Richmond v JA Croson Company Brief of Amicus Curiae in Support of Appellee

    CL

No. 87-998

In  The

Bvcpnm (Emtrt at %  li&mttb
October Term, 1987

City of Richmond,
v Appellant,

J.A. Croson Company,
_________  Appellee.

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

BRIEF AMICUS CURIAE OF THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL 

IN SUPPORT OF THE APPELLEE

Robert E. W illiams 
Douglas S. McDowell * 
Salvador T. Perkins 

McGuiness & W illiams 
1015 15th Street, N.W. 
Washington, D.C. 20005 
(202) 789-8600 

Attorneys for Amicus Curiae 
Equal Employment Advisory 
Council

* Counsel of Record

W i l s o n  - E p e s  P r in t in g  C o . ,  In c . - 7 8 9 - 0 0 9 6  - W a s h in g t o n , D .C .  2 0 0 0 1



TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES ...........................................  ii

INTEREST OF THE AMICUS C U RIAE....................  1

STATEMENT OF THE CASE ...................................... 5

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

ARGUMENT .......................................................................... 9

I. IN DECIDING THIS MATTER, THE COURT
SHOULD EXERCISE CARE TO ENSURE 
THAT A  DECISION IN THIS PUBLIC SEC­
TOR CASE DOES NOT IMPINGE ON THE 
ABILITY OF PRIVATE EMPLOYERS UN­
DER CURRENT LAW TO UNDERTAKE 
REASONABLE AND VOLUNTARY AF­
FIRMATIVE ACTION ...... .......... ........................ 9

II. THE COURT BELOW PROPERLY HELD
THAT THE THIRTY PERCENT MINORITY 
SET-ASIDE FIGURE WAS UNCONSTITU­
TIONAL BECAUSE IT HAD NOT BEEN 
SHOWN TO BE RELATED TO THE PRES­
ENT AVAILABILITY OF QUALIFIED MI­
NORITY SUBCONTRACTORS  ........................  11

A. To Be Constitutional, A Minority Business
Set-aside Must Be Narrowly Tailored To 
Remedying Past Discrimination Against Mi­
nority Contractors By the Government En­
tity Adopting The Plan .................. ...............  11

B. A Minority Business Set-aside Percentage 
Must Be Related To The Availability of 
Qualified Minority Contractors And Not 
Based Upon Comparisons With Minority
General Population Statistics ....................... 13

CONCLUSION ..................................................................... 19



11

TABLE OF AUTHORITIES
Cases: Page

Associated General Contractors of California, Inc. 
v. City and County of San Francisco, 813 F.2d
922 (9th Cir. 1987) ............................................. . 13

Boston Firefighters Union, Local 718 v. Boston
Chapter, NAACP, 461 U.S. 477 (1983) ............ 3

County of Los Angeles v. Davis, 440 U.S. 625
(1979) ...................     3

Firefighters Local Union No. 1784- v. Stotts, 467
U.S. 561 (1984) .......      3,10

Fullilove v. Klutznick, 448 U.S. 448 (1980)..... 4, 12,13, 14
Hazelwood School District v. United States, 433

U.S. 299 (1977) ...................... ................... .........14, 15,16
International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977) ................................ 3,15
J.A. Croson Company v. City of Richmond, 779 

F.2d 181 (4th Cir. 1985) (Croson I ) , cert, 
granted, judgment vacated, and remanded, 106
S.Ct. 3327 (1986) ............   5 ,6 ,17,18

J.A. Croson Company v. City of Richmond, 822 
F.2d 1355 (4th Cir. 1987) (Croson II), prob­
able jurisdiction noted, 56 U.S.L.W. 3568 (U.S.
Feb. 22, 1988) (No. 87-998) ..............................7, 12, 18

J. Edinger & Son, Inc. v. City of Louisville, Ken­
tucky, 802 F.2d 213 (6th Cir. 1986) ............. ...... 13

Johnson v. Transportation Agency, Santa Clara
County, California, 107 S.Ct. 1442 (1987)....... passim

Local Number 93 v. City of Cleveland, 106 S.Ct.
3063 (1986) .....................................    3

Michigan Road Builders Association, Inc. v. Milli- 
ken, 834 F.2d 583 (6th Cir. 1988), appeal filed 
(No. 87-1860), 56 U.S.L.W. 3806 (U.S. May
11, 1988) ....................................................    13

