Richmond v JA Croson Company Brief of Amicus Curiae Supporting Appellee

    No. 87-998

3n tfje Supreme Court of ttje Winitzb g>tate*
October Term, 1987

City of Richmond, appellant

v.
J.A. Croson COMPANY

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING APPELLEE

Charles Fried 
Solicitor General 

Wm. Bradford Reynolds 
Assistant Attorney General

Donald B. Ayer 
Deputy Solicitor General

Roger Clegg
Deputy Assistant Attorney General 

Glen D. Nager
Assistant to the Solicitor General

David K. Flynn 
Michael P. Socarras 

Attorneys
Department o f Justice 
Washington, D.C. 20530 
(202) 633-2217



QUESTION PRESENTED

Whether the Richmond city ordinance, which requires every 
nonminority prime construction contractor to subcontract at 
least 30% of the value of its city contracts to minority business 
enterprises, violates the Equal Protection Clause of the Four­
teenth Amendment.

(I)





TABLE OF CONTENTS

Page
Interest of the United S ta tes.......................................................  1
Statement .................................    j
Summary of argum ent.................................................................  6
Argument:

The Richmond city ordinance, which requires every non­
minority prime construction contractor to subcontract at 
least 30% of the value of its city contracts to minority 
business enterprises, violates the Equal Protection Clause 
of the Fourteenth Am endment............................................ 8
A. Laws which classify on the basis of race should be 

sustained only if “narrowly tailored” to achieve a 
“compelling” interest, regardless of the identity of the 
plaintiff challenging them or the purpose for which
they are adopted ...........................................................  8

B. Appellant’s ordinance is not “narrowly tailored” to
the accomplishment of a “compelling” governmental 
purpose .........................................................................  11

C. The Court’s decision in Fullilove does not support the
constitutionality of this MBE preference ordinance . 25

Conclusion ...................................   29

TABLE OF AUTHORITIES
Cases:

Associated Gen. Contractors v. City & County o f  San
Francisco, 813 F.2d 922 (9th Cir. 1987).......................... 23, 28

Brown v. Board o f  Educ., 347 U.S. 483 (1954).................. 8, 14
City o f  New Orleans v. Dukes, 421 \J.S. 297(1976).......... 15
City o f  Renton v. Playtime Theatres, Inc., 475 U.S. 41

(1986).................................................................................  21
Defunis v. Odegaard, 416 U.S. 312 (1974).......................... 15
Dothardv. Rawlinson, 433 U.S. 321 (1977)...................... 20
Fullilove v. Klutznick, 448 U.S. 448 (1980)........................passim
General Bldg. Contractors A ss’n v. Pennsylvania, 458 

U.S. 375 (1982).................................................................

(Ill)



Cases —Continued: Page
Griggs v. Duke Power Co., 401 U.S. 424 (1971)...............  20
Hampton s. Mow Sun Wong, 426 U.S. 88 (1976).............. 28
Hazelwood School Dist. s. United States, 433 U.S. 299

(1977)...............................................................................  18
Heart o f Atlanta Motel, Inc. s. United States, 379 U.S.

241 (1964) ...................................................................   14
Hirabayashi s. United States, 320 U.S. 81 (1943).............. 9
Johnsons. Transportation Agency, No. 85-1129 (Mar. 25,

1987) ............................................................................... 20, 23
Korematsu s. United States, 323 U.S. 214 (1944).............. 8-9
Lee v. Washington, 390 U.S. 333 (1968)............................. 9
Local 28, Sheet Metal Workers’ In t’l A ss’n v. EEOC,

478 U.S. 421 (1986)........................................................  21, 22
Losings. Virginia, 388 U.S. 1 (1967).................................  8, 9
Mississippi Unis, for Women s. Hogan, 458 U.S. 718

(1982)...............................................................................  11
Palmore s. Sidoti, 466 U.S. 429 (1984).............................  8 ,9
Parkers. Lesy, 417 U.S. 733 (1974)................................... 25
Pasadena City Bd. o f Educ. s. Spangler, 427 U.S. 424

(1976)...............................................................................  20
Personnel Administrator s. Feeney, 442 U.S. 256

(1979)...............................................................................  13
Regents o f the Unis, o f California s. Bakke, 438 U.S.

265 (1978) ..................................................................  1, 11, 12,
14, 15-16

Robertss. United States Jaycees, 468 U.S. 609 (1984) . . . .  13-14
Runyon s. McCrary, A l l  U.S. 160 (1976).........................  17
Shelleys. Kraemer, 334 U.S. 1 (1948)...............................  11
Strauders. West Virginia, 100 U.S. 303 (1879).................  8
Swann s. Charlotte-Mecklenburg Bd. o f Educ., 402

U.S. 1 (1971)....................................................................  9
United Jewish Orgs. s. Carey, 430 U.S. 144 (1977).......... 9
United States v. Paradise, No. 85-999 (Feb. 25, 1987)___ 9, 10,

11, 13, 21, 22
United Steelworkers s. Weber, 443 U.S. 193 (1979).......... 20
Washington s. Das is, 426 U.S. 229 (1976).......................  13, 20
Wygants. Jackson Bd. o f Educ., A lb  U.S. 267 (1986)___passim
Yick Wos.  Hopkins, 118 U.S. 356 (1886).........................  11

IV



V

Constitution and statutes:

U.S. Const.:
Art. I:

§ 8, Cl. 1 (Spending Clause)................................ 27
§ 8, Cl. 3 (Commerce Clause).............................. 27

Amend. V (Due Process Clause).................................. 7, 27
Amend. X I I I .................................................................  27
Amend. XIV (Equal Protection Clause).....................passim

Civil Rights Act of 1964:
Tit. VII, 42 U.S.C. 2000e etseq .................................... 19, 20

42 U.S.C. 2000e-5(0(l)........................................ 1
Tit. IX, 42 U.S.C. 2000h-2.......................................... 1

Public Works Employment Act of 1977, Pub. L. No.
95-28, 91 Stat. 116 ...........................................................  20

§ 103, 91 Stat. 117 ........................................................25, 26
Voting Rights Act of 1965, § 5, 42 U.S.C. 1973c.............. 9
42 U.S.C. 1981 .................................................................  4, 20, 24
42 U.S.C. 1983 .....................................................................  4

Miscellaneous:

Days, Fullilove, 96 Yale L.J. 453 (1987)............................ 11
The Federalist No. 10 (C. Rossiter ed. 1961)...................... 28
C. Wright & A. Miller, Federal Practice & Procedure 

(1971).................................................................................  17



3n tf)t Supreme Court of tfje Mutteb states
October Term, 1987

No. 87-998

City of Richmond, appellant

V .

J.A. Croson Company

ON APPEAL FROM THE UNITED STA TES COURT OF APPEALS  
FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING APPELLEE

INTEREST OF THE UNITED STATES

The United States is responsible for enforcing numerous 
statutes prohibiting discrimination on the basis of race or na­
tional origin (see, e.g., 42 U.S.C. 2000e-5(f)(l)), and may in­
tervene in cases brought under the Fourteenth Amendment (see, 
e.g., 42 U.S.C. 2000h-2). The United States has in the past par­
ticipated both as a party and as an amicus curiae in cases pre­
senting constitutional claims of race discrimination. See, e.g., 
Regents o f  the Univ. o f  California v. Bakke, 438 U.S. 265 
(1978); Fullilove v. Klutznick, 448 U.S. 448 (1980); Wygant v. 
Jackson Bd. o f  Educ., 476 U.S. 267 (1986). The Court recently 
invited the Solicitor General to present the views of the United 
States in another case involving a constitutional challenge to a 
minority business enterprise program. See H .K . Porter Co. v. 
M etropolitan Dade County, No. 87-1001.

STATEMENT

1. Appellant, the City of Richmond, Virginia, has a popula­
tion that is over 50% minority, of which blacks are by far the

(1)



2

largest group (J.A. 12, 29; J.S. Supp. App. 207). In early 1983, 
appellant released a study indicating that, notwithstanding this 
heavy minority population, only two-thirds of one percent — 
0.67% —of the value of the city’s construction contracts had 
been awarded or subcontracted to minority-owned businesses in 
the previous five years (J.A. 41, 43). In light of this study, ap­
pellant’s City Council was asked to adopt an ordinance requir­
ing that 30% of its construction expenditures over the next five 
years be set aside for minority business enterprises (MBEs) (J.A. 
11; J.S. App. 2a).

