Richmond v JA Croson Company Brief of Amici Curiae

    No. 87-998

In T he

$uprm? (ttmtrt nf %  HUntteh States
October Term, 1987

City of Richmond,
Appellant,

J.A. Croson Company,
________  Appellee.

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

BRIEF OF AMICI CURIAE 
THE WASHINGTON LEGAL FOUNDATION AND 

THE LINCOLN INSTITUTE FOR 
RESEARCH AND EDUCATION

Daniel J. Popeo 
Paul D. Kamenar *
W ashington Legal Foundation 
1705 N Street, N.W.
Washington, D.C. 20036 
(202) 857-0240 
Attorneys for Amici Curiae 

Washington Legal Foundation 
and The Lincoln Institute for 
Research and Education

* Counsel of Record

June 8,1988

W il s o n  -  Ep e s  Pr 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 .......................................... iii

INTERESTS OF AMICI CURIAE ...............................  1

STATEMENT OF THE CASE......................................  2

SUMMARY OF ARGUMENT..... ................ ............. 4

ARGUMENT...................    5

I. THERE HAS BEEN NO FINDING OR CRED­
IBLE EVIDENCE OF IDENTIFIED DIS­
CRIMINATION BY THE CITY OF RICH­
MOND OR THE LOCAL CONSTRUCTION 
INDUSTRY..............................................   5
A. There Has Been No Finding That The City

Of Richmond Has Discriminated Against 
Minorities In Its Contracting Practices......  5

B. There Was No Credible Or Convincing Evi­
dence Of Discrimination By The Local Con­
tracting Industry..............................................  7
1. The Mere Fact That Few Minority 

Owned Construction Firms Belong To 
Certain Contracting Trade Associations 
Is No Evidence Of Discrimination By
The Local Construction Industry............  8

2. The Comparison Between The Percentage
Of The Minority Population In Rich­
mond And The Percentage Of Prime Con­
tracts Awarded To Minority-Owned Con­
tracting Businesses Is No Evidence Of 
Discrimination Because It Ignores, Inter 
Alia, The Percentage Of Subcontract 
Work Awarded To Minorities And The 
Percentage Of Minority-Owned Con­
tractors ........................................................  12



ii

TABLE OF CONTENTS—Continued
Page

3. There Is No Evidence That There Even
Was Any “ Societal” Discrimination 
Against Minority Contractors ........   17

4. There Are Numerous Nondiscriminatory 
Reasons To Explain The Number And
Size Of Minority-Contracting Firms.......  18

II. THE RICHMOND PLAN IS NOT NAR­
ROWLY TAILORED TO REMEDY THE AL­
LEGED DISCRIMINATION.................    21

III. RACE-CONSCIOUS PROGRAMS SUCH AS 
SET-ASIDES ARE COUNTERPRODUCTIVE, 
COSTLY TO SOCIETY, AND MORALLY RE­
PUGNANT ....................................................   25

CONCLUSION.......... .............................................    29



iii

TABLE OF AUTHORITIES
Cases: Page

Associated General Contractors of California v.
City and County of San Francisco, 813 F.2d 922
(9th Cir. 1987) ................................. ...................  6, 15

Bradley v. School Board, 462 F.2d 1058 (4th Cir.
1972) ........................................................................ 12

Croson v. City of Richmond, 779 F.2d 181 (4th
Cir. 1985).....   22

Fullilove v. Klutznick, 4448 U.S. 448 (1980)____passim
Grosjean v. American Press Co., 297 U.S. 233

(1936).......................................    3
Hazlewood School District v. United States, 433

U.S. 299 (1977)......................................................  15
J. Edinger & Lon, Inc. v. City of Louisville, 802

F.2d 213 (6th Cir. 1986).................................... . 7,15
Local 28 of the Sheet Metal Workers’ Int’l Ass’n

v. EEOC, 106 S.Ct. 3019 (1986) ........ ............... 7, 21
Michigan Road Builders Association, Inc. v. Milli-

ken, 834 F.2d 583 (6th Cir. 1987)...........   6
Regents of University of California v. Bakke, 438

U.S. 265 (1978)......       8
Roberts v. United States Jaycees, 468 U.S. 609

(1984).. ...................       9
United Steelworkers of America v. Weber, 443 
United States v. Paradise, 107 S.Ct. 1053 (1987).. 16,21

U.S. 193 (1979).....    10
Wygant v. Jackson Board of Education, 476 U.S.

267 (1986) .............................  passim

Constitutional Provisions, Statutes and Ordinances:
U.S. Const, amend. XIV ................ ...........................
42 U.S. § 2000e (1982)..................... ........................
Va. Code Ann. §§ 40.1-58..........................................
Richmond, Va. Code Ch. 24.1, art. VIII-A (1983)

Other Authorities:
P. Bell, Blacks Must Take Responsibility For 

Their Own Lives, 5 Lincoln Review (Summer 
1984) ........................................................................

..passim
9

11
..passim

28



IV

General Accounting Office, Minority Firms on LPW
Projects: Mixed Results (1979)...... .................... 26

D. Gilliam, “ Fostering Black Enterprise,” Wash­
ington Post, May 30, 1988, at B3 at col. 5.......  19, 20

Hearing Before The Subcomm. on Transportation 
of the Senate Comm, on Environment and Pub­
lic Works on The Disadvantaged Business 
Enterprise Program of the Federal-Aid High­
way Act, 99th Cong., 1st Sess. (1985)................. 27

J. Parker, “ The Times Has Come To Move De­
cisively Toward A Truly Color Blind Society,”
6 Lincoln Review (Summer 1985)........... ............  28

C. Pendleton, Affirmative Action & Individual 
Freedom, 7 Lincoln Review (Summer 1986).... 28

P. Perlmutter, Minority Group Responses To Prej­
udice & Discrimination, 8 Lincoln Review 
(Winter 1988) ..................................    28

T. Sowell, Black Education, Myths and Tragedies
(1972) ..........     28

U. S. Bureau of the Census, 1982 Characteristics of
Business Owners ..............................    3

U.S. Bureau of the Census, PC80-1-B48, General 
Population Characteristics, Virginia, Table 15
(1982)................................. .........I . . . ....................... 23

U.S. Bureau of the Census, 1982 Survey of Mi­
nority-Owned Business Enterprises: Black
(1985)  ................................................................. 9

U.S. Civil Rights Commission, Selectd Affirmative
Action Topics in Employment and Business Set-
Asides, Vols. 1-2. (1985) .......... ............................. 25

Van Alystyne, Rites of Passage: Race, The Su­
preme Court and the Constitution, 46 U. Chi.
L. Rev. 775 (1979) .......... ...................................... 29

Virginia Department of Minority-Owned Enter­
prises, Minority Owned Businesses of Virginia
(1986) .............. ....................................................... io

TABLE OF AUTHORITIES—Continued
Page



In  T he

(tart of tip Htttfrfr States
October Term, 1987

No. 87-998

City of Richmond,
Appellant,

J.A. Croson Company,
Appellee.

