Chambers, Julius; and Others, after firebomb in Chambers's office, February 1971 - 13 of 16

    No. 87-998

In the

Suprem e Ofrmrt of tire ISnitEii S ta te s
October  Te r m , 1987

City of Richmond,
Appellant,

—v.—

J. A. Croson Company,
Appellee.

on appeal from the united states 
court of appeals for the fourth circuit

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL 
LIBERTIES UNION, THE ACLU OF VIRGINIA, AND 

THE ACLU OF NORTHERN CALIFORNIA 
IN SUPPORT OF APPELLANT

Edward M. Chen
(<Counsel of Record)

ACLU of Northern California 
Foundation 

1663 Mission Street 
San Francisco, CA 94103 
(415) 621-2488

Steven R. Shapiro 
John A. Powell 
Jacqueline A. Berrien 
American Civil Liberties

John Hart Ely Union Foundation
1135 Palomar Drive 132 West 43 Street
Redwood City, CA 94062 New York, NY 10036 
(415) 368-7358 (212) 944-9800



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TABLE OF CONTENTS

TABLE OF AUTHORITIES iii
INTEREST OF AMICI .
SUMMARY OF ARGUMENT ..........
ARGUMENT . . . ....................  4
I. THE COURT SHOULD APPLY INTER­

MEDIATE SCRUTINY IN EVALUATING 
RICHMOND'S MINORITY SET-ASIDE PROGRAM . . .
A. Applying Strict Scrutiny in

This Case Would Turn The 
Equal Protection Clause On Its Head ............

B. Applying Strict Scrutiny in 
This Case Would Subvert The 
Rationale of the Suspect 
Classification Doctrine .

C. Applying Strict Scrutiny In This Case Creates An 
Illogical Paradox Under 
Equal Protection Law . . . .

II. THE DECISION BELOW MISINTER­
PRETS THIS COURT'S HOLDING IN WYGANT . . . .

4

6

9

16

18
A. The Special Burden Of A Layoff P l a n .......... 19

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Page

B. Wygant's Reference to 
Societal Discrimination Does Not Apply To The FactsOf This C a s e ..............  22

C. Wygant's Reference To Past 
Discrimination By the 
Governmental Unit Adopting 
An AffirmativeAction Plan 
Should Not Be Applied 
Outside The Layoff
C o n t e x t ..................  3 3

CONCLUSION............................  52

ii



TABLE OF AUTHORITIES

Cases
Associated General Contractors nf California. Inc, v. city anH County of San Francism 
813 F.2d 922 (9th Cir. 1987) . .
Brown v. Board of Education.347 U.S. 483 (1954) ............
Bucklev v. Valeo.
424 U.S. 1 (1976) ..............
Califano v. Webster.
430 U.S. 313 (1977) ............
Castaneda v. Partida.
430 U.S. 482 (1977) ............
Cjetpurpe v. Cleburne Living Center.473 U.S. 432 (1985) ............
Bayton Board Of Education v. Brinkman.
433 U.S. 406 (1976) ............
Firefighters v. Stotts.467 U.S. 561 (1984) ............
EranK? v. Bowman Transportation.474 U.S. 747 (1976) ............

17

14

12

34

12

15

40

19

49
Eullilove V. Klutznick. 
448 U.S. 448 (1980). .

iii



Hernandez v. Texas. 347 U.S. 475 (1954)

Page

12
Johnson v. Santa Clara Transportation Agency.
___ U.S. ___,107 S.Ct. 1442 (1987) ........  42, 44, 46
Jones v. Alfred H. Maver Co..
392 U.S. 409 (1968) ..................  37
Local 28 of Sheet Metal Workers'
Intern. Ass'nv. E.E.O.C..
478 U.S. ___,106 S.Ct. 3019 (1986) ................  43
Loving v. Virginia,
388 U.S. 1 (1967) ....................  14
McDaniel v. Barresi.402 U.S. 39 (1971)................  2, 40
North Carolina State Board 
of Education v. Swann.
402 U.S. 43 (1971).................... 41
Ohio Contractors v. Keip,713 F.2d 167 (6th Cir. 1983) . . . .  35, 39
Plessv v. Ferouson.163 U.S. 537 (1896)   10
Regents of the University 
of California v. Bakke.
438 U.S. 265 (1977)................. passim

Si iv



San Antonio Independent S c h o o l  District v. Rodriguez.411 U . S .  1 (1973) ........

Page

. 12
South Florida Chapter v.
Metropolitan Dade Countv.
723 F•2d 846 (11th Cir. 1984) . . . 20, 41
Steelworkers v. Weber.
443 U.S. 193 (1979) ..........  9, 20, 26
Swann v. Charlotte-Mecklenhnra 
Board of Education.
402 U.S. 1 (1971) ................ 10, 40
The Slaughterhouse Cases.
83 U.S. (16 Wall) 36 (1872) .......... 7
U-.S, v. Paradise.480 U.S. ___,
107 S.Ct. 1053 (1987) ............  20, 50
United Jewish Organizations v. Carev.430 U.S. 144 (1977) ..............  12, 41
United States v. Carolene Products.304 U.S. 144 (1938) .................. ...
Washington v. Davis.
426 U.S. 229 (1975) .................. ..
williams v. virkovich.
720 F. 2d 909 (6th Cir. 1983)..........  47
Wyqant V. Jackson Board of Education.
476 U.S. 267 (1986)................ passim

v



Page
Legislative History
Hearing on Adoption o f  M i n o r i t y  
Business Utilization Plan. Richmond, Virginia City Council (April 11, 1983) ............

Other Authorities 
J . TenBroek,
Equality Under Law (1965) ............  8
Schnapper, "Affirmative Action 
and the Legislative History of the Fourteenth Amendment,"
71 Va.L.Rev. 753 (1985) ............  1, B

Sullivan, Supreme Court Forward:
"Sins of Discrimination - Last 
Term's Affirmative Action Cases,"100 Harv.L.Rev. 78 (1987) ............ ..
United States Commission onCivil Rights, Minorities and
Wqmen as Government Contractors
(May 1975)........................  31, 32

vi



INTEREST OF AMICI
The American Civil Liberties Union 

(ACLU) is a nationwide, non-partisan 
organization dedicated to the principles of 
liberty and equality embodied in the 
Constitution. The ACLU of Northern 
California and the ACLU of Virginia are two 
of its statewide affiliates.

