Richmond v JA Croson Company Brief of on Behalf of Apellee

    No. 87-998

IN THE

Supreme Court of tfje United S ta tes
October Term, 1987

CITY OF RICHMOND

v.

J. A. CROSON COMPANY.

A ppellant,

A ppellee.

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

BRIEF ON BEHALF 
OF THE APELLEE

Walter H. Ryland 
Williams, Mullen, Christian & Dobbins 

1021 East Cary Street 
Post Office Box 1320 
Richmond, Virginia 23210-1320 
(804) 783-6415

Counsel o f  R ecord



QUESTIONS PRESENTED

I. Does the equal protection clause require a governing 
body to show that it bears the responsibility for racial 
discrimination before it imposes a racial classification 
in the award of public contracts?

A. The Appellant’s Argument Assumes Facts 
which are not in the Record.

B. The Record Should establish The Responsibility 
of The Governing Body For The Discrimination 
Being Remedied.

C. Societal Discrimination Is Too Unrevealing To 
Permit A Governing Body To Adopt A Remedial 
Racial Classification.

D. The Court Should Require That The Governing 
Body Has A Compelling Interest in Adopting 
The Racial Classification.

II. Must the record provide positive assurance that the 
racial classifications were necessary as a narrowly 
tailored remedy for discrimination for which the 
governing body is responsible?



TABLE OF CONTENTS

Page

Questions Presented.........................................  i
Table of Authorities......................................... iii
Statement of the C ase.....................................  1
Summary of Argum ent...................................  10
Argument..........................................................  11

I. THE EQUAL PROTECTION 
CLAUSE REQUIRES A GOVERN­
ING BODY TO SHOW THAT IT 
BEARS THE RESPONSIBILITY FOR 
RACIAL DISCRIMINATION BEORE 
IT IMPOSES A RACIAL CLASSIFI­
CATION IN THE AWARD OF PUB­
LIC CONTRACTS...................................  11
A. THE APPELLANT’S 

ARGUMENT ASSUMES FACTS 
WHICH ARE NOT IN THE
RECORD.............................................  11

B. THE RECORD SHOULD ESTAB­
LISH THE RESPONSIBILITY OF 
THE GOVERNING BODY FOR 
THE DISCRIMINATION BEING 
REMEDIED........................................  14

C. SOCIETAL DISCRIMINATION IS
TOO UNREVEALING TO PER­
MIT A GOVERNING BODY TO 
ADOPT A REMEDIAL RACIAL 
CLASSIFICATION...........................  18

D. THE COURT SHOULD REQUIRE 
THAT THE GOVERNING BODY 
HAS A COMPELLING INTER­
EST IN ADOPTING THE
RACIAL CLASSIFICATION..........  23

n



II. THE RECORD MUST PROVIDE 
POSITIVE ASSURANCE THAT THE 
RACIAL CLASSIFICATIONS WERE 
NECESSARY AS A NARROWLY 
TAILORED REMEDY FOR 
DISCRIMINATION FOR WHICH 
THE GOVERNING BODY IS
RESPONSIBLE.......................................  26

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

TABLE OF AUTHORITIES

Cases

Associated General Contractors o f Califor­
nia v. City and County o f San Francisco,
813 F.2d 992 (9th Cir. 1987)........................ 17

Bazemore v. Friday, 478 U.S. 385, 106
S.Ct. 3000 (1986)...........................................  18, 20

DeFunis v. Odegaard, 416 U.S. 312 (1974).. 16
Fullilove v. Klutznick, 448 U.S. 448 (1980).. passim
General Building Contractors v. Pennsylva­

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

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

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

Bend, 836 F.2d 1034 (7th Cir. 1987).......... 17, 24, 25
J. Edinger & Son v. City o f Louisville, 802

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

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

iii



Local 28 o f the Sheet Metal Workers In t’l 
A ss’n v. E.E.O.C., 478 U.S. 421, 106
S.Ct. 3019 (1986)........................................... 16, 23