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

BRIEF OF AMICI CURIAE 
THE WASHINGTON LEGAL FOUNDATION AND  

THE LINCOLN INSTITUTE FOR 
RESEARCH AND EDUCATION

INTEREST OF AMICI CURIAE

The Washington Legal Foundation ( “ WLF” ) is a na­
tional nonprofit public interest law center with more 
than 120,000 members and supporters throughout the 
United States. WLF engages in litigation and adminis­
trative proceedings in matters promoting the free enter­
prise system and the economic and civil liberties of indi­
viduals and businesses.

WLF has a record of longstanding interest and in­
volvement regarding the controversial issues of affirma­
tive action, racial quotas, and reverse discrimination.



2

Firmly committed to the great principle that our Consti­
tution is color-blind, WLF has consistently opposed the 
self-contradictory notion that affirmative action plans, 
supposedly designed to assure equal opportunity, may 
legally justify intentional discrimination against individ­
uals because of the color of their skin.

In its pursuit of its view that the equal protection 
clause and the civil rights laws protect all citizens against 
discrimination, WLF has filed briefs amicus curiae in 
many of the leading Supreme Court cases in the area. 
See e.g., Firefighters Local Union No. 1784. v. Stotts, 
467 U.S. 561 (1984); United Steelworkers v. Weber, 
443 U.S. 193 (1979).

The Lincoln Institute for Research and Education was 
founded in 1978 to study public policy issues that im­
pact on the lives of black middle America, and to make 
its findings available to elected officials and the public.

The Institute, based in Washington, D.C., aims to re­
evaluate those theories and programs of the past decades 
which were highly touted when introduced, but have 
failed to fulfill the claims represented by their sponsors 
— and in many cases, have been harmful to the long- 
range interest of blacks. The Institute is dedicated to 
seeking ways to improve the standard of living, the qual­
ity of life and the freedom of all Americans.

STATEMENT OF THE CASE

Appellee J.A. Croson Company ( “ Croson” ) is incor­
porated in the State of Ohio but has its principal place 
of business in Richmond, Virginia. Because at least 51 
percent of the stock of the corporation happens to be 
owned by a nonminority, Croson’s bid of $126,530.00 for 
the plumbing project, which was the only bid submitted, 
was rejected by the City. Had Croson been owned and 
controlled by an Eskimo, Aleut, Black, or Indian, the 
City would have accepted Croson’s bid because under



3

Richmond’s Minority Utilization Plan ( “ Plan” ), the re­
quirement that a minimum of 30 percent of a prime con­
tract be subcontracted to minorities is satisfied if the 
prime contractor is owned by a minority. Richmond, Va. 
Code Ch. 24.1, art. VIII-A (1983).

Because Croson was not minority-owned, the only 
other way Croson could obtain the contract was to sub­
contract at least 30 percent of the dollar value of the 
contract to a company whose owner happens to be a 
minority member. Richmond, Ya. Code Ch. 24.1, art. 
VIII-A (A ). Although Croson was ready, willing and 
able to perform the entire contract at the bid price of 
$126,530.00, a minority-owned subcontractor eventually 
responded to Croson’s request for quotes which would 
increase the cost of Croson’s bid by some $7,000, or ap­
proximately 6 percent. The City denied Croson’s requests 
both to raise its original bid to satisfy the minority sub­
contract requirement and to waive the requirement.

The Court of Appeals for the Fourth Circuit ruled on 
remand from this Court that the Minority Utilization 
Business Plan on its face violated the Equal Protection 
Clause1 because there was no evidence of discrimination 
by the City of Richmond as required by Wygant v. Jack- 
son Board of Education, 476 U.S. 267 (1986), little evi­
dence of any discrimination at all in the construction in­
dustry, and that in any event, the Plan was not nar­

1 Even though Croson is an Ohio corporation, it is well-settled that 
a corporation is a “person” under the Equal Protection Clause as 
well as the Due Process Clause of the Fourteenth Amendment. 
Grosjean v. American Press Co., 297 U.S. 233, 244 (1936). Only the 
Privileges and Immunities Clause, which refers to “citizens” rather 
than “persons” does not apply to corporations. Id. Amici note how­
ever, that most businesses whether minority or nonminority owned, 
are either sole proprietorships or partnerships, with the corporate 
form of ownership accounting for less than 5 percent of the types 
of ownership. See U.S. Bureau of the Census 1982 Characteristics 
of Business Owners 16 (1985).



4

rowly tailored to redress any alleged discrimination. 822 
F.2d 1355, 1360 (4th Cir. 1987).

SUMMARY OF THE ARGUMENT

The competitive bidding system is inherently nondis- 
criminatory and race-neutral. The City, in awarding 
prime contracts, and the prime contractor, in awarding 
subcontracts, do so on the basis of the lowest bid, not the 
color of the skin of the bidder. It is no surprise, there­
fore, that the City could not show any discrimination 
committed by it or by the local contracting industry. The 
casual resort by the City to a few statistics to “prove” 
discrimination is riddled with errors.

Among other things, the City mistakenly looked at only 
the amount of prime contract dollars awarded to minor­
ity-owned firms rather than the more relevant amount 
of all subcontract dollars. In addition, the City erro­
neously compared the dollar amount of contracts awarded 
to the minority population as a whole, rather than the 
number of minority construction contractors. It is sim­
ply absurd to conclude that because Richmond’s popula­
tion is approximately 50 percent black, that 50 percent 
of all owners of construction contracting businesses 
should be black. The set-aside program is thus a politi­
cally motivated scheme that simply prefers certain ra­
cial classes over others and is therefore violative of the 
Equal Protection Clause.

Even if there were pervasive, identified discrimina­
tion in the construction industry as the City simply con­
cludes without any proof, the set-aside program is not 
narrowly tailored to remedy this perceived problem. 
Rather, the program simply provides an economic wind­
fall to certain persons based on their race and is counter­
productive and morally repugnant.



ARGUMENT

I. THERE HAS BEEN NO FINDING OR CREDIBLE 
EVIDENCE OF IDENTIFIED DISCRIMINATION  
BY THE CITY OF RICHMOND OR THE LOCAL 
CONSTRUCTION INDUSTRY.

In its haste to adopt a 30 percent minority set-aside 
program for its contracting practices, the City of Rich­
mond made only a passing stab at trying to justify 
it at the City Council hearing where it was adopted.2 
Even the post hoc attempt to do so in its brief before 
this Court fares no better. Not only did the City of 
Richmond utterly fail to find that it had discriminated 
against minorities in its contracting practices, there was 
no finding or evidence of discrimination by the local 
construction industry against minorities. Nor is there 
even an allegation of “ societal” discrimination against 
minorities. Rather, amici submit there are a number of 
legitimate nondiscriminatory reasons to explain the level 
of minority-owned businesses in the construction indus­
try.

5

A. There Has Been No Finding That The City Of 
Richmond Has Discriminated Against Minorities In 
Its Contracting Practices.