Minnick v. California Department of Corrections,
452 U.S. 105 (1981) ..............................................  3

New York City Transit Authority v. Beazer, 440
U.S. 568 (1979) ........................................................  15

Patterson v. McLean Credit Union, 805 F.2d 1143 
(4th Cir. 1986), reargument ordered, 56 U.S.L.W.
3735 (U.S. April 25, 1988) (No. 87-107) 1 0



I l l

TABLE OF AUTHORITIES— Continued
Page

Regents of the University of California v. Bakke,
438 U.S. 265 (1978) ............................................... 3

Runyon v. McCrary, 427 U.S. 160 (1976) ............  10
South Florida Chapter of the Associated General 

Contractors of America, Inc. v. Metropolitan 
Dade County, Florida, 723 F.2d 846 (11th Cir.
1984), cert, denied, 469 U.S. 871 (1984)------  19

United Steelworkers of America v. Weber, 443
U.S. 193 (1979)..........................    3 ,7 ,8 ,10

United States v. Paradise, 107 S. Ct. 1053 (1987).. 11
Washington v. Davis, 426 U.S. 229 ........................  12
Wygant v. Jackson Board of Education, 106 S.Ct.

1842 (1986) ....    passim

Statutes:
Civil Rights Act of 1964, Title VII, 42 U.S.C.

:§ 2000e et seq. .................. ......................................... passim
42 U.S.C. § 1981...........................................................  10

Federal Orders and Regulations:
Executive Order 11246, 30 Fed. Reg. 12319 

(1965), as amended by 32 Fed. Reg. 14303 
(1967) and 43 Fed. Reg. 46501 (1978) ............ 2



In The

Bnptmt (tart of %
October Term, 1987

No. 87-998

City of Richmond,
Appellant,

v.

J.A. Croson Company,
Appellee.

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

BRIEF AMICUS CURIAE OF THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL 

IN SUPPORT OF THE APPELLEE

The Equal Employment Advisory Council 
( “ EEAC” ) respectfully submits this brief amicus 
curiae in support of the Appellee, J.A. Croson Com­
pany, pursuant to the written consents of the parties.

INTEREST OF THE AMICUS CURIAE

EEAC is a voluntary, nonprofit association of em­
ployers organized to promote sound government poli­
cies on nondiscriminatory employment practices. Its



2

membership comprises a broad segment of the busi­
ness community in the United States, including both 
individual employers and trade associations. Its gov­
erning body is a Board of Directors composed of ex­
perts in equal employment opportunity (EEO). Their 
combined experience gives the Council a unique un­
derstanding of the practical, as well as the legal 
aspects of EEO policies and requirements.

EEAC members are strongly committed to the 
goal of equal opportunity for women and minorities. 
As employers, they are subject to the provisions of 
Title VII of the Civil Rights Act of 1964 (42 U.S.C. 
§ 2000e, et seq.), as well as other equal employment 
statutes and regulations. In addition, nearly all of 
EEAC’s members are federal contractors subject to 
the affirmative action requirements under Executive 
Order 11246, 30 Fed. Reg. 12319 (1965), as amended 
by 32 Fed. Reg. 14303 (1967), and 43 Fed. Reg. 
46501 (1978), as well as the affirmative action re­
quirements that many state and local governments 
place upon their private sector construction, supply 
and service contractors.

Many of EEAC’s members are signatories to col­
lective bargaining agreements, Title VII settlements, 
conciliation agreements, consent decrees and other 
voluntary plans or programs which provide varying 
forms of remedial relief or affirmative action bene­
fiting persons or groups protected by these statutes 
and regulations.

EEAC’s previous amicus curiae briefs have re­
flected the commitment of its members to broad flex­
ibility in carrying out voluntary affirmative action 
programs, while at the same time recognizing that, 
absent a finding of discrimination, race or sex-based



3

preferential treatment cannot be required of employ­
ers who do not wish voluntarily to adopt such poli­
cies. EEAC’s most recent brief supporting voluntary 
affirmative action was filed in Johnson v. Transpor­
tation Agency, Santa Clara County, California, 107 
S.Ct. 1442 (1987).1

In addition to their involvement in voluntary em­
ployment-related. affirmative action, many EEAC 
members are involved in voluntary affirmative action 
activities outside of the equal employment arena, in­
cluding activities designed to promote minority pur­
chasing. Examples of such activities include vendor 
and buying education programs, advertising for and 
identification of minority vendors, and the establish­
ment of vendor information exchanges. Through 
these and similar programs, EEAC members have 
engaged in substantial and successful efforts to en­
sure that minority and women-owned businesses par­
ticipate as their suppliers and contractors. EEAC’s 
members recognize that they benefit directly from 
strong economies in all communities that they serve,