Michigan Road Builders v. Milliken, 571 F.
Supo. 173 (E.D. Mich. 1983), rev’d 834
F.2d 583 (6th Cir. 1987)...............................  17, 24

National Black Media Coalition v. F.C.C.,
775 F.2d 342 (D.C. Cir. 1985).....................  15

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

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

Swann v. Charlotte—Mecklenberg Bd. o f
Educ., 402 U.S. 1 (1971)............................. 18,20

United States v. Starrett City Associates,
840 F.2d 1096 (2nd Cir. 1988).................... 17

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

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

Wygant v. Jackson Bd. o f  Educ., 476 U.S.
267 (1986)......................................................  passim

CONSTITUTIONAL PROVISIONS, STATUTES, AND 
ORDINANCES

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

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

at Richmond, Va. Code ch. 24.1, art. 1(F)
(Part B) Paragraph 27.10-27.20, art. VIII- 
A (1983)........................................................  2,

IV



Richmond, Va., Ordinance No. 82-294-270 
(December 20, 1982)...................................  1

REGULATIONS AND LEGISLATIVE MATERIALS

49 C.F.R. Part 23 (1987).................................  29
52 Fed. Reg. 39, 227 (1987)...........................  29
1987 U.S. Code Cong. & Admin. News. 76. 31

OTHER AUTHORITIES

Choper, Continued Uncertainty as to the 
Constitutionality o f Remedial Racial 
Classifications: Identifying The Pieces o f 
the Puzzle, 72 Iowa L. Rev. 255 (1987)... 15, 17,

Days, Fullilove, 96 Yale L. J. 453 (1987) . . .  21,
Ely, Reverse Racial Discrimination, 41 U.

Chi. L. Rev. 723 (1974)...............................  23,
Madison, The Federalist, No. 10 (2d ed.

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

v



1

STATEMENT OF THE CASE

A.

Details of The Plan and Ordinance

The City Minority Utilization Plan requires non­
minority race contractors who are awarded construction 
contracts by the City to subcontract at least 30% of the 
dollar value of the contract to Minority Business Enter­
prises (MBEs). J. S. Supp. App. H at 247.1 If the prime 
contractor is a minority business enterprise, the require­
ment that 30% be subcontracted to MBEs is inapplica­
ble. Id.

The City’s Plan was the product of two ordinances. 
The second ordinance, providing most of the Plan as it 
now stands, was adopted by the Council on April 11, 
1983. J. S. Supp. App. H at 233, 249. It was an amend­
ment to the City’s general procurement procedures for 
purchasing the City’s materials and services, which had 
been first adopted five months earlier. See Richmond, 
Va., Ordinance No. 82-294-270 (December 20, 1982), 
Code Ch. 24.1.

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

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



2

tractors or subcontractors.” J. S. Supp. App. H
at 248.

The Plan defines an MBE as “ a business at least 
fifty-one percent minority-owned and operated by minor­
ity group members or, in the case of a stock corporation, 
at least fifty-one percent of the stock of which is owned 
and controlled by minority group members.” J. S. Supp. 
App. H at 248. The Plan defines ‘‘minority group mem­
bers” as “ citizens of the United States who are Blacks, 
Spanish-speaking, Orientals, Indians, Eskimos, or 
Aleuts.” Richmond, Va. Code ch. 24-1, art. 1(F) (Part B) 
Paragraph 27.20, and VIII-A (1983); J. S. Supp. App. H 
at 241. A bidder, who is not otherwise a minority, has ten 
days after notification that he is the low bidder to submit 
a completed form designating the minority contractor 
whose work will constitute 30% of the contract. Ex. 14.

The Plan lacks a number of features which others 
use to avoid imposing rigid numerical quotas. (1) By 
administrative policy, waivers of the 30% utilization 
requirement are to be granted only when every feasible 
effort has been made to comply and qualified MBEs are 
unavailable or unwilling to participate. Ex. 14. (2) There 
is no requirement that the minority contractor or sub­
contractor perform any useful service on the contract, 
just that he receive 30% of the contract amount. (3) 
Nothing in the Plan precludes a minority from subcon­
tracting its share back to a non-minority firm. (4) The 
plan includes racial minorities without regard to their 
economic or social status—there are no limitations on 
net worth or gross sales. (5) There is no “ graduation 
requirement” for any firm which becomes able to com­
pete without the protection of preferences. (6) There is 
no limitation on residency, which would focus the reme­
dial effort on the Richmond area.