No one disputes the fact that there has been no finding 
of discrimination by the City of Richmond against mi­
norities in its contracting practices. The failure to find 
any discrimination by the City comes as no surprise. 
The competitive bidding process is inherently nondiscrimi­
natory. Companies are awarded contracts by the City on 
the basis of the lowest bid. The City does not care 
whether the responsive and responsible bidder was a 
company that was owned by a person or persons who

2 The City Council meeting and public hearing at which the 
alleged problem of discrimination and the remedial Plan was debated 
and enacted, took a mere one hour and forty-five minutes. See City 
Brief at 4, n.3.



6

were white, black, Spanish-speaking, Indian, or Eskimo. 
Unlike the employment context where arguably the sub­
jective impressions and biases of the employer may come 
into play in the employment decision, the City looks at 
the numbers on the bid sheet, not the numbers in the 
minority population pool. Because there has been no 
finding of discrimination by the governmental unit in­
volved, the City cannot justify an arbitrary plan which 
prefers prime contractors who are minority-owned or re­
quires at least 30 percent of a contract awarded to a 
nonminority to be given to minority subcontractors. As a 
plurality of this Court held in Wygant v. Jackson Board 
of Education, 476 U.S. 267 (1986), and as properly fol­
lowed by the Fourth Circuit below:

This Court never held that societal discrimination 
alone is sufficient to justify a racial classification. 
Rather, the Court has insisted upon some showing of 
prior discrimination by the governmental unit in­
volved before allowing limited use of racial classifica­
tions in order to remedy such discrimination.

476 U.S. at 274 (emphasis added). Because there was no 
finding of any discrimination by the City of Richmond, 
it could not set up a racially conscious plan. Accord As­
sociate General Contractors of California v. City and 
County of San Francisco, 813 F.2d 922 (9th Cir. 1987) ; 
Michigan Road Builders Association, Inc. v. Milliken, 
834 F.2d 583 (6th Cir. 1987).8 3

3 Amici take exception to the City’s reliance on Fullilove v. 
Klutznick, 448 U.S. 448 (1980), for a number of reasons. In the 
first place, we believe Fullilove was wrongly decided and agree with 
Justice Stevens’ dissenting opinion therein that the goal of society 
is “ to eliminate entirely from governmental decisionmaking such 
irrelevant factors as a human being’s race.” Fullilove, 448 U.S. at 
547 (Stevens, J., dissenting). Secondly, Fullilove was only a facial 
challenge to the Public Works Employment Act of 1977, and Chief 
Justice Burger cautioned that the case did not address an applica­
tion of a set-aside program. 448 U.S. at 486. Third, as noted infra, 
Congress was legislating on a national scale pursuant to its constitu­



7

B. There Was No Credible Or Convincing Evidence Of 
Discrimination By The Local Contracting Industry.

Recognizing that the City has not engaged in discrim­
ination, the City next argues that Wygant is inapplicable 
to this case and that the existence of discrimination by 
a vaguely defined “ contracting industry” is sufficient to 
set up a race-conscious contracting system. The City ar­
gues that it was a “ passive participant in that discrimi­
nation”  and can therefore institute its race-conscious 
plan without violating the Equal Protection Clause. City 
Brief at 40. Amici submit that even if Wygant does not 
control this case— although we maintain that it does— 
and that discrimination by the governmental unit in­
volved need not be found, the City of Richmond has 
nevertheless failed to provide credible or convincing evi­
dence that there was, as it now claims, “ identified, pur­
poseful discrimination in Richmond’s construction indus­
try that had caused an extraordinary racial imbalance in 
the awarding of city construction contracts.”  City Brief 
at 40.

The flimsy evidence that the City claims demonstrates 
that the local construction industry discriminates against 
minorities does not even come close to the requisite level 
of the convincing evidence which this Court has held is 
necessary to justify a limited race-conscious plan. See, 
e.g., Local 28 of the Sheet Metal Workers’ Int’l Ass’n v. 
EEOC, 106 S.Ct. 3019 (1986) (union found guilty by 
compelling evidence of actual repeated and “ egregious” 
violations of Title V II ) . The proper level or standard of 
judicial review in a case like this is one of “ strict scru­
tiny” in examining both the factual predicate of dis­
crimination and whether the plan is “ narrowly tailored” 
to remedy the discrimination and no more. As Justice

tional powers and its findings cannot be conveniently “borrowed” for 
Richmond. Finally, this Court’s recent decision in Wygant, which 
compelled this Court to remand the case to the Fourth Circuit in the 
first place, limits the reach of Fullilove. See also J. Edinger & Son, 
Inc. v. City of Louisville, Ky., 802 F.2d 213, 215 (6th Cir. 1986).



8

O’Connor correctly noted in her concurring opinion in 
Wygant, "This standard reflects the belief, apparently held 
by all members of this Court, that racial classification 
of any sort must be subjected to ‘strict scrutiny,’ however 
defined.” Id. at 1852, citing the various opinions in 
Fullilove v. Klntzniek, 448 U.S. 448 (1980) and Regents 
of University of California v. Bakke, 438 U.S. 265 
(1978). As will be demonstrated, the Richmond Plan 
does not even survive casual judicial scrutiny.

As the abbreviated City Council hearing on the adop­
tion of the Plan (reproduced in the Joint Appendix) 
clearly demonstrates, the only so-called “ evidence” of 
discrimination by the local contracting industry was the 
meaningless statistic that Richmond’s minority popula­
tion, primarily black, constitutes approximately 50 per­
cent of the total Richmond population, whereas less than 
1 percent of the dollar amount of the City’s prime con­
tracts were awarded to the lowest bidder who happened 
to be minority-owned. See J.A. 41. The other meaning­
less statistic adduced during the hearing and prominently 
reproduced in chart form on page 22 of the City’s brief, 
is the breakdown of the composition of members in some 
of the various contractor trade associations in the Rich­
mond and Virginia area that shows only a handful of 
black members belonging to those organizations. From 
these two meager and meaningless statistics, the City 
leaps to the facile conclusion that there is “pervasive” 
and “ identified, purposeful discrimination in Richmond’s 
construction industry . . .”  City Brief at 40. This is 
utter nonsense.

1. There Mere Fact That Few Minority Owned Con­
struction Firms Belong To Certain Contracting 
Trade Associations Is No Evidence Of Discrimi­
nation B y The Local Construction Industry.

Throughout the short City Council hearing, much at­
tention was focused upon the fact that only a handful 
of black-owned firms belonged to certain construction



9

trade associations, and in some cases, none at all. If the 
City of Richmond is implying that these trade associa­
tions discourage or do not allow black-owned construc­
tion firms to join as members, the City is clearly wrong. 
The unrebutted testimony of the various representatives 
who testified at the City Council hearing indicates that 
they welcome minority members and have sought them 
out, but that they apparently do not want to join. See, 
e.g., J.A. 38 (statement of A1 Shuman). In addition, it 
would be violative of the anti-discrimination laws to ex­
clude minority members. See 42 U.S.C. 2000e (1982); 
Roberts v. United States Jaycees, 468 U.S. 609 (1984). 
There is not a scintilla of evidence of any complaint or 
lawsuit filed by any minority charging that he or she was 
refused membership in any of the trade associations 
listed in the City’s brief. Accordingly, these bald member­
ship figures are completely irrelevant and do not lend any 
support to the ipse dixit by the City that “ identified, 
purposeful discrimination”  exists in the construction in­
dustry. City Brief at 23, 40.