This case involves a constitutional 
challenge to a remedial program adopted by 
the City of Richmond to provide employment 
opportunities for minority-owned 
businesses. Because the ACLU believes such 
programs are not only permissible, but 
indispensable, if the nation is to fulfill 
the promise of equality contained in the 
Fourteenth Amendment, we submit this brief 
in support of petitioners and urge this 
Court to reverse the decision below.

1



SUMMARY OF ARGUMENT
This Court has yet to decide the 

proper constitutional analysis applicable 
to voluntary race-conscious affirmative 
action programs. In our view, such 
programs should be subject to intermediate 
scrutiny rather than the strict scrutiny 
applied in reviewing statutory schemes that 
reflect an invidious intent.

As this Court has repeatedly 
recognized, efforts to remedy past 
discrimination must often employ race­
conscious criteria. E.g.. Fullilove v. 
Klutznick. 448 U.S. 448, 482 (1980). "Any 
other approach would freeze the status guo 
that is the very target of all 
desegregation processes." McDaniel v. 
Barresi. 402 U.S. 39, 41 (1971).

Applying strict scrutinysto locally- 
enacted affirmative action plans would turn

2



the Equal Protection Clause on its head, 
barring local governments from voluntarily 
and effectively responding to persistent 
racial disparities within their 
communities. it also produces the 
paradoxical result that affirmative action 
plans designed to assist those "discrete 
and insular minorities" who have suffered 
the greatest discrimination are most 
vulnerable to attack.

In addition, the decision below 
perverts basic notions of federalism.
After Fullilove. the federal government may 
require localities to adopt a minority set- 
aside program as a condition of a federal 
grant. Yet, when the same locality adopts 
the same set-aside program without federal 
funding, it risks running afoul of the 
decision below.

3

1



Finally, the decision below 
misinterprets the holding of Wyqant v. 
Jackson Board of Education. 476 U.S. 267 
(1986). Nothing in Wyqant bars a locality 
from adopting a minority set-aside program 
in response to clear evidence that public 
construction contracts were not being 
awarded to minority businesses. Indeed, 
Wyqant approvingly cites the federal set- 
aside program upheld in Fullilove, which 
served as a model for Richmond's plan in 
this case.

ARGUMENT
I. THE COURT SHOULD APPLY INTERMEDIATE 

SCRUTINY IN EVALUATING RICHMOND'S 
MINORITY SET-ASIDE PROGRAM--------
A majority of this Court has not yet

agreed on the standard of review when
affirmative action plans are challenged as
racially discriminatory under the equal

4



protection clause. Several Justices have 
the so-called intermediate 

standard applied to gender discrimination 
cases; i_.e. , the plan "must serve important 
governmental objectives and must be 
substantially related to achievement of 
those objectives."1 other Members of the 
Court have applied strict srutiny, 
requiring the government to show that its 
program is narrowly tailored to serve a 
compelling interest.2

Regents of the University of 
California v. Bakke. 438 U.S. 265, 359 
(1977)(Brennan, White, Marshall, and 
Blackmun, JJ.); fullilove v. KlutznirV. 448 U.S. at 519 (Brennan, Marshall, and Blackmun, JJ.).

BaKKs, 438 U.S. at 306 (Powell, j.); 
m n i Q V O ,  448 U.S. at 496 (Powell, J.); 
Wyqantt 476 U.S. at 273 (Powell, Burger, 
Rehnquist, and O'Connor, JJ.) Even the 
definition of strict scrutiny as applied to affirmative action has defied clear 
standards. In Bakke. Justice Powell 
referred to the need for a "substantial"

(continued...)
5

)



r
We recognize, of course, that these

distinctions are fine ones. Nevertheless,
they have important substantive
consequences in constitutional
adjudication. They also have symbolic
importance. Simply put, efforts to assist
traditionally disadvantaged and
historically oppressed minorities should
not be treated with the same judicial
skepticism as efforts to perpetuate the
stigma of inferiority that the Civil War
amendments were designed to eliminate.
A. Applying Strict Scrutiny In

This Case Would Turn The Equal 
Protection Clause On Its Head
The "pervading purpose" of the

Fourteenth Amendment was to eliminate the
oppression of historically subjugated 2

2 (...continued)
interest. 438 U.S. at 306. In Wvaant. he 
would have required a "compelling" 
governmental interest. 476 U.S. at 273.

6

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minorities and to provide them with 
"equality of economic opportunity." 
Fullilove. 448 U.S. at 489. See also The 
Slaughterhouse Cases. 83 U.S. (16 Wall)
36, 69 (1872). A properly drawn 
affirmative action plan is not inconsistent 
with these purposes. To the contrary, it 
promotes them.

This relationship was well understood 
by the Thirty-Ninth Congress, which 
proposed the Fourteenth Amendment. At the 
same time, it also enacted a series of 
measures to aid the newly freed slaves, 
including creation of the Freedman's 
Bureau, special assistance for black 
servicemen, and special relief to blacks in 
the District of Columbia.3 Then, as now,

3 Sfifi generally Schnapper, "Affirmative 
Action and the Legislative History of the 
Fourteenth Amendment," 71 Va.L.Rev. 753 (1985).

7
I



those programs were challenged as
preferential to blacks.4 One of the
purposes of the Fourteenth Amendment,
however, was to answer those objections.5

The argument that affirmative action
and invidious discrimination must be
treated equivalently under the Fourteenth
Amendment is historically insupportable.
It is also logically perverse. As this
Court observed in rejecting the claim that
voluntary affirmative action plans were
barred by Title VII:

It would be ironic indeed if a 
law triggered by a Nation's 
concern over centuries of racial 
injustice and intended to improve 
the lot of those who had "been 
excluded from the American dream 
for so long," constituted the 
first legislative prohibition of

4 Id. at 763.

5 See J. TenBroek, Equality Under Law 201 
(1965).

8



all voluntary, private, race­
conscious efforts to abolish 
traditional patterns of racial segregation and hierarchy.