3

B.

The Bidd in g  Process and Waiver Application .

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

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

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

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



4

of Eugene Bonn, Ex. 17c at 14-15.
On September 30, the day he received the bid 

documents, Bonn contacted a number of minority busi­
nesses listed as plumbing suppliers with the Virginia 
Office of Minority Business Enterprise, the Richmond 
Human Relations Commission, and the Richmond Rede­
velopment and Housing Authority. He informed the 
firms about the project and how to obtain the specifica­
tions necessary to quote a price on the fixtures. Deposi­
tion of Eugene Bonn, Ex. 17c at 21; J. S. Supp. App. G 
at 121. Bonn contacted the referrals again on October 12, 
the last day on which bids could be submitted, to inquire 
whether any would be quoting him a price. No minority 
firm quoted a price, so Bonn submitted his bid of 
$126,530.00 using a quote from a non-minority firm 
which regularly supplied such items. Bonn had received 
quotes directly from three non-minority suppliers. Bonn 
Dep. at 7. Testimony showed that none of the minority 
firms contacted by Bonn were suppliers of plumbing 
equipment made by the two manufacturers of the spec­
ified product. Deposition of Curtis Johnson, Ex. 17d at 
11-12; Deposition of Wallace Green, Ex. 17f at 4, 6; 
Deposition of Donald Sparrow, Ex. 17a at 22, 34. None 
testified that they knew that they could have arranged to 
supply the product.

Melvin Brown, a principal in a Richmond business 
called Continental Metal Hose, Inc., was contacted by 
Croson on October 12. There was a conflict in testimony 
as to whether Continental had been contacted on 
September 30 to quote a price. Bonn produced telephone 
toll records to show that he had contacted the other firms 
on his list on September 30 and had notes (Ex. 11) 
showing that Continental Metal Hose was on his list. At 
least one of the firms contacted returned calls to Bonn. 
Deposition of Wallace Green, Ex. 17 at 10. Bonn testified



5

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

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

On October 12, Bonn gave Brown the name of a 
distributor from whom Brown could obtain prices. The 
distributor refused because Brown had not established 
credit and the purchase price was in excess of $80,000. 
Deposition of Melvin Brown, Ex. 17(b) at 15, 22. Brown 
also requested prices from a supplier who had already 
quoted a price to Bonn and was refused. J. S. Supp. App. 
G at 125. Brown attended the bid opening on October 13 
and advised Bonn that he would attempt to supply the 
fixtures. Brown gave Bonn literature which described 
Continental Metal Hose as a dealer in metal pipes and 
hoses. Transcript of hearing, United States District 
Court, February 20, 1984, at 11. Bonn advised Brown of 
the names of two manufacturers of approved products. 
Id. at 13. In order to be able to supply the fixtures, 
Brown would have to be approved as a supplier by one of 
the two manufacturers of the approved products. Id. at 
19.

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

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



6

request for waiver. Ex. 14. On October 27, the day 
Brown learned Croson had asked for a waiver of the 
MBE requirement, Brown asked Bonn for the name of 
the second manufacturer’s representative. J. S. Supp. 
App. G at 124. On October 31, Brown submitted a quote 
based on prices supplied by the second manufacturer’s 
representative. J. S. Supp. App. G at 124-125. On that 
date, Brown called the Director of Purchasing and Stores 
for the City, and advised him that he had obtained a 
price. J. S. Supp. App. at 125. Brown added a $7,663.15 
markup to his quote to Croson, which was $6,183.29 
higher than the customary mark-up and Bonn’s other 
quote. Transcript, Circuit Court of City of Richmond Ex. 
18 at 45-46. Bonn advised the City that not only was 
Brown not a qualified supplier, but that the price he did 
quote was unreasonably high.