It is not clear whether the City is also trying to use 
the membership figures to demonstrate that the number 
of minority-owned construction firms in Richmond is 
small, and that the small number of such firms somehow 
is itself evidence of discrimination by the industry.4

If that is the City’s position, a few facts are in order. 
According to the Bureau of Census, there were 1,563 
black-owned firms in the City of Richmond in all indus­
tries in the relevant time period. U.S. Bureau of the 
Census, 1982 Survey of Minority-Owned Business Enter­
prises: Black 88 (1985). Of those firms, there were 144 
black-owned firms in Richmond in the construction in­
dustry, hardly a “ small” number. Most of the black- 
owned firms in Richmond were concentrated in the serv­

4 “ The record in this case contains no finding on the precise num­
ber of contractors in Richmond who were minority in 1983, though 
. . .  the number is ‘quite small.’ J.S. App. 7a.” City Brief at 23, n.37.



10

ices and retail trade industries. Id. (See Appendix hereto 
for the various industry categories). But the fact that 
only a handful of the 144 black-owned construction firms 
decided to join the selected trade associations listed is not 
evidence of discrimination. The other black-owned firms 
may have voluntarily joined other associations that may 
cater to their special needs, such as the National Associa­
tion of Minority Contractors Associations, the Metropolitan 
Business League, Richmond Minority Assistance Center, or 
the Virginia Minority Supplier Development Council, Inc. 
See Virginia Department of Minority-Owned Enterprises, 
Minority Owned Businesses of Virginia (1986). After 
all, the fact that slightly less than half of all the lawyers 
in America belong to the American Bar Association does 
not mean the ABA has discriminated against the other 
half. Nor does it mean that the National Bar Associa­
tion which is composed primarily of black lawyers dis­
criminates against white lawyers.

Unable to make anything out of the membership 
figures, the City in desperation casts a wider net at the 
“well documented history of racial discrimination through­
out the nation’s construction industry.” City Brief at 23. 
Here is where the City’s analysis falls completely apart. 
In an attempt to shore up the paucity of any evidence of 
discrimination by the local contracting industry, the 
City tries to use discrimination found on a national scale 
as justification for its local remedial program. The obvi­
ous defects with this tactic are at least threefold:

a. The City of Richmond is not the Congress and can­
not legislate on a national scale. Any justification for 
its remedial plan must be based on discrimination found 
within its city limits, especially because the construction 
industry is inherently diffuse and locally based.

The City’s attempt in its brief to borrow heavily on 
the findings made by this Court in Fullilove v. Klutznick, 
448 U.S. 448 (1980), United Steelworkers of America v.



11

Weber, 443 U.S. 193 (1979), and a number of studies 
that show that “black workers for years have been ex­
cluded from the skilled construction trade unions” (City 
Brief at 23) is thus unavailing.

b. Amici do not dispute the prior judicial findings that 
trade and craft labor unions have discriminated against 
minorities. Hiring halls have been used by the unions 
to supply union workers to construction sites on a daily 
or project basis. If the unions exclude blacks, or if 
blacks become union members but are not selected for 
jobs at the hiring hall, they are unfairly denied the 
opportunity to work in the construction industry and 
develop their skills. This documented problem of historical 
discrimination by the craft unions, especially in the indus­
trial cities of the Northeast, however, has no relevance 
to Richmond. The City has overlooked the simple but 
important fact that Virginia is a “ right to work”  state 
and has been one since 1947. Union membership is not 
required as a condition of employment. Va. Code Ann. 
§§ 40.1-58 to 69 (1986). Thus, while Virginia employers 
could technically enter into an exclusive hiring hall con­
tract with a labor union, they are unlikely to do so in a 
right to work state such as Virginia.

c. There was no evidence produced at the City Coun­
cil hearing of any construction company (or labor union 
for that matter) having discriminated against blacks. 
Not a single black contractor testified complaining of dis­
crimination. Even in its post hoc rationalization, the 
City’s attorneys are unable to cite in their brief to a single 
example of discrimination or even alleged discrimination 
by any of Richmond’s nonminority-owned construction 
firms. No lawsuit, court order, administrative complaint, 
or even an anecdote has been cited indicating that any 
minority has ever been discriminated against by any 
Richmond-area construction company. The only case the 
City could cite as evidence of discrimination in the con­



12

tracting industry is an irrelevant 15-year-old school de­
segregation court case. City Brief at 26, n.45 (citing 
Bradley v. School Board, 462 F.2d 1058 (4th Cir. 1972)). 
Amici submit that the Fourth Circuit below was being 
more than charitable when it characterized the City’s 
evidence of discrimination in the construction industry 
as being “spurious” and “nearly weightless.” 15 822 F 2d 
1355, 1359 (4th Cir. 1987).

2. The Comparison Between The Percentage Of The 
Minority Population In Richmond And The 
Percentage Of Prime Contracts Awarded To 
Minority-Owned Contracting Businesses Is No 
Evidence Of Discrimination Because It Ignores, 
Inter Alia, The Percentage Of Subcontract Work 
Awarded To Minorities And The Percentage Of 
Minority-Owned Contractors.

The centerpiece of the City’s proof of allegedly “ identi­
fied, purposeful discrimination in Richmond’s construc­
tion industry” is the mere fact that less than one percent 
of the City’s prime contracts were awarded to minority- 
owned firms, whereas the population of Richmond is ap­
proximately 50 percent black. This statistic, like the 
membership statistic discussed above, is meaningless and 
deceptive for any number of reasons. The following 
analysis will consider some of the flaws on both sides of 
this equation.

a. ' There is no discussion as to how many times 
minority-owned firms have submitted bids to the City 
in order to begin to make any comparison. If the

* Even the dissent in Wygant noted that there were specific and 
numerous valid complaints of discrimination against minority teach­
ers by the Jackson Board of Education in the early 1970’s, and that 
tensions in the schools had escalated to violent levels.” 106 S.Ct. 

1842, 1859 (dissenting opinion by Marshall, J. joined by Brennan 
and Blackmun, JJ.). Nothing even remotely similar can be said of 
the construction industry in Richmond.