Steelworkers v. Weberr 443 U.S. 193, 204
(1979)(citation omitted).

Using the strict scrutiny standard of
the equal protection clause to review
affirmative action plans represents an even
greater irony, whose consequences are both
far-reaching and not amenable to
legislative response.
B- Applying Strict Scrutiny In This

Case Would Subvert The Rationale of 
the Suspect Classification Doctrine
There is no "fundamental right" to

contract with the City of Richmond, on
public construction projects or otherwise.
Thus, the only possible rationale for
applying strict scrutiny to Richmond's set-
aside program is that it is based on the
"suspect" classification of race.

9



r
The statement that all racial 

clasifications are constitutionally 
"suspect" is akin to the statement that the 
Constitution is "color-blind." Both are 
useful aphorisms but neither, in fact, 
accurately reflects the inescapable 
complexity of consitutional principle.
This Court has specifically rejected the 
notion, on several occasions, that remedial 
programs must be "color-blind." E.q.. 
Fullilove. 448 U.S. at 482; Swann v. 
Charlotte-Mecklenburg Board of Education. 
402 U.S. 1 (1971).6 Likewise, racial

b The reference to a "color-blind" 
Constitution derives, of course, from 
Justice Harlan's famous dissent in Plessv 
v. Ferouson. 163 U.S. 537 (1896). Read in 
context, however, it is clear that Justice 
Harlan's objection to racial 
classifications was based on his view that 
the Constitution forbid legislation that 
assumed that "colored citizens are . . . 
inferior," and that imposed upon them "a 
badge of servitude." Id* at 560, 562. 
Affirmative action plans, like Richmond's,

(continued...)
10

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r
classifications are more or less "suspect" 
depending on the purpose for which they are 
developed and the characteristics of the 
disadvantaged group.

The designation of certain "discrete 
and insular" minorities as "suspect" 
classes is conceptually linked to this 
Court's perception that such minorities 
operate at a disadvantage within the 
political system for a host of reasons that 
have nothing to do with their innate 
abilities. United States v. Carolene 
Prtdugtg, 304 U.S. 144, 152 n.4 (1938).

Those concerns do not apply when, as 
here, a law is challenged by members of the 
political majority who have not been 
"subjected to such a history of purposeful

6(...continued)
proceed on very different assumptions and have very different goals.

11



unequal treatment, or relegated to such a 
position of political powerlessness as to 
command extraordinary protection from the 
majoritarian political process." San 
Antonio Independent School District v., 
Rodriguez. 411 U.S. 1, 28 (1973). See 
also Hernandez v. Texas, 347 U.S. 475 
(1954).7

7 The fact that racial minorities may 
constitute 50% of the general population in 
some cities, as they do in Richmond, does 
not automotically render whites a "discrete 
and insular minority" invoking suspect 
classification analysis. Mere numerical 
majority does not translate automatically 
into political domination. See Castaneda 
V. Partida. 430 U.S. 482, 530 (1977); 
united Jewish Organizations v. Carey, 430 
U.S. 144, 164 (1977). The political strength of an identifiable group depends, 
inter alia, on voting registration rates, 
political cohesiveness and organization, 
and, of course, economic resources. Seg
generally. Bw?Kl9Y v t 424 1(1976)(per curiam). Moreover, the fact 
that a local minority constitutes a 
dominant group in the larger society is 
relevant: their political vulnerability is
mitigated by the potential availability of 
remediation and protection at the state or(continued...)

12



minorities"Discrete and insular" 
also struggle with a unique badge of 

Ê’iority imposed on them by history. 
Recognizing that fact, this Court upheld 
racial segregation in the public schools 
not for the sake of "color-blindness" 
itself, but because segregation generated

7(...continued) federal level.
The decision below utilized the population statistics in Richmond to 

suggest that the set-aside program might 
not be remedial at all but merely the "bald 
dispensation[] of public funds and 
employment based on the politics of race." 822 F.2d at 1358. That concern is 
unsupported by the record, which shows that 
minority businesses had received less than 1% of the dollar value of all public 
contracts awarded in Richmond. Moreover, intermediate scrutiny is adequate to 
protect against the sort of racial politics 
feared by the Fourth Circuit. As framed by 
Justice Brennan in Bakke. it requires a 
"sound basis for concluding that minority 
underrepresentation is substantial and chronic, and that the handicap of past 
discrimination is impeding access of 
minorities." 438 U.S. at 362.

13



among blacks "a feeling of inferiority as 
to their status in the community that may 
affect their hearts and minds in a way 
unlikely ever to be undone . . . ." Brown 
v. Board of Education. 347 U.S. 483, 495 
(1954). Likewise, the anti-miscengenation 
laws were struck down because they 
represented "an obvious endorsement of 
white supremacy." Loving v. Virginia, 388 
U.S. 1, 11 (1967)(footnote omitted).

Laws that perpetuate a sense of racial 
inferiority are neither the legal nor moral 
equivalent of laws designed to relieve it. 
There is no reason, therefore, for this 
Court to subject them to the same level of 
review under the equal protection clause.