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

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



7

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

Brown testified that he was charging “ . . . whatever 
the market will bear.” Transcript, Ex. 18 at 91.

C.

Adoption  of The Ordinance

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

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

The Plan was introduced by one of its two sponsors 
(Council members Richardson and Marsh) who de­
scribed its purpose as being ‘‘to have those dollars 
recycled back to minority businesses . . . ” J.A. at 12. 
No testimony from the citizens who spoke in favor of the 
Plan identified any basis for enacting the ordinance. 
Neither of the two proponents was connected with the 
construction industry. The tenor of the remarks of the 
first speaker was that other cities had such Plans and it 
was time for Richmond to have one. J.A. at 18-19. The 
other mentioned ‘‘a kind of closed atmosphere to enter­
taining new companies and new ideas and new vendors



8

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

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

The vote in favor of adopting the Plan was along 
racial lines with the five black members and one of the 
four white members of the Council voting for it. J.A. at 
49.

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



9

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

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

The City’s position in its “ Petition for Rehearing 
and Suggestion for Hearing in Banc” in the Court of 
Appeals was that (1) it has the right to rely on the 
congressional findings of private and governmental dis­
crimination (Petition at 9); and (2) that the “ discrimi­
natory barriers” that the City seeks to address through 
racial classification include:

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



10

sively, with nonminority contractors, as was 
the city’s experience until the very recent 
past.” Petition for Rehearing at 12.3

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

The City attorney expressly disavowed “ intentional 
discrimination [by the City] in any particular case but 
relied on general discrimination by the construction 
industry cited in Fullilove. J.A. at 15.

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

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

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

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

3 Other documents produced by the City in discovery showed 
that construction purchase orders (under $10,000) were awarded to 
minority firms at a 10.5% rate. It was known to counsel for both 
parties at trial that the City had active programs of minority 
utilization that were producing results significantly in excess of the 
representation of minority firms in the general population. That is 
why, at trial, there were no references to discrimination by the City 
or the construction industry. The references in the Brief on behalf of 
the City that minorities had been receiving “virtually none of 
Richmond’s public construction contracts” are both inaccurate and 
not supported by the record. Brief on Behalf of Appellant, at 3.



11

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

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

ARGUMENT

I

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

A.

The Appellan t’s Argument Assumes F acts Which  Are N ot 
in the Record .

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



12

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

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

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

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



13

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

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

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

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

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



14

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

B.

The  Record Should  E stablish The Responsibility of The 
Governing  Body F or The D iscrimination  Being  Rem ed ied .

Wygant v. Jackson Board o f Education, A16 U.S. 
267 (1986) which is the fullest and most recent expression 
of a plurality of this Court, establishes an efficacious 
method of assuring that race-conscious legal remedies 
for discrimination adopted by local governing bodies are 
consistent with protections provided by the equal pro­
tection clause. That is, before an asserted governmental 
interest in adopting a racial preference can be accepted 
as “ compelling,” 4 there must be findings5 of “prior 
discrimination by the governmental unit involved.” Wy­
gant, 476 U.S. at 274 (Powell, J., plurality opinion). And 
further, if this finding is to be drawn from mere statistical 
evidence, the evidence must focus on the population that 
is relevant for comparative purposes, such as the avail­
ability of qualified minorities in the relevant construction 
businesses. Id. at 275-26.6

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

5 See p. 26, infra.
6 The Court should reject appellant’s suggestion that it is 

unreasonable to require that a legislative body make a factual



15

Dean Choper has noted that

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

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

record. Since it is uncontested that the purpose for adopting the Plan 
is centeral to determination of its validity, it is natural that the City 
must make a record which justifies the remedial purpose of the Plan. 
In administrative law there is a clear parallel. S.E.C. v. Chenery 
Corp., 332 U.S. 194 (1946) acknowledged the “fundamental” rule 
that administrative agencies must clearly state the basis upon which 
their determinations and judgments rest. This judge-made principle 
has been codified as part of the Administrative Procedure Act. 5 
U.S.C. Section 553(c); Cf. National Black Media Coalition v. 
F.C.C., 775 F.2d 342 (D.C. Cir. 1985) (in holding that low minority 
employment is a basis for sanction, agency must olfer sufficient 
explanation to ensure court that it is not repudiating precedent 
simply to conform with a shifting political mood). Where no basis or 
an inadequate basis is offered, the court is not at liberty to substitute 
its own basis. Chenery, 332 U.S. at 196.