On April 11,1983, the City Council held a public hearing con­
cerning this proposed ordinance (J.A. 11). Proponents of the 
ordinance argued that the city had “not reached a successful or 
an admirable goal in terms of minority participation” in public 
construction contracting (ibid.); that there was “evidence of 
general discrimination —at least discriminatory effect in the en­
tire industry —construction industry” (J.A. 15, 41); that local 
construction industry organizations in the city and state had 
few, if any, black members (J.A. 27-28, 34-35, 36-37, 39-40); 
and that, in a similar context, Congress enacted, and this Court 
upheld, a federal set-aside program for minority-owned 
businesses (J.A. 24, 25). Opponents of the ordinance argued 
that it would result in reduced competition and higher public 
construction costs (J.A. 19-21); that it would violate both 
Virginia law and the federal Constitution (J.A. 22-23); that the 
trade associations to which the proponents of the ordinance 
referred had not engaged in prior race discrimination (J.A. 20, 
39); that comparisons between the percentage of minorities in 
the city’s population and the percentage of minority businesses 
receiving public construction funds were not probative of prior 
discrimination by either the city or the construction industry 
(J.A. 30); and that, since only 4.7% of the construction firms in 
the country are minority owned, minority owned subcontrac­
tors were not available or qualified in sufficient numbers to 
allow prime contractors to satisfy the 30% MBE participation 
requirement (J.A. 32-36). At the close of the hearing, the nine- 
member City Council adopted the ordinance by a 6-2-1 vote 
(J.A. 49).



3

As adopted, the ordinance provides that “[a]ll contractors 
awarded construction contracts by the City shall subcontract at 
least thirty per cent of the contract to minority business enter­
prises” (J.S. Supp. App. 247). The ordinance defines an MBE to 
be a “business at least fifty-one per cent of which” is owned by 
“[cjitizens of the United States who are Blacks, Spanish­
speaking, Orientals, Indians, Eskimos, or Aleuts” (id. at 
241-242 (italics deleted)). It allows the 30% MBE goal to be 
relaxed only “where a contractor can prove to the satisfaction of 
the director [of the city’s Department of General Services] that 
the requirements herein cannot be achieved” (id. at 247). And it 
characterizes itself as “remedial and * * * [as being] enacted for 
the purpose o[f] promoting wider participation by minority 
business enterprises in the construction of public projects, either 
as general contractors or subcontractors” (id. at 248). By its 
terms, the ordinance expires on June 30, 1988 (ibid.).

2. In September 1983, appellant invited bids for the installa­
tion of stainless steel urinals and water closets in its jail (J.S. 
App. 2a). Appellee, J.A. Croson Company, a non-MBE plumb­
ing and heating contractor based in Ohio, was the only bidder 
on the contract (id. at 2a-3a; J.S. Supp. App. 119-120). In 
preparing its bid, appellee attempted to subcontract 30% of the 
value of the contract to MBEs (id. at 120-124). But only one 
MBE was interested in participating and that MBE was unable 
to provide a timely price quotation (id. at 124). Appellee 
therefore submitted its bid without achieving the requisite 30% 
MBE participation and, instead, requested that appellant waive 
the MBE goal for this contract (J.S. App. 3a).

When the untimely minority subcontractor learned of ap­
pellee’s request for a waiver, however, it notified appellant that 
it could in fact provide the plumbing fixtures required by the 
contract’s specifications (J.S. Supp. App. 125). Appellant ac­
cordingly denied the requested waiver and directed appellee to 
submit a revised bid form (id. at 125-126). Appellee elected not 
to do so (J.S. App. 3a). Instead, it renewed its request for a 
waiver, arguing that, if it were required to use this minority sub­



4

contractor, the cost of the project would rise by $7,663.16 and 
its bid would have to rise along with it (ibid.). But appellant 
turned appellee down again, stating that the minority subcon­
tractor was qualified and that the bid could not be increased 
(ibid.). Appellant subsequently decided to rebid the contract 
(ibid.).

3. Shortly thereafter, appellee instituted this action for 
monetary and injunctive relief under 42 U.S.C. 1981 and 1983,1 
arguing that the 30% MBE participation requirement violated 
both Virginia competitive bidding law and the Equal Protection 
Clause of the Constitution (J.S. App. 3a; J.S. Supp. App. 4, 
112-114). On the parties’ cross-motions for summary judgment, 
the district court ruled that the ordinance was consistent with 
both Virginia and federal law (id. at 112-232). On appeal, a 
divided panel of the Fourth Circuit affirmed (id. at 1-109). On 
petition for a writ of certiorari, however, this Court vacated the 
Fourth Circuit’s judgment and remanded for further considera­
tion in light of Wygant v. Jackson Bd. o f Educ., 476 U.S. 267 
(1986) (J.S. App. 3a).

4. On reconsideration, a divided panel of the Fourth Circuit 
reversed and remanded (J.S. App. la-26a). It found (id. at 4a) 
that “[t]he very infirmities which marked the preferential provi­
sion in Wygant are present in this case.”

First, the court determined (J.S. App. 6a-9a) that appellant 
had not established the predicate of prior discrimination by the 
city that the court said is necessary for justifying a preference 
program as being remedial in nature. It noted that “[t]he debate, 
at the very end of a five-hour council meeting, revealed no 
record of prior discrimination by the city in awarding public 
contracts, aside from some conclusory and highly general 
statements * * *” (id. at 6a). It added that “[t]he only other 
evidence purporting to show discrimination in the assignment of 
contracts [was the statistics] comparing] the percentage of 
minority contracts with the total number of minority residents

1 Appellee originally brought the action in the Circuit Court of the City of 
Richmond, but appellant later removed it to federal district court. See J.S. 
Supp. App. 113. The court then consolidated the action with another suit 
against appellant. See id. at 129-138.



5

in the community” (ibid.); but it found that such “[g]eneral 
population statistics suggest, if anything, more of a political 
than a remedial basis for the racial preference,” and that, after 
Wygant, “this is exactly the kind of evidence that will not pass 
muster” (id. at 6a-7a). And it stated (id. at 8a-9a) that, if ap­
pellant “thought it was permissible simply to adopt the contract 
set-aside program upheld by [this] Court in Fullilove v. Klutz- 
nick, 448 U.S. 448 * * * (1980),” “it was in error” to do so, since 
“[national findings do not alone establish the need for action in 
a particular locality.”

Second, the court found (J.S. App. 11a) that, even if the or­
dinance had a proper remedial predicate, it was “not narrowly 
tailored to that remedial goal,” as required by Wygant. The 
court determined (ibid.) that “[t]he thirty percent goal was 
chosen arbitrarily,” noting that “it was not tied * * * to a show­
ing that thirty percent of Richmond subcontractors are 
minority-owned.” It further found (ibid.) that “[t]he com­
petitive disadvantage is far greater than the thirty percent 
minimum set-aside suggests,” since, “[i]n many construction 
contracts, the dollar allocation among subcontractors will not 
break into a thirty percent block,” and, in such situations, the 
ordinance will “ ‘unnecessarily trammel the rights of innocent 
individuals directly and adversely affected by the plan’s racial 
preference’ ” (ibid, (citation omitted)). In addition, it found (id. 
at 12a) that “the definition of minority-owned business is itself 
not narrowly tailored to the remedying of past discrimination,” 
noting that the definition in the ordinance “nearly duplicates the 
definition that drew fire in Wygant” (ibid.), and stating that “[a] 
record of prior discrimination against blacks by a governmental 
unit would not justify a remedial plan that also favors other 
minority races” (ibid.). Finally, it found (id. at 12a-13a) that, 
while “the presence of an expiration date and a waiver provision 
may help to narrow the scope of a plan’s operation,” “[wjhether 
the Richmond plan will be retired or renewed in 1988 is * * * 
nothing more than speculation” and “the waiver here [does not] 
cure the constitutional defects defined by the Wygant 
decisions,” since a waiver “is to be granted ‘only in exceptional 
circumstances’ and as a matter of administrative discretion.”



