappropriateness of the 
requirement of specific findings stems from the nature 
of the legislative process itself. When elected representa­
tives act, they bring to bear knowledge that they have 
gathered from a wide range of sources, including their 
general experience in public life and their contacts with 
constituents. This collective knowledge cannot be cabined 
in “ findings”  or “ showings” about specific acts of dis­
crimination.

e. The court below appears to have concluded that 
the Richmond Plan was invalid because it was not based 
on evidence of discrimination by the City itself. J.S. 
App. 5a, 6a, 8a, 9a. But there was no suggestion in 
Fullilove that Section 103 (f)(2 ) was justified because 
of discrimination by the federal government, as a dissent 
in that case pointed out. 448 U.S. at 528 (Stewart, J., 
dissenting). Section 103(f) (2 ), like the Richmond Plan, 
was directed to discrimination in the construction indus­
try and among the recipients of federal grants. See, 
e.g., id. at 475, 478 (opinion of Burger, C .J .); id. at 
505-506 (Powell, J., concurring).

2. The court of appeals did not attempt to reconcile 
its decision with Fullilove or to explain why state and 
local subcontracting requirements must meet standards 
that are stricter than those specified in Fullilove. Other 
courts of appeals, however, have asserted that Congress 
has greater power to remedy racial discrimination than 
state and local governments have. See, e.g., Associated 
General Contractors v. City and County of San Fran­
cisco, 813 F.2d 922, 928-934 (9th Cir. 1987) (petition 
for rehearing pending).

a. The notion that Congress’s authority to remedy dis­
crimination is greater than that of state and local gov­
ernments is unfounded in the law, and represents an 
unwarranted inversion of important values of federal­
ism. It is true, of course, that Section 5 of the Four­



11
teenth Amendment greatly expanded the power of Con­
gress to remedy racial discrimination. See Katzenbach v. 
Morgan, 384 U.S. 641, 650-651 (1966) ; Ex Parte Vir­
ginia, 100 U.S. (10 Otto) 839, 345-346 (1880). But the 
reason for this expansion was not to occupy the field or 
to preempt state and local action designed to remedy dis­
crimination. Rather, the drafters of the Fourteenth 
Amendment expanded the power of Congress because 
they doubted that the States would adequately enforce 
the rights of the newly freed slaves to be free from un­
lawful discrimination.5

Against this background, it would be highly paradoxi­
cal to construe the Fourteenth Amendment to reduce the 
authority of state and local governments to deal with the 
problem of discrimination. The determination that ra­
cial discrimination was a national problem did not mean 
that it ceased to be a local problem. On the contrary, 
there is every reason to believe that the Framers of the 
Fourteenth Amendment would have welcomed state and 
local efforts to eradicate the effects of discrimination, 
where such efforts were forthcoming. Cf. The Slaughter- 
House Cases, 83 U.S. (16 Wall.) 36, 77-78 (1872) 
(“ [T]he Fourteenth Amendment [did not] . . . transfer 
the security and protection of all the civil rights . . . 
from the States to the Federal Government” ) ; see 
Regents of the University of California v. Bakke, 438 
U.S. 265, 368 (1978) (opinion of Brennan, White, 
Marshall, and Blackmun, JJ.).

From a practical standpoint, local remedies for dis­
crimination are likely to be far preferable to federal 
remedies. Congress lacks familiarity with local condi­

* See, e.g., The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 
70-71 (1872); Cong. Globe, 39th Cong., 1st Sess. 2768 (1866) 
(statement o f Sen. Howard) (Section 5 “ enables Congress, in case 
the States shall enact laws in conflict with the principles of the 
amendment, to correct that legislation” ) ; R. Harris, The Quest 
for Equality 53 (1960) ; J. tenBroek, The Antislavery Origins of 
the Fourteenth Amendment 204-207 (1951); H. Flack, The Adop­
tion of the Fourteenth Amendment 138 (1965).



12
tions; it acts on the basis of nationwide generalizations 
that will necessarily be over- and under-inclusive. For 
example, while some industries have a record of racial 
discrimination throughout the Nation, it is also some­
times the case that the firms in a particular locality have 
engaged in discrimination even though the industry has 
an excellent national record. Under the court of ap­
peals’ approach, the local government’s power to act in 
such a situation will be sharply limited. Congress will be 
forced to choose between imposing a national solution, 
which may be excessive, and allowing the problem to go 
without remedy.

Similarly, a local government will be able to tailor its 
remedy to local conditions. For example, any nationwide 
numerical goal or target will be unrealistically high for 
areas of the country with a low minority population, and 
too low to be a fully effective remedy in areas with a 
high minority population. Local programs will not en­
counter this difficulty. Of course, a national goal may 
contain a waiver provision, as the Section 103(f) (2) 
program did. But if variations are to be made to accom­
modate local conditions, it is far better that they be 
adopted through local political processes than by the dis­
cretionary judgments of a federal administrator.

b. Nothing in the opinions in Fullilove suggests that 
the Fourteenth Amendment’s expansion of Congress’s au­
thority restricts the power of state and local govern­
ments to remedy discrimination. Members of the Court 
did, of course, emphasize the scope of Congress’s power 
to enforce the Fourteenth Amendment. See, e.g., 448 
U.S. at 483 (opinion of Burger, C.J.) ; id. at 499-502 
(opinion of Powell, J). But they did so only to answer 
arguments that Congress might lack the power to act 
in this area. See, e.g., id. at 476 (opinion of Burger,
C.J.). State and local governments have always had the 
authority— under the police power and, as here, by virtue 
of their power to control public expenditures— to act 
against racial discrimination. The opinions in Fullilove 
do not suggest that the existence of Congress’s power



under Section 5 somehow derogates from that traditional 
state and local authority.6

c. Perhaps most important, local solutions to the prob­
lems of racial discrimination have crucial political and 
social advantages over federal measures. When a deci­
sion is made at the local level, the officials responsible 
for it can be held directly politically accountable. Conse­
quently, a decision by the elected officials of a state or 
local government reflects a decision by the people most 
directly affected to address the problem of racial dis­
crimination in a certain way. The process of considering 
and enacting a remedy like Richmond’s can help build a 
consensus. If circumstances change, the remedy can be 
modified. A federal requirement, by contrast, is imposed 
coercively from above. Ultimately the problems stem­
ming from racial discrimination will be solved not by 
such coercive measures but by the development of a con­
sensus and an understanding at the local level.

As we have noted (pages 1-2, supra), state and local 
governments throughout the Nation have determined, 
through their elected representatives, that public con­
tracting requirements comparable to Richmond’s will 
help to remedy the effects of racial discrimination. In 
these ways, Fullilove has become “ an important part of 
the fabric of our law” (Johnson v. Transportation 
Agency, 107 S. Ct. 1442, 1459 (1987) (Stevens, J., con­
curring) ; see id. at 1461 (O’Connor, J., concurring in the 
judgment)). It has become the basis for political and 
economic accommodation of the various interests that are 
affected when the government attempts to remedy the 
effects of discrimination— an accommodation that has

6 Thus Chief Justice Burger’s statement that “ in no organ of 
government, state or federal, does there repose a more compre­
hensive remedial power than in the Congress, expressly charged by 
the Constitution with competence and authority to enforce equal 
protection guarantees” (448 U.S. at 483) must be taken to mean 
what it says: Congress’s authority is as broad as that of state and 
local governments. The opinion does not say— and, in our view, 
it would be paradoxical and incorrect to say—that congressional 
power is broader.

13



14
taken place on the local level, in scores of localities and 
more than two-thirds of the States, throughout the Na­
tion. There is no sufficient reason for upsetting these 
accommodations and precluding state and local govern­
ments from addressing the problem of discrimination in 
this way.

B. The Richmond Plan Promotes Compelling Government 
Interests And Does Not Impose Unfair Burdens On 
Nonminority Contractors.

FvMlove is, in our view, sufficient to dispose of this 
case. But there is no inconsistency between Fullilove and 
the standards established in the other decisions of this 
Court that have considered the constitutionality of race­
conscious measures. Although the Court does not appear 
to have agreed on a specific formulation of these stand­
ards, it is clear that such a measure is constitutional if 
it is designed to achieve a sufficiently important gov­
ernment objective and if it is tailored so as not to im­
pose undue burdens on individuals who are not members 
of minority groups.7

The Richmond Plan satisfies these standards. Indeed, 
although we do not believe that a state or local govern­
ment must show a “ compelling” interest in order to sus­
tain a race-conscious remedy, the objectives that the 
Richmond Plan promotes are in fact compelling, and the 
burdens it imposes on nonminorities are minimal.

1. The Richmond Plan promotes the compelling inter­
est of remedying racial discrimination in the con­
struction industry.

The Richmond City Council explicitly stated that it 
was adopting the Minority Business Utilization Plan for 
the purpose of remedying prior racial discrimination. 
The court of appeals did not deny that the Plan would

7 See, e.g., United States v. Paradise, 107 S. Ct. 1053, 1064 & 
n.17 (1987) (plurality opinion) ; Wygant, 476 U.S. at 274 (plurality 
opinion); id. at 286-287 (O’Connor, J., concurring); id. at 301-302 
(Marshall, J., dissenting); id. at 313 (Stevens, J., dissenting).



15
be an effective means of remedying the effects of dis­
crimination in the construction industry. Instead, the 
court ruled that Richmond did not have an adequate 
basis for concluding that such discrimination exists. In 
this section we address that aspect o f the court of ap­
peals’ decision. In addition, we will explain why a race- 
conscious subcontracting requirement like Richmond’s is 
an especially useful means— indeed, an indispensable 
means— of remedying discrimination in the construction 
industry.

The court of appeals also suggested that Richmond 
was entitled to remedy only its own discrimination, and 
that remedying discrimination in the construction indus­
try did not constitute a sufficient government interest to 
uphold the Richmond Plan. We address that aspect of the 
court of appeals’ reasoning in Part B2 below.

a. i. In Wygant, Members of this Court stated that 
a government may adopt a race-conscious remedy for 
past discrimination when it “ ha [s] a strong basis in evi­
dence for its conclusion that remedial action [is] neces­
sary.” 476 U.S. at 277 (plurality opinion). See also id. 
at 293 (O’Connor, J., concurring) ( “ a firm basis for 
concluding that remedial action [is] appropriate” ). The 
Richmond City Council had more than a “ strong basis” 
for concluding that there was discrimination in the con­
struction industry. Perhaps the clearest evidence was 
the stark statistical disparity: minorities constitute half 
of Richmond’s population, but have received only two- 
thirds of 1% of public construction contract funds.