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



16

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

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

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

That the principles articulated by the Wygant plu­
rality have proved practical is seen in their application to 
uphold remedial classifications in United States v. Par­
adise, 107 S. Ct. 1053 (1987); Johnson v. Transportation 
Agency, Santa Clara County, 107 S. Ct. 1442 (1986); and 
Local 28 o f the Sheet Metal Workers In t’l A ss’n v.
E.E.O.C., 478 U.S. 421 (1986).

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



17

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

The point is not that the governmental body must 
conclude that it is guilty of discrimination. Nor can it 
relieve itself from scrutiny of the constitutional question 
by admitting discrimination. Wygant, 416 U.S. at 279, 
n.5. (Powell, J.). Rather, if the race-based action is taken 
to remedy past discrimination by the governmental 
body, then a fact finder must be able to determine 
whether the employer was justified in instituting a reme­
dial plan. Ibid. As Dean Choper has written, “ In other 
words, the trial court must find that the government 
agency was attempting to remedy its prior unlawful 
conduct.” Choper, supra, at 265-266. No such finding is 
present in this case. The trial court held that the City was 
remedying “ present adverse effects of past discrimina­
tion in the construction industry.” J. S. Supp. App. G at 
163.



18

Thus, this Court has required that care be taken to 
establish that an identified disparity is in fact caused by 
discrimination. Hazelwood School District v. United 
States, 433 U.S. 299, 308, n. 13 (1977) identified the 
inadequacy of comparing percentages of teachers with 
the representation of minorities in the general popula­
tion; Swann v. Charlotte-Mecklenburg Board o f Educa­
tion, 402 U.S. 1 (1971) approved a race-conscious legal 
remedy ordered by a court where discrimination by the 
governing body had been established. The Court criti­
cized the concept of remedial racial quotas:

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

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

C.

Societal D iscrimination  Is Too U nrevealing To Permit A 
Governing  Body to Adopt a Rem edial Racial 

Classification .

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



19

constitutional standard.8
Justice Powell has described societal discrimination, 

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

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

8 In Fullilove, 448 U.S. at 448 (1980), the Court gave deference 
to the special competence of the Congress to correct societal 
discrimination. Id. at 472 (Burger, C.J.), noting that the broad 
remedial powers of Congress were distinguishable from the limited 
remedial powers of a federal court. Id. at 482. The Court also noted 
that the regulations implementing the Act were to benefit small and 
disadvantaged businesses owned by socially or economically disad­
vantaged persons and not just the specified minority groups. Id. at 
463. Members of the minority groups who were not disadvantaged 
were excluded. Id. at 466, 472. One barrier to minority firms being 
awarded federal contracts was the exercise of discretion by govern­
ment procurement officers to disfavor minority businesses. Id. at 
467. “In my view . . . Congress reasonably concluded that private 
and governmental discrimination had contributed to the negligible 
percentage of government contracts awarded minority contrac­
tors.” Id. at 503 (Powell, J.).



20

discrimination. The City lacks a compelling interest in 
such a policy:

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

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

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

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



21

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

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



22

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

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

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

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



23

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

D.
T he Court Should  Require The Record To Show  That The 
Governing  Body Has A Compelling  Interest in Adopting 

The Racial Classification .