6

SUMMARY OF ARGUMENT

A. The ordinance at issue classifies on the basis of race and 
is therefore constitutionally suspect. The Court has, however, 
yet to reach a consensus on the appropriate constitutional 
analysis where race is used for remedial purposes. We believe 
that the Court should now hold that the standard of review ap­
plicable to remedial uses of race is the same as the standard of 
review applicable to non-remedial uses of such criteria—i.e., 
that the racial classification must be “narrowly tailored” to 
achieve a “compelling” governmental interest. The Equal Pro­
tection Clause is a guarantee of equality to all individuals. Ac­
cordingly, the standard of justification for a racial classification 
should remain constant, regardless of the identity of the plain­
tiff or the articulated purpose of the classification.

B. This ordinance does not serve a compelling governmen­
tal interest. The ordinance’s asserted interest in increasing MBE 
participation in local public construction projects is not, stand­
ing apart from any historical predicate justifying race con­
sciousness, a legitimate governmental interest at all, much less a 
compelling one. Nor can the ordinance be justified as a remedy 
for prior discriminatory actions. While a state or local govern­
ment has a compelling interest in remedying the effects of its 
own past and present discrimination, there is no basis for find­
ing that appellant has engaged in any such discrimination; in­
deed, appellant does not even claim that such evidence exists. 
Moreover, while a state or local government has a compelling 
interest in remedying the effects of identified unlawful actions 
by private parties, appellant has not identified any such illegal 
acts of discrimination. It has at most identified race-neutral 
conditions perpetuating the effects of past discrimination. Ac­
cordingly, the ordinance cannot be justified as a remedy for 
unlawful discrimination by others in the local construction in­
dustry.

Even if appellant’s ordinance could be justified by reference 
to unidentified acts of discrimination in the local construction 
industry, it would still fail for lack of narrow tailoring. Ap­
pellant has never attempted to address the problem of low 
minority participation — whatever its causes may be —by race-



7

neutral means. Appellant might have considered revising its bid­
ding practices, adopting special advertising and outreach pro­
grams, authorizing special public financing, or providing train­
ing and certification for potential entrants to the industry. But it 
has not done so. Instead, it adopted a 30% set-aside that bears 
no relation to the percentage of qualified minority group 
members in the relevant pool of those able to participate as sub­
contractors. Its action imposes substantial burdens on non­
minority contractors for a five-year period. Concomitantly, it 
does not provide adequate mechanisms to relieve nonminority 
contractors of the program’s harsh effects, to relieve contractors 
with no history of discrimination of the program’s re­
quirements, or to disqualify MBEs that are not suffering the ef­
fects of prior discrimination from receiving the program’s 
benefits.

C. The decision in Fullilove v. Klutznick, supra,does not in­
dicate that this ordinance is constitutional. The Court in 
Fullilove merely upheld the facial constitutionality of an MBE 
program, without addressing the constitutionality of any con­
crete application of that or any other MBE program. Moreover, 
the program upheld in Fullilove is in critical respects different 
from the program in issue here. And, finally, the Court rested 
its holding in Fullilove on the special authority and competence 
of Congress to address at a national level in broad-brush terms a 
problem of overriding national interest — i.e., the need to 
redress an unyielding pattern of discrimination against minority 
contractors in many parts of the nation. That overriding na­
tional interest was said to justify a federal statute touching the 
outer limits of congressional authority and constrained only by 
the Due Process Clause of the Fifth Amendment. It does not 
justify a racial classification by a city directly constrained by the 
Equal Protection Clause of the Fourteenth Amendment.



8

ARGUMENT

THE RICHMOND CITY ORDINANCE, WHICH REQUIRES 
EVERY NONMINORITY PRIME CONSTRUCTION CON­
TRACTOR TO SUBCONTRACT AT LEAST 30% OF THE 
VALUE OF ITS CITY CONTRACTS TO MINORITY 
BUSINESS ENTERPRISES, VIOLATES THE EQUAL PRO­
TECTION CLAUSE OF THE FOURTEENTH AMENDMENT

Appellant contends that its ordinance requiring every non- 
minority prime construction contractor to subcontract at least 
30% of the value of its city contracts to MBEs is consistent with 
the Equal Protection Clause of the Fourteenth Amendment. 
Based on our understanding of the scrutiny required by that 
Clause, the substantive constraints that the Clause imposes on 
state and local governments, and the purposes and operation of 
this ordinance, we submit that this Court should reject ap­
pellant’s contention.

A. Laws Which Classify On The Basis Of Race Should Be Sus­
tained Only If “Narrowly Tailored” To Achieve A “Compell­
ing” Interest, Regardless Of The Identity Of The Plaintiff 
Challenging Them Or The Purpose For Which They Are 
Adopted

The ordinance at issue in this case gives a preference to black, 
Hispanic, Oriental, Indian, Eskimo, and Aleutian contractors. 
It plainly classifies on the basis of race and is thus in tension 
with the fundamental principles embodied in the Equal Protec­
tion Clause that skin color and national origin are generally in­
appropriate bases upon which to rest official distinctions be­
tween people. Brown v. Board o f  Educ., 347 U.S. 483, 493-495 
(1954); Korematsu v. United States, 323 U.S. 214, 216 (1944); 
Strauder v. West Virginia, 100 U.S. 303, 307-308 (1879). Ac­
cordingly, under the Court’s modern equal protection cases, the 
ordinance is constitutionally suspect. See Palm orev. Sidoti, 466 
U.S. 429, 432-433 (1984); Loving  v. Virginia, 388 U.S. 1, 10-11 
(1967).

The Court has made clear, of course, that, while suspect, 
government action based on race is not always constitutionally 
invalid. See, e.g., Korematsu v. United States, 323 U.S. 214



9

(1944); see also Lee v. Washington, 390 U.S. 333, 334 (1968) 
(Black, Harlan, Stewart, JJ., concurring). A court of equity 
may, for example, permissibly take race into account in remedy­
ing past acts of intentional, unlawful discrimination on the basis 
of race. See, e.g., United States v. Paradise, No. 85-999 (Feb. 
25, 1987); Swann v. Charlotte-Mecklenburg Bd. o f  Educ., 402 
U.S. 1 (1971). Similarly, a competent governmental authority 
may permissibly take race into account in remedying its own 
identified history of prior illegal discrimination. See Wygant v. 
Jackson Bd. o f  Educ., 476 U.S. 267, 277 (1986) (plurality opin­
ion). And a state may permissibly take race into account in en­
suring that its reapportionment plan complies with Section 5 of 
the Voting Rights Act of 1965, 42 U.S.C. 1973c. See United 
Jewish Orgs. v. Carey, 430 U.S. 144, 160 (1977). But “ ‘[d]is- 
tinctions between citizens solely because of their ancestry’ * * * 
[are] ‘odious to a free people whose institutions are founded 
upon the doctrine of equality’ ” (Loving v. Virginia, 388 U.S. at 
11, quoting Hirabayashi v. United States, 320 U.S. 81, 100 
(1943)). And on that account, in many cases covering a wide 
range of circumstances, the Court has unanimously ruled that, 
to pass constitutional muster, a law classifying on the basis of 
race or ethnicity ordinarily “must be justified by a compelling 
governmental interest and must be ‘necessary * * * to the ac­
complishment’ of [its] legitimate purpose” (Palmore v. Sidoti, 
466 U.S. at 432-433 (citation omitted)).