It would be disingenous to pretend 
that affirmative action plans have not been 
controversial. But it is fair to say that 
such plans do not, by and large, "reflect

14



prejudice and antipathy —  a view that 
those in the burdened class are not as 
worthy or deserving as others." Cleburne 
v. Cleburne Living Center, 473 u.S. 432,

440 (1985). Surely, that difference has 
constitutional significance that this Court 
should acknowledge in applying the equal 
protection clause. Cf. Washington v.
Davis. 426 U.S. 229 (1975).8

As Justice Stevens noted in Wvaant. 476 U.S. at 316:
There is . . .  a critical 
difference between a decision to 
gXgjyflg a member of a minority race 
because of his or her skin color and a 
decision to include more members of 
the minority in a school faculty for that reason.
The exclusionary decision rests on the false premise that 
differences in race, or in the 
color of a person's skin, reflect real differences that are 
relevant to a person's right to 
share in the blessings of a free 
society . . . .  The inclusionary 
decision is consistent with the

(continued...)
15



C. Applying Strict Scrutiny In This 
Case Creates An Illogical Paradox Under Equal Protection Law
The automatic assumption that all

racial classifications must be judged by
one standard under the equal protection
clause —  whether their purpose is benign
or invidious —  creates an intolerable
paradox. Because of the rigors of strict
judicial scrutiny, government is least able
to help those groups that have historically
suffered the greatest discrimination. By
contrast, groups that are not deemed
"suspect” for constitutional purposes, are
more likely to receive the government's
aid. 8

8(...continued)
principle that all men are 
created equal; the exclusionary 
decision is at war with that 
principle. One decision accords 
with the Equal Protection Clause 
of the Fourteenth Amendment; the 
other does not.

16



r
This paradox was realized in 

Associated General Contractors nf
California,— Inc.— v_._City and Countv of .q*n
Francisco, 813 F.2d 922 (9th Cir. 1987) 
(petition for rehearing and suggestion of 
rehearing en banc pending). The Ninth 
Circuit in that case upheld a portion of 
San Francisco's ordinance setting aside a 
percentage of city contracts to women-owned 
businesses but struck down a similar 
provision relating to minority-owned 
businesses. The perverse outcome resulted 
from the court's application of the 
intermediate scrutiny to the Women Business 
Enterprise provision, and strict scrutiny 
to the Minority Business Enterprise 
provision. It is hard to conceive how this 
result could possibly further the 
historical purposes of the Fourteenth 
Amendment.

17



II. THE DECISION BELOW MISINTERPRETS
THIS COURT'S HOLDING IN WYGANT
The affirmative action plan in Wvaant 

was struck down by this Court on three 
principal grounds. First, it involved 
layoffs rather than hiring or promotion. 
Second, it was not conceived as a remedy 
for past discrimination against non-white 
teachers; instead, it was justified by 
reference to society's generally 
discriminatory attitude toward non-whites 
and the corresponding need to provide non­
white students with role models. Third, it 
was developed by the school board itself 
and not by a legislative body with plenary 
power.

None of these objections applies to 
the Richmond plan at issue in this case.
To the contrary, that plan is essentially 
indistiguishable from the federal set-aside 
program upheld in Fullilove.

18

I



T
A* The Special Burden Of a layoff pian 

This Court has consistently treated 
preferential layoff schemes differently 
than other affirmative action programs.
See e_;_g., Firefighters v. Stotts. 467 u.s.  

561 (1984). The reason for that difference 
was explained in Wygant: "While hiring
goals impose a diffuse burden, often 
foreclosing only one of several 
opportunities, layoffs impose the entire 
burden of achieving racial equality on 
particular individuals, often resulting in 
serious disruption of their lives." 476 
U.S. at 283 (footnote omitted).

By contrast, a minority set-aside 
program does not violate any vested rights, 
nor disrupt any "settled expectations," nor 
is it likely to produce the psychological 
dislocation associated with "[ejven a

19



temporary layoff." I£.9 Under the 
Richmond plan, for example, the 30% set 
aside applies only to subcontract dollars; 
white contractors are not excluded from any 
portion of the city's primary contracts. 
They are eligible, as well, for a 
substantial majority (70%) of the 
subcontract dollars. U.S. v.
Paradise. 480 U.S. ___, 107 S.Ct. 1053
(1987)(approving court ordered one-to-one 
ratio in promotions); Steelworkers v.
Weber. 443 U.S. 193 (1979)(approving 50% 
hiring ratio). And they can participate in 
the 30% set-aside through joint ventures or 
49% ownership of minority business 
enterprises. See South Florida Chapter v.

9 For the same reasons, the need for 
strict scrutiny is significantly less in 
this case than it might have been in 
wygant. Sfifi Point I, supra.

20



Metropolitan Dade County. 723 F.2d 846,
856, n.15 (11th Cir. 1984).

Moreover, the plan does not affect the 
ability of white contractors to compete 
for private contracts and other public 
contracts. Cf. Fullilove. 448 U.S. at 514- 
515 (Powell, J.)(10% federal set-aside 
constituted only .25% of all funds expended 
yearly on construction work in the United 
States). It has a relatively brief 
duration of only five years, contains 
waiver provisions which parallel those 
approved in Fullilove. and sets a 
percentage level "roughly halfway between 
the present percentage of minority 
contractors and percentage of minority 
group members." Fullilove. 448 U.S. at 
513-514 (Powell, J.).

Obviously, there is a burden attached 
to any affirmative action plan in the sense

21



that it involves a redistribution of
resources. Yet here, as in Fullilove. the
"actual burden shouldered by nonminority
firms is relatively light." Id. at 484
(footnote omitted). If that burden is now
deemed too great for the Constitution to
bear, then affirmative action plans
throughout the country are in jeopardy.
Nothing in Wvaant compels that result.
B. Wvoant's Reference to Societal 

Discrimination Does Not Apply 
To The Facts Of This Case
This Court's statement in Wvaant that 

"[s]ocietal discrimination, without more. 
is too amorphous a basis for imposing a 
racially classified remedy," 476 U.S. at 
276 (emphasis added), must be understood in 
context. It appears in the midst of a 
discussion by the Court of the "role model" 
theory offered by the school board as the 
basis for its layoff plan.

22



The Court perceived two problems with 
the school board's approach in W v a a n t . it 
had "no logical stopping point . . . [and] 
allow[ed] the Board to engage in 
discriminatory hiring and layoff practices 
long past the point required by any 
legitimate remedial purpose." id. at 275. 
In addition, it might actually frustrate 
efforts to remedy prior discrimination "by 
justifying the small percentage of black 
teachers by reference to the small 
percentage of black students." id- at 276.