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

The compelling interest analysis was employed in 
the plurality opinion in United States v. Paradise, 107 
S.Ct. 1053 (1987) (Brennan, J., plurality opinion) to 
uphold a judicial remedy imposed by a court in a case of 
proven violations. Similarly, Local 28 o f the Sheet Metal 
Workers International A ss’n. v. E.E.O.C., 478 U.S. 421, 
106 S.Ct. at 3019 (1986), affirmed a court-ordered remedy 
which was found to be narrowly tailored to further the 
government’s “ compelling interest in remedying past 
discrimination.” Id. 106 S.Ct. at 3053 (Brennan, J., 
pluralty opinion).

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



24

briefs amicus curiae on behalf of the Appellant argue for 
a less restrictive standard, all concur in the Appellant’s 
argument that the low number of black prime contractors 
on certain projects creates a compelling interest in 
adopting the 30% minority subcontractor utilization 
requirement.9

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

9 Johnson v. Transportation Agency, Santa Clara County, 107 
S.Ct. 1442 (1986) relied on the provisions of Title VII to hold that 
gender could be considered “as one factor” , Id. at 1455, where 
there were no women employees, if a “manifest imbalance” was 
determined by a comparison between the percentage of minority as 
women in the employer’s work force with those in the labor force 
who possess the relevant qualifications. Id. at 1452.



25

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

in enacting racial classifications to remedy societal dis­
crimination.

A governing body which is otherwise competent to 
do so may have a compelling interest in adopting legis­
lative enactments which prohibit discrimination. Such 
was the case in Roberts v. United States Jaycees, 468 
U.S. 609 (1984), which involved a provision of the 
Minnesota Human Rights Act which makes it an “unfair 
discriminatory practice” to deny access to places of 
public accommodation based on sex. Id. at 615. The 
Supreme Court of Minnesota accepted certification from 
the District Court whether the Jaycees was a place of 
public accommodation. Id. at 616. This Court held that 
the Minnesota Act “ ‘ responds precisely to the substan­
tive problem which legitimately concerns’ the State and 
abridges no more speech or associational freedom than is 
necessary to accomplish that purpose.” Id. at 629. 
Minnesota’s “ compelling interest” in eradicating dis­
crimination justified enactment of the statute. Id. at 623.

However, this exercise of a compelling interest is 
significantly different from the showing of a compelling 
interest by a governing body seeking to impose a race­
conscious legal remedy in the absence of violation. This 
is using a racial classification to exclude persons from a 
commercial benefit without a showing that any of the 10

10 In Janowiak v. The Corporate City South Bend, 836 F.2d 
1034 (7th Cir. 1987), the Court of Appeals ruled that an affirmative 
action plan, which resulted in a better qualified white worker being 
passed over by a minority, had been based on an inadequate factual 
predicate. This was vacated and remanded for consideration in light 
of Wygant and Johnson. 107 S. Ct. 1620 (1987). On remand the 
Court of Appeals held that there was no showing of prior discrimi­
nation by the City. Janowiak, 836 F.2d at 1041-42.



26

excluded persons committed a wrong.
In General Building Contractors v. Pennsylvania, 

458 U.S. 375, 400 (1982), this Court held that minority 
hiring quotas could not be imposed, under 42 U.S.C. 
Section 1981, upon a construction contractors’ trade 
association absent a finding of intentional discrimination.

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

II.

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

nation for Which The Governing Body is Responsible.

The need for a race-conscious legal remedy to be 
narrowly tailored to achieve its remedial purpose is 
generally recognized in prior decisions of this Court. In 
Fullilove, Justice Powell articulated the factors to be 
included in the analysis in the employment context as 
being:

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

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

448 U.S. at 510-11, 514.
Similar criteria were employed in Paradise, supra 107 S. 
Ct. 1053. In the context of this case another requirement 
should be added: identification of the problem to be 
remedied.

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



27

the original decision of the Court of Appeals,

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

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

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

11 Appellee does not contest the .67% for purposes of this case, 
but does contend that there is nothing about the way the numbers 
were calculated or used that says anything about the fact of 
discrimination.