The Court, however, “has yet to reach consensus on the ap­
propriate constitutional analysis” to be applied where a race or 
ethnic classification is invoked to achieve a remedial purpose 
(United States v. Paradise, slip op. 14-15). Several Justices have 
said that the level of judicial scrutiny should not change in the 
remedial context and that even the remedial use of race or 
ethnicity must be “narrowly tailored” to the accomplishment of 
a “compelling” governmental purpose. See Wygant v. Jackson 
Bd. o f  Educ., 476 U.S. at 273-274 (plurality opinion); United 
States v. Paradise, slip op. 1 (O’Connor, J., dissenting, joined 
by the Chief Justice and Scalia, J.). Other Justices, by contrast, 
have said that, while elevated judicial scrutiny is necessary, the



10

“remedial use of race is permissible if it serves ‘important 
governmental objectives’ and is ‘substantially related to achieve­
ment of those objectives’ ” ( Wygant v. Jackson Bd. o f  Educ., 
476 U.S. at 301-302 (citation omitted) (Marshall, J., dissenting, 
joined by Brennan and Blackmun, JJ.» . The remaining Justices 
have not clearly settled on a standard of review for remedial 
uses of race.2

2 Justice Stevens has rejected the argument that a district court’s remedial 
use of race must be “narrowly tailored to achieve a compelling governmental 
interest” (United States v. Paradise, slip op. 2 (Stevens, J., concurring in the 
judgment)). But he did so on the ground that equitable decrees of federal 
courts are ordinarily subject to an “abuse of discretion” standard and that “a 
uniform standard should govern our review of all such decrees entered by 
District Courts” (id. at 6-7 n.4). At the same time Justice Stevens expressly 
recognized (ibid.) that the review of remedial court orders “is dramatically dif­
ferent from the question whether a statutory racial classification can be 
justified as a response to a past societal wrong.” He has indicated that, in the 
instance of statutory classifications, a more exacting level of judicial scrutiny 
is appropriate —one that ascertains whether the purpose of the racial 
classification is constitutionally legitimate, whether the procedures used to 
adopt the ordinance were thorough and fair, whether the classification shows 
disrespect for, or imposes an unfair burden on, any person, and whether the 
classification is “narrowly tailored” to achieve its objective. See Wygant v. 
Jackson Bd. o f Educ., 476 U.S. at 317-320 (Stevens, J., dissenting); Fullilove 
v. Klutznick, 448 U.S. at 537-539, 548-554 (Stevens, J., dissenting).

Justice White has not clearly indicated the standard of review that he would 
apply to remedial uses of race. Without specifying a standard of review, he has 
twice voted to hold invalid certain remedial uses of race by government. See 
United States v. Paradise, slip op. 1 (White, J., dissenting); Wygant v. 
Jackson Bd. o f Educ., 476 U.S. at 294-295 (White, J., concurring in the judg­
ment). By contrast, in Fullilove v. Klutznick, he voted to uphold the constitu­
tionality of an MBE preference enacted by Congress; but, in doing so, he 
joined with Chief Justice Burger in declining (448 U.S. at 491-492) to “adopt, 
either expressly or implicitly, the formulas of analysis articulated in such cases 
as Regents o f  the Univ. o f California v. Bakke, 438 U.S. 265 (1978).” And in 
Bakke, where he voted to uphold the constitutionality of the affirmative ac­
tion measure in issue, Justice White joined (438 U.S. at 387 n.7) both Part 
III-A of Justice Powell’s opinion, which said that all uses of race by govern­
ment must be subjected to the strictest of judicial scrutiny (438 U.S. at 
287-291), and Justice Brennan’s opinion, which indicated that the remedial use 
of race by government may be sustained if it is “substantially related” to



11

The lower courts need guidance on this issue and, for the 
reasons set forth in our Wygant brief (at 9-22),3 we believe that 
the Court should now hold that the standard of review of racial 
or ethnic statutory classifications is the same regardless of the 
purpose underlying it or the groups at which it is directed - i .e .,  
the racial or ethnic classification must be “narrowly tailored” to 
the accomplishment of a “compelling governmental interest.” 
That a governmental classification has a remedial objective may 
make the classification more likely to withstand judicial 
scrutiny, but the level of judicial scrutiny should not change. 
Accord Mississippi Univ. fo r  Women v. Hogan, 458 U.S. 718, 
724 n.9 (1982); Wygant v. Jackson Bd. o f  Educ., 476 U.S. at 
285-286 (O’Connor, J., concurring). The Equal Protection 
Clause is a guarantee of equality to all individuals. See Shelley 
v. Kraemer, 334 U.S. 1, 22 (1948); Yick Wo v. Hopkins, 118 
U.S. 356, 369 (1886). “If it is the individual who is entitled to 
judicial protection against classifications based on his racial or 
ethnic background because such distinctions impinge upon per­
sonal rights, rather than the individual only because of his 
membership in a particular group, then * * * the standard of 
justification [should] remain constant” (Regents o f  the Univ. o f  
California v. Bakke, 438 U.S. at 299 (opinion of Powell, J.)). 
Accord Wygant v. Jackson Bd. o f  Educ., 476 U.S. at 273-274 
(plurality opinion); cf. United States v. Paradise, slip op. 7 n.4 
(Stevens, J., concurring in the judgment) (“a uniform standard 
should govern our review of the merits of an equal protection 
claim”). See generally Days, Fullilove, 96 Yale L.J. 453 (1987).

B. Appellant’s Ordinance Is Not “Narrowly Tailored” To The 
Accomplishment Of A “Compelling” Governmental Purpose

The question for decision in this case, therefore, has two 
components: first, whether any “compelling” governmen­
tal interest on appellant’s part may reasonably be found to

the achievement of “important governmental objectives” (438 U.S at 
356-362).

Justice Kennedy has yet to express an opinion concerning the standard of 
review applicable to the remedial use of race.

3 We are providing counsel for appellant and appellee with copies of our 
fVygant brief.



12

justify its MBE preference program; and, second, whether ap­
pellant’s MBE preference program is “narrowly tailored” to the 
accomplishment of that compelling governmental purpose. We 
submit that both of these questions should be answered in the 
negative.

1. Three justifications have been offered for this ordinance. 
First, the ordinance itself proclaims that it is “remedial and is 
enacted for the purpose or [sic] promoting wider participation 
by minority business enterprises in the construction of public 
projects, either as general contractors or subcontractors” (J.S. 
Supp. App. 248). Second, the dissent below and at least one of 
appellant’s amici suggest (J.S. App. 18a-21a; Lawyers’ Comm. 
For Civil Rights Under Law, et al. Br. 22-24) that the ordinance 
can be justified as a remedy for the city’s own prior discrimina­
tion in the awarding of public construction contracts. Finally, 
appellant argues (Br. 20-33) that the ordinance is a remedy for 
the effects of prior discrimination in the local construction in­
dustry. On the record as it stands, none of these asserted in­
terests is sufficient to sustain this racial classification.

a. The interest in increasing MBE participation in the con­
struction of public projects is not, standing apart from any 
historical predicate justifying race consciousness, a legitimate 
governmental interest, much less a compelling one. While the 
government has a legitimate interest in ensuring equal access of 
all races to construction projects involving public funds, and in 
remedying prior identified discrimination, it has no legitimate 
interest in ensuring —as an end in itself—any specific represen­
tation of minorities in the construction of those projects. As 
Justice Powell explained in Bakke (438 U.S. at 307), “If [ap­
pellant’s] purpose is to assure within its [local construction in­
dustry] some specified percentage of a particular group merely 
because of its race or ethnic origin, such a preferential purpose 
must be rejected not as insubstantial but as facially invalid. 
Preferring members of any one group for no reason other than 
race or ethnic origin is discrimination for its own sake. This the 
Constitution forbids.”

b. Nor can this ordinance be justified as a remedy for ap­
pellant’s own prior discriminatory actions. To be sure, a state or 
local government has a compelling interest in remedying its own



13

past and present discrimination. See United States v. Paradise, 
slip op. 15; Wygant v. Jackson Bd. o f  Educ., 476 U.S. at 274 
(plurality opinion); id. at 288-294 (O’Connor, J., concurring). 
But no basis has been offered for finding that appellant has 
engaged in any such discrimination. The ordinance does not say 
that it is a remedy for prior discrimination by the city or identify 
any basis for believing that such discrimination has occurred. 
Nor did the members of the City Council in debating the or­
dinance refer to any instances of prior or present discrimination 
by the city. See, e.g., J.A. 15-16. And, most importantly, the 
record does not provide “convincing evidence that remedial ac­
tion is warranted” to correct discrimination in the city’s awards 
of public construction contracts. Wygant, 476 U.S. at 277. Nor 
does even appellant itself suggest a basis for a contrary conclu­
sion.4

c. Rather, appellant argues (Br. 19-20) that the ordinance is 
a remedy for discrimination that is attributable to others-spe­
cifically, private firms in the local construction industry. While 
it is permissible for a state or local government, in appropriate 
circumstances, to seek to remedy unlawful discrimination by 
others, appellant has not identified the acts of unlawful dis­
crimination it is allegedly seeking to remedy. Accordingly, this 
race-based ordinance cannot be justified as a remedy for dis­
crimination by others.