13

minority-owned contractors in existence do not regularly 
submit bids and perhaps decide to concentrate instead 
on private rather than public construction projects,8 the 
award of the contracts to the nonminority-owned con­
tractors who do bid on the project is not surprising, and 
is certainly not evidence of any discrimination in the 
local construction industry.

b. If minority-owned contractors do submit bids regu­
larly but are rejected because their bids are higher than 
the nonminority-owned firms, that too is no evidence of 
discrimination. As noted earlier, the competitive bid 
process is inherently non-discriminatory and race neu­
tral. Nor does such a result indicate that the local con­
struction industry discriminated against minorities by 
being able to bid lower than them on a project.

c. The City’s reliance on the less than one percent 
figure of the dollar amount of prime contracts awarded 
to minority-owned businesses is totally misleading be­
cause it fails to take into account the percentage of all 
public contract dollars reaching minority-owned firms via 
sub-contracts awarded by the nonminority firms. Just 
as it is in the City’s interest to award prime contracts 
to the lowest bidder, so too is it in the interest of the 
prime contract to subcontract out certain work where 
feasible to the lowest bidder.6 7 Viewed in this light, the 
record shows that the percentage of city contract dollars 
reaching minority-owned businesses was “seven or eight 
[percent] on the overall . . . [and] is in the 20’s, some­
where between 17 and 22 [percent], I believe [for con­
tracts under the Community Development Block Grants

6 In the construction industry, approximately 75 percent of the 
business is in the private sector and 25 percent in the public sector. 
U.S. Dept, of Commerce, Survey of Current Business S-7 (April 
1988).

7 Certain kinds of major construction projects such as road paving 
simply do not lend themselves to being subcontracted out.



14

(CDBG)].” J.A. at 16 (statement of City Manager 
Manuel Deese).

It is amici’s, understanding that the 7 or 8 percent 
overall figure only accounts for the subcontract work 
allocated to the CDBG. In other words, the City had no 
figures on the dollar amount of subcontract work being 
given to minorities on non-CDBG work, and simply took 
the 20 percent work on CDBG and divided into the total 
amount of all contracting dollars. If the City took into 
account the dollar amount of subcontracts going to minor­
ities, and assuredly there were some, the overall 7 or 8 
percent figure would be higher. Thus, if the City’s at­
tempt to show discrimination is by looking at the total 
amount of city dollars reaching the pockets of minority-" 
owned businesses, the more appropriate figure is the 
7-20 percent figure rather than the 'prime contract per­
centage of less than one percent, especially where the 
remedy chosen is a subcontract minority set-aside pro­
gram.

d. The City’ŝ  comparison of prime contracts awarded 
to minorities with the percentage of minorities in the 
general population of Richmond to prove discrimination 
is totally inappropriate. It makes no sense whatsoever 
to look at the general population statistics and expect 
that there should be a correlation to the percentage 
of that group in a particular occupational field such as 
public construction anymore than one would expect to 
see a statistical similarity in any other discrete occupa­
tion. Does the fact that Richmond’s population is 50 
percent black mean that 50 percent of all tax attorneys in 
Richmond should be black, or 50 percent of all speech 
therapists, or 50 percent of all piano tuners? It would 
be a statistical oddity indeed to find each occupational 
category to contain the same or approximate ratio of 
minorities as there are in the general population. To 
suggest that statistical discrepancies constitute discrim­
ination in discrete occupational categories, particularly



15

ones requiring ownership of the business as in this ease, 
is pure sophistry.

If one is trying to build a discrimination case solely 
on statistics, and amici do not think it can be done in an 
inherently neutral competitive bidding system, the more 
relevant comparison is not with the general population, 
but as the court below noted, “between the number of 
minority contracts and the number of minority contrac­
tors . . . . ” 822 F.2d at 1359 (emphasis in original). 
Accord J. Edinger & Lon, Inc. v. City of Louisville, 802 
F.2d 213, 216 (6th Cir. 1986) (no evidence of statistical 
disparity between “percentage of qualified minority busi­
ness contractors” and “percentage of bid funds” 
awarded) ; Associated General Contractors of California 
v. City and County of San Francisco, 813 F.2d 922 (9th 
Cir. 1987).® See also Hazlewood School District v. United 
States, 433 U.S. 299, 308 (1977), where this Court looked 
at the difference between the number of those employed 
and the qualified labor pool, not the general population.

But even the comparison between the percentage of bid 
funds awarded and percentage of qualified minority 
business contractors may be an overly generous one be­
cause of the nature of the contracting system. To illus­
trate, assume that minorities were awarded over 40 
percent of the number of contracts or subcontracts but 
those contracts were small item contracts such that in 
the aggregate, they account for only 10 percent of the 
total dollar amount of all contracts awarded over a pe­
riod of time. Thus, a few large turnkey projects awarded 
competitively and nondiscriminatorily to a nonminority 
firm will skew the percentages if large and small con­
tracts are lumped together. Yet the lower 10 percent 
figure is hardly evidence of discrimination. The Rich­
mond Plan nevertheless guarantees minorities a right, 
in effect, to 100 percent of the number of contracts at a 8

8 Not surprisingly, the City nowhere cites in its brief, let alone 
attempts to deal with, the Edinger and San Francisco opinions.



16

minimum of 30 percent value for each separate contract. 
Thus, the unique features of the contracting system 
underscore the inherent flaws in trying to “prove” dis­
crimination by using simplistic aggregate figures. To 
put it another way, in the personnel employment situa­
tion, for example, only one person can hold one position 
or slot at a time. Thus, there is a one-to-one relationship 
on both sides of the employment statistical equation. In 
the contracting system, however, contracts have widely 
differing dollar values and are not fungible.

Contracts have widely different purposes as well. Some 
construction contracts may be for plumbing work as in 
the instant case, or for the paving of public roads. Not 
all contractors are equipped or qualified to bid on all 
contracts. In the employment context, however, a teacher 
is a teacher (see Wyant, supra), or a policeman is a 
policeman. See United States v. Paradise, 107 S.Ct. 1053 
(1987). Their duties and qualifications can be adjudged 
to be the same for each such occupation. Not so in the 
construction industry. Consequently, even the use of the 
percentage of the existing qualified minority contractors 
may be an inflated yardstick to use in this case.

e. Because a comparison of the percentage of the 
total dollar amount of contracts awarded to minority con­
tractors with the percentage of qualified minority con­
tractors in the Richmond area is a better indicator of 
the existence of any discrepancy than the use of general 
population statistics, the question that remains is, what 
is the percentage of qualified minority contractors in 
Richmond. The only evidence in the record is a national 
figure of 4.7 percent. J.A. 35 (Statement of Patrick 
Murphy). If this 4.7 percent figure applies to Richmond, 
then minority-owned firms in Richmond, which were get­
ting at least 7 percent of the contract dollars before the 
Plan was adopted, were receiving a disproportionately 
greater share than their numbers would apparently war­
rant. Even if the percentage of the minority-owned firms



17

in Richmond is actually double (9.4 percent) or triple 
(14.1 percent) the national average, the percentage of 
contract dollars already awarded to such firms, i.e., 7 to 
20 percent, would be still within a reasonable range, 
considering the vagaries of the contracting system as 
previously described.

Thus, even if minority contractors constitute 6 percent 
of all the contractors, and receive only 3 percent of the 
dollar value of all contracts, that result cannot be called 
discrimination any more than it would be to say that 
there is discrimination against qualified firms that are 
owned by white males over the age of 65 because they 
too may constitute 6 percent of all contractors yet re­
ceive only 3 percent of the dollar value of all contracts.

Accordingly, the 30 percent figure mandated by the 
City not only “ emerged from the mists” as the Fourth 
Circuit properly noted, 822 F.2d at 1360, but the figure 
is grossly out of line with the results one would expect 
in Richmond from a race-neutral contracting system.