28

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

Correlation o f Availability. Any correlation between 
the thirty percent figure and the actual capability of 
minority subcontractors and suppliers in the City of 
Richmond is purely accidental. “ The figure simply 
emerged from the mists.” Id. at 11a. The City made no 
determination of their capacity either to identify the 
scope of the alleged problem or determine how to 
address it. This is important because, as noted in Fulli- 
love, 448 U.S. at 536, n. 7 (Stevens, J., dissenting) if the 
existing successful minority businesses expanded to per­
form the work, no remedial purpose would be achieved. 
More money would flow through minority businesses, as 
was stated by the sponsor when Richmond’s Plan was 
introduced, but this is not a compelling interest.

Effect on Innocent Third Parties. This failure to 
consider the adequacy of the 30% requirement further 
serves to impose an unduly harsh competitive burden on 
non-minority contractors. As was observed by the Court 
of Appeals, subcontracting exactly thirty percent of a 
contract is often impossible. Croson, J. S. App. A at 1 la. 
The case at issue is instructive; Croson would have had 
to subcontract seventy-five percent of the project in 
order to meet the thirty per cent quota.12

12 Normally the purchase of supplies by the general contractor 
would not be a subcontract, but the parties regarded this as an 
acceptable method of satisfying the 30% subcontract requirement. 
By contrast, Regulations of the Department of Transportation would 
allow the full amount of purchases from minority suppliers to satisfy



29

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

The City’s plan is similarly overbroad in its defini­
tion of the minorities to be included. This Court in 
Wygant looked disfavorably upon an almost identical, 
overlybroad definition of minority. 476 U.S. at 284, n.13 
(Powell, J.). “ Because the layoff provision here acts to 
maintain levels of minority hiring that have no relation to 
remedying employment discrimination, it cannot be ad­
judged narrowly tailored . . . ” Id. 476 U.S. at 266 
(O’Connor, J.). Richmond City Council in adopting the

minority participation goals only if the supplier performed a “ com­
mercially useful function” and is a “ regular dealer.” Participation of 
Minority Business Enterprise in Department of Transportation 
Programs, 49 CFR. Part 23, 52 Fed. Reg. 39, 227 (October 31, 1987).



30

plan did not give due consideration to either methods of 
identifying the particular minorities included in the def­
inition or to whether in fact all of the groups had in fact 
been purposefully discriminated against in the past. 
Thus, the definition adopted impacts innocent third 
parties to such an extent that it is not narrowly tailored 
enough to achieve the objective of the plan.

Waiver and Duration. The Court of Appeals cor­
rectly noted that the plan’s validity is not enhanced by 
the presence of the so-called waiver provision and the 
five-year duration. J. S. App. A at 13a.

Finally, both the waiver provision and the length of 
time during which the plan is to be effective are not 
closely enough fitted to the objective of the plan. The 
waiver provision is a waiver in name only, since it is only 
involved when no qualified minority is available. Not 
only is the waiver to be granted “ only in exceptional 
circumstances,” but the contractor is also shouldered 
with the burden of showing a lack of available minority 
participants, who may come in after the bids are 
opened.13 The plan is to be effective for five years, and 
there is no limitation provided on City Council’s ability 
to renew the plan indefinitely without reexaming the 
need for the race conscious plan. By contrast, the plan 
approved by this Court in Fullilove was limited to a four 
month period. The temporary nature of that plan com­
pared with the long term nature of the Richmond plan 
demonstrates the objectionable length of the ordinance 
at issue.14

13 This was a finding of the District Court. See Note 2 supra.
14 That minority participation programs are not short term 

remedies is seen in the legislative history of the Surface Transpor­
tation Act, P.L. 100-17, 101 Stat 132 which extended the minority 
participation program of the 1982 Surface Transportation Assistance 
Act, on grounds that while the programs have been helpful “barriers



31

CONCLUSION
For the foregoing reasons the judgment of the Court 

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

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

By /s/ W a l t e r  H. R y l a n d  
Counsel of Record

W a l t e r  H. R y l a n d

Williams, Mullen, Christian & Dobbins, P.C. 
1021 East Cary Street 
P.O. Box 1320
Richmond, Virginia 23210-1320 
(804) 643-1991

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