(1) State and local governments plainly have a legitimate in­
terest in preventing race discrimination and in remedying past 
and present discrimination. See Roberts v. United States

4 Amici plainly err in suggesting (see, e.g., Lawyers’ Comm, for Civil Rights 
Under Law, et at. Br. 13-15) that, where it purchases goods and services from 
firms in a particular industry, a city government may be held legally responsi­
ble for private discrimination occurring in that industry of which it is aware. 
Under the Equal Protection Clause, government may be held liable only for 
intentionally discriminatory actions ( Washington v. Davis, 426 U.S. 229 
(1976)), and “ ‘[discriminatory purpose’ * * * implies more than intent as voli­
tion or intent as awareness of consequences.’ ” Personnel Administrator v. 
Feeney, 442 U.S. 256, 279 (1979).



14

Jaycees, 468 U.S. 609, 624 (1984).5 Race discrimination 
deprives members of the communities that those governments 
represent of their individual dignity. Accord Heart o f  Atlanta 
Motel, Inc. v. United States, 379 U.S. 241, 250 (1964). More­
over, it denies the community as a whole the benefits associated 
with wide participation by all persons in political, economic, 
and cultural life. See Roberts v. United States Jaycees, 468 U.S. 
at 625. Accordingly, since at least the time of Brown v. Board o f  
Educ., 347 U.S. 483 (1954), this Court has recognized the com­
pelling nature of the government’s interest “in ameliorating, or 
eliminating where feasible, the disabling effects of identified 
discrimination” (Regents o f  the Univ. o f  California v. Bakke, 
438 U.S. at 307 (opinion of Powell, J.)), whether that “iden­
tified discrimination” is attributable to governmental or private 
parties. See Roberts v. United States Jaycees, 468 U.S. at 
624-625; Wygant v. Jackson Bd. o f  Educ., 476 U.S. at 274 
(plurality opinion).

(2) On the other hand, the Court has been quite demanding 
regarding the showing that will serve as a predicate for a racial 
classification that purports to remedy prior discrimination. As 
Justices Powell and O’Connor have noted, the Court has never 
“held that societal discrimination alone is sufficient to justify a 
racial classification” (Wygant v. Jackson Bd. o f  Educ., 476 U.S. 
at 274 (plurality opinion)). Id. at 288 (O’Connor, J., concur­
ring). Societal discrimination is “an amorphous concept of in­
jury that may be ageless in its reach into the past” (Regents o f  
the Univ. o f  California v. Bakke, 438 U.S. at 307 (opinion of 
Powell, J.)), and “timeless in [its] ability to affect the future” 
{Wygant v. Jackson Bd. o f Educ., 476 U.S. at 276 (plurality 
opinion)). It has “no logical stopping point,” because it “does 
not necessarily bear a relationship to the harm caused by prior 
discriminatory * * * practices” {id. at 275, 276). Thus, while

5 It should be emphasized that Roberts is in sharp contrast to this case. In 
Roberts, the Minnesota Human Rights Act, far from authorizing special treat­
ment on the basis of race or gender, prohibited any such discrimination, and 
did so as a remedy for a previously existing pattern of discriminatory treat­
ment. 468 U.S. at 623-624.



15

there is no “doubt [ ] that there has been serious racial 
discrimination in this country,” a plurality of four Justices in 
Wygant held that, “as the basis for imposing discriminatory 
legal remedies that work against innocent people, societal 
discrimination is insufficient and overexpansive” (id. at 276 
(emphasis in original)). And while Justice White did not join the 
plurality’s opinion, there is reason to believe that he agreed with 
the plurality on this point. See id. at 295 (White, J., concurring 
in the judgment) (“[n]one of the interests asserted by the 
[government], singly or together, justified] th[e] racially 
discriminatory layoff policy and save[d] it from the strictures of 
the Equal Protection Clause”).

(3) No opinion of this Court has explicitly defined the 
distinction between “societal discrimination,” which is insuffi­
cient to justify a racial remedy,6 and the kind of prior 
discrimination proof of which will justify recourse to a racial 
remedy. Since, however, that distinction has received particular 
emphasis in opinions of Justice Powell, it is not surprising that 
those opinions also provide the doctrinal basis for the distinc­
tion.

In Bakke, Justice Powell argued that this Court has “never 
approved a classification that aids persons perceived as 
members of relatively victimized groups at the expense of other 
innocent individuals in the absence of judicial, legislative, or ad­
ministrative findings of constitutional or statutory violations” 
(438 U.S. at 307). He explained (id. at 307-308) that “[a]fter 
such findings have been made, the governmental interest in pre­
ferring members of the injured groups at the expense of others is 
substantial, since the legal rights of the victims must be vin­
dicated. In such a case, the extent of the injury and the conse­
quent remedy will have been judicially, legislatively, or admini­
stratively defined.” He added that “[wjithout such findings of 
constitutional or statutory violations, it cannot be said that the

6 Societal discrimination would, no doubt, provide a legitimate justification 
for a non-race based mechanism that is rationally connected to its remedial 
goal. See generally City o f New Orleans v. Dukes, 427 U.S. 297 (1976); cf. 
Defunis v. Odegaard, 416 U.S. 312, 337-340 (1974) (Douglas, J., dissenting).



16

government has any greater interest in helping one individual 
than in refraining from harming another” (id. at 308-309 (foot­
note omitted)). This conclusion is necessary, Justice Powell 
stated, because “[t]o hold otherwise would be to convert a 
remedy heretofore reserved for violations of legal rights into a 
privilege that all institutions throughout the Nation could grant 
at their pleasure to whatever groups are perceived as victims of 
societal discrimination. That is a step [the Court] ha[s] never ap­
proved” (id. at 310).

Justice Powell’s concurring opinion in Fullilove reiterated 
(448 U.S. at 497) that “this Court has never approved race­
conscious remedies absent judicial, administrative, or legislative 
findings of constitutional or statutory violations.” And he 
added (id. at 498) that “[b]ecause the distinction between per­
missible remedial action and impermissible racial preference 
rests on the existence of a constitutional or statutory violation, 
the legitimate interest in creating a race-conscious remedy is not 
compelling unless an appropriate governmental authority has 
found that such a violation has occurred.”

The plurality opinion in Wygant also appears to rest on this 
theme. It rejected the effort of a public school board to justify 
its race-based layoffs by reference to the effects of prior societal 
discrimination. 476 U.S. at 274-276. It stated that such a racial 
classification can be justified only if the public employer has 
“sufficient evidence to justify the conclusion that there has been 
prior discrimination” inconsistent with the Constitution (id. at 
277). Without such evidence, the opinion added, the public 
employer would simply be attempting to remedy prior “societal 
discrimination,” and that is not a compelling justification for a 
racial classification (id. at 277-278).

(4) In short, under the view explicitly adopted by four 
Justices in Wygant, and quite possibly adhered to by Justice 
White as well, a racial classification can be justified as a remedy 
for prior discrimination, and thus satisfy scrutiny under the 
Equal Protection Clause, only if a prior history of unlawful 
discriminatory action, whose effects are to be remedied, has 
been identified with some particularity. Appellant has not done



17

so. Assuming for purposes of this case that a private person’s 
racially-motivated refusal to contract with a minority-owned 
construction firm is unlawful (see Appellant Br. 30-31 & n.53, 
citing Runyon v. McCrary, 421 U.S. 160 (1976)), appellant has 
nonetheless failed to identify a single such act of 
discrimination.7

Appellant responds (Br. 20-21) that the substantial disparity 
between the percentage of city contracts awarded to minority 
businesses and the percentage of minorities in Richmond is evi­
dence of discrimination.8 But, for all that has been shown, that 
disparity is the result of many discrete and isolated decisions by 
many actors exercising their independent and unrelated authori­
ty to determine where to allocate scarce resources and 
capital -e .g ., city contracting officers awarding contracts, 
prime contractors entering into subcontracts, banks and bond­
ing officers issuing loans and providing bonds, and minority 
and non-minority subcontractors seeking construction work. 
The simple percentage comparison advanced by appellant can­
not support a conclusion of discriminatory intent in those 
numerous separate decisions, each made in distinct cir­
cumstances and for numerous (and perhaps entirely lawful) 
reasons, none of which appellant has considered or analyzed.