The court of appeals dismissed this statistical demon­
stration as “ spurious” [id. at 8a) and “not . . . mean­
ingful” (id, at 10a). “ The appropriate comparison,”  the 
court asserted, “ is between the number of minority con­
tracts and the number of minority contractors” (id. at 
7a; emphasis in original). The court of appeals stated 
that the City’s “ [s]howing that a small fraction of city 
contracts went to minority firms,” did not “demonstrate 
discrimination” because “the number of minority-owned 
contractors in Richmond was also quite small.” Ibid.



16
This ruling is manifestly incorrect. The error in the 

court of appeals’ approach is clear from numerous deci­
sions of this Court, and it was recently explained by 
Justice O’Connor: when discrimination prevents minori­
ties from “ obtaining th[e] experience” that they need 
to qualify for a position, the “relevant comparison” is 
not with the percentage of minorities in the pool of quali­
fied candidates but with “ the total percentage of [minori­
ties] in the labor force.” Johnson v. Transportation 
Agency, 107 S. Ct. 1442, 1462 (1987) (opinion concur­
ring in the judgment). See also id. at 1462-1463; Steel­
workers v. Weber, 443 U.S. 193, 198-199 (1979) ; Inter­
national Brotherhood of Teamsters v. United States, 431 
U.S. 324, 339 n.20 (1977). Discrimination does not 
merely prevent established minority contractors from 
obtaining contracts; it discourages and prevents minori­
ties from entering the pool of contractors in the first 
place. The absence of the disparity on which the court 
of appeals insisted may simply be evidence that minorities, 
faced with widespread discrimination, did not quixotically 
enter a business in which they knew they would not be 
allowed to succeed.

An individual who wishes to take advantage of sub­
contracting opportunities must expend considerable re­
sources. Such an individual ordinarily must incorporate, 
obtain bonding, hire managerial employees, buy or lease 
equipment, establish contacts with union hiring halls or 
other sources of labor, arrange credit, investigate bidding 
opportunities, and determine the bid that the newly formed 
firm can enter. These are costly operations. If there is 
discrimination at any stage— in the discretionary deci­
sions of general contractors, in the practices of bonding 
companies, in the judgments banks or equipment leasing 
companies make about creditworthiness, in the willing­
ness of skilled or unskilled laborers to work for a mi­
nority business— the minority group member is immedi­
ately placed at a competitive disadvantage. In these cir­
cumstances, few minority entrepreneurs will be willing to 
invest the necessary resources to establish a contracting



17
firm. They will pursue opportunities in a different field, 
where discrimination may be less of an obstacle to success.8

Significantly, these barriers continue to exist after acts 
of intentional discrimination have ceased. “ [BJarriers 
to competitive access ha[ve] their roots in racial and 
ethnic discrimination, and . . . continue today, even 
absent any intentional discrimination or other unlawful 
conduct.” Fullilove, 448 U.S. at 478 (opinion of Burger, 
C.J.). Experience—a “ track record”— is highly important 
to any firm seeking contracting opportunities. Id. at 467. 
A network of contacts and a prior working relationship 
can be crucial in obtaining credit, bonding, or high- 
quality employees. See Furnco Construction Corp. v. 
Waters, 438 U.S. 567, 570, 572 (1978) (describing hir­
ing by construction “job superintendent” who “hired only 
persons whom he knew to be experienced and competent 
in th[e] type of work or persons who had been recom­
mended to him as similarly skilled” ) .

Indeed, it is often rational, and not an act of racial 
discrimination, for general contractors, banks, and others 
to give preferential treatment to firms that have an 
established record of reliability. This case furnishes an 
example: the district court found that a minority sub­
contractor interested in obtaining part of appellee’s con­
tract could not obtain a timely price quotation from a 
supplier because the minority entrepreneur “ was un­
known to” the supplier, and the supplier’s agent “was 
not allowed to quote to unknown [firms] until they had 
undergone a credit investigation.” J.S. Supp. App. 123. 
Because discrimination has prevented minorities from 
entering the field in the past, minority firms will con­
tinue to suffer the competitive disadvantages caused by 
relative lack of experience even if there is no longer any

8 On several occasions, this Court has recognized that entrenched 
hiring discrimination will deter minorities from applying for jobs. 
See, e.g., Local 28 of Sheet Metal Workers v. EEOC, 106 S. Ct. 
3019, 3036-3037 (1986); Teamsters, 431 U.S. at 365-367. It follows 
a fortiori that discrimination will discourage minorities from form­
ing contracting firms, a much more expensive and difficult task.



18
intentional discrimination at all. Minority group mem­
bers will, accordingly, be unwilling to establish firms, 
and the disparity on which the court of appeals insisted 
will not appear.

Of course, it is theoretically possible that these bar­
riers were not the source of the virtual exclusion of 
minorities from Richmond’s public contracting business. 
But it is extremely unlikely. See Teamsters, 431 U.S. at 
342 n.23; Johnson, 107 S. Ct. at 1465 (O’Connor, J., 
concurring in the judgment). Faced with the undisputed 
fact that there were essentially no minority contractors 
in a City that was half minority, the Richmond City 
Council could have concluded either that virtually no 
minorities were willing and able to become contractors, 
or that some appreciable percentage had been excluded 
by discrimination. The Council, with its intimate knowl­
edge of the City’s history, thought the latter hypothesis 
was more plausible. There is no justification for denying 
the City the right to reach this conclusion.

ii. In addition to the statistical evidence, the Rich­
mond City Council had other reasons to believe that dis­
criminatory practices had denied minorities opportunities 
in the construction industry. For example, a member of 
the City Council, as well as the City Manager, speaking 
from experience, stated their judgment that there had 
been widespread discrimination in the construction in­
dustry. _ J.S. Supp. App. 38, 164-165. In addition, the 
discriminatory exclusion of minorities from craft unions 
is so notorious that this Court has held it a proper sub­
ject for judicial notice. Weber, 443 U.S. at 198 & n.l. 
Craft unions supply employees to construction firms, and 
often new construction firms are formed by craft work­
ers.® Thus the historic discrimination against minorities 
by the craft unions is likely to have had a severe effect 
on minorities’ opportunities in the construction industry. 
Finally, as the district court noted (J.S. Supp. App. 9

9 See, e.g., J. Gillies & F. Mittelbach, Management in the Light 
Construction Industry 27, 28 (1962); see generally R. Glover, 
Minority Enterprise in Construction (1977).



19

165), the City had before it the same evidence that Con­
gress had when it enacted the Fullilove program— 
“ abundant evidence from which [a legislature] could con­
clude that minority businesses have been denied effective 
participation in public contracting opportunities by 
procurement practices that perpetuated the effects of 
prior discrimination,” and “direct evidence”  that a “pat­
tern of disadvantage and discrimination existed with 
respect to state and local construction contracting” 
(Fullilove, 448 U.S. at 477-478 (opinion of Burger, 
C .J.)).

The court of appeals considered this nonstatistical 
evidence insufficient because it was not captured in ad­
equately “particularized findings” (J.S. App. 5a). As we 
noted above, this conclusion is inconsistent with Fullilove, 
and it ignores the realities of the legislative process. The 
court of appeals relied exclusively on Wygant for its con­
trary conclusion, but one Members of the five-Justice 
majority in Wygant fully explained why specific findings 
of prior discrimination should not be required. 476 U.S. 
at 289-293 (O’Connor, J., concurring). And it appears 
that a majority of the Court in Wygant rejected a require­
ment that a government must make formal findings of 
discrimination before adopting a race-conscious remedy. 
See id. at 312 n.7 (Marshall, J., dissenting).

The court of appeals rejected the City’s reliance on the 
data developed by Congress with the statement that 
“ [n]ational findings do not alone establish the need for 
action in a particular locality.” J.S. App. 9a. But in City 
of Renton v. Playtime Theatres, Ine., 475 U.S. 41 
(1986), a case involving an ordinance that arguably af­
fected First Amendment rights, this Court squarely 
rejected— as “ unnecessarily rigid”— the contention that 
because the City had not presented “ studies specifically 
relating to ‘the particular problems or needs of Renton,’ 
the city’s justifications for the ordinance were ‘conclusory 
and speculative.’ ” Id. at 50 (citations omitted). This is



almost precisely the contention that the court below 
accepted.

Renton held that a City is “ entitled to rely on the ex­
periences of . . . other cities” even when it is regulating 
in an area involving constitutional rights. Id. at 51. A 
City is not required “ to conduct new studies or produce 
evidence independent of that already 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.” Id. at 51-52. The statistical evi­
dence of discrimination in Richmond gave the City ample 
reason to believe that the congressional findings were 
relevant to its situation.

Finally, the court of appeals’ approach is insensitive to 
important practical considerations that affect state and 
local governments. First, as a practical matter, a require­
ment that a City compile a “record” or make specific 
“ findings” with an eye toward judicial review will place 
all but the largest localities at an unwarranted disadvan­
tage. Translating the insights, experience, and judgment 
of an elected official into a “ record” or “particularized 
findings” suitable for judicial review is a task for a pro­
fessional staff, preferably a staff with an extensive legal 
background. Congress and the Executive Branch of the 
federal government employ staffs that are adept at com­
piling a record that will withstand the kind of review 
that the court of appeals’ opinion contemplates. But 
many medium-size and small localities— whose delibera­
tions may be every bit as careful and thoughtful— do not 
employ, and cannot afford to employ, that kind of pro­
fessional staff.

Second, and more important, the court of appeals’ 
approach ignores the nature— and the special advantages 
— of the political process. The court of appeals appears 
to have required that state and local governments iden­
tify particular occasions on which identifiable acts of 
discrimination occurred. See, e.g., J.S. App. 8a ( “There 
has been no showing that qualified minority contractors 
who submitted low bids were passed over. There has

20



been no showing that minority firms were excluded from 
the bidding pool.” ) .

Such a procedure— in which specific discriminatory 
acts or actors are identified— would benefit no one. It 
would require state and local governments to engage 
in a destructive process of recrimination and accusation 
if they wished to address the effects of racial discrimi­
nation through a race-conscious remedy. The genius of 
the political process is that it can often find a solution, 
even to problems as difficult as those implicated in this 
case, without reopening old wounds and setting individ­
uals against each other. See Schlesinger v. Reservists 
Committee to Stop the War, 418 U.S. 208, 221 n. 10 
(1974) ( “ The legislative function is inherently general 
rather than particular and is not intended to be respon­
sive to adversaries asserting specific claims or interests 
peculiar to themselves.” ). The divisive process envisioned 
by the court of appeals would forfeit these advantages.

b. A race-conscious subcontracting requirement is a 
fully appropriate remedy for the discrimination that 
Richmond found to exist in the construction industry. 
A measure that simply required the firms involved in the 
construction industry not to discriminate would not have 
been effective. Indeed, we do not, understand the court 
of appeals to have suggested otherwise.