The reference to "societal 
discrimination" became a shorthand way of 
expressing the notion that the rationale 
for the layoff plan had only a tangential 
relationship to the population of teachers 
most affected by its implementation. In 
classic constitutional terms, there was an 
inadequate fit between means and ends. To

23



r

i

remedy one problem —  the absence of role 
models —  the school board created another 
problem —  the loss of seniority benefits. 
It was this incongruity that the Court was 
unwilling to accept.

The Richmond set-aside plan is 
entirely different in both its scope and 
motivation. Unlike Wvoant. it does not 
require year-by-year calibration. Id. at 
275. More importantly, it does not suffer 
the lack of focus that so disturbed the 
Court in Wyqant. Based on the evidence 
before it, the Richmond City Council was 
understandably concerned that minority 
businesses had never been given a fair 
opportunity to compete for construction 
contracts. In response, they adopted a 
plan designed to remedy this specific 
denial of equal economic opportunity. See 
Fullilove. 448 U.S. at 489. In short, the

24



nexus that was absent in Wygant —  and that 
prompted the Court's comment about societal 
discrimination —  is fully present here.10

Moreover, the concerns of the City 
Council are amply supported by the record. 
Contrary to the assertion of the majority 
below, the City Council did not "rest on 
broad-brush assumptions of historical 
discrimination." 822 F.2d at 1357.
Instead, it relied upon uncontroverted 
evidence that the city had awarded, and was 
continuing to award, an infinitesimal 
percentage of its construction contracts to 
minority businesses. Furthermore, the City 
Council reasonably concluded that past 
discrimination within the construction

10 As in Fullilove. the 30% set-aside 
figure adopted by the Richmond city 
Council is "roughly halfway between the 
present percentage of minority contractors 
and percentage of minority group members. 448 U.S. at 513-14 (Powell, J.).

25



i
i;

I

*

I»j

industry explained the virtual absence of 
minority businesses from Richmond's 
contract award recipients.11

The record thus establishes a nexus 
between current underrepresentation of 
minority owned businesses in the award by 
Richmond of its public contracts and 
identifiable racial discrimination in the 
construction industry. No such nexus was 
established between the percentage of 
minority teachers and students in Wygant.

11 All three branches of the federal 
government have recognized the history of 
pervasive and universal discrimination in 
the construction industry. See e.g., 
Executive Orders Nos. 11246, 11458, 11518 
and 11625; Fullilove. 448 U.S. at 456-472; 
Steelworkers v. Weber. 443 U.S. at 198 n.l 
("Judicial findings of exclusion from 
crafts on racial grounds are so numerous as 
to make such exclusion a proper subject for 
judicial notice"). Nothing in the record 
or common sense suggests that the City of 
Richmond, Virginia was immune from the 
nationwide phenomenon of race discrimina­
tion in the construction industry.

26

L



As this Court noted, that disparity is one 
for which "there are numerous explanations 
. . . many of them completely unrelated to 
discrimination of any kind." 476 U.S. at 
2 7 6 .

Summarizing the evidence developed by 
the City Council at its legislative hearing 
on the set-aside plan, the district court 
wrote:

It was established at the 
hearing that there were enormous 
disparities between the percent­
age of construction contracts 
awarded to minority businesses (0.67%) and the percentage of 
minorities in the Richmond popu­
lation (about 50%) over a five- 
year period from 1978 to 1983 
. . . .  It was further stated by 
a city councilman and by the city 
manager that there was discrimi­
nation and exclusion on the basis 
of race kin the construction 
industry, in both Richmond and 
the state. There were a number 
of representatives of contracting 
associations present at the 
hearing, none of which denied 
this claim —  although some of 
them asserted that their own 
organizations did not dis-

27



criminate on the basis of race.12
Significantly, the 0.67% figure for 

minority contracts in Richmond corresponds 
almost precisely with the evidence 
considered in Fullilove. which indicated 
that less than 1% of all federal 
procurement contracts were going to 
minority businesses. 448 U.S. at 459.13

The Fourth Circuit dismissed these 
findings as legally insufficient after 
Wygant on the spurious ground that the 
Richmond City Council had based its set- 
aside plan on "national findings," 822 
F.2d at 1359-60, which were analogous to

12 The district court's findings are set 
forth in Appellant's Supplemental Appendix 
to the Jurisdictional Statement, at 164-65 
(hereinafter District Court Findings).

iJ These percentages are measured in 
terms of the dollar amount of the 
contracts.

28



the evidence of societal discrimination 
rejected in Wycrant as a basis for 
affirmative action.

In fact, the Richmond City Council did
not rely only on national findings.
Rather, the Council was prompted to act by
a congruence between the evidence elicited
at is own hearing and the congressional
tesimony cited in Fullilove.l* Moreover,
the so-called "national" findings
disparaged by the Fourth Circuit had direct
bearing on the situation in Richmond. As
Chief Justice Burger noted in Fullilovpr

[T]he House Subcommittee on SBA 
Oversight and Minority Enterprise • • . took "full notice" . . .  of 
reports submitted to the Congress 
by the General Accounting Office 
and by the U.S. Commission on Civil Rights . . . The civil 
Rights Commission report dis­cussed at some length the 
barriers encountered by minority

14 Sfifi District Court Findings at 165.

29



businesses in gaining access to 
government contracting oppor­tunities at the federal. state. 
and local levels.

448 U.S. at 465-67 (emphasis added). 
Although much of this evidence related to 
federal procurement, there was also "direct 
evidence before the Congress that this 
pattern of disadvantange and discrimination 
existed with respect to state and local 
construction contracting as well." id. at 
478.