7 Appellant errs in suggesting (Br. 27-28) that the district court made “find­
ings” with respect to past discrimination that may not be overturned on ap­
peal. The district court decided this case on cross-motions for summary judg­
ment and thus was in no position to, and did not, make any findings of 
disputed fact. See C. Wright & A. Miller, Federal Practice & Procedure § 2575 
(1971).

8 At most, the claim sounds like the “societal discrimination” rejected in 
Wygant. Just as an amorphous assertion of unspecified discrimination levelled 
at society at large suggests no “compelling” basis for remedial action, so, too, 
a similarly amorphous claim of unspecified discrimination levelled at a par­
ticular industry at large fails to warrant this sort of legislative attention. In­
deed, dispensing with the requirement for some measure of identification of 
past discrimination eviscerates the correlative requirement that the remedy for 
such discrimination be narrowly tailored.



18

Appellant’s statistics are fundamentally defective in another 
sense as well. There is no reason to suppose that the racial com­
position of the relevant market of those available to undertake 
work as contractors and subcontractors in any way reflects the 
minority-nonminority breakdown of the population of Rich­
mond. Construction is a skilled trade, and participation in con­
struction contracting is limited by a bidder’s ability, among 
other things, to obtain working capital, to meet bonding re­
quirements, to follow bidding procedures, and to demonstrate 
an adequate “track record.” The general population is not 
qualified to bid on and participate in public (or private) con­
struction contracts. General population figures therefore pro­
vide no basis for inferring prior intentional discrimination by 
the industry, much less by any particular firm or firms in the in­
dustry. See Hazelwood School Dist. v. United States, 433 U.S. 
299, 308 n.13 (1977). And, of course, if it is only this differential 
capacity that the city is seeking to remedy, then we are back 
again to societal discrimination.

Furthermore, construction contractors and subcontractors 
from outside of the City of Richmond, including appellee, 
which is an Ohio-based firm, apparently bid on and receive city 
construction contracts. The minority population outside of the 
City of Richmond is, however, much lower than either ap­
pellant’s 50% minority population figure or its 30% MBE par­
ticipation goal. Thus, even if general population figures were 
relevant, the Richmond city figures would not be the ap­
propriate ones for use in a meaningful statistical comparison.

Appellant’s testimonial evidence (Br. 23-27) provides no 
sounder basis for the city’s program. The record reveals only 
“some conclusory and highly general statements made by a 
member of the public, a City Council member who supported 
the plan, and the City Manager” (J.S. App. 6a). “The member 
of the public who testified about discrimination was not even 
involved in the construction industry” {ibid.). The City Council 
member neither cited specific instances of discrimination nor



19

identified any perpetrators or victims. And the “City Manager’s 
comments mainly had to do with the city of Pittsburgh” (ibid.). 
“Such meager evidence is not a sufficient finding of prior 
discrimination” by anyone (ibid.), much less by an entire in­
dustry.

Appellant cannot escape these deficiencies in its evidentiary 
base by noting (Br. 21-22) that the local construction industry 
trade associations have few, if any, black members. The record 
does not indicate that blacks have ever attempted to join these 
other industry organizations; that they have been denied 
membership because of their race; or that they have failed to ap­
ply because they reasonably believed that they would be denied 
membership because of their race. On the contrary, the record 
indicates that only 4.7% of the construction firms in the coun­
try are minority-owned, and that 41% of these firms are concen­
trated in California, Illinois, New York, Florida, and Hawaii 
(J.A. 35). In these circumstances, one would not expect the 
various local trade associations to have many black members. 
There are not many black-owned construction firms to begin 
with, and these few firms have concentrated their business ac­
tivities elsewhere.

Nor can appellant escape the deficiencies in its evidence by 
noting (Br. 22-24, 33-38) that minorities, having for many years 
been purposely excluded from employment in the construction 
industry (presumably also in the Richmond area), on that ac­
count now face barriers to entry in this field because they have 
been prevented from obtaining the experience necessary to start 
construction businesses. This is, again, the “societal discrimina­
tion” claim rejected by this Court. Moreover, any such inten­
tional discrimination in employment has been illegal since at 
least 1964 (see 42 U.S.C. 2000e et seq.), and appellant provides 
no evidence of a substantial unremedied recurrence of this 
discrimination since that time. Furthermore, the unintentional 
perpetuation of the effects of this past discrimination, which 
may result from imposition of certain race-neutral criteria in the



20

selection of subcontractors — e.g., bonding requirements, ex­
perience requirements, working capital requirements —does not 
itself involve unlawful conduct (see General Bldg. Contractors 
Ass’n v. Pennsylvania, 458 U.S. 375 (1982) (no disparate impact 
claims under 42 U.S.C. 1981)), and thus provides no basis for a 
race-conscious remedy. See Wygant v. Jackson Bd. o f  Educ., 
476 U.S. at 276 (plurality opinion); Pasadena City Bd. o f  Educ. 
v. Spangler, A ll U.S. 424, 434-439 (1976).9

Finally, appellant cannot properly justify its ordinance by 
reference (Br. 25-26) to the national pattern of discrimination 
that Congress identified and relied upon in enacting the 10% 
MBE participation requirement of the Public Works Employ­
ment Act of 1977 (PWEA), Pub. L. No. 95-28, 91 Stat. 116, 
which this Court upheld in Fullilove v. Klutznick, supra. The 
fact that Congress found a national pattern of discrimination in 
the construction industry does not absolve particular localities 
wishing to adopt race-conscious relief from identifying such 
discrimination in their areas. Moreover, as we read Fullilove, 
the fact that Congress in 1977 enacted a national program pro­
viding a basis for race-conscious relief for prior discrimination

9 By contrast, certain employment practices which have a disparate impact 
may constitute a violation of Title VII, even though no discriminatory intent is 
shown. See Griggs v. Duke Power Co., 401 U.S. 424 (1971). United Steel­
workers v. Weber, 443 U.S. 193, 209 (1979); Dothardv. Rawlinson, 433 U.S. 
321, 330 (1977). The same is not generally true outside the Title VII context. 
See Washington v. Davis, 426 U.S. 229 (1976) (Equal Protection Clause); 
General Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375 (1982) (Section 
1981).

Appellant errs in suggesting (Br. 30-31 n.53, 34-38) that the reasoning of 
cases decided under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e 
et seq. — such as Johnson v. Transportation Agency, No. 85-1129 (Mar. 25, 
1987)—justify its race-based actions. Those cases merely address the per­
missibility of certain race-conscious actions by employers which may escape 
the strictures contained in Title VIl\ those cases do not address the per­
missibility of race-conscious action by employers in light of the prohibitions 
contained in the Equal Protection Clause. While Title VII and the Equal Pro­
tection Clause promote certain common objectives, this Court does “not 
regard as identical the constraints of Title VII and the federal constitution on 
voluntarily adopted affirmative action plans” (Johnson v. Transportation 
Agency, slip op. 14).