As we noted above, and as Members of the Court ex­
plained in detail in Fullilove, discrimination in the con­
struction industry creates a variety of subtle but severe 
barriers to competitive success. Intentional discrimination 
can handicap a construction firm in ways that a mere pro­
hibition against discrimination cannot prevent, no matter 
how diligently it is enforced. More important, even after 
intentional discrimination has ceased, minority firms will 
continue to suffer from its effects. A simple prohibition 
against discrimination will do nothing to remedy those 
effects. See pages 16-18, supra-, Fullilove, 448 U.S. at 
461-467, 477-478 (opinion of Burger, C.J.).

For example, as we have noted, a rational, non- 
discriminatory general contractor will often prefer to

21



22
give work to a subcontractor with which it has worked on 
previous projects and which it knows to be reliable. A 
bank or a bonding company will have nondiscriminatory 
reasons for giving better terms to firms with a long record 
of reliable performance. Informal networks, developed 
over years of working together, will often be the best 
means of hiring good employees. See pages 17-18, supra.

In each of these areas, minority firms are at a com­
petitive disadvantage because they lack experience and 
contacts; and they lack experience and contacts because of 
past discrimination. This disadvantage cannot be over­
come simply by banning discrimination. It can be over­
come only by a compensatory remedy that improves the 
competitive position of minority firms.

Richmond’s subcontracting requirement accomplishes 
this task in a measured, tailored fashion. It is a tem­
porary device; the City will reassess the need for a race­
conscious remedy before extending it. It does not guaran­
tee any particular contract to any minority firm. Because 
of the waiver provision, minority firms have an incentive 
to be as efficient as possible; if their costs are too high, a 
general contractor may obtain a waiver. Moreover, as the 
district court explained (J.S. Supp. App. 145-146) :

[UJnder the Plan, there remains every incentive for 
both MBEs and non-MBEs to compete against one 
another. . . . The Plan simply changes the struc­
ture of the competition, by requiring non-MBEs to 
team up, insofar as possible, with MBEs, to com­
pete for contracts against other teams of non- 
MBEs and MBEs.

The Richmond Plan does, however, ensure that a general 
contractor will not lose a job because it has subcontracted 
with a minority firm that has higher costs as a result of 
past discrimination. And, of course, the Richmond Plan 
requires general contractors to make real efforts to seek 
out minority firms; it does not permit a general con­
tractor to make a merely perfunctory effort before re­
turning to the traditional ways of doing business.



28

2. Richmond may enact a race-conscious remedy for 
prior discrimination in the local construction in­
dustry without admitting complicity in racial dis­
crimination.

As we have explained, the Richmond City Council 
had more than sufficient basis for concluding that racial 
discrimination in the construction industry blocked mi­
nority access to city construction contracts, and the Rich­
mond Plan was well designed to remedy this situation. 
But passages in the opinion below suggest that the court 
imposed an additional requirement on Richmond: the 
City, the court of appeals suggested, could enact a race­
conscious plan only to remedy its own prior discrimina­
tion. The Richmond Plan, according to the court of 
appeals, could not be justified as a remedy for discrimina­
tion in the construction industry, no matter how conclu­
sively Richmond demonstrated the existence of that dis­
crimination, unless the City itself was in some sense guilty 
of discrimination. See J.S. App. 5a, 6a, 8a, 9a.

This conclusion is erroneous. In some circumstances, a 
local government is obligated to use race-conscious means 
to remedy its own discrimination. North Carolina State 
Board of Education v. Swann, 402 U.S. 43, 46 (1971); 
see also Green v. County School Board, 391 U.S. 430 
(1968). The question in this case, however, is not what 
a state or local government is obligated to do but what 
it may do. It is well established that a state or local gov­
ernment not only may act to remedy private discrimina­
tion but has the most compelling interest in doing so. 
Moreover, both logic and this Court’s decisions support the 
conclusion that a state or local government may use race­
conscious measures to remedy private discrimination and 
its effects.

a. This Court has repeatedly recognized that govern­
ments have an interest of the highest order in eliminat­
ing private discrimination and its effects. See, e.g., 
Board of Directors v. Rotary Club, 107 S. Ct. 1940, 1947 
(1987) ( “ the State’s compelling interest in eliminating 
discrimination against women” ) ; Bob Jones University



24
v. United States, 461 U.S. 574, 604 (1983) (“ [T]he gov­
ernment has a fundamental, overriding interest in eradi­
cating racial discrimination” ) ; Runyon v. McCrary, 427 
U.S. 160, 179 (1976) ; Railway Mail Association v. Corsi, 
326 U.S. 88 (1945). Indeed, the Court has recently ruled 
that a State government’s interest in “ eliminating dis­
crimination and assuring its citizens equal access to pub­
licly available goods and services”— an interest similar to 
that asserted by Richmond in this case— is not only a 
“ compelling state interest!] of the highest order" (Roberts 
v. United States Jaycees, 468 U.S. 609, 624 (1984)), but 
is sufficiently weighty to justify the infringement of a con­
stitutional right (see id. at 623). See also id. at 632 
(O’Connor, J., concurring) ( “ the profoundly important 
goal of ensuring nondiscriminatory access to commercial 
opportunities in our society” ) .

b. The City’s interest in combatting private discrim­
ination is even stronger in this case, because the City is 
attempting to ensure that its own expenditures of public 
funds do not contribute to the harms caused by discrim­
ination. Richmond is not acting merely as a regulator 
of private affairs, as the States were in Roberts, supra, 
and Rotary Club, supra; instead, the City is attempting 
to prevent its own spending decisions from supporting 
subtle forms of discrimination or perpetuating the effects 
of past discrimination. The Court has recognized that a 
local government has unusually great latitude to promote 
its interests when it is not acting in a regulatory capacity 
but is, for example, “expend [ing] only its own funds in 
entering into construction contracts for public projects” 
{White v. Massachusetts Council of Construction Em­
ployers, 460 U.S. 204, 214-215 (1983)). See also Reeves, 
Inc. v. Stake, 447 U.S. 429, 436-437 (1980) ; Hughes v. 
Alexandria Scrap Corp., 426 U.S. 794, 810 (1976). 
When, as here, the City is attempting to avoid giving 
support to private racial discrimination and its effects, 
the City’s power is at its greatest.

We note in this connection that several courts have 
held that a state or local government can violate the Con­



25
stitution by entering into contractual relationships with 
private firms that discriminate.10 See also National Black 
Police Association v. Velde, 712 F. 2d 569 (D.C. Cir. 
1983) (officials are subject to personal liability if they 
knowingly provide public funds to recipients engaged in 
discrimination), cert, denied, 466 U.S. 963 (1984). While 
we do not agree with these decisions, they further estab­
lish the extraordinary weight of state and local govern­
ments’ interest in ensuring that public funds are not 
spent in a way that perpetuates racial discrimination or 
its effects. Cf. Norwood v. Harrison, 413 U.S. 455 
(1973).

c. In view of the extraordinary importance of the gov­
ernment’s interest in eliminating private discrimination 
and its effects, it would be unreasonable to preclude state 
and local governments from using race-conscious meas­
ures in appropriate circumstances. The Court has ap­
proved race-conscious remedies for government discrim­
ination because there are occasions on which government 
discrimination, and its effects, cannot be eliminated with­
out such measures. See, e.g., North Carolina State Board 
of Education, supra-, McDaniel v. Barresi, 402 U.S. 39, 
41 (1971).

The same is sometimes true of private discrimination. 
As the Court has recognized, sometimes a mere require­
ment of nondiscrimination is not enough to prevent such 
discrimination or to alleviate its effects. See, e.g., Local 
28 of Sheet Metal Workers v. EEOC, 106 S. Ct. 3019, 
3036-3037 (1986) ; Fullilove, supra. See also Paradise, 
107 S. Ct. at 1065-1072. The Court has specifically stated 
that a school board may voluntarily remedy de facto seg­
regation— segregation that is not the result of discrimina­
tion by the government— by adopting a race-conscious 
student assignment policy. Swann v. Charlotte-Mecklen-

10 Notably, many of these cases involved the construction industry. 
See, e.g., Percy v. Brennan, 384 F. Supp. 800, 811-812 (S.D.N.Y. 
1977); Byrd v. Local No. U , IBEW, 375 F. Supp. 545, 559-560 
(D.Md. 1974); James v. Ogilvie, 310 F. Supp. 661 (N.D. 111. 1970); 
Ethridge v. Rhodes, 268 F. Supp. 83 (S.D. Ohio 1967).



26
burg Board of Education, 402 U.S. 1, 16 (1971). See also 
North Carolina State Board of Education, 402 U.S. at 45.

We of course recognize that race-conscious measures 
must not be imposed casually, for whatever reason they 
are adopted. They must be supported by appropriate 
government interests. Moreover, the government must 
take care that they do not unfairly burden nonminori­
ties. But there is no basis for wholly prohibiting state 
and local governments from using such measures to 
remedy discrimination in appropriate cases, even if the 
discrimination does not have its source in the govern­
ment’s own actions.

d. The court of appeals’ conclusion that a state or 
local government is limited to remedying its own dis­
crimination was based entirely on statements from 
Wygant. See J.S. App. 5a, quoting 476 U.S. at 274 
(plurality opinion of Powell, J .). See also Wygant, 476 
U.S. at 288 (opinion of O’Connor, J .). Understood in 
context, however, these statements do not support the 
court of appeals’ conclusion.

Wygant involved a provision of a collective bargaining 
agreement under which a school board, in making lay­
offs, was to maintain a certain racial balance among 
teachers. See 476 U.S. at 270-272 (plurality opinion). 
That affirmative action provision, if analyzed as a reme­
dial measure, was capable of being justified only in one 
of two ways— as a remedy for prior discrimination by 
the school board, or as a general response to the fact 
that widespread discrimination in society has placed 
racial minorities in a disadvantaged position. See id. at 
288 n.* (opinion of O’Connor, J .).n

Justices Powell and O’Connor were concerned to reject 
the suggestion that this latter notion of societal dis­
crimination could justify the provision. Justice Powell 
reasoned that such a justification is “ too amorphous” and 11

11 The school board also suggested that the measure could be 
justified on the ground that it provided “ role models” for school- 
children (see 476 U.S. at 274 (plurality opinion)), but that is a 
nonremedial justification that has no counterpart in this case.