1 EEAC also filed briefs in several other Supreme Court 
affirmative action cases dealing with the nature and scope of 
the affirmative action obligations of employers. See Local 
Number 93 v. City of Cleveland, 106 S.Ct. 3063 (1986) ; 
Wygant v. Jackson Board of Education, 106 S.Ct. 1842 (1986) ; 
Firefighters Local Union No. 178U v. Stotts, 467 U.S. 561 
(1984) ; Boston Firefighters Union, Local 718 v. Boston 
Chapter, NAACP, 461 U.S. 477 (1983) ; Minnick v. Cali­
fornia Department of Corrections, 452 U.S. 105 (1981) ; 
United Steelworkers of America v. Weber, 443 U.S. 193 
(1979) ; County of Los Angeles v. Davis, 440 U.S. 625 (1979) ; 
Regents of the University of California v. Bakke, 438 U.S. 
265 (1978) ; International Brotherhood of Teamsters v. 
United States, 431 U.S. 324 (1977).



4

including the growth of minority and women-owned 
businesses.

As equal employment officers working in conjunc­
tion with their companies’ purchasing departments, 
EEAC’s member representatives are well aware of 
the importance of increasing the share of opportu­
nities to businesses owned by minorities, women and 
economically disadvantaged persons. At the same time, 
they also are aware that these programs must be 
undertaken realistically, and with an eye toward the 
availability of qualified contractors and subcontrac­
tors. Thus, on occasion, EEAC has filed briefs ex­
pressing concern about minority business enterprise 
set-asides that, in our view, were not related to the 
availability of qualified subcontractors, or went be­
yond remedying past proven discrimination. See 
EEAC’s brief in Fullilove v. Klutznick, 448 U.S. 448 
(1980).

Our concern with the decision of the court below 
is that is establishes a thirty-percent minority busi­
ness set aside for all prime contracts with the City 
of Richmond without that figure having been related 
to the availability of qualified minority contractors 
in the particular business specialty involved. Thus, 
this brief is submitted with two purposes. First, to 
encourage the Court to continue to afford latitude for 
flexible voluntary affirmative action; and second, to 
urge the Court to reaffirm the principles it has ap­
plied in previous affirmative action cases by holding 
that government-imposed minority business contract­
ing requirements must be related to the availability 
of qualified minority subcontractors.



5

STATEMENT OF THE CASE
This case has produced two conflicting decisions by 

the Fourth Circuit on the constitutionality of a mi­
nority set-aside plan for public contracts adopted by 
the City of Richmond, Virginia. The plan was 
adopted in response to information presented at a 
public hearing which indicated that although minor­
ity groups made up 50% of the City’s population, 
only 0.67% of the city’s prime construction contracts 
from 1978-1983 were awarded to minority businesses. 
See J.A. Croson Company v. City of Richmond, 779 
F.2d 181, 182 (4th Cir. 1985) (Croson I ) , cert, 
granted, judgment vacated, and remanded, 106 S.Ct, 
3327 (1986). The plan requires all nonminority con­
tractors awarded city construction contracts to sub­
contract at least 30 % of the dollar amount of the 
contract to minority business enterprises unless the 
requirement is waived.

Appellee J.A. Croson Co. (Croson), a non-minority 
contractor, submitted a bid on a construction con­
tract with the City of Richmond in September, 1983. 
As. it turned out, Croson was the only bidder, and 
the requirements of the plan were applied to this 
contract. Croson filed a request with the City for a 
waiver of these requirements because of problems 
encountered in subcontracting with a qualified mi­
nority business enterprise (M BE). On two occasions 
the City denied Croson’s request for a waiver, ad­
vising that its bid would be considered non-responsive 
if it failed to provide evidence of compliance with 
the MBE subcontracting provisions. The City de­
cided to re-bid the project, inviting Croson to submit 
a new bid.