In the same report, the Commission on
Civil Rights found that

State and local governments . . . 
spend proportionately more than 
the Federal Government for 
construction. Since a large 
percentage of minority firms are 
retail and small construction 
companies . . . both the volume 
and nature of State and local 
contracting should provide 
extensive contracting 
opportunities for minority 
[business enterprises] . . . .
The Federal Government has 
attempted . . .  to stimulate the 
participation of minorities in

30



State and local contracting.
Federal efforts, however, have not resulted in a significant increase in State and local 
contracting programs and awards for minorities and women.15
Given its finding that women and

minorities were significantly
underrepresented in state and local
contracting, the Civil Rights Commission
recommended, inter alia, that "[s]tate and
local governments . . . establish special
contracting programs to increase contract
awards to minority and female-owned firms,"
and suggested that "mayors should review
existing procurement laws of their
jurisdictions and determine the extent to

i:> United States Commission on Civil 
Rights, Minorities and Women as Government 
Contractors 122 (May 1975).

31



which these laws permit the establishment 
of contract set-aside programs."16

That is exactly what the Richmond 
City Council did in this case. Relying on 
Fullilove. it adopted a remedial plan that 
addresses a documented problem of 
discrimination within its local community. 
As the district court found: "[T]he
evidence before the City Council when it 
enacted the ordinance . . . confirms the 
Plan's remedial goals."17 Moreover, the

16 Id. at 139.

17 See District Court Findings at 164. 
This conclusion is confirmed by the 
testimony of the Richmond City Attorney who 
testified before the City Council in 
support of the set-aside plan:

[T]he Supreme Court, when it approved 
the ten per cent minority set-aside, 
specifically said that the justifica­
tion was that it was remedial. We've 
reviewed the statistics of the con­
struction contracts, and it certainly 
justifies that . . . [Y]es, it is

(continued.. .)'
32



plan's "remedial goals" and the evidence of 
past discrimination before the Richmond 
City Council, easily distinguish this case 
from Wyqant.
c* Wyqgnt's Reference To Past ni ■*- 

crimination By the Governmental Unit Adopting An Affirmative 
Action Plan Should Not Be Ad dIipH Outside The Layoff Context
The Fourth Circuit erred in striking

down the Richmond set-aside plan on the
ground that voluntary, race conscious,
affirmative action programs initiated by a
state or local legislature must be
predicated on a showing of "prior
discrimination fey, the governmental unit
iDV9lve<a- " 822 F. 2d at 1358, quoting
Wyqant;, 476 u.s. at 274 (plurality 17

17(...continued)
remedial . . . .

Hearing 9n Adoption of Minority Business Utilization Plan. Richmond, Virginia city 
Council 8 (April 11, 1983)(transcript).

33



opinion)(emphasis supplied in Croson). 
First, there is at least as much

evidence of governmental discrimination in 
this case as in Fullilove. Second, the 
cited passage from Wygant did not command a 
majority of the Court.18 Third, even the 
plurality opinion in Wygant does not place 
any such limit on the remedial power of 
state and local legislatures, as opposed to 
administrative bodies lacking plenary 
lawmaking authority.19

18 Under intermediate scrutiny, a 
finding of prior discrimination is not 
required. Bakke. 438 U.S. at 369 
(Brennan, J.); Califano v. Webster. 430 U.S. 313, 317 (1977).

19 The Richmond City Council is 
authorized under Virginia law to enact the 
city's Business Minority Utilization Plan, 
and has specific institutional competence 
to establish policies responsive to the 
effects of discrimination. 779 F.2d at 
184-186. Unlike the Board of Education in 
Wygant or the Board of Regents in Bakke 
whose, "broad mission is education, not the

(continued...)
34



Contrary to the approach of the court 
below, Wyqant need not and should not be 
read as establishing an absolute rule that 
state anĉ  local governments cannot engage 
in affirmative action in their award of 
public contracts absent evidence of their 
own prior discrimination. Such a result 
would be inconsistent with Fullilovg. 19

19(...continued)
formulation of any legislative policy or 
adjudication of particular claims of 
illegality" (BaKKg, 438 U.S. at 309), the 
Richmond City Council is not an "isolated segment" within a vast governmental 
structure, but the plenary law-making body of the local sovereignty with the 
"authority and capability to establish . .
; that the classification is responsive to identified discrimination." Bakke. 438 
U.S. at 309 (Powell, J,). its authority to 
set broad social policy and to fashion 
local legislation in response to the local 
impact of discrimination is essentially the same as Congress' role in the federal 
government. Ohio Contractors v. Kein.713 F.2d 167, 172 (6th Cir. 1983). Cf. 
IuH U s y s , 448 U.S. at 503 n.4 (Powell, J., concurring)("a court should uphold a 
reasonable congressional finding of 
discrimination")(emphasis added).

35



which invalidated federal set-aside 
legislation without any showing that the 
meager participation of minority-owned 
businesses in federally funded public 
contracts was the result of prior unlawful 
discrimination by the federal government or 
any other governmental unit. Congress 
merely found the disparity was the result 
of

barriers to competitive access 
which had their roots in racial 
and ethnic discrimination, and 
which continue today, even absent 
anv intentional discrimination or 
other unlawful conduct.

448 U.S. at 478 (emphasis added).
It is clear from the legislative

history that the congressional decision to
adopt a federal set-aside program was
prompted as much by concern over
discriminatory practices in the private
sector as any record of past governmental
discrimination. The 1977 Report of the

36



7
House Committee on Small Business, cited by
the Court in Fulliiove, summarized the
problem Congress was addressing:

The very basic problem disclosed by the testimony is that - over 
the years - there has developed a 
business system which has tradi­
tionally excluded measurable 
minority participation. In the past more than the present, this 
system of conducting business 
transactions overtly precluded 
minority input. Currently, we 
more often encounter a business 
system which is racially neutral 
on its face, but because of past 

social and economic dis­crimination is presently opera­ting, in effect, to perpetuate these past inequities.
448 U.S. at 466 n.48 (citation omitted).20

Nothing in Fullilove even remotely
suggests that its holding is limited to

The result in Fullilove is justified not only by the Fourteenth Amendment's 
"century-old promise of equality with 
opportunity," 448 U.S. at 463, but also 
the fact that Civil War Amendments were 
intended to remediate both state and 
BrIVflte discrimination. See Jones v.
Alfred Ht Mayer C<?,, 392 u.s. 409, 441-43 (1968).