27
“ overexpansive” ; because “ [n]o one doubts that there 
has been serious racial discrimination in this country,” 
any remedies based on this notion of societal discrim­
ination would be “ ageless in their reach into the past, 
and timeless in their ability to affect the future.” Id. at 
276 (plurality opinion).

It was in this context— in which the only suggested 
remedial justifications were an open-ended notion of 
societal discrimination, on the one hand, and “discrimin­
ation by the local government unit in question” on the 
other— that Justices Powell and O’Connor insisted on the 
latter. Richmond, however, did not enact its Plan on the 
basis of an open-ended assertion of societal discrimina­
tion. Rather, Richmond is attempting to remedy discrimi­
nation in a specific industry, on the basis of abundant 
evidence (including evidence of which this Court has taken 
judicial notice) that such discrimination exists. Such a 
remedial effort does not present the problems of limit­
lessness and amorphousness with which Justices Powell 
and O’Connor were concerned.

This interpretation of the statements in Wygant is 
confirmed by Justice Powell’s opinions in both BaJcke and 
Fullilove. In Bakke, Justice Powell contrasted “ identified 
discrimination” with “ ‘societal discrimination,’ an amor­
phous concept of injury that may be ageless in its reach 
into the past.” 438 U.S. at 307. In Fullilove, where 
there was no suggestion of prior discrimination by the 
federal government, Justice Powell again emphasized that 
“ identified” discrimination was sufficient to uphold the 
race-conscious remedy. See 448 U.S. at 496, 497, 515. 
This demonstrates that Justice Powell’s concern was that 
the discrimination be “ identified”— that is, that it be 
narrower than general societal discrimination—not that 
it be attributable to the government actor in question. In 
Wygant, the only form of identified discrimination was 
discrimination by the unit of government itself. Rich­
mond, however, is addressing another form of identified 
discrimination. Its Plan is therefore fully consistent with 
Justice Powell’s approach.



28
3. Richmond’s plan does not unfairly burden non­

minority contractors.
The Court has emphasized that race-conscious remedial 

measures must not impose undue burdens on nonminori­
ties. See, e.g., Johnson, 107 S. Ct. at 1455-1456; Wygant, 
476 U.S. at 282-284 (opinion of Powell, J.). The bur­
dens that the Richmond Plan imposes on nonminorities 
can fairly be characterized as minimal. At all events, 
they are well within the range permitted by this Court’s 
decisions.

To a large extent, the burdens imposed by the Rich­
mond Plan fall on the City itself. They are therefore 
distributed among the taxpayers. Not only is this per­
haps the fairest way of dealing with the costs of remedy­
ing discrimination, but it ensures that there will be a 
political check on the program. If its costs grow too 
great, not isolated individuals but the taxpayers as a 
whole will demand that the Plan be modified or repealed. 
Because it spreads much of its cost among the taxpayers, 
the Richmond Plan is superior to nearly every other 
remedial measure that this Court has considered; those 
measures imposed virtually the entire burden on specific 
individuals and shifted little or none of it to the tax­
payers (or to a comparably large group) ,12

The principal burden of the Richmond Plan falls on 
the taxpayers because a general contractor can include

12 In the cases involving competitive seniority— Wygant, Fire­
fighters Local Union No. 178U v. Stotts, 467 U.S. 561 (1984), and 
also, in important respects, Franks v. Bowman Transportation Co., 
424 U.S. 747 (1976)—the burden fell entirely on the nonminority 
employees who lost the benefits of their seniority; it is difficult to 
identify any burden that fell on the employer or could be passed on 
to taxpayers or customers. In cases involving affirmative action in 
hiring, promotions, or university admissions— Paradise, Johnson, 
Local No. 93, Firefighters v. Cleveland, 478 U.S. 501 (1986), Local 
%8 of Sheet Metal Workers, Weber, and Bakke—the government 
or employer incurred, in theory, the additional cost of employing 
or educating a minority applicant who was supposedly less well- 
qualified. But in practical terms that cost is not likely to be great. 
Realistically, the burden fell on the disappointed applicant.



29
in its bid— and thereby pass through— any additional 
costs that reflect the competitive disadvantage of the 
minority subcontractors. Neither the general contractor, 
nor any bonding or lending institution, nor any other 
firm that deals with the minority subcontractor, is forced 
to incur additional net costs.

It is of course true that the Plan is likely to cause 
some nonminority subcontractors to lose business. But 
in this respect, as well, the Plan contrasts sharply, and 
favorably, with the measures that this Court has invali­
dated in the past. The collective bargaining agreement 
in Wygant, for example, resulted in layoffs of non­
minority employees whose seniority would otherwise have 
protected them. This aspect of Wygant was crucial to 
the outcome of that case. See 476 U.S. at 282-284 
(Powell, J.) ; id. at 294-295 (White, J., concurring).

By contrast, the burden imposed on individual firms 
by the Richmond Plan— like the burden imposed by the 
federal program upheld in Fullilove— is “ limited and so 
widely dispersed that it [] . . .  is consistent with funda­
mental fairness.” FvMlove, 448 U.S. at 515 (Powell, 
J., concurring) (footnote omitted). The Richmond Plan 
affects only the construction industry, only a segment 
of that market— municipal contracts— and only 30% of 
the dollar volume of that segment. We know of nothing 
in the record that suggests that any costs that the Rich­
mond Plan imposes on nonminority contractors will be 
concentrated on a few firms. Moreover, far from up­
rooting settled expectations acquired through years of 
seniority, the Richmond Plan threatens only the con­
tingent possibility of future economic gain. This in­
terest, as the Court has emphasized, has always been 
entitled to only minimal legal protection. See, e.g., Andrus 
v. Allard, 444 U.S. 51, 66 (1979) ; Franks v. Bowman 
Transportation Co., 424 U.S. 747, 778 (1976); Robins 
Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 308-309 
(1927) (Holmes, J.).

Finally, since Richmond had ample reason to conclude 
that there was substantial discrimination in the con­



30
struction industry, “ it was within [the City’s] power 
to act on the assumption that in the past some nonmi­
nority businesses may have reaped competitive benefit 
over the years from the virtual exclusion of minority 
firms from these contracting opportunities.”  Fullilove, 
448 U.S. at 485 (opinion of Burger, C.J.). As we noted, 
following Justice Powell’s logic in Fullilove, the 30% fig­
ure chosen by Richmond was a reasonable estimate of 
the amount of City contracting dollars that would have 
reached minorities in the absence of discrimination. See 
page 8, supra. There is reason to believe, therefore, that 
the nonminority firms that are disadvantaged by the 
Richmond Plan may be losing only opportunities that 
they would not have had in the absence of prior dis­
crimination.

David A . Strauss 
University of Chicago

Ben n a  R uth  Solomon
Chief Counsel 

State and  LocalLaw School 
1111 East 60th Street 
Chicago, IL 60637 
(312) 702-9601

Legal Center 
444 N. Capitol Street, N.W. 
Suite 349
Washington, D.C. 20001 
(202) 638-1445 
Counsel of Record for the

April 21,1988 Amici Curiae



APPENDICES

I



APPENDIX I
Minority Business Enterprise Programs 

of State Governments1 2

State Citation Coverage Goals
Alabama Exec. Order No. 89 

(1978)
2

Arkansas Exec. Order No. 83-2 Goods and services 10%
Ark. Stat. Ann. 
§§5-916.2 to 5-916.6

Creates MBE office; 
defines functions

Exec. Order 
Proc. E083-2

Goods and services 10%

1 In addition to the procurement measures listed in the Table, Alaska law provides for an employment 
preference for “ economically disadvantaged minority residents” in areas of the State suffering from underem­
ployment. The Labor Commissioner identifies zones of underemployment. In those zones, residents who are 
“economically disadvantaged minority residents” have a preference for 25% of the jobs or a percentage repre­
sentative of the number of minority citizens in the zone, whichever is greater. Alaska Stat. § 36.10.170 (1987).

Georgia allows an income tax credit of 10% of payments made by contractors to MBE subcontractors. H.B. 
635 A /P , S.B. 48-7-38, eff. Jan. 1, 1985.

Kansas has established an Office of Minority Business to offer advice and technical assistance to MBEs; the 
office helps locate resources and acts as a minority advocate.

2 The 1978 Executive Order created a Department of Small and Minority Business Enterprise to encourage 
those businesses. The policy was to be “ implemented by all State agencies, departments and institutions by 
purchasing a fair proportion of the supplies, commodities and services required . . . .”



State Citation
Arizona

California

Exec. Order No. 87-9 
(10/22/87)

Cal. Gov’t Code 
§§ 8790.70 - 8790.87 
(West 1987)

Cal. Gov’t Code 
§ 14132,eff.
Jan. 1,1989,1988 
Cal. Stat. ch. 9 
Cal. Gov’t Code 
§ 14839 
(West 1987)
Cal. Gov’t Code 
§ 16850, eff.
Jan. 1,1989,1988 
Cal. Stat. ch. 61 
Cal. Pub. Cont. Code 
§ 10108.5, eff.
Jan. 1,1989 
(West 1988)

All contracts 3
Coverage Goals

All contracts for 15%
construction,
professional services,
materials, supplies,
equipment, and repairs
Highway construction 15%

Establishes Office of 
Small and Minority 
Business
Professional bonding 15%
services

State prison facilities 15%



Cal. Pub. Cont. Code 
§ 10115,eff.
Jan. 1,1989,1988 
Cal. Stat. ch. 61 
Cal. Pub. Cont. Code 
§ 10470 (West 1988) 
Cal. Sts. & Hy. Code 
§§ 94.3, 94.4 
(West 1987)
Cal. Pub. Cont.
Code § 2000 
(West 1987)

All state contracts 
except highway 
construction

Correctional facilities

MBE certification 
provision

Permits local agencies 
to establish MBE goals 
for local purchases

15%

15%

Colorado Exec. Order State procurement 17%
(Dec. 10,1987)

Connecticut Conn. Gen. Stat. Construction, goods, 15-25%
Ann. § 32-9e (1987) and services

Florida Fla. Stat. Ann. Construction, 15%
§ 287.042 contractual services,
(West 1988) commodities

8 The Executive Order expands the Governor’s Office of Affirmative Action to encompass minority and women 
owned business enterprises. The office is “ to facilitate, preserve and strengthen minority and womens business 
enterprises and ensure their full participation in the State of Arizona’s free enterprise system.”



State Citation Coverage Goals
(Fla. cont.) Fla. Stat. Ann. 