Croson then brought this lawsuit, claiming, among 
other things, that the plan violated its rights under



6

the equal protection clause of the Fourteenth Amend­
ment to the United States Constitution. The district 
court rejected Croson’s claims. The court of appeals, 
in a 2-1 decision affirmed the district court. It held 
that the plan was constitutional in that it was adopted 
to remedy the effects of past discrimination and was 
not overextensive in establishing a 30 percent set- 
aside figure. In dissent, Judge Wilkinson argued 
that the factual findings of the city council were in­
adequate to support a conclusion of past discrimina­
tion against minorities in the award of city contracts. 
779 F.2d at 204-05. The dissent also urged that:

. . . the 30% set-aside goal emerges from a vac­
uum. Rather than a goal narrowly tailored to 
meet a specific need, the 30% figure is arbitrary 
and unsupported. No consideration was given, 
for example, to the number of minority firms 
available to perform contracts under the set- 
aside, despite the testimony of several witnesses 
before the city council that the set-aside goal was 
unrealistic.

779 F.2d at 205. Thereafter, this Court granted ap­
pellee’s petition for a writ of certiorari, vacated the 
judgment of the court of appeals and remanded the 
case for reconsideration in light of Wygant v. Jack- 
son Board of Education, 106 S.Ct. 1842 (1986).

On remand, the same panel found the plan uncon­
stitutional. With Judge Wilkinson now writing for 
the majority, the court held that under Wygant, find­
ings of “ societal” discrimination are not sufficient to 
support a racial preference. Rather, there must have 
been a firm basis for the City Council to have con­
cluded that there had been prior discrimination 
against minority contractors and that the set-aside



7

was related to remedying that discrimination. J.A. 
Croson Co. v. City of Richmond, 822 F.2d 1355, 1358 
(4th Cir. 1987) (Croson II) ,  'probable jurisdiction 
noted, 56 U.S.L.W. 3568 (U.S. Feb. 22, 1988) (No. 
87-998). The court found that no such findings were 
made in this case. 822 F.2d at 1358-59.

The court also held that the statistical evidence 
that supports a minority business set-aside must re­
late to the “percentage of minorities in the local labor 
force or the construction business” and not be based 
upon a mere reference to the percentage of minorities 
in the community at large. 822 F.2d at 1358. The 
30 percent figure was found to have no basis in the 
record and thus the majority found that it was “ not 
narrowly tailored to [the] remedial goal” of remedy­
ing past discrimination. 822 F.2d at 1360. In dis­
sent, Judge Sprouse would have held that the City 
Council had a firm basis for believing that the city 
engaged in past discrimination in the award of pub­
lic contracts, and that the plan was narrowly tail­
ored to achieve that end. 822 F.2d at 1362-68.

SUMMARY OF ARGUMENT

In deciding the issues in this constitutional case, 
the Court should exercise care in dealing with Title 
VII and employment cases cited in several of the 
briefs. See, e.g., Wygant v. Jackson Board of Educa­
tion, 106 S.Ct. 1842 (1986); Johnson v. Transporta­
tion Agency, Santa Clara County, California, 107 
S.Ct. 1442 (1987); and United Steelworkers v. 
Weber, 443 U.S. 193 (1976).

EEAC is particularly concerned that in resolv­
ing this case, the Court not reconsider or disturb its 
affirmative action decisions allowing substantial flex­



8

ibility for voluntary action by employers. For exam­
ple, in Johnson and Weber, the Court held that Title 
VII permits (but does not require) employers to use 
race or sex as a factor in employment decisions pur­
suant to affirmative action plans designed to remedy 
a manifest workforce imbalance, as long as the rights 
of nonminority and male employees are not unnec­
essarily trammeled.

On numerous occasions, the Court has taken pains 
to assure that Title VII and constitutional cases are 
governed by their respective, separate standards. 
Therefore, we strongly urge the Court to recognize 
that this case would not be an appropriate vehicle to 
reconsider its Title VII employment decisions.

On the merits of the instant case, the decision be­
low properly held that the thirty percent minority 
contractor set-aside figure was not rationally related 
to remedying past discrimination because the figure 
was not related to the availability of minority con­
tractors qualified to perform subcontracting work on 
contracts let by the City.

This Court’s previous decisions have stressed that 
where special skills are involved, the appropriate sta­
tistical analysis is between the utilization and avail­
ability of minorities with such skills. Relying on gen­
eral, minority population statistics is insufficient to 
support race-based numerical requirements for con­
tractors where special requirements exist.



