Court Calendar

    (2  La— ^

No. 87-998

In the

Supreme fflnurt nf the Unit zb 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 THE MINORITY BUSINESS 
ENTERPRISE LEGAL DEFENSE AND 

EDUCATION FUND, INC. (“MBELDEF”) 
AND THE LOUISIANA ASSOCIATION OF 

MINORITY AND WOMEN OWNED 
BUSINESSES, INC. (“LAMWOB”) AS AMICI 

CURIAE IN SUPPORT OF APPELLANT

Anthony W. Robinson* 
President
Franklin M. Lee 
Chief Counsel 

MBELDEF 
Suite 200
300 “I” Street, N.E.
Washington, D .C . 20002 
(202) 543-0040

* Counsel of Record for the Amici Curiae
(For Further Appearances, See Reverse Side of Cover)



LAMWOB
2920 Earhart Boulevard 
New Orleans. Louisiana 70125

Of Counsel:
H . Russell Frisby, Jr .
M elnicove, Kaufm an , W einer, 

Smouse & Garbis 
36 South Charles Street 
Baltimore, Maryland 21201 
(301) 332-8534

A ndrew L Sandler 
1440 New York Avenue, N.W .  
Washington, D.C.  20005 
(202) 371-7103

Irwin B. Schwartz 
919 Third Avenue 
45th Floor
New York, New York 10022 
(212) 735-3842

Attorneys for Amicus Curiae MBELDEF

M arc H. M orial
One Poydras Plaza, Suite 1610
639 Loyola Avenue
New Orleans, Louisiana 70113
(504) 588-9171

Attorney for Amicus Curiae LAMWOB



No. 87-998

In  The

(tart of %  Hnitefr BMtn
October Term, 1988

Cit y  of R ich m o n d ,
Appellant,

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

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

REPLY BRIEF OF APPELLANT CITY OF RICHMOND

Of Counsel:
John H. Pickering 
Wilmer, Cutler & Pickering 
2445 “ M” Street, N.W. 
Washington, D.C. 20037

July 8,1988

John Payton *
Mark S. Hersh
Michael C. Small 

Wilmer, Cutler & Pickering 
2445 “M” Street, N.W. 
Washington, D.C. 20037 
(202) 663-6000

Drew St. J. Carneal 
City Attorney

Michael L. Sarahan 
Assistant City Attorney

Michael K. Jackson 
Assistant City Attorney 
Room 300, City Hall 
900 E. Broad Street 
Richmond, Virginia 23219 
(804) 780-7940

Attorneys for Appellant
* Counsel of Record

W il s o n  - Ep 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 A U T H O R IT IE S .......................................  ii

INTRODUCTION.........................................................................  1

AR G U M E N T........ ..................    3

I. THE PRINCIPLES ESTABLISHED IN  
FULLILOVE v. KLUTZNICK ARE FULLY  
APPLICABLE TO THIS CASE ...... ................ .   3

II. RICHMOND HAS A  COMPELLING INTER­
EST IN ITS REM EDIAL O R D IN A N C E .......... . 7

A . Local Industry Discrimination Is Not “ So­
cietal Discrimination” And Provides A  
Proper Predicate For Richmond’s Remedial 
Ordinance................................................    7

B. Richmond Had Sufficient Evidence of Local
Construction Industry Discrimination To 
Support Its Remedial Ordinance..................   10

III. t h e  RICHMOND ORDINANCE IS N AR ­
ROW LY TAILORED TO ACH IEVE ITS 
REM EDIAL P U R P O SE .........................    15

A. The Ordinance Does Not Unnecessarily Bur­
den Third Parties...................      15

B. Richmond Selected A  Reasonable Means Of
Attaining Its Remedial Goal ..................    16

C. The Thirty Percent Minority Subcontracting 
Requirement Is Flexible And Reasonable.... 18

C O N C LU SIO N ..............................................................................  20



TABLE OF AUTHORITIES
CASES Page

Blodgett v. Holden, 275 U.S. 142 (1927)............... . 6
Bob Jones University v. United States, 461 U.S.