§ 287.093 
(West 1987)

Authorizes set-asides by 
counties, cities, and 
school districts in 
purchases of goods and 
services

10%

Illinois Id. Stats. Ann. 
ch. 127,132-600 
etseq. (Smith-Hurd 
1985)

State contracts 10%

Indiana Ind. Code
§ 4-13-16.5-2 (e) (7) 
(Michie 1987)4

State constracts 5%

Iowa Iowa Code § 314.14 
(West 1985)

Highway construction 10%

Kentucky Ky. Rev. Stat. 
§§45.470-45.510 
(Michie 1986)

Goods, services, 
and construction

6

Louisiana La. Rev. Stat. Ann.
§§ 39:1951 to 39:1991 
(West 1987)8

Public works, goods, 
and services

10%



La. Rev. Stat. Ann. 
§ 38:2233.2 
(West 1987)

Authorizes local 
government set-aside 
programs

10%

Maryland Md. State Fin. & 
Proc. Code Ann. 
§ 18-601

Transportation 
construction contracts 
over $100,000

10%

(Michie 1985) All other state 
procurement

10%

Massachusetts Exec. Order No. 237 
(1984) ;

Goods, supplies, and 
services

5%

Mass. Gen. Laws Ann. 
ch. 23A, §§ 39-44 
(West 1987) ; and

Construction 10%

4 The State information brochure, Indiana/We’ll Help You Make It, states that the “ MBE program relies 
on voluntary goal setting by individual state agencies for increasing minority participation in contracts.”

5 Kentucky’s Small or Small Minority Business Purchasing Act sets no specific goals. The Act provides that 
the Finance and Administration Cabinet set aside contracts for minority business enterprises if the Cabinet can 
identify 3 minority businesses that can reasonably be expected to bid and the businesses are “capable of furnish­
ing the desired property or services.” 8

8 Louisiana’s Minority Business Enterprise Act deals with procurement. Louisiana’s Minority Development 
Act (La.Rev.Stat.Ann. §§ 51:1751 -51:1765) defines “minority business enterprise,”  sets up an authority and a 
fund, and authorizes loan guarantees to MBEs.



State Citation Coverage Goals

(Mass, cont.) Mass. Admin. Reg. 
509 (1984)

Michigan Mich. Stat. Ann. 
§3.540 (51), (52) 
(Callaghan 1985)

Construction, goods, 
and services

7% 7

Minnesota 8 3 A Minn. Stat. Ann. 
§ 16B.19 (5), (6 );
§ 16B.22 (1986)

All procurement 9%

Missouri Mo. Ann. Stat. 
§ 33.752-5 (7) 
(Vernon 1988)

State contracts 0

Nebraska Exec. Order 
(Jan. 16,1984)

State contracts 10

New Jersey N.J. Stat. Ann.
§ 52:32-21 
(WestSupp. 1987)

Goods, equipment, 
construction, and 
services

7% 11

N.J. Stat. Ann.
§ 58:llB-26 
(West Supp. 1987)

Wastewater treatment 
trust: Local 
government purchases

10%

N.J. Stat. Ann. 
§§5:12-184-5:12-190

Purchases of goods and 
services by casinos

15%



(West Supp. 1987); 
1987 N.J. Sess. Law 
Serv. ch. 137 (West)

New Mexico Exec. Order No. 83-52 Each Cabinet
(1983)12 Department

Negotiated fair share 
(no numeric goals)

7 The Michigan statute (Mich.Stat.Ann. §§ 3.540(31)-3.540(35)) authorizes a Minority Business Enterprise 
Division within the Department of Commerce. The Division must develop plans and specific program goals. The 
procurement policy requires a goal of “not less than 7%.” Mich.Stat.Ann. §§ 3.540(51), (52).

8 The Minnesota statute authorizes a set-aside for the “ socially and economically disadvantaged,” including 
“racial minorities, women, or persons who have suffered a substantial physical disability.”

8 Mo.Ann.Stat. §§ 33.750-33.755 creates a Minority Business Development Commission. Mo.Ann.Stat. 
§ 33.752-5(7) states that it is the duty of the Commission to “ [ejstablish as a goal that state contracts be let 
to racial minority businesses.” The statute contains no specific percentages.

-d
S3

10 Article IV of the Executive Order requires each department to prepare an Affirmative Action Plan of 
Implementation for the Internal/External Contract Compliance Program. The plan “shall facilitate the promotion 
and enhancement of economic opportunities for all disadvantaged businesses and members thereof.”

11 The New Jersey Set Aside Act for Small Businesses, Female Businesses, and Minority Businesses (N.J.Stat. 
Ann. §§ 52:32-17 to 52:32-30) states that at least 25% of state purchases of goods, equipment, services, or con­
struction must be purchased from small (15% ), minority (7% ), or female (3% ) businesses. The 1987 legisla­
ture established a grant program to counties and municipalities for pilot programs to assist in the development 
of small, minority, and women owned businesses. 1987 N.J. Sess.Law Serv. ch.56 (West).

12 As of April 18, 1988, a new executive order is pending.



State Citation Coverage Goals
New York N.Y. Gen. Mun. Law 

§§955-969 
(McKinney 1986) 
N.Y. Transp. Law 
§428(2)
(McKinney 1983) 
N.Y. Unconsol. Laws 
§ 6267
(McKinney 1983) 
Exec. Order State construction

13

No. 21 (1983) contracts, goods, 
and services

12%

North Carolina N.C. Gen. Stat.
§ 136-28.4 
(Michie 1987)14 
Exec. Order 
No. 34 (1987)

Contract purchases 4%

Ohio Ohio Rev. Code Ann. 
§§ 122.71(e); 
123.151;125.081 
(Page 1984)15

Construction 5%



Oklahoma Okla. Stat. Ann. 
tit. 74, § 85.45c 
(West 1987)

Goods and services 10% lfl

Oregon Or. Rev. Stat. §§ 200.005 - ”
200.085 (1987) 13 * 15 * 17

13 The New York State Economic Development Zones Act defines an MBE and provides that economic devel­
opment zone plans must contain a description of programs to stimulate MBEs. N.Y. Gen.Mun. Law 962(h). 
MBEs must also be given an opportunity for “meaningful participation” in a “ fair share of contracts” for 
New York City transit projects. N.Y. Pub. Auth. Law § 1266-cl4(a) (i) (McKinney 1986).

w The North Carolina law declares that it is state policy to “ encourage and promote use of small, minority, 
physically handicapped and women contractors” in construction of state roads. N.C.Gen.Stat. § 143-135.5 contains 
a similar provision for the construction of public buildings.

15 In addition to the set-aside program, Ohio law establishes both a minority business development commis­
sion (Ohio Rev.Stat.Ann. §§ 122.92-122.94) and a minority development financing commission (Ohio Rev.Stat. 
Ann. §§ 122.71-122.85). There is also a special bonding program for minority contractors (Ohio Rev.Stat.Ann. 
§§ 122.87- 122.89).

18 The Oklahoma statute requires the State Purchasing Director to certify annually the percent of funds 
expended on state contracts which have been awarded to minority business enterprises. I f the percentage is 
less than 10%, then a 5% bid preference goes into effect. The percentage is adjusted annually according to 
formula. Okla. Stat. Ann. tit. 74, § 85.45c(B).

17 The Oregon Minority and Women Business Assistance Act defines disadvantaged, minority, and women 
business enterprises, establishes a certification procedure, prohibits fraud, establishes an advocate to “assist in 
the development and implementation of an aggressive strategy . . . that encourages participation of minorities 
and women in the state’s economy,” and sets standards for good faith efforts to meet goals. Or.Rev.Stat. 
§§ 200.005 - 200.085.



State Citation Coverage Goals
Pennsylvania 73 Pa. Stat. Ann. 

§§390.1-390.18 (1987)
18

Exec. Order No. 
1987-18 (1987)

State agency purchases

Rhode Island R.I. Gen. Laws 
§§ 37-14.1-1 to 
37-14.1-8

Any and all goods 
and services

10%

Exec. Order No. 85-4 
(Feb. 20,1985)

State purchases 10%
minimum

South Carolina S.C. Code Ann.
§§ 11-35-5010 to 
11-35-5270 
(Law. Coop. 1986)

Total procurement 19

Tennessee Tenn. Code Ann. 
§ 4-3-728

Community development 
block grants

20

Texas Tex. Civ. Code Ann. 
art. 4413 (301)

State procurement 21

10a



18 The Pennsylvania Minority Business Development Authority Act creates an authority and a bureau as 
part of the Department of Commerce and establishes a development fund. The Authority can lend money and 
guarantee investments in MBEs. The Executive Order creates an Office of Minority and Women Business Enter­
prise to “aggressively pursue contracting and subcontracting opportunities for MBEs . . . with State Govern­
ment.” Each agency is to “establish specific goals for meaningful and significant participation of MBEs . . . .”  
The Order also requires all departments, boards, and commissions to appoint a minority business coordinator to 
cooperate with the Office of Minority and Women Business Enterprise in developing an effective program in 
each agency “ in establishing specific goals . . . .”  Id. at 4 and 5 (d ).

19 The law, which applies to all procurement, states that each agency director must set up an MBE plan an­
nually with a goal that a “ reasonable percentage” of the agency’s “ total procurements”  will be purchased from 
minority businesses. S.C.Code Ann. § 11-35-5240(1). The South Carolina law also sets up a Small and Minority 
Business Assistance Office that provides lists of minority contractors, training of minority contractors, other 
training programs, and special publications. S.C. Code Ann. § 11-35-5270. The S.C. Department of Highways & 
Public Transportation is required by its enabling legislation to expend 5% of its construction funds with “ small 
business concerns owned and controlled by economically and socially disadvantaged individuals.”  S.C.Code Ann 
§ 12-27-1320 (Law.Coop.Supp. 1987). 20 21

20Tenn.Code Ann. §§ 4-26-101-4-26-105 (Michie 1985) defines “ disadvantaged business” enterprises; the 
statute authorizes the Department of Economic and Community Development to assist disadvantaged businesses 
by offering aid and developing loan sources. That statute contains no specific goals. Tenn.Code Ann. § 4-3-728, 
however, states that a “substantial portion” of community development block grants must be used, when “reason­
ably possible,” for contracts with disadvantaged businesses.