37



T
congressional action. Nor would any such 
limitation make sense. If Congress has the 
power to respond to documented 
discrimination in a particular industry —  
and to reguire the states to respond as a 
condition of receiving federal money —  
then state and local legislatures must have 
the same power to respond to local problems 
without federal prodding.

To hold otherwise would totally
distort the principles of federalism. As
Justice Brennan observed in Bakke:

[W]e see no reason to conclude 
that the States cannot 
voluntarily accomplish under 
Section 1 of the Fourteenth 
Amendment what Congress under 
Section 5 of the Fourteenth 
Amendment validly may authorize 
or compel either the States or 
private persons to do. A 
contrary position would conflict 
with the traditional 
understanding recognizing the 
competence of the States to 
initiate measures consistent with 
federal policy in the absence of 
congressional pre-emption of the

38

L



subject matter. Nothing whatever in the legislative history of
J^the *he.fourteenth Amendment

iClVil RlghtS ACtS eve^remotely suggests that the States
the £or®closed from furthering the fundamental purpose of equal opportunity to which the 
Amendment and those Acts are 
addressed. Indeed, voluntary initiatives by the States to achieve the national goal of 
equal opportunity have been 
recognized to be essential to its attainment. s

438 U.S. at 368.21
Such a limitation upon the power of 

state and local legislatures to act in 
response to discrimination not of its own 
making would be unprecedented. This Court

tho kN°^ Ca« be distinguished on? V f Con9«ss' enforcement power under Section 5 of the Fourteenth 
Amendment. The plurality opinion relied on Section 5 as authority only for the federal 
government's imposition of affirmative

00 state and local governmental grantees, not for its substantive power to
«  4?s-?f1Va| L rn2htS- EUU112VS- 148 U.S. Z8, SSS Ohio Contrartnn
c?f if»?n V | 713 F'2d 167- 172 («th

39



has never doubted the power of state and 
local government to implement race­
conscious integration of public schools in 
the absence of proven governmental 
discrimination. McDaniel v. Barresi. 402 
U.S. 39, 41 (1971); Swann v. Charlotte- 
Mecklenberq. 401 U.S. 1, 16 (1971).

State and local governments 
unquestionably have had the power to 
correct racial imbalances resulting from de 
facto segregation, even where the federal 
courts could not have constitutionally 
ordered a race-conscious remedy under 
Dayton Board of Education v. Brinkman. 433 
U.S. 406, 420 (1976). See Kromnick v. 
School District of Philadelphia. 739 F.2d 
894, 897 (3rd Cir. 1984); Jackson v. 
Pasadena City School District. 59 Cal.2d 
876, 881, 382 P.2d 878 (1963). Indeed, 
this Court has invalidated attempts to

40



limit such local power. Washington y 
Seattle School District. 458 U.S. 457 
(1982)'' North Carolina State Bo*t-h 
Education v. Swann. 402 U.S. 43, 45 (1971).

The power of state and local 
governments to engage in race-conscious 
remediation despite the lack of any 
evidence of direct governmental culpability 
has been upheld in other contexts as well. 
United Jewish Organizations v. Carpy 430 
U.S. 144, 157 (1977); South Florida 
Chapter V . Metropolitan Dade County, 723 
F.2d 846, 853 (11th Cir. 1984).

Restricting a local government to the 
narrow remedial purpose of redressing only 
its unlawful discrimination would 
drastically and unnecessarily limit 
governmental efforts to "effectuate the 
constitutional mandate for equality of 
economic opportunity." Fullilove. 448 U.S.

41



at 489. Moreover, "[a] requirement that an 
employer actually prove that it had 
discriminated in the past would . . . 
unduly discourage voluntary efforts to 
remedy discrimination." Johnson v. Santa
Clara Transportation Agency. ___ u.S. ___,
107 S.Ct. 1442, 1463 (1987)(0'Connor, J., 
concurring).22

Under the panel's interpretation of 
Wygant. local legislatures would be 
powerless to remedy the lingering effects 
of egrva?jve, identifiable, and even proven 
race discrimination in the private sector 
absent substantial evidence that the

See also Sullivan, Supreme Court 
Forward: "Sins of Discrimination - Last
Term's Affirmative Action Cases," 100 
Harv.L.Rev. 78, 92 (1987)("even without 
formal findings . . . the task of self­
judgment and self-condemnation in anv form 
casts a chill over efforts to implement 
affirmative action voluntarily")(emphasis 
in original).

42



governmental unit involved itself 
discriminated. Indeed, local legislatures 
would be powerless to act even where it is 
clear that race-neutral remedies ainno 
would not be effective.2 3

Imposing such a constitutional 
straitjacket on state and local 
legislatures would have the ultimate effect 
of perpetuating historical patterns of 
discrimination. Under the panel's ruling 
in this case, the government could not 
engage in affirmative action, even under 
the more generous "arguable violation" 
standard, unless it first established a

Local 28 of Sheet Metal Workers' 
Intern. Ass'n v. e .e .o .c .. 478 u.s.
106 S.Ct. 3019, 3051 (1986) (affirmative 
action may be necessary to dissipate the 
lingering effects of pervasive 
discrimination, such as where union's 
reputation for discrimination operated to discourage minorities from even applying for membership).

43



statistical disparity between the
percentage of minorities selected and
percentage of minorities in the relevant
pool. See Johnson. 107 S.Ct. at 1462-65,
(O'Connor, J., concurring); Wvgant. 476
U.S. at 292 (O'Connor, J., concurring).
Where minorities have been excluded from
the relevant pool as a result of prior
discrimination, tying the permissible units
of affirmative action to the composition of
the pool would lock the locality into
perpetuating the existing disparity;

a proof scheme requiring a 
comparison of the percentage of 
contracts awarded with this small 
qualified pool of minority 
contractors would ensure the 
continuation of a systemic fait 
accompli, perpetuating a 
qualified minority contractor 
pool that approximates two-third 
of one percent of the overall 
contractor pool . . . .  Common 
sense dictates that judging the 
set-aside by referring to the 
small proportion of existing 
MBE's in the economy would

44



T

perpetuate rather than alleviate past discrimination.
822 F.2d at 1365, 1367 (Sprouse, J.,
dissenting).

such a requirement creates a 
"gross anomaly" that the greater the 
effectiveness of historical non­
governmental discrimination in excluding 
minorities from the relevant pool, the less 
room local legislatures have to act:
"truly pernicious discrimination could have 
the compound effect of blocking remedial 
action." !£. at 1365 n.ll (Sprouse, j., 
dissenting). Certainly, such a perverse 
result is not countenanced by the equal 
protection clause, and Wyqant should not be 
read as dictating such a result.