3. There Is No Evidence That There Even JFas 
Any “Societal” Discrimination Against Minority 
Contractors.

Not only has the City failed to show “purposeful, iden­
tified discrimination”  in the construction industry in 
Richmond, there is no evidence or even any allegation 
that there was “societal” discrimination that explains the 
small number of minority contractors. There is no allega­
tion, for example, that minorities, because of the color 
of their skin, were denied credit or loans from banks to 
obtain the needed capital to start up a contracting busi­
ness. There is no allegation that vendors refused to rent 
or sell trucks or equipment to blacks so that they may 
equip their companies. There is no allegation that busi­
ness schools or colleges denied them admission. Indeed, 
there is a host of federal and state laws that prohibit 
such discrimination.



18

Even the dissenting judge in the Fourth Circuit below 
in this case admitted that “ there was no suggestion before 
the Council that . . . the minimal presence of minority 
contractors in that endeavor was caused by such ‘societal’ 
discriminatory factors as past inferior education or lack 
of access to social institutions.” 822 F.2d at 1366 
(Sprouse, J., dissenting).

Since there was no discrimination by the City, no cred­
ible evidence of discrimination by the Richmond “ con­
tracting industry,”  and not even allegations of “societal” 
discrimination, we are left with a case, which the City 
and their supporting amici may find hard to accept, sug­
gesting no discrimination at all. Consequently, the al­
leged discrimination in this case is far weaker than the 
“ societal” discrimination found in the Wygant case which 
this Court ruled was insufficient to justify a race-conscious 
remedial plan.

4. There Are Numerous Nondiscriminatory Reasons 
To Explain The Number And Size Of Minority- 
Contracting Firms.

Just as Justice Powell noted in Wygant that there are 
“ numerous explanations for a disparity between the per­
centage of minority students and the percentage of mi­
nority faculty, many of them completely unrelated to dis­
crimination of any kind,” 106 S.Ct. at 1848, so too in 
this case are there numerous nondiscriminatory reasons 
to explain the difference between the percentage of the 
minority population of Richmond and the percentage of 
minority-owned contracting businesses.

Unlike the task of seeking employment which requires 
very little capital (e.g., cost of transportation to job in­
terviews), starting one’s own business, especially one in 
the construction industry, is a very expensive and risky 
proposition requiring substantial capital. A simple fact 
of life is that as a class of people, blacks do not have 
as much assets as those owned by whites. In 1984,



19

“ [m]edian assets owned by blacks were only 9 percent 
of those owned by whites.” D. Gilliam, “ Fostering Black 
Enterprise,” Washington Post, May 30, 1988, at B3 at 
col. 5 (citing “ The Color Line and Quality of Life In 
America.” ). While the City and its supporting amici 
would no doubt quickly ascribe “ racial discrimination” 
to that statistical disparity too, one finds that Asians, 
West Indians, and Ethiopians (the latter two groups 
having the same skin color as American blacks), fare 
much better in opening businesses here than U.S. Blacks. 
Id. Indeed, one may even argue that the Great Society 
giveaway programs of the 1960’s led blacks to place un­
due dependence on the government, causing a decline in 
self-reliance, skills, and motivation so necessary for start­
ing one’s own business.9

The respected Booker T. Washington Foundation and 
other self-help black groups are trying to improve the 
economic status of the black community with economic 
education rather than through cries of “ discrimination” 
and government handouts or quotas. In so doing, these 
groups are trying to identify the true causes for the low 
amount of black enterprise and. seeking to remedy them. 
Charles Tate, the executive director of the Booker T. 
Washington Foundation stated that “ Equity capital

9 There may be cultural differences that explain the various suc­
cesses of certain groups in certain industries. As noted black scholar 
Thomas Sowell observed:

Some groups that have been tremendously successful in some 
activities have been utter failures in other activities requiring 
no more talent. Even such an economically successful urban 
group as American Jews had an unbroken string of financial 
disasters in farming, while immigrants from peasant back­
ground succeeded . . . .  [U]nless we are prepared to deny free* 
choice to the supposed beneficiaries of “affirmative action,” it is 
arbitrary social dogma to expect an even distribution of results.

T. Sowell, Dissenting from Liberal Orthodoxy: A Black Scholar 
Speaks for the “Angry Moderates.” (American Enterprises Insti­
tute, Dec. 1976).



20

shortage in the black communities is the major reason 
that the level of business and economic development are 
low.” Washington Post, supra. In addition, “ [mjistrust 
of each other is a key problem . . . Blacks have tradition­
ally shied away from pooling their money to go into 
economic ventures . . . Id. Even in the Washington,
D.C. area with “ about a million blacks . . . with a level 
of education and professional achievement in the black 
community probably unmatched in the United States, 
local black business ownership and black-controlled eco­
nomic development are woefully small.” Id. It is not 
surprising, therefore, that blacks in the Richmond area 
do not own a larger number of contracting businesses 
due to reasons having nothing to do with discrimination.

As for the viability of contracting businesses once they 
start, that too involves additional capital, cash flow, bond­
ing requirements, and the like. In other words, once a 
black-owned business is started, it faces the same prob­
lems faced by a nonminority to keep the business viable. 
But in a free enterprise system, success is never guaran­
teed. Businesses, both black and white, struggle and 
oftentimes fail.

There may be a host of other nondiscriminatory rea­
sons why blacks do not form construction companies. 
The very risk of such venture, combined with a profit­
ability of less than 10 percent, may lead them into 
more profitable lines of self-owned business like retail­
ing or personal services where capital requirements may 
also be lower. See Appendix hereto for a break down of 
black-owned firms in Richmond. Or they may be content 
to be an employee and rise up the ladder in their chosen 
career. After all, many successful corporate executives 
are mere employees and do not “ own” the companies they 
work for.

In short, the statistical disparity between black-owned 
construction firms in Richmond, Virginia and the black 
population in Richmond is certainly not evidence of “pur­



21

poseful, identified discrimination” in the local construc­
tion industry.

II. THE RICHMOND PLAN IS NOT NARROWLY  
TAILORED TO REMEDY THE ALLEGED DIS­
CRIMINATION.

Assuming that the City’s meager statistics constitute 
firm evidence of pervasive, identified racial discrimina­
tion in the contracting industry, that alone does not mean 
that the City is free to set up any kind of race-conscious 
remedy. On the contrary, any such plan must be narrowly 
tailored to remedy the specific effects of the discrimina­
tion and no more. Wygant, 106 S.Ct. at 1849-50. In this 
case, the Richmond plan falls far short of satisfying this 
test.

A. In the first place, it is unclear precisely what the 
City is trying to accomplish by this plan. If they believe 
that the low number of minority-owned firms is due to 
discrimination, and that they want to increase the num­
ber of firms, then this plan does not accomplish that at 
all. All that this plan is designed to do is to give 30 
percent of the city’s contracting dollars to existing mi­
nority firms in the form of a windfall. Thus, this situa­
tion is totally unlike the remedial measures upheld in the 
employment context such as in Paradise and Sheet Metal 
Workers cases where additional minorities are neces­
sarily brought into the workforce. Nor is there any pre­
tense made by the City that the 30 percent set-aside pro­
gram will attract new firms into the business. As noted 
earlier, there are many reasons that inhibit the forma­
tion of new construction firms. Amici doubt that a tem­
porary set-aside program will necessarily be a sufficient 
inducement to blacks to start their own firms.