9

ARGUMENT

L IN DECIDING THIS MATTER, THE COURT 
SHOULD EXERCISE CARE TO ENSURE THAT A 
DECISION IN THIS PUBLIC SECTOR CASE DOES 
NOT IMPINGE ON THE ABILITY OF PRIVATE 
EMPLOYERS UNDER CURRENT LAW TO UNDER­
TAKE REASONABLE AND VOLUNTARY AFFIRM­
ATIVE ACTION.

As noted in the Statement of Interest of the Ami­
cus Curiae, EEAC’s members have a long-standing 
interest in preserving the flexibility of private em­
ployers to undertake voluntary affirmative action, 
while at the same time, not being required to do so 
by court order or other government requirements. 
We recognize, of course, that this public sector case 
does not directly involve either employment issues or 
the limitations which Title VII places on the affirma­
tive action efforts of private employers.

Nevertheless, there is a strong possibility that, in 
addressing the issues presented by the parties and 
the various amici, the Court will discuss the implica­
tions of Title VII and employment cases. Indeed, 
this case was remanded for reconsideration in light 
of an employment case— Wygant v. Jackson Board 
of Education, 106 S.Ct. 1842 (1986).

Moreover, in addressing the degree of flexibility 
that Richmond should have enjoyed in adopting its 
minority set-aside, many of the briefs before the 
Court rely upon the Title VII decision in Johnson v. 
Transportation Agency, Santa Clara County, Cali­
fornia, 107 S.Ct. 1442 (1987), where the Court up­
held the use of sex or race as “ one factor” in an em­
ployment decision as long as the plan was intended 
to remedy a manifest workforce imbalance and the



10

rights of nonminority or male employees were not 
unnecessarily trammeled— the basic position urged in 
EEAC’s brief in that case.

We are well aware that many of the Court’s hold­
ings in Johnson were by a close vote and that the 
Court recently has decided to hear argument on 
whether one of its major civil rights decisions under 
42 U.S.C. § 1981 should be reconsidered. See Patter­
son v. McLean Credit Union, 805 F.2d 1143 (4th 
Cir. 1986), reargument ordered, 56 U.S.L.W. 3735 
(U.S. April 25, 1988) (No. 87-107) (an employment 
discrimination case), ordering argument on whether 
Runyon v. McCrary, 427 U.S. 160 (1976) (a private 
sector school discrimination case), should be recon­
sidered. We strongly urge that the Johnson decision 
not be reconsidered, and certainly not in the context 
of this case.

The Court continually has taken pains to draw a 
line between the standards governing affirmative ac­
tion under Title VII and the Constitution. See, e.g., 
United Steelworkers v. Weber, 443 U.S. 193, 200, 
204, 208, 210 (1976); Firefighters Local Union No. 
178k v. Stotts, 467 U.S. 561, 583 (1984); and Wy- 
gant, 106 S.Ct. at 1851 n.9 (opinion of Justice 
Powell) ( “ Since Weber involved a private company, 
its reasoning concerning the validity of the hiring 
plan at issue there is not directly relevant to this 
case, which involves a state-imposed plan. No equal 
protection claim was presented in Weber” ). Again, 
in Johnson, the majority opinion pointed out that:

No constitutional issue was either raised or ad­
dressed in the litigation below. . . . We therefore 
decide in this case only the issue of the prohibi­
tory scope of Title VII. Of course, where the 
issue is properly raised, public employers must



11

justify the adoption and implementation of a 
voluntary affirmative action plan under the 
Equal Protection Clause. See Wygant v. Jack-
son Board of Education, ——  U.S. -------, 106
S.Ct. 1842, 90 L.Ed.2d 260 (1986).

107 S.Ct. at 1446 n. 2.
Applying this same principle here, this is a con­

stitutional, not a statutory case, and the parties have 
not argued that it would be appropriate in this case 
for the Court to reconsider its previous employment 
decisions. Therefore this case would not be an ap­
propriate vehicle for reconsideration of the protec­
tions afforded to affirmative action under the John­
son decision.

II. THE COURT BELOW PROPERLY HELD THAT1 
THE THIRTY PERCENT MINORITY SET-ASIDE 
FIGURE WAS UNCONSTITUTIONAL BECAUSE IT 
HAD NOT BEEN SHOWN TO BE RELATED TO 
THE PRESENT AVAILABILITY OF QUALIFIED 
MINORITY SUBCONTRACTORS.

A. To Be Constitutional, A Minority Business Set- 
aside Must Be Narrowly Tailored To Remedying 
Past Discrimination Against Minority Contractors 
By The Governmental Entity Adopting The Plan.