21

in the construction industry—with particular applications being 
justified case-by-case, on the basis of local history and cir­
cumstances (see Fullilove, 448 U.S. at 470-471) —does not of 
itself establish that there were discriminatory effects remaining 
in 1983 sufficient without more to justify the additional race­
conscious remedy adopted here. Appellant has thus not shown 
that it was reasonable to rely in 1983 in Richmond on Congress’s 
national findings made in 1977. See City o f Renton v. Playtime 
Theatres, Inc., 475 U.S. 41, 51-52 (1986) (government may rely 
on studies by other governments that are “reasonably” applied 
in its particular context). In particular, there is no basis for con­
cluding that there were actual acts of unlawful discrimination 
whose effects remained uncorrected.10

2. Of course, even if appellant’s ordinance could be justified 
by general reference to unspecified acts of discrimination in the 
local construction industry, it would still need to be “narrowly 
tailored” as necessary to remedy that alleged discrimination. 
The Court has indicated that, in determining whether a remedy 
is narrowly tailored, a number of factors are relevant: the 
necessity for the relief and the efficacy of alternative remedies; 
the relationship of any numerical requirements to available 
minority members in the relevant market; the effect of the 
remedy on third-persons; the planned duration of the remedy; 
and the availability of meaningful waiver provisions. Of these, 
surely the crucial factor should be that non-race-specific 
remedies have been or clearly would be unavailing. See United 
States v. Paradise, slip op. 19 (plurality opinion); Local 28, 
Sheet Metal Workers Int’l Ass’n v. EEOC, 478 U.S. 421, 
475-481 (1986) (plurality opinion). Consideration of these fac-

10 Requiring state or local governments to establish these facts by firm 
evidence — either contemporaneously or by proof at trial —will not discourage 
voluntary action by government to remedy violations of law. Cf. Wygant v. 
Jackson Bd. o f Educ., 476 U.S. at 290-293 (O’Connor, J., concurring). In 
these circumstances, government is not trapped between liability to minorities 
if affirmative action is not taken to remedy the apparent discrimination and 
liability to nonminorities if affirmative action is taken. Cf. ibid. It is the ac­
tions of non-governmental actors that are in question and thus the government 
need not be concerned about its own liability at all.



22

tors indicates that appellant’s ordinance is not “narrowly 
tailored” to the accomplishment of its purported objective.

Appellant has no basis for suggesting either that its race- 
based ordinance was necessary or that race-neutral alternatives 
were unavailable. The record does not indicate that appellant 
ever considered, much less tried, less intrusive means of remedy­
ing any effects of the alleged prior discrimination in the local 
construction industry. There is no indication that appellant has 
ever reviewed its bidding practices to make sure that they are in­
telligible and accessible to all; that it has ever instituted special 
advertising and outreach programs to attract MBEs to its con­
struction projects; that it has ever authorized special public 
financing for firms that have been or are unable to post bonds 
or to borrow money for reasons unrelated to their credit rating; 
or that it has ever provided training and certification programs 
to ensure that experience requirements do not bar entry into this 
field. On the contrary, appellant apparently turned to a race- 
based program without any effort whatever to put in place a less 
drastic remedy. Such a course is not constitutionally permissi­
ble. Cf. United States v. Paradise, slip op. 20-25 (non-victim- 
specific, race-conscious remedies appropriate only in instances 
of ‘egregious” discrimination); Local 28, Sheet Metal Workers’ 
In t’l Ass’n v. EEOC, supra (same).

Moreover, appellant chose a percentage set-aside that bears 
no reasonable relationship to the percentage of minority group 
members in the relevant market of businesses available to sup­
ply these services. The term “MBE” is defined in the ordinance 
to include businesses owned not only by blacks, but also by 
Hispanics, Orientals, Indians, Eskimos, and Aleuts. Thus, even 
if the disparity between the proportion of blacks in the popula­
tion and the proportion of black-owned businesses receiving 
contracts was evidence of prior discrimination against blacks, 
the ordinance would still be unjustified as providing a race- 
based preference to groups that have not previously been 
discriminated against. See Wygant v. Jackson Bd. o f  Educ., 476 
U.S. at 284 n.13 (plurality opinion) (criticizing affirmative ac­
tion plan for its “undifferentiated nature”). And, in all events, 
as we explained above, appellant has not shown the statistical



23

relevance of the 30% figure, or in any way sought to determine 
the actual make-up of the relevant subcontractor market, look­
ing to geography and qualifications. Its 30% MBE requirement 
cannot, therefore, constitute a reasonable estimate of the 
amount of city contracting dollars that would have reached 
minorities in the absence of discrimination. See Johnson v. 
Transportation Agency, slip op. 7-8 (O’Connor, J., concurring 
in the judgment).11

Furthermore, the burden that the 30% MBE participation re­
quirement requires nonminority construction firms to shoulder 
is substantial. The set-aside here is quite large and, unlike 
smaller set-aside programs, constitutes a significant denial of 
public contracting opportunities to non-minority contractors. 
Further, as the court below noted (J.S. App. 11a), “[i]n many 
construction contracts, the dollar allocation among subcontrac­
tors will not break into a thirty percent block.” In that cir­
cumstance, the set-aside could easily amount effectively to a 
much higher percentage. That this denial affects the economic 
fortunes of businesses operating on the local level, where small 
businesses predominate, and where businesses live from subcon­
tract to subcontract, only aggravates the ordinance’s adverse ef­
fect. It means that the set-aside may have a substantial adverse 
effect on a number of businesses and require the layoff of inno­
cent workers. The Court has made clear that such adverse ef­
fects are cause for serious constitutional concern. See Wygant v. 
Jackson Bd. o f Educ., 476 U.S. at 282-284 (plurality opinion); 
id. at 295 (White, J., concurring in the judgment); see also 
Associated Gen. Contractors v. City & County o f San Fran­
cisco, 813 F.2d 922, 936 (9th Cir. 1987).

The duration of appellant’s MBE preference further 
magnifies these tailoring problems. This ordinance is not a one- 
shot funding measure, enacted, as in Fullilove, to ward off the

11 Indeed, the “piece of the action” (Fullilove v. Klutznick, 448 U.S. at 536 
(Stevens, J., dissenting)) nature of this ordinance becomes clear when one ap­
preciates that it is irrelevant to appellant’s scheme that a business may have 
significant minority participation in its ownership or management, so long as 
it is less than 50% minority owned.



24

foreseeable effects of an imminent economic recession and to 
provide minority contractors with the experience necessary for 
continued success without governmental assistance. Cf. 
Fullilove v. Klutznick, 448 U.S. at 511-512 (Powell, J., concur­
ring). Rather, it is a long-term element of appellant’s construc­
tion contract award criteria. Appellant has committed itself to 
engaging in race discrimination for a five-year period, whether 
the prior discrimination that the preference allegedly seeks to 
redress is remedied before the end of that period or not.12

Finally, the waiver and exemption provisions of the ordinance 
do not cure the ordinance’s overbreadth and other constitu­
tional deficiencies. There is no exemption for nonminority con­
tractors that can prove a history free of racial discrimination.13 
There is no adequate relief mechanism for nonminority contrac­
tors who are harshly Effected by this ordinance’s operation, or 
even for those who have significant minority participation in 
their management or ownership. And there is no disqualifica­
tion of minority contractors who are not suffering from the ef­
fects of identified illegal discrimination —such as minority con­
tractors who were formed after the enactment of this statute, or 
who have successfully vindicated their rights through suits 
under 42 U.S.C. 1981.14 Such a law is not a “narrowly tailored” 
remedy for the past intentional exclusion of minorities from the 
construction industry, but rather a racial “bloc grant” of the 
kind deplored by Justice Powell in his Wygant opinion. See 476 
U.S. at 281 n.8.

12 The fact that the set-aside program is now scheduled to expire in June 
1988 does not alter the fact that the Court must assess the constitutionality of a 
program projected at the time of enactment to be in place, and which has in 
fact been in place, for five years.

13 The record provides, for example, no basis for believing the appellee, an 
Ohio-based contractor, played any role in discrimination in the local construc­
tion industry.

14 The record does not suggest, for example, that the MBE that provided 
the untimely price quote in this case is itself a victim of identified discrimina­
tion in the past.



25

C. The Court’s Decision In Fullilove Does Not Support The Con­
stitutionality Of This MBE Preference Ordinance

Appellant and its amici respond (Br. 21 n.33, 24 n.39, 35-36 & 
n.60, 40; Nat’l League of Cities, et al., Br. 7-14) that, in 
Fullilove v. Klutznick, supra, this Court approved an MBE 
preference program with all of the aforementioned features and 
that, accordingly, this ordinance must be approved as well. But 
appellant and its amici misunderstand both the basis for and the 
limited holding of the Fullilove decision.