B. If the economic viability of all minorities in Rich­
mond is the concern of the City, this plan certainly does 
not address that issue. In other words, this Plan is only 
concerned with the minority who owns the firm, not the



22

people who may be employed. Nonminority firms may 
employ more blacks than the minority firms such that 
the total amount of dollars going to all minorities as 
wages may actually decline because of the set-aside pro­
gram. During the hearings on this plan, Councilmember 
Gillespie asked whether the proponents of the measure 
have “assessed the impact that this [plan] is going to 
have on employment among blacks, which is one of our 
most significant problems.”

MR. DEBSE: I can’t assess that. . . .
*  *  *  *

MR. GILLESPIE: Since you don’t know, and
since it is a problem in our City, is it worth assess­
ing the impact before we act on the bill?

MR. DEESE: I don’t think that’s necessary.
J.A. at 44-45.

C. Not only does the plan neither increase the number 
of minority firms nor increase minority employment, 
giving instead a windfall to existing minority firms, but 
also the windfall is not even limited to minority firms in 
the Richmond area. During the Council hearings on this 
measure, representatives of the contracting industry in­
dicated how difficult it was to locate qualified minority 
firms in the area. Even in the instant case, the Croson 
company had solicited subcontract bids from minority 
firms located in Pittsburgh and North Dakota. See 
Croson v. City of Richmond, 779 F.2d 181, 183, n.4 (4th 
Cir. 1985). It is amici’s understanding that the current 
experience under the Richmond plan is that in order to 
satisfy the 30 percent set-aside provision, there is exten­
sive use of minority firms located in Atlanta or Phila­
delphia. How does this practice allegedly remedy the 
alleged discrimination in Richmond? What compelling 
interest does Richmond have to assist minority firms in 
other states?

D. Another broad feature of the plan is that the 30 
percent set-aside figure can be satisfied by using any



23

minority firm and not just one owned by blacks. Thus, 
firms owned by an Eskimo, Aleut, Hispanic, or Oriental 
would satisfy the city’s plan, without a single black firm 
being aided.10

This overreaching aspect of the plan is clearly not 
narrowly tailored to remedy the alleged discrimination 
against the black community. Justice O’Connor simi­
larly criticized the race-conscious plan struck down in 
the Wygant case that included Orientals, Indians, and 
other minorities as illustrative of the “ undifferentiated 
nature of the plan. There is no explanation of why the 
Board chose to favor these particular minorities. . . . 
Moreover, respondents have never suggested— much less 
formally found— that they have engaged in prior, pur­
poseful discrimination against members of each of these 
minority groups.” 106 S. Ct. 1842, 1852, n.13 (O’Con­
nor, J., concurring).

E. The 30 percent figure is an arbitrary number that, 
as previously noted, bears no appropriate relationship 
to the relevant class, i.e., the number of minority-owned 
firms. Further evidence of the arbitrariness of the per­
centage selected is that the Richmond Plan has set a 20 
percent figure as a goal for minority contracting for all 
city contracts other than construction contracts. See 
Plan Article VIII-A ( A ) , para. 2.

F. While the Richmond plan does have a waiver pro­
vision, that feature in and of itself will not salvage an 
otherwise overly broad remedy. Indeed, in the case at 
bar, Croson was denied a waiver as well as the oppor­
tunity to raise his bid to accommodate the excessive 
mark-up of some $7,000 offered by the minority firm, 
Continental Hose Company. 822 F.2d at 1357.

10 Amici note that there are only three Eskimos and two Aleuts 
living in Richmond, out of a population of some 220,000. U.S. 
Bureau of the Census, PC80-1-B48, 1980 General Population Char­
acteristics, Virginia, Table 15 (1982).



24

This restrictive use of the waiver provision is cer­
tainly not the kind discussed in the Fvllilove case where 
Chief Justice Burger noted that “ as to specific contract 
awards, waiver is available to avoid dealing with an 
MBE who is attempting to exploit the remedial aspects 
of the program by charging an unreasonable price, i.e., 
a price not attributable to the present effects of past 
discrimination.”  448 U.S. 448, 488. There is no similar 
provision in the Richmond Plan to prevent such wind­
falls going to minority firms, and as described in the 
following section, minority set-asides have proven to be a 
costly program to taxpayers and other elements of so­
ciety. Accordingly, the Fourth Circuit below was cor­
rect in doubting that “ any waiver, let alone the restric­
tive waiver provisions in this case, could cure the ob­
jectionable aspects of the Richmond ordinance.” 822 F.2d 
1355, 1361.

G. If the City’s concern is to eliminate discrimination 
in the construction industry, a narrowly tailored remedy 
would be to simply debar all contractors from the bid­
ding process who discriminate against minorities in em­
ployment, or who refuse to deal with minority contrac­
tors who have given them the lowest bid price on a sub­
contract.

Accordingly, the Plan is defective because it is not 
narrowly tailored in a number of respects to remedy the 
alleged discrimination. Amici submit, however, that the 
Court need not even address the issue of whether the 
Plan is narrowly tailored since the predicate finding of 
firm evidence of discrimination is simply lacking.



25

III. RACE-CONSCIOUS PROGRAMS SUCH AS SET- 
ASIDES ARE COUNTERPRODUCTIVE, COSTLY 
TO SOCIETY, AND MORALLY REPUGNANT.

The widespread use of minority set-asides by a number 
of cities and states has produced a wealth of evidence 
showing that these programs have deleterious effects on 
the economy and society. In addition, they are morally 
repugnant because they are designed to prefer certain 
members of society simply because of the color of their 
skin. In a free, competitive, color-blind society, there 
should be equality of opportunity, not equality of results.

In 1985, the U.S. Civil Rights Commission undertook 
a comprehensive study of the experience gained during a 
decade of the use of minority set-asides. Hearings were 
held on March 6-7, 1985 and are reproduced in two in­
formative volumes entitled “ Selected Affirmative Action 
Topics in Employment and Business Set-Asides” (here­
inafter “ Set-Asides” ). Numerous witnesses testified on 
both sides of the issue, and some common sense notions 
of the competitive contracting system were revealed. For 
example, Kurt A.J. Monier of the Associated Specialty 
Contractors, Inc., noted that:

Subcontractors are not and should not be selected 
on the basis of race, sex, or other nonrelevant cri­
teria by any prime contractors with enough good 
judgment to remain in business unless such selection 
is mandated by government edict. In practice, the 
subcontractors are selected on the basis of their com­
petitive price and ability to perform the work. [Set- 
asides] are nonsolutions to nonproblems that threaten 
to eliminate subcontractor competition on government 
work.