21 Several provisions of Texas law concern MBEs. Tex.Civ.Code Ann. art. 4413 (301), §§ 5.001-5.007 sets up 
a program to assist small businesses, including “ disadvantaged” businesses. The Office of Small Business Assistance 
must offer guidance, assist with bidding, and foster participation by those businesses in state procurement. State 
agencies must keep data on the number of contracts awarded to disadvantaged businesses. Tex.Civ. Code Ann. art. 
1118y, §20 (d )(1 ) (Vernon 1988) authorizes regional transportation authorities to adopt MBE programs; Tex.
C.P. & R. Code Ann. § 106.001 defines an MBE and authorizes municipalities to establish MBE programs.

11a



State Citation Coverage Goals

Virginia Va. Code § 11-48 
(Michie 1985)

122

Governor’s 
Memorandum re: 
Minority Business 
Procurement Goals 
(1/15/83)

Contractual services, 
supplies, materials, and 
capital outlay projects

1.3%

Governor’s 
Memorandum re: 
1984-85 goals 
(10/12/84)

State purchases 
as above

3-5%

Washington Wash. Rev. Code Ann. 
§§ 39.19.010 to 
39.19.921 (West 1988)

Goods and services 23

Wisconsin24 Wis. Stat. Ann.
§ 16.855 (10m) (a) 
(West 1987)
Wis. Stat. Ann.
§ 16.75 (3m) (a) ;
§ 16.87(2) (1985-86);

Construction contracts 5%

12a



Wis. Stat. Ann.
§ 560.036 (West 1987)

23 The statute is intended to foster small businesses and those owned by minorities and women. “All public 
bodies shall establish programs” to facilitate the participation of minority businesses in state procurement trans­
actions.

23 The Washington Code establishes an Office of Minority and Women’s Business Enterprises. The Office must 
establish overall goals for each state agency and educational institution for the procurement of goods and services, 
including professional services, from minority and women owned businesses. The programs are to be adminis­
tered on a contract-by-contract basis or in a class-of-contract basis. Washington law also requires “ first class 
cities” (those over 20,000) to “ invite at least one proposal from a minority or woman contractor”  when letting 
bids on “ small public works.”  Wash. Rev. Code Ann. § 35.22.650. All contracts exceeding $10,000 let by first class 
cities must contain a clause that requires the contractor to “ actively solicit”  employment of minority group mem­
bers and to solicit bids from minority group subcontractors. Wash. Rev. Code Ann. § 35.22.620(7) (b). 24

24 A number of Wisconsin statutes contain specific goals for minority business enterprises: Wis.Stat.Ann. 
§ 84.075—a 5% set-aside provision for engineering services and highway construction and maintenance contracts; 
Wis.Stat.Ann. §16.87 (2 )— 5% set-aside for engineering, architectural, and environmental consultant services; 
WIS.Stat.Ann. § 16.75 (3) (3m) & (b )— 5% set-aside for purchase of materials, supplies, equipment, and con­
tractual services by the legislative and judicial branch. Wisconsin municipalities with sewer construction projects 
funded under the combined sewer overflow abatement program must set goals of awarding 20% of the subcontracts 
to MBEs. Wis.Stat.Ann § 66.905.



APPENDIX II

Minority Business Enterprise Programs 
of Municipal and County Governments 1

The city and county programs listed on this chart include a wide variety of initiatives, including 
contracting goals, subcontracting goals or requirements, good faith efforts, bid preferences, set-asides, 
workforce requirements, and outreach programs, among others. A numerical percentage in the 
“ Goals” column should not be read to imply a fixed and nonwaivable requirement or the absence of a
waiver provision. 

State and City/County Citation
Types of

Contracts Covered Goals
Alabama: 

Birmingham: Birm. Code § 3-3-16 Construction and 
purchase of goods, 
material, equipment, 
and services

Encourage, facilitate, 
and effect greater 
minority 
participation 2

Alaska:
Anchorage Mun. Code § 7.60.010 All Mayor sets annual goals

et seq. ; Mun. Reg. on recommendation of
7.60.006 MBE coordinator

Juneau Ord. Serial No. 80-26; Construction 12-15%
Res. Serial No. 677; Services 2%

14a



City & Borough Code Goods
§ 53.50.95 and 
program guidelines

Other

North Slope 
Borough

Mun. Code § 2.36.130 All

Soldotna Female and Minority FAA assisted
Enterprise Program 
(Sept. 1980, 
rev. Jan.1984)

proj ects

2%
5 %

5% bid 
preference

5% 1 2

1 This list is intended to be illustrative only and should not be regarded as exhaustive. The information in 
this appendix was collected from a survey drafted by the State and Local Legal Center and circulated through 
three channels to more than 3,600 state and local government officials. The Legal Center mailed the survey to 
more than 200 minority business development coordinators and contract compliance officers from mailing lists 
obtained from the Minority Business Enterprise Legal Defense and Education Fund, Inc., which has published 
another compilation in its Report on Minority Business Enterprise Programs of State and Local Governments 
(Jan. 1988). The National Association of Counties mailed the survey to 350 elected county executives, 780 pro­
fessional county managers, and 3O0appointed county civil attorneys. The National Institute of Municipal Law 
Officers mailed the survey to 2000 city attorneys. More than 700 responses were received. All information con­
tained in this appendix is on file at the State and Local Legal Center.

2 This plan was adopted after a goal of 10% participation by minorities in city contracts was invali­
dated. Arrington v. Associated General Contractors, 403 So.2d 893 (Ala. 1981), cert, denied, 455 U.S 913 
(1982).

15a



State and City/County 
Arizona:

Maricopa
County

Mesa
Phoenix

Tucson

California: 
Anaheim 
Bell Gardens

Types of
Citation Contracts Covered Goals

Program scheduled 
for adoption 
May 1988

Res. No. 4556 (1980) 
Res. No. 15629

Overall goal

CDBG funds 
City-wide MBE 

utilization 
plan

Res. No. 13567 All

10%

12%
Same percentage 

city-wide as 
applicable to 
federal 
grant-in-aid 
programs 

Dollar value set 
on case-by-case 
review

Res. No. 85R-311 
Res. No. 84-11

All
Federally funded 

construction 
projects

11.9%
10% goal and 

failure to 
meet goal can 
be grounds 
for rej ecting

16a



the low bid 
on a particular 
project

Culver City Res. No. 86-R048 UMTA funds 10%
Fresno Res. No. 87-344 Construction 25%
Gardena Minute resolution 

(2/17/84)
UMTA funded

proj ects
13.1%

Hayward Ord. No. 86-09 C.S. Procurement 
contracts over 
$10,000 

Public works 
contracts 
exceeding 
$100,000

10% bid 
preference 
for MBE 

Percentage 
goal set 
annually

Los Angeles Exec. Directive All, with some 12-20%
No. 1-B
(March 29,1983)

dollar minima set by 
Dept.

Oakland Ord. 9739CMS 
(March 13,1979)

Purchasing 30% goal and 
10% preference

Res. 60691
(June 15,1982)

Construction 30%

Res. 58715CMS 
(Feb. 19,1980)

Professional
services

40%

Pasadena Res. No. 83-2 (1983) Community develop­
ment funds

20%

17a



State and City/County Citation
(Pasadena cont.) Res. No. 54-82 (1980)
Richmond Res. No. 183-84

Sacramento Res. No. 85-328

Types of
Contracts Covered Goals

All contracts 10%
Construction population

employment parity
Construction 20%

contracting
Permanent proj ect good faith

employment effort to 
achieve 125 % 
of SMSA as 
of 1980 
census (but 
not less 
than 35%)

Business 20%
developed 
by the City

Goods, services, 20%
and franchises

Procurement 20% (combined 
MBE and WBE)



Santa Clara 
County

San Diego

San Francisco

San Jose

Santa Monica

Solano
County

8 This plan was 
Francisco, 813 F.2d

Bd. of Supervisors 
Policy, Dec. 11,
1984

Res. Nos. R-262633: 
R-270402

Ord. No. 139-84,
S.F. Admin. Code 
ch. 12D ®

Res. No. 56342 (1983) ; 
Res. No. 59890 
(1987) ; Res. No. 
58915 (1986)

Res. No. 6386 
(1981)

Ord. No. 1310 (1987)

Construction 
Services contracts 

of $12,000 or 
more

Construction 
Consultant 
Vendor 
Overall goal 
All contracts

All purchases 
Construction 

contracts over 
$50,000

Public works 
and all 
purchasing 

All for-profit 
contracts

12%
contract-by­

contract

20%
12%
10%
30%

5% bid 
preference 

10% set-aside 
Set for each 

project

10% goal 
(22%  
achieved)

13%

largely invalidated in Associated General Contractors of California v. City & County of San 
922 (9th Cir. 1987), pet. for rehearing pending.

19a



State and City/County Citation
Types of

Contracts Covered Goals
Stockton Res. No. 87-0584 All public works, 

supply, and 
services contracts 
over $20,000

15%

Colorado:
Denver Ord. No. 246 (1983) Construction, 

professional 
services, and 
design

20%

Greeley Ord. No. 420 Federally funded 
projects

Annual goals

Connecticut:
Hartford Resolutions of 

June 10,1985, 
and Feb. 14,1983

Construction At least 10%
MBE and WBE 
with determi­
nation to be 
made for partic­
ular contracts 
whether a 
greater percent­
age for MBEs 
is possible

20a



New Haven Ord. No. 121/2 (1965) Construction
projects over 
$100,000

15%

Delaware:
New Castle 

County
Exec. Order No. 12 

(1985)
All contracts 15%

Wilmington 1 Wilm. Code §§ 20-40 Construction 15% set-aside
through 20-43 All contracts 25 % goal in 

FY 1990
District of D.C. Code §§ 1-1141 All contracts 35% unless

Columbia to 1-1150 otherwise set
Florida:

Alachua
County

Ord. No. 86-8 All bid contracts 

Specific contracts

15% (subject 
to reevalu­
ation)

Percentage can 
be set aside

Broward Ord. No. 84-14; All procurement Annual goals
County Admin. Order No. except medical and proportioned

852; Res. Nos. 
84-1688 and 87-3570

legal services, 
and construction 
contracts over 
$150,000

to population

21a



State and City/County 
(Broward Cty. cont.)