In Fullilove, the Court faced the question whether the 10% 
MBE preference requirement of Section 103 of the PWEA (91 
Stat. 117) was facially constitutional — i.e., whether it could be 
constitutionally applied in a substantial number of situations. 
See 448 U.S. at 480-481 (plurality opinion); Parker v. Levy, 417 
U.S. 733, 760 (1974). In seeking to answer this question, three 
Justices found that the PWEA was a stop-gap funding measure 
designed to offset the effects of an imminent recession (id. at 
456-458); that MBEs had historically received a relatively small 
percentage of federal contracting funds and that Congress at­
tributed much of this nonparticipation by minorities to pur­
poseful discrimination by private and public contractors (id. at 
458-463); see also id. at 506 (Powell, J., concurring)); that, since 
at least 1953, the federal government had unsuccessfully at­
tempted through non-racial means to remedy this history of 
prior discrimination and to eliminate some of the barriers to 
MBE participation in federal contracting (id. at 463-467 
(plurality opinion)); and that, as fleshed out by the responsible 
administrative agency, the PWEA accorded a preference in the 
competitive bidding process only to those MBEs whose inability 
to compete effectively could be attributed to the effects of iden­
tifiable race discrimination committed in the past (id. at 
470-471). On these premises, the Court, with no majority opin­
ion and three dissenting Justices, held that the MBE provision 
of the PWEA should be upheld against a facial constitutional 
challenge. See id. at 473-492; id. at 517-522 (Marshall, J., con­
curring in the judgment).



26

In reaching this judgment, however, the Justices casting the 
determinative votes made clear that they were not addressing 
any questions relating to specific applications of the MBE pro­
gram. Fullilove v. Klutznick, 448 U.S. at 480-481. Indeed, they 
specifically declined to address whether the Constitution re­
quires a more specific identification of perpetrators, victims, 
and/or discriminatory acts before a racial preference may ac­
tually be implemented in any particular case. See id. at 486-488 
& n.73 (opinion of Burger, C. J.). That, of course, is the precise 
question that appellee has raised here in challenging the applica­
tion of appellant’s ordinance to it.

Moreover, the MBE preference program approved in 
Fullilove, is, as just discussed, quite different from the MBE 
preference program at issue here. As Chief Justice Burger 
characterized it, the national MBE preference program ap­
proved in Fullilove was enacted by Congress at least in part as a 
remedy for an identified history of purposeful discrimination 
against MBEs by private and public contracting agencies; here, 
as explained above, no such history of identified purposeful 
discrimination against minority contractors has been sufficient­
ly established, and certainly no such history of identified 
discrimination traceable to appellee.15 Similarly, as the plurality

15 Appellant and amici protest (Appellant Br. 21 n.33; Nat’l League of 
Cities, et al. Br. 7-8) that the statistical disparity relied upon by appellant in 
enacting this ordinance is identical to the statistical disparity relied upon by 
Congress in enacting Section 103 of the PWEA. But Congress relied upon the 
statistical disparity cited by appellant and its amici only as a basis for sug­
gesting, as a general matter, that a race-conscious remedy was necessary in 
order to remedy instances of prior intentional discrimination to be addressed 
in particular cases as established in the course of the detailed administration of 
the program. Congress did not rely upon the statistical disparity to establish 
the history of identified discrimination necessary to justify any particular, ac­
tual race-conscious contract award. See 448 U.S. at 459, 462-463 (plurality 
opinion); id. at 504-506, 511 (Powell, J., concurring).

Appellant and amici likewise err in suggesting (Appellant Br. 23, 26-27; 
Nat’l League of Cities, el al. Br. 9) that the nonstatistical evidence relied upon 
by appellant is identical to the nonstatistical evidence relied upon by Congress 
in enacting Section 103 of the PWEA.' The two situations simply are not com­
parable. Appellant relied upon general and conclusory observations by three



27

characterized it, the MBE program approved in Fullilove was 
appropriately tailored to accomplish its remedial goal. The 
government had already unsuccessfully attempted to remedy, by 
race-neutral measures, the prior discrimination it found; the 
race-based measure adopted was a one-shot measure enacted in 
the face of an oncoming recession; at 10%, the set-aside re­
quired non-minority contractors to shoulder a lighter burden 
than in the present case; and, most significantly, the MBE 
preference was no more than a presumption (i.e., in applica­
tion, the set-aside could be waived where an MBE was not suf­
fering from the effects of prior illegal discrimination). As 
discussed above, appellant’s MBE program is not tailored in this 
fashion.

In any event, the MBE preference program approved in 
Fullilove is embodied in an Act of Congress, not in a city or­
dinance, and thus, in a constitutional sense, is fundamentally 
different from this ordinance. Congress has broad remedial 
powers deriving from the enforcement provisions of the Thir­
teenth and Fourteenth Amendments and the Commerce and 
Spending Clauses. See Fullilove v. Klutznick, 448 U.S. at 
472-475, 483-484, 490 (opinion of Burger, C.J.); id. at 500, 
508-510, 516-517 (Powell, J., concurring). Moreover, the Equal 
Protection Clause was expressly adopted to limit the authority 
of state and local governments (and not the federal government) 
to use race in making governmental decisions. Acts of Congress, 
by contrast, are restrained by the equal justice component of the 
Due Process Clause of the Fifth Amendment. While that provi­
sion places restraints on Congress and the President that are 
similar to those the Equal Protection Clause places on state and 
local governments, “the two protections are not always coexten­
sive,” and the Court has recognized that “there may be over­
riding national interests which justify selective federal legisla­
tion that would be unacceptable for an individual State.”

persons at a city council hearing. Congress relied upon studies done over a 
lengthy period of time by various legislative committees and administrative 
agencies. See 448 U.S. at 456-467 (plurality opinion).



28

Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976).16 In 
Fullilove, the Court found such an overriding national in­
terest— i.e., the need to remedy the economic inequality at­
tributable to an unyielding nationwide pattern of past 
discrimination —and, in view of the unique powers of and 
limitations on the Congress, was thus impelled to approve a 
racial criterion even though it “pressfed] the outer limits of con­
gressional authority” (448 U.S. at 490). See also id. at 483. No 
such congressional powers or determination of national interest 
is implicated here, and the city government is constrained direct­
ly by the Equal Protection Clause of the Fourteenth Amend­
ment. Especially in view of these circumstances, the ordinance’s 
use of racial criteria cannot be sustained.17

16 This is reasonable in part due to the indirect protections that individuals 
derive when power is located in an office of government responsible to all who 
can be affected by its exercise, which is true of Congress, but not of state and 
local governments, where parochial interests may sometimes hold much more 
uninhibited sway. See Associated Gen. Contractors v. City & County o f  San 
Francisco, 813 F.2d at 928-934; see generally, The Federalist No. 10, at 22 (J. 
Madison) (C. Rossiter ed. 1961).

17 Amicus Nat’l League of Cities, et at. errs in suggesting (Br. 9-10, 19-21) 
that state and local governments should not be required to make more detailed 
findings concerning prior discrimination than those made by Congress in justi­
fying the 10% MBE preference of the PWEA. Congress legislates with respect 
to problems of great scope and, accordingly, should not have to confine its vi­
sion to the facts and evidence adduced by particular parties, but should be able 
to paint with a broad brush in its legislative action. State and local govern­
ments, by contrast, operate on a substantially smaller scale. It is therefore 
reasonable to require them to bear a greater burden of justification in defend­
ing race-based actions. Accord Fullilove v. Klutznick, 448 U.S. at 515-516 
n.14 (Powell, J., concurring) (“[t]he degree of specificity required in the find­
ings of discrimination and the breadth of discretion in the choice of remedies 
* * * varfies] with the nature and authority of a governmental body”). Indeed, 
the language and purpose of the Equal Protection Clause would seem to re­
quire as much. See Wygant v. Jackson Bd. o f  Educ., 416 U.S. at 273-278 
(plurality opinion).



29

CONCLUSION

The judgment of the court of appeals should be affirmed. 
Respectfully submitted.

J une 1988

C harles F ried 
Solicitor General 

Wm . Bradford  Reynolds 
Assistant A ttorney General 

Donald  B. A yer 
D eputy Solicitor General 

Roger  Clegg
Deputy Assistant A ttorney General 

G len D. Nager 
Assistant to the Solicitor General 

David  K. Flynn 
M ichael  P. Socarras 

Attorneys

*  U.S. GOVERNMENT PRINTING OFFICE: 1988-202-037/60494



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