Set-Asides, Vol. 2 at 243.
Joan G. Haworth, an economist and researcher, re­

viewed the employment statistics between 1972 and 1982 
and found that the minority share of self-employed work­



26

ers remained constant at 6.2 percent. In the construc­
tion industry, however, the field most targeted by set- 
aside programs, the minority share of self-employed 
workers declined from 5.8 percent in 1972 to 5.4 percent 
in 1982. Set-Asides, Vol. at 80-81.

The reasonable conclusion that minority set-asides pro­
vide a windfall to existing minority-owned firms rather 
than to help develop new minority businesses is also 
borne out by other studies. An investigation of the prin­
cipal beneficiaries of the set-aside programs has revealed 
that:

their median annual sales and after-tax profits are 
respectively, $741,000 and $32,500, and they are 
nearly as profitable as nonminority businesses of com­
parable size. These larger scale minority enter­
prises . . . have benefited most from set-asides, and 
they cannot— as a group—be accurately characterized 
as “ deprived.”

Set-Asides, Vol. 1 at 149 (statement of Professor Timothy 
Bates, Professor of Economics, University of Vermont).

This information suggests that the set-aside programs 
have primarily benefited wealthier minority group mem­
bers— the ones least in need of government assistance.

In addition to the fact that set-asides seem to be 
counterproductive, there is also evidence that their neg­
ative economic impact is also felt. According to a 1979 
General Accounting Office report on the public work set- 
aside program upheld in Fullilove, it was discovered that 
the “price quotes of minority firms averaged about 9 
percent higher than normal prices.”  GAO, Minority Firms 
on LPW Projects: Mixed Results 18 (1979). See also Set- 
Asides, Vol .2 at 274-75 (testimony of G. Paul Jones, Jr., 
citing 30 percent cost differential between set-aside par­
ticipant and low bidder) ; id. at 246 (statement of Kurt 
A.J. Monier) (citing 300 percent cost differential between



27

minority participant in Small Business Administration’s 
Section 8(a) program and nondisadvantaged bidder.)

Besides being ineffective and costly to the taxpayers 
who pay for the government contracts, the set-aside pro­
grams necessarily impact on non-minority businesses, 
many of which are small and have been placed under 
economic pressure because of these programs. For exam­
ple, Ralph D. Stout, Jr., who twice served on President 
Carter’s White House Conference on Small Business, tes­
tified before the Civil Rights Commission about the ex­
perience of his subcontracting company, Southern Seed­
ing Service, which performs erosion control or grassing 
work on the highways of North Carolina. Although he 
had been successful in the past in receiving bids, the 
set-aside programs had “ literally legislated [his com­
pany] out of the marketplace.” Set-Asides, Vol. 2 at 
135. See also Hearing Before the Sub comm. on Trans­
portation of the Senate Comm, an Environment and 
Public Works on The Disadvantaged Business Enterprise 
Program of the Federal-Aid Hightvay Act, 99th Cong., 
1st Sess. 334 (testimony of John C. Vande Velde, owner 
of Warning Lites of Illinois noting that because of set- 
asides, that his lower bid prices were not accepted and 
that his business’s success rate in bidding on contracts 
dropped from about 40 percent to 3 percent from 1984 
to 1985).

If the goal of society is to provide equal opportunity 
to minorities, the goal is best accomplished not by set- 
asides in the contracting industry, but by ensuring that 
all invitations for bids for government contracts receive 
the widest circulation in the minority business com­
munity. That of course is the true essence of “ affirma­
tive action” , i.e., to affirmatively provide opportunities, 
not results, to the minority community. The City of 
Richmond has numerous agencies and services that pro­
vide such outreach to the minority community for which 
they are to be commended. Virginia was the first



28

state to have a Department of Minority-Owned Enter­
prises to provide education and managerial assistance to 
minorities.

However, a set-aside program is simply a quick fix 
that does not address the true needs of the minority busi­
ness community.11 Worse, they are nothing more than a 
racial quota and as such, are morally repugnant in a 
society professing to treat everyone as individuals rather 
than classifying them by the color of their skin. Such 
programs are even objected to by minorities who regard 
the preferential treatment as stigmatizing. As Professor 
Thomas Sowell wrote in Black Education, Myths and 
Tragedies 292 (1972) :

What all the arguments and campaigns for quotas 
are really saying, loud and clear, is that black people 
just don’t have it, and that they will have to be 
given something in order to have something. The 
devastating impact of this message on black people 
— particularly black young people— will outweigh 
any few extra jobs that may result from this 
strategy.

11 See also P. Bell, Blacks Must Take Responsibility For Their 
Own Lives, 5 Lincoln Review, Summer 1984, at 39; P. Perlmutter, 
Minority Group Responses To Prejudice & Discrimination, 8 Lincoln 
Review, Winter 1988, at 21; C. Pendleton, Affirmative Action & In­
dividual Freedom, 7 Lincoln Review, Summer 1986, at 23; J. Parker, 
“ The Time Has Come To Move Decisively Toward A Truly Color 
Blind Society,”  6 Lincoln Review, Summer 1985, at 1.



29

CONCLUSION

This Court should reject the City’s argument for what 
it is : fuzzy thinking and statistical voodoo to justify a 
politically motivated racial spoils system that is morally 
wrong, violates fundamental notions of fairness, and de­
nies persons equal protection of the law. Competitive 
bidding in the contracting process is quintessential^ non- 
discriminatory.

In affirming the court below, this Court would do well 
to heed the suggestion of Professor William Van 
Alstyne:

[0]ne gets beyond racism by getting beyond it now: 
by a complete, resolute, and credible commitment 
never to tolerate in one’s own life— or in the life or 
practices of one’s government— the differential treat­
ment of other human beings by race. Indeed, that 
is the great lesson for government itself to teach: in 
all we do in life, whatever we do in life, to treat 
any person less well than another or to favor any 
more than another for being black or white or brown 
or red, is wrong. Let that be our fundamental law 
and we shall have a Constitution universally worth 
expounding.

Van Alstyne, Rites of Passage: Race, the Supreme Court 
and the Constitution, 46 U. Chi. L. Rev. 775, 809-810

Respectfully submitted,

Daniel J. Popeo 
Paul D. Kamenar *
W ashington Legal Foundation 
1705 N Street, N.W.
Washington, D.C. 20036 
(202) 857-0240 
Attorneys for Amici Curiae 

Washington Legal Foundation 
and The Lincoln Institute for 
Research and Education

* Counsel of Record

(1979).

June 8,1988



APPENDIX

SURVEY OF BLACK-OWNED FIRMS: 
RICHMOND, VA.

TOTAL OF BLACK-OWNED FIRMS: 1,563

Agricultural services, forestry, fishing,
and mining .....................................................................  12

Construction ........................................................................ 144
Manufacturing ...................................................................  12
Transportation & public utilities....... .............................  98
Wholesale trade ...............    2
Retail trade ......................................................................... 354
Finance, insurance, & real estate ...................      106
Selected services ................................................................   690
Industries not classified.... :...............................................  145

la

SOURCE: U.S. Bureau op the Census, 1982 Survey of 
Minority-Owned Business Enterprises: Black 88
(1985).