While this Court has “yet to reach consensus on 
the appropriate constitutional analysis”  relating to 
the use of race-based preferences ( United States v. 
Paradise, 107 S.Ct. 1053, 1064 (1987)), “ [i]t  is 
now well established that government bodies, includ­
ing courts, may constitutionally employ racial classi­
fications essential to remedy unlawful treatment of 
racial or ethnic groups subject to discrimination.” 
Id., at 1064. However, to pass constitutional analy­
sis, there must be evidence from which to conclude



12

that minority businesses have been denied effective 
participation in public contracting opportunities by 
procurement practices that perpetuated the effects of 
prior discrimination. Fullilove v. Klutznick, 448 U.S. 
448, 478 (1980).

In fashioning the remedies for such discrimina­
tion, there must be “ careful judicial evaluation”  to 
assure that a program “ that employs racial or ethnic 
criteria to accomplish the objective of remedying the 
present effects of past discrimination is narrowly 
tailored to the achievement of that goal.”  Id. at 480. 
The government unit involved must make a sufficient 
showing of past dicrimination before the remedial 
use of racial classifications will be constitutional. 
Wygant, 106 S.Ct. at 1847.

In the instant case, the court below found that 
there was not enough evidence in the record to sat­
isfy these standards. 822 F.2d at 1358. Indeed, the 
court below found that there was no showing that 
qualified minority contractors who submitted bids 
were passed over, or that minority firms had been 
excluded from the bidding pool. 822 F.2d at 1359.

EEAC concurs that generalized statistics based 
upon a comparison between the minority population 
and the percent of contracts awarded to minorities 
is not necessarily probative of discrimination. In the 
constitutional context, a showing of adverse impact 
is /lot sufficient to show a violation of law, or to per­
mit the assumption that the statistical disparity is 
the result of discrimination. Washington v. Davis, 
426 U.S. 229, 245 (1976). Thus, “ [t]here are a host 
of social, economic, personal, and demographic fac­
tors which may account for the statistical disparity.” 
J. Edinger & Son, Inc. v. City of Louisville, Ken­



13

tucky, 802 F.2d 213, 216 (6th Cir. 1986) (Large dis­
crepancy between percentage of minority residents 
in county and percentage of business conducted with 
minority-owned businesses by the city was not suf­
ficient to support minority vendors preference).2

B. A Minority Business Set-aside Percentage Must Be 
Related To The Availability of Qualified Minority 
Contractors And Not Based Upon Comparisons 
With Minority General Population Statistics.

Even if the allegations of discrimination in this 
case are adequate to support some remedy, EEAC is 
particularly concerned about preserving the principle 
underlying the holding below that the thirty percent 
set-aside figure should be struck down because it was 
not related to the availability of minority contractors 
qualified to perform the subcontracting work under 
contracts let by the City.

The City’s set-aside program was based primarily 
on statistics that minorities comprised 50 percent of

12 Accord, Associated General Contractors of California, 
Inc. v. City and County of San Francisco, 813 F.2d 922 (9th 
Cir. 1987) ; and Michigan Road Builders Association, Inc. v. 
Milliken, 834 F.2d 583 (6th Cir. 1988), appeal filed, 56 
U.S.L.W. 3806 (U.S. May 11, 1988) (No. 87-1860). As Chief 
Justice Burger pointed out in Fullilove, there are other im­
pediments not necessarily related to discrimination, 448 U.S. 
at 467:

Among the major difficulties confronting minority 
businesses were deficiencies in working capital, inability 
to meet bonding requirements, disabilities caused by an 
inadequate “ track record,” lack of awareness of bidding 
opportunities, unfamiliarity with bidding procedures, 
pre-selection before the formal advertising process, and 
the exercise of discretion by government procurement 
officers to disfavor minority businesses.



14

Richmond’s population, but that minority-owned firms 
had received only 0.67 percent of the dollar value of 
City contracts, The City now contends to this Court 
that the thirty percent set-aside figure was based on 
a split-the-difference theory, that is : “ the thirty per­
cent figure is approximately midway between one 
percent— the percentage of city contracts awarded to 
minorities— and fifty percent— the percentage of mi­
norities in Richmond.”  Br. of Appellant at 46. This 
argument implicitly admits that there is no relation­
ship between the thirty percent figure and the avail­
ability of qualified construction contractors.