The panel majority below justified its 
interpretation of Wyqant by reasoning that 
absent a particularized showing of past 
governmental discrimination, the

45

A



government's motive for establishing an 
affirmative action program is necessarily 
suspect. 822 F.2d at 1358. It is simply 
irrational to presume, as did the panel 
below, that an affirmative action program 
not predicated on a particularized showing 
of past governmental discrimination 
represents "an abuse of the political 
process rather than remedial action." 779 
F.2d at 203 (Wilkinson, J., dissenting).

An affirmative action program may be 
implemented for a variety of legitimate 
reasons, such as eliminating a "work force 
imbalances in traditionally segregated job 
categories." Johnson. 107 S.Ct. 1442, 1455 
(O'Connor, J., concurring). Moreover, a 
program may be established for legitimate 
"forward-looking considerations". See id. 
at 1460 (Stevens, J., concurring).

46



In addition to the goal of redressing 
the effects of identifiable discrimination 
in the construction industry, representa­
tive bodies such as the Richmond City 
Council have a particularly compelling 
interest in taking affirmative steps to 
avoid perpetuating racial disparities in 
the conduct of its business. The net 
effect of awarding public contracts to the 
near total exclusion of minority-owned 
businesses is to redistribute public moneys 
from economically disadvantaged blacks (who 
pay taxes like everyone else) to his­
torically advantaged whites. This 
exacerbation of the malapportionment of 
economic resources perpetuates the fact 
and perception of unfairness and destroys 
community trust in the government.
Williams v. Virkovichr 720 F.2d 909, 923-

47



924 (6th Cir. 1983). The "'exclusion of 
minorities from effective participation 
. . . . creates mistrust, alienation, and 
all too often hostility toward the entire 
process of government."' Wvaant. 476 U . S .  

at 290 (O'Connor, J., concurring), quoting 
S. Rep. No. 415, 92d Cong., 1st Sess. 10 
(1971).

Richmond also had a substantial 
interest in removing barriers to 
competition in the construction industry 
caused by the prior exclusion of minorities 
therefrom. By taking immediate steps to 
facilitate the competiteveness and 
experience of minority businesses under the 
Minority Business Utilization Plan, the 
City will, in the long run, enhance the 
overall competitiveness of the construction 
industry and hence the efficiency of its 
bidding process. See 779 F.2d at 185.

48



Moreover, like Congress' set-aside 
legislation, the effect of the Plan was to 
direct funds into the minority business 

community, a sector of the economy sorely 
in need of economic stimulus." Fullilnvo 
448 U.S. at 459.

The severe limitation placed on 
permissible affirmative action by the panel 
--restricting race-specific set-asides to 
remedying Richmond's own prior 
discrimination —  is supported by neither 
logic,24 policy, nor previous decisions of

From the perspective of non-minority 
contractors who bear the burden of the set- aside, it matters little whether the 
governmental unit involved engaged in past 
discrimination. Their burden is the same. 
SSfi BaKKg/ 438 U.S. at 365 (Brennan, J.). 
££• Eranfrg v. Bowman Transportation. 474 U.S. 747 (1976).

Where current disparities are attrib­
utable to past identifiable discrimination, 
be it private or public discrimination, 
non-minority businesses "may have reaped 
competitive benefit over the years from the

(continued...)49



this Court. See Bakke. 438 U.S. at 
(medical school affirmative action 
admissions policy justified by diversity 
of student body); Paradise. 107 s.Ct. at 
1065 n.18 (affirmative action in hiring of 
law enforcement personnel may be justified 
by its restoration of "community trust in 
the fairness of law enforcement" and 
facilitation of effective police service in 
encouraging citizen cooperation); Wygant. 
476 U.S. at 286 (O'Connor, J., concurring) 
(opinion does not foreclose possibility 
that "other governmental interests which 
have been relied upon in the lower courts 24

24(...continued)
virtual exclusion of minority firms" from 
contracting opportunities." Fullilove. 448 
U.S. at 485 (Burger, Ch.J.). See also 
Bakke. 438 U.S. at 365-66 (Brennan, J.). 
Hence, affirmative action has an equitable 
basis where there are continuing effects of 
prior discrimination regardless of whether 
the discrimination was private, 
governmental, or both.

50



but which have not been passed on here to 
be sufficiently 'important' or 'compelling' 
to sustain the use of affirmative action 
policies").

In the words of one noted commentator: 
"[T]he federal government alone cannot be 
expected to eradicate racial discrimination 
in America. Public institutions at all 
levels must contribute to the effort. They 
are often in a better position to . 
tailor corrective programs than is 
Congress. They should not be disqualified 
from this endeavor." Days, Fullilov^, 96 
Yale L.J. 453, 478 (1987).

51



CONCLUSION
For the reasons stated herein, the 

decision below should be reversed.

Respectfully submitted,

Edward M. Chen
(Counsel of Record)ACLU of Northern
California Foundation 1663 Mission Street 

San Francisco, CA 94103 (415) 621-2488
Steven R. Shapiro 
John A. Powell 
Jacqueline A. Berrien 
American Civil Liberties 

Union Foundation 
132 West 43 Street 
New York, New York 10036 
(212) 944-9800
John Hart Ely 
1135 Palomar Drive 
Redwood City, CA 94062 
(415) 368-7358

April 21, 1988

52

i

)