Daytona
Beach

Dade County

Escambia
County

Types of
Citation Contracts Covered Goals

Particular Percentage can
contracts be set aside 

to remedy 
past acts of 
discrim­
ination

Ord. No. 84-131, Subcontracts 10%
City Code ch. 
131/2, art. II

Cty. Code § 10-38 Construction Contract
specific

Cty. Code § 2-8.2 Goods and services Contract
specific

County Commission Contracts for goods
Policy Statement, and services in the
March 4,1983 construction

industry:
$1 million or less 10%
$1 to 10 million 5%
over $10 million 1%

22a



Fort
Lauderdale

Code § 2-40.1 Procurement Equitable 
opportunity 
to participate

Fort Myers Ord. No. 2333 (1986) All contracts and 
subcontracts

12%

Gainesville Res. No. 86-60 All Must take 
affirmative 
action to 
solicit 
quotations 
from MBEs; 
all factors 
being equal, 
preference 
shall be 
given MBEs

Hialeah City Code § 2-5 (1984) Contracts over 
$50,000

25% of
contractor’s 
workforce 
must be 
minority

Hillsborough
County

Res. No. R 86-0170 Construction contracts 
of $100,000 or more 

Goods and services

25%

5%

23a



State and City/County Citation
Types of

Contracts Covered Goals
Jacksonville Ord. No. 83-1200-647 All 10%
Leon County Bd. of Commissioners 

Policy, Sept. 29, 
1987

Capital improvement 
budget (except 
construction), 
equipment, 
commodities, 
and services

5%

Miami Ord. No. 10062, City 
Code § 18-67

Procurement 51%

Orange
County

Cty. Code art. IV, 
ch. 1, § 1-63 to 
1-69

All contracts and 
subcontracts

18%

Orlando City Code, ch. 57, 
art. II

Construction, 
services, 
and supplies

18%

Palm Beach Ord. No. 88-4 All Encourage
County participation

by MBEs and 
use good 
faith efforts 
to achieve

24a



Pensacola

St. Peters­
burg

Tallahassee

Tampa

the maximum 
use of MBEs 4

Ord. pending passage 
to create § 3-3-4 of 
Pens. Code (formerly 
by executive policy)

All 15%

City Code ch. 2, art. 
Ill, § 2-57

Goods and services 10%

City Code ch. 2, art. Construction Contract by
Ill, § 2-59 contract

Res. No. Contracts over 15%
82-R-1216 $100,000

Exec. Orders No. 85-19 
and 86-14

All contracts 25%

Georgia: 
Atlanta Admin. Order Contracts over Set annually

No. 84-5 $25,000 and (35% for
contracts for 1985)
professional or
consulting services

4 A draft ordinance including overall goals for MBE participation in county contracting was redrafted fol­
lowing the Fourth Circuit’s decision in the Croson case. Memorandum of March 31, 1988, to the State and 
Local Legal Center from Maureen Cullen, Assistant County Attorney, Palm Beach County, Florida.

25a



State and City/County Citation
Types of

Contracts Covered Goals

Augusta Res. No. 9842 (1984) Transit Dept, 
contracts

10%

Dekalb
County

Res. of Aug. 15,1982 All 15%

Fulton
County

Res. of July 17,1987 Contracts over 
$25,000 and 
contracts for 
professional 
or consulting 
services

Goal of 20% 
for FY 88; 
set annually

Macon Res. No. R-83-0008 Inner city 
development 
project

Start-up
costs for 
MBEs

Richmond Bd. of Commissioners Contracts over Foster and
County Policy Statement, 

12-1-87
$25,000 and 
contracts for 
professional 
or consulting 
services

promote 
MBEs; 
actively 
solicit bids

26a



Hawaii: 
Maui Res. No. 82-3 Federally

assisted
projects

Illinois:
Bloomington City Code ch. 22.2 Construction
Evanston Res. No. 59-R-73 All goods and 

services

Specific
projects and 
commodities

Peoria City Counsel Policy 
and City Affirmative 
Action Plan 1985-88

Subcontracts

Peoria County Affirmative All
County Action Policy, 

August 14,1984

10%

8.9% (by population)
Must solicit 

bids from 
MBEs

Percentage set 
aside annually 
by city manager 

10%

County will not con­
tract with any busi­
ness that does not 
have an affirmative 
action plan; con­
tractor must supply 
information on

27a



State and City/County Citation
Types of

Contracts Covered Goals
(Peoria Cty. cont.) racial composition 

of workforce during 
bidding

Rockford Mayor’s Program on 
Minority Businesses 
(1985)

All Recruits and 
refers MBEs

Equal Employment All contractors Must maintain
Opportunity 
Ord. No. 91/2

with the City a minimum 9%
minority
workforce

Indiana:
Anderson Resolutions 1981 

and 1985
Construction 

and other 
purchases

10%

Fort Wayne Gen. Ord. No. Procurement 15%
G-84-07 (1984) Construction 10%

Indianapolis/
Marion
County

Exec. Order 
No. 1 (1987)

All 10%

Iowa:

28a



Cedar Rapids Res. Nos. 532-4-84; All 5%
1373-9-85; 76-1-86 Federally

funded projects
10%

Des Moines Contract Compliance Public works contracts 7-9%
Program and Policy 
Statement (1986)

Professional services 4%

Iowa City Res. No. 83-417 All
Contracts over $25,000

3%
Contractor must have 

affirmative action 
program

Mason City Human Rights Code, All 2%
tit. II Federally funded 

projects
10%

Waterloo Res. No. 1986-58 Construction projects 
over $100,000

5%

Construction funded all 
or in part by federal 
funds

10%

Kansas:
Lawrence Ord. No. 5436 All contracts over 12.9%

(1983) $10,000
Leavenworth Res. No. B813 Construction 10%

(1984)
Wichita Admin. Reg. 64 CDBG funded 10%

(1983) construction

29a



Types of
State and City/County Citation Contracts Covered Goals

Kentucky: 
Jefferson Res. No. 75, Construction 15%

Series 1987 subcontracts
Lexington/ Code § 2.46 All Policy to encourage

Fayette
County

use of MBEs

Louisville Ord. No. 136 All 5% credit on MBE bids
(1983) if 20% of prior year’s 

expenditures are not 
awarded to MBEs 5

Proposed Ord. All
MBE Utilization

Plan
Louisiana:

Baton Rouge City Ord. No. 10390; Construction contracts 10%
Parish Ord. No. over $100,000,
16793 (1980) professional services, 

equipment, and 
supplies

Calcasieu Motion of Police Jail and Courthouse 10%
Parish Jury Jan. 21,1988 Improvement Project

Lake Charles Ord. No. 6747 (1980) All 10%

30a



Monroe 

New Orleans

Ord. Nos. 7932 (1986);
7322 (1981)

City Ord. No. 2-50.5; 
Exec. Order 84-01; 
Admin. Dir. 210

Shreveport Exec. Order 
No. 88-1

Maryland: 
Anne Arundel 

County
MBE Procurement 

Guidelines and Pro­
cedures, Nov. 1985

5 This plan was invalidated in J. Edinger & Son, 
1986).

10%All DOT assisted 
programs

Construction and 20% goal and
public works 1 % set aside
contracts over
$100,000

Construction and 10%
purchases

Professional services 5 %

All contractors on Must take affirmative
contracts over steps to use MBEs,
$10,000 including soliciting

bids and either con­
firming use of MBE 
subcontractors or 
showing good faith 
efforts; noncompliance 
with MBE policy can 
be grounds for denial 
of contract and actions 
against contractor

Inc. v. City of Louisville, KY, 802 F.2d 213 (6th Cir.

31a



State and City/ County Citation
Types of

Contracts Covered Goals
Baltimore Ord. No. 790 (1986) All 20%
Baltimore Exec. Order Capital improvement 10%

County (1983) projects over $100,000
Howard Cty. Code tit. 4, All 10% if solely

County subt. 1, § 4.103(d) city funded,
15% if federally 
funded

Montgomery
County

Cty. Code § 11B-23A All contracts 
over $75,000

15%

Prince George’s 
County

Ch. 102,1984 County 
Laws; chs. 87 & 88, 
1987 County Law; 
CR-33-1985; 
CR-107-1987

All 30%

Massachusetts:
Amherst Selectmens Policy 

G-2-11-86
All 5%

Arlington Town Plan (1984) Construction, supplies, 5%
materials, services, 
and equipment

32a



Attleboro MBE Plan/Statement 
of Policy, Dec. 1981

Boston Exec. Order, 
Dec. 1, 1987

Fitchburg Policy Statement 
(1986)

Lynn Policy Statement 
(1985)

Malden Ord. No. 754 (1985)

Marlborough MBE Policy Statement 
(1982)

New Bedford Exec. Order No. 3 
(1986)

Springfield Exec. Order (1984)

Construction contracts 
over $50,000, other 
contracts over $4,000

Goods and services 
Construction 
Construction in an 

impacted area 
All contracts and 

purchases
Construction contracts 

over $150,000, 
goods, services, 
and supplies 

Goods, services, and 
supplies

Purchases over $25,000

Construction, 
materials, goods, 
and services 

All

5%
15%
15%
30%

10%

10%

10%

5%

10%

5%
10% MBE and 
WBE combined

38a



State and City/County Citation
Types of

Contracts Covered Goals
Michigan: 

Battle Creek Res. No. 114 (1980) All contracts over Failure to comply with

Detroit City Code 18-5-31 et seq.

$10,000 and all con­
tractors with more 
than 15 employees

Construction

All city contracts

affirmative action 
package precludes 
award of contract and 
can be basis for 
sanctions 

Contractors must 
employ minimum 
SMSA minorities 

20%
Flint Res. No. R-19 Construction contracts 20-46% phased

Grand Rapids
(Feb. 11,1985) 

City Commission
over $10,000 

Construction contracts
in by 1990 

10%

Saginaw

Policy, May 25,1982 
(Code 1600-05)

City Ord. D-1516 (1986)

over $10,000 
Other contracts

Construction contracts 
$50,000-$100,000 
$100,000-$250,000 
over $250,000

Use of MBEs 
is encouraged

9%
12%
15%

34a



Procurement up to 20% set 
aside for 
MBE/WBE

Minnesota:
Hennepin County Res. No. 7221 All above $50,000

Construction 6-10%
Services 10%
Goods 10%
Construction 10%

subcontracting
Minneapolis Ord. No. 139.50; Purchases and 10%

Res. of Dec. 20,1980 construction
Development 15%

St. Paul Admin. Code ch. 81 All 5-15%
Twin Cities Res. No. 87-262 Construction and Percentage set on

Metropolitan engineering each contract
Waste Control
Commission Goods and Services Goals of

31/2 to 10%
Mississippi:

Jackson Order 3-Z-323 (1985) All 15%

35a



State and City/County Citation
Types of

Contracts Covered Goals
Missouri: 

Independence City Affirmative All contracts 2.5%

Kansas City

Action Plan 
(rev. 1988)