As legal support for this theory, the City relies on 
an observation in Justice Powell’s concurring opinion 
in Fullilove that the much smaller ten percent set- 
aside in that case “ falls roughly halfway between the 
present percentage of minority contractors and the 
percentage of minority group members in the Na­
tion.” 448 U.S. at 513-14. This formulation— which 
apparently was not adopted by any other of the other 
Justices in Fullilove— has no other support in this 
Court’s opinions and, indeed, seems to be directly at 
odds with other decisions.

For example, a majority of the Court in Wygant 
made it clear that alleged “ societal discrimination”  
is “ too amorphous” a basis for imposing a racially 
classified remedy. 106 S.Ct. at 1848. Instead, the 
Wygant discussion reveals that the relevant inquiry 
is a comparison between the minority utilization fig­
ure and the availability of qualified minorities, as 
explained in the Hazelwood decision.3 In Hazelwood, 
the United States sued the school district under Title

3 Hazelwood School District v. United States, 433 U.S. 299 
(1977).



15

VII alleging a pattern or practice of race discrimina­
tion in teacher hiring. The district court based its 
finding that there was no discrimination on a com­
parison between the black teachers and black students 
in the school district. The court of appeals, however, 
did not rely on the student-teacher ratio, and instead 
found a prima facie case of race discrimination by 
comparing the black teachers in the school district 
with the percentage of black teachers in the relevant 
labor market area.

This Court in Hazelwood also rejected the district 
court’s comparison between Hazelwood’s teacher 
workforce and its student population as a proper 
basis for comparison. The Court stated that:

There can be no doubt in light of the Teamsters 
case, that the District Court’s comparison of 
Hazelwood’s teacher work force to its student 
population fundamentally misconceived the role 
of statistics in employment discrimination cases. 
The Court of Appeals was correct in the view 
that a proper comparison was between the racial 
composition of Hazelwood’s teaching staff and 
the racial composition of the qualified public 
school teacher population in the relevant labor 
market.4

Relying on Hazlewood, the opinions of Justices 
Powell and O’Connor in Wygant rejected the “ role 
model” theory, under which the number of black

4 433 U.S. at 308. See also New York City Transit Authority 
v. Beazer, 440 U.S. 568, 584-85 (1979) ; and Int’l Brotherhood, 
of Teamsters v. United States, 431 U.S. 324, 339 n.2Q (1977), 
both of which required that comparisons be made between 
the percentage of minorities in an employer’s workforce and 
the percentage of minorities (or women) with the requisite 
skills in the relevant labor market.



16

teachers was compared with the number of black
students in an attempt to justify a race-based layoff 
preference in teachers layoffs. See 106 S.Ct. at 1847 
(Powell), and 1854 (O’Connor). As Justice Powell 
stated:

Unlike the analysis in Hazelwood, the role model 
theory employed by the District Court has no log­
ical stopping point. The role model theory al­
lows the Board to engage in discriminatory hir­
ing and layoff practices long past the point re­
quired by any legitimate remedial purpose.

This principle was reaffirmed in Johnson when 
Justice Brennan’s majority opinion stated that:

Where a job requires special training, however, 
the comparison should be with those in the labor 
force who possess the relevant qualifications. 
[Citing Hazelwood] (must compare percentage 
of blacks in employer’s work ranks with percent­
age of qualified black teachers in area labor 
force . .  .).

107 S.Ct. at 1452.
Indeed, the Court went even further in Johnson in 

distancing itself from rigid goals or quotas based on 
general population statistics. It approved the plan in 
part because it was flexible and did not always use 
the ultimate goal of 36% female participation in each 
job. Instead, the Agency in Johnson “ acknowledged 
that such a figure could not by itself necessarily jus­
tify taking into account the sex of applicants for po­
sitions in all job categories.”  107 S.Ct. at 1454. The 
Court noted that for jobs with special qualifications, 
the Plan “ directed that annual short-term goals be 
formulated that would provide a more realistic indi­
cation of the degree to which sex should be taken 
into account in filling particular positions.”  107 S.Ct.



17

at 1454. Factors such as turnover, layoffs, transfers, 
and new openings were to be considered along with 
the “ availability of minorities, women and handi­
capped persons in the area work force who possess 
the desired qualifications or potential for placement.”  
Id.

Justice Brennan then stressed that had the plan 
simply calculated imbalances “ in all categories ac­
cording to the proportion of women in the area labor 
pool and then directed that hiring be governed solely 
by those figures, its validity fairly could be called 
into question.”  107 S.Ct. at 1454 (emphasis added). 
In fact, if a plan failed to take distinctions in quali- 
cations into account in providing guidance for deci­
sionmaking, “ it would dictate mere blind hiring by 
the numbers”— which would then violate Title VII. 
107 S.Ct. at 1454.

Thus, assuming that the standards governing gov­
ernmental action under the Constitution'are at least 
as strict as the standards governing voluntary racial 
preferences under Title VII, it follows that minority 
business set asides that set absolute numbers without 
considering, ab initio, the availability of qualified mi­
nority contractors cannot pass constitutional muster.

In Croson I, Judge Wilkinson, in dissent, found 
that the Council considered “ absolutely no evidence 
on the minority subcontractor market.” 779 F.2d at 
204. He also stated that “ the 30% set-aside goal 
[emerged] from a vacuum.”  Rather than being a 
goal narrowly tailored to meet a specific need, the 
30% figure was seen as “ arbitrary and unsup­
ported.”  779 F.2d at 205.



18

In Croson II, the court concluded that the appro­
priate comparison is “between the number of minor­
ity contracts and the number of minority contractors, 
taking into account other relevant variables such as 
experience and specialities.”  822 F.2d at 1359 (em­
phasis in original). EE AC agrees that this reliance 
upon realistic availability statistics is a reasonable 
approach in order to avoid the use of inflated statis­
tics that force the prime contractor to promise to 
attempt to achieve a minority participation rate that, 
in many cases, simply will be out of reach.

We recognize that the Richmond plan contains a 
waiver provision providing that “ in exceptional cir­
cumstances,”  the contractor is exempted from the 30 
percent requirement if it can demonstrate that “ ev­
ery feasible attempt has been made to comply,”  and 
also can show that sufficient, relevant, qualified mi­
nority contractors are unavailable or unwilling to 
participate in the contract. Croson I, Appendix B, 
paragraph D, 779 F.2d 181, 197.

It is, however, difficult to perceive how this pro­
cedure saves a constitutionally-infirm set-aside per­
centage when the contractor bears the burden of mak­
ing “ every feasible” attempt to find nonexistent con­
tractors, only to be confronted with the fact that the 
waiver is a matter of administrative discretion 
granted only in “ exceptional cases”— a prescription 
for administrative inflexibility if there ever was one.

Other alternatives were available. For example a 
much more rational approach would have been to take 
into account the “ availability and capability of Black 
contractors and subcontractors to do such work” 
when minority participation goals are set for each 
contract. See South Florida Chapter of the Associ­



19

ated General Contractors of America, Inc. v. Metro­
politan Dade County, Florida, 723 F.2d 846, 853, 858 
(11th Cir. 1984), cert, denied, 469 U.S. 871 (1984). 
In that manner, realistic percentage goals for minor­
ity contractors with certain specialities (such as 
plumbing, sheet metal work, carpentry, electrical, 
lathing, painting, drywall, etc.) could be matched 
with specific projects, rather than establishing an in­
flated figure that must be recognized as clearly un­
realistic, as well as constitutionally-infirm. While 
EE AC does not take a position in the validity of this 
less-intrusive approach, it is clear that Richmond’s 
plan went too far in setting a thirty percent quota 
unrelated to the availability of qualified minority 
contractors,5 6

CONCLUSION

For the foregoing reasons, EEAC respectfully sub­
mits that this Court should affirm the decision below 
setting aside as unconstitutional Richmond’s manda­
tory, government-imposed minority business set aside 
program. In doing so, however the Court also should 
take care not to disturb its previous decisions which 
afford employers latitude to engage in voluntary, 
flexible affirmative action efforts to increase their 
utilization of minorities, women and other protected

5 Even if it should uphold the 30 percent figure in this case, 
this Court should take care not to disturb the employment- 
related cases, cited above, pp. 14-17, which establish that 
where liability is sought to be based on statistical comparisons,
such comparisons must be to those persons in the relevant 
labor market possessing the requisite skills required by the 
job.



20

groups in their workforces and in their procurement 
and contracting practices.

Respectfully submitted,

Robert E. W illiams 
Douglas S, McDowell * 
Salvador T. Perkins 

McGuiness & W illiams 
1015 15th Street, N.W. 
Washington, D.C. 20005 
(202) 789-8600 

Attorneys for Amicus Curiae 
Equal Employment Advisory 
Council

* Counsel of Record