Admin. Reg. of

over $10,000 

Construction 16%
City Manager Supplies 10%
(Sept. 5,1980) Services 15%

St. Charles Admin. Policy All Good faith effort

St. Louis
Jan. 1987 

Exec. Order Construction 25-30% city
Dec. 6,1984 contracts over residents in

$100,000 contractor’s 
workforce, of 
whom 50% 
must be 
minorities

Nebraska:
Lincoln Ad. Reg. No. 12 (1984) All contracts Good faith efforts
Omaha City Code ch. 10, Central Park 10%

§ 10-108 Mall
§ 10-194 All Must solicit

36a



Nevada: 
Nye County Res. No. R8 5-2A

New Jersey: 
Atlantic City

Atlantic County

Atlantic County 
Improvement 
Authority

Ord. No. 14 (1979); 
Exec. Orders 
No. 1 (1985) and 
No. 2 (1984)

County Exec. Order, 
May 19,1983

P.L. 1975, ch. 127

All

bids from 
minority sub­
contractors 

5% of contracts 
and 5% of 
dollar value of 
contracts

All contracts over 
$10,000

5%

All 25%

Construction contracts 
over $100,000

All

15%

15% combined 
MBE and WBE

37a



State and City/County Citation
Types of

Contracts Covered Goals
Camden Ord. MC 1964 (June Construction, goods, 25% to 50%

1983) and services subcontracting 
(depending on size 
of contract)

Ord. MC 2274 (Feb. 
1987)

Construction, services,
and procurement

15% set aside

East Orange Ord. No. 7 (1982) Construction and 
capital goods

25%

Newark Ord. No. 6S & FE Construction 
Goods and services

33 1/3% 
25%

New Brunswick Rev. Ord. No. 2-6v All procurement, Percentage negotiated
(Aug. 1986) all major 

construction 
projects and 
other enterprises

on contract-by­
contract basis

Plainfield Mun. Code art. 18, 
§ 11-18-1

Construction
subcontracting

25%

Union County Res. No. 676-87 All purchases 
unless county has 
no discretion as 
to payee

7%

38a



New Mexico:
Albuquerque Bill No. R-19, 

Enactment No. 
27-1986

All public money 
expended by City 
for purchase of 
goods and services 

US DOT funds

10%

15%
New York:

Albany City Code § 1-706 to 
1-718

All 17.8%

Albany County Res. No. 124 (1985) All contracts 
over $100,000

10%

Binghamton Ord. No. 83-31 All 10%
Broome County Res. No. 260 (1983) ; 

Res. No. 139 (1985)
Construction 

contracts 
over $100,000

3.5%

Buffalo Common Council 
Proceedings 169 
May 1,1979

CDBG funded 
construction 
and demolition 
contracts

10%

Erie County Local Law No. 6-1987 All contracts of 
County Dept, of 
Public Works and 
Dept, of Planning

10%

39a



State and City/County Citation

(Erie Cty. cont.)

Monroe County Exec. Order No. 1 
(1983)

New York N.Y.C. Admin. Code 
tit. 6, § 6-108.1;
§ 6-108.2

Rochester Res. No. 80-83
(1980 and annually 
thereafter)

Syracuse City Charter, 
ch. 42

North Carolina: 
Chapel Hill Disadvantaged Business 

Enterprise Program, 
September 1984

Types of
Contracts Covered Goals

and Engineering 
over $100,000 

Construction

Construction con­
tracts in economic 
developments areas 

Construction

Construction contracts: 
$20,000 to 100,000 
over $100,000

US DOT contracts

10%

10% for locally based 
enterprises including 
MBEs

Percentage set 
annually by 
City Council

10%
15%

Each contract to have 
goals; failure to 
meet goals or show 
good faith effort 
can result in 
determination

40a



Charlotte N.C. SB 290, ch. 344 
(1987); City Plan, 
Nov. 23,1987

Durham Res. No. 5797 
Res. Book 6, p. 41

Greensboro Code ch. 2, art. IV, 
§ 2-117 (1985)

Mecklenburg
County

Bd. of County 
Commissioners, 
Minority and Women’s 
Business Enterprise 
Program (1986-87)

Winston-
Salem

Res. Adopting Minority 
and Women Business 
Enterprise Program 
(July 18,1983)

Construction 
Procurements and pro­

fessional expenditures 
Federally assisted 

airport construction 
US DOT UMTA funds
Services, materials, 

and construction
Commodities, services, 

construction, and 
repair work

Construction and 
consulting 

Procurement and 
professional 
services

Construction

that bid is not 
responsive

10%
3 %

14%

13%
20-35%

10%

10%

3%

Goals negotiated for 
each contract; 5 % 
penalty if contractor 
fails to meet

41a



Types of
State and City/County Citation Contracts Covered Goals

Ohio:
Akron City Code § 34.10 Construction 15%

Equipment, supplies, 7%
materials, nonpro­
fessional services

Professional services 5%
Cincinnati Ord. No. 242-1987 Construction 20%

Equipment, supplies, 7%
materials, nonpro­
fessional services

Professional 5%
services

Cleveland City Codified Ord. Construction 30%
ch. 187 Services 20%

Professional services 30%
Supplies 20%
Concessions 15%

Columbus City Code §§ 3901- Construction, 10%
3927 services, purchase 

or lease of 
personal property

42a



Cuyahoga
County

Res. No. 737333 (1987) Construction contracts 
over $10,000 

Supplies, goods, and 
services over $10,000 

Contracts between 
$1,000 and $10,000

Dayton R.C.G.O. §§ 35.30-35.35 

R.C.G.O. -  35.40-35.47

Construction 
Goods and services 
Sheltered market: 

Construction 
Goods and services

Elyria Ord. No. 83-758 Construction 
Supplies, services, 

and professional 
contracts

Lima Ord. No. 131-86;
Exec. Order (12/20/ 
82, revised 4/7/83)

CDBG funded 
contracts

Lorain Ord. No. 23-82 Construction
Supplies

Lorain
County

Res. No. 84-547 Contracts over $20,000 
for construction,
supplies, and services

15%

Percentage may­
be set aside 

20% 
5%

15%
2.5%
14%
5%

25%

16%

15%
5%
15%

43a



State and City/County Citation
Types of

Contracts Covered Goals
Massilon
Montgomery

County

Springfield

Stark County

Ord. No. 84-1983 All 10%
Res. No. 87-1509 All procurement 

and additional 
programs:

15%

Construction Preference to 
contractor who 
meets subcon­
tracting goal

Professional
services

Bid credits

Goods under 
$10,000

Sheltered markets

Ord. No. 84-608 Construction 10%
Goods and services 5%
Others Conscientious

effort
Bd. of County Construction Waivable

Commissioners Res. contracts over 10% set aside
of March 18,1986 $10,000 and 10% goal

Ord. No. 80-744; All Short-term 10%
84-465 Long-term 15 %

Youngstown

44a



Oklahoma:
Tulsa Res. of 4/18/86

Pennsylvania:
Harrisburg Ord. No. 7-1983

Philadelphia Phila. Code, 
ch. 17-500

South Carolina: 
Charleston City Code § 2-267

Columbia Res. No. R-86-10
(1986)

All Each City 
Dept, to set 
feasible goals

Construction 15%
Equipment purchases 5%
Material, supplies 10%
Services 15%
Professional services 15%
Construction, 15%

vending, and 
services

Construction
Services
Supplies
All

Set annually, but 
not less than

8%
3%
5%

Specific procure­
ment goals set 
annually; specific 
contract goals set

45a



State and City/County Citation
Types of

Contracts Covered Goals
(Columbia cont.) on each prime con­

tract of $25,000
or more

Richland County Ord. No. 1068-83HR All over $5,000 15%
South Dakota:

Sioux Falls Res. No. 158-86 
Res. No. 36-88

City street projects 
Construction

5%
10%

Res. No. 271-85 Procurement Equitable
opportunity 
to compete

Tennessee:
Chattanooga Res. No. 13618 Contracts over 10-13%

$500,000
Memphis Ord.introduced All goods and services 10%

3/17/87 Construction contracts 10%
over $100,000

Shelby
County

Res. No. 18 (1986) All 10%

Texas:
Austin Ord. No. 87-0219-Q Construction contracts 5%

46a



Beaumont

Dallas 

El Paso

Fort Worth

Res. No. R-86-164

Res. No. 84-5301

Ord. of Aug. 13,1985

City Council Policy, 
July 8,1986 

Ord. No. 84-1309Houston

Construction 10%
subcontracts

Goods and nonprofes- 10%
sional services

Professional services 5%
Construction 10%

over $50,000
Professional services 20%

over $25,000
Over $25,000 17%
$10,000 to $25,000 2%
Under $10,000 7%
Construction 25%
Professional services, 20 %

equipment, supplies,
services

All 12%

Construction 12%
over $1 million

Goods over $100,000 9%
Services 19%

47a



State and City/County Citation
Types of

Contracts Covered Goals
Lubbock City Council All contracts Good faith

Minority/Women 
Business Enterprise 
Statement, March 
1984; Res. No. 667 
(Dec. 11,1980)

and projects effort

San Antonio Ord. No. 51954 Procurement 5-9%
(1980) Construction

Professional
services

12-15%
32-35%

Virginia:
Richmond Mun. Code § 12-156 (a)6 Construction 30%

Mun. Code § 12-156 (b) All other contracts 20%
Washington:

King Cty. Code ch. 4.18 Construction 18%
County of 1982, amended by Services 10%

Ord. Nos. 7789, 8121, Goods 15%
8313 Concessions

Consultant
10%
15%

48a



Renton R.C.W. § 35-35.22.650 Construction Set by contract
Seattle Ord. No. 109113, Construction and 20%

codified at Mun. consulting
Code ch. 20-46 Purchasing 15%

Spokane City Council Res. All contracts 5%
1988

Tacoma Official Code Construction 15%
ch. 10.26

Wisconsin:
Madison Res. No. 39,920 Consulting, Overall goal 10%

construction, and specific
vendor projects 5%

Milwaukee Mun. Ord., ch. 360 All projects 28 % phased in
over 7 years

(enacted 1987)
Milwaukee Ord. chs. 32, All procurement, 15%

County 42, 44 professional
services,
construction

6 This plan is under review in this case.

49a



State and City/County Citation
Types of

Contracts Covered Goals
Milwaukee

Sewerage
District

Exec. Orders No. Construction
12138, 11625,
12432; NR 128.14 Professional

services

Racine
County

Ord. under 
consideration 7

10% 1980-82 and 
15% thereafter 

10% until 1984 
and 15% 
thereafter

7 Memorandum of March 28, 1988, from Joseph R. Buchanan, Racine County Affirmative Action Officer.

50a