574 (1983) ________________ ___ ______ ____________ 1
Bolling v. Sharpe, 347 U.S. 497 (1954)..................... 6
Buckley v. Valeo, 424 U.S. 1 (1976)________ ____ 6
Firefighters Local Union No. 178U v. Stotts, 467

U.S, 561 (1984) ___________________ _______ _ 15, 16
Fullilove v. Klutznick, 448 U.S. 448 (1980) ........ passim
Hampton v. Mow Sun Wong, 426 U.S. 88 (1976).. 5
Hutchinson Human Relations Commission v. Mid­

land Credit Management, Inc., 213 Kan. 308,
517 P.2d 158 (1 9 7 3 )................ .............. ................. . 4

Johnson v. Transportation Agency, Santa Clara
County, 107 S. Ct. 1442 (1987) ............ ............ . 14,16

Local 28 of Sheet Metal Workers’ International 
Association v. EEOC, 478 U.S. 421, 106 S. Ct.
3019 (1986) ................................ .................. .......... . 7

Minnesota v. Clover Leaf Creamery Co., 449 U.S
456 (1 9 8 1 )___ _____________ _______________________  13

Regents of the University of California v. Bakke,
438 U.S. 265 (1978).......................... ......................... . 1 , 5 , 8

Roberts v. United States Jaycees, 468 U.S. 609
(1 9 8 4 )............ ............. ............................ .................. ..... . 5

San Francisco Arts & Athletics, Inc. v. United 
States Olympic Committee, 107 S. Ct. 2971
(1987) _________________________ __________ ,_____ 6

Schlesinger v. Reservists Committee to Stop the
War, 418 U.S. 208 (1 9 7 4 )__________ __________ _ 5

Southwest Washington Chapter, National Elec­
tric Contractors Association v. Pierce County,
100 Wash. 2d 109, 667 P.2d 1092 (1983)____  4

International Brotherhood of Teamsters v. United
States, 431 U.S. 324 (1977) ........ ..................... . 18

United States v. Paradise, 107 S. Ct. 1053 (1987) . .passim 
United Steel Workers of America v. Weber, 443

U.S. 193 (1979) ...................... ............................ .......... 9
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).... 6
Wygant v. Jackson Board of Education, 476 U.S.

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



I l l

TABLE OF AUTHORITIES— Continued

STATUTES Page
Human Rights, Richmond, Va. Code § 17.2 (1975).. 18

LEGISLATIVE MATERIALS
H.R. Rep. No. 1791, 94th Cong., 2d Sess. (1 9 7 7 )- 10

BRIEFS
Brief Amicus Curiae of the American Civil Lib­

erties Union et al. in Support of Appellant_____ 6
Brief of Amici Curiae Lawyers’ Committee for 

Civil Rights Under Law et al. in Support of the
Appellant—............................................ ............................ 7 ,18

Brief of the Maryland Legislative Black Caucus
as Amicus Curiae in Support of Appellant........  11

Brief of the Minority Business Enterprise Legal 
Defense and Education Fund et al. as Amici
Curiae in Support of Appellant................................  9

Brief of the National League of Cities et al. as
Amici Curiae in Support of Appellant__________  4

Brief of the States of New York et al. as Amici
Curiae in Support of Appellant.............................. 11

Brief for the United States as Amicus Curiae Sup­
porting Appellee.........................  passim

Brief of Amici Curiae the Washington Legal 
Foundation and the Lincoln Institute for Re­
search and Education...................................................  14,15

OTHER AUTHORITIES
R. Glover, Minority Enterprise in Construction

(1977) ......................        17
The Non-Perpetuation of Discrimination in Pub­

lic Contracting: A Justification for State and 
Local Minority Business Set-Asides A fter
Wygant, 101 Harv. L. Rev. 1797 (1988)________ 9

U.S. Civil Rights Commission, Selected Affirma­
tive Action Topics in Employment and Business
Set-Asides, Vol. 1 (1 9 8 5 ).......................................... 18

U.S. Bureau of the Census, 1982 Survey of Mi­
nority-Owned Business Enterprises: Black
(1985) ........ ..................... ..................................................  14



I n  T h e

duurt of tliT States
October T e r m , 1988

No. 87-998

Cit y  of R ich m o n d ,

v.
Appellant,

J.A . Croson Co m p a n y ,
Appellee.

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

REPLY BRIEF OF APPELLANT CITY OF RICHMOND

INTRODUCTION

Eliminating racial discrimination and its effects is a 
“fundamental policy” of our Nation,1 and there is today 
no question that cities and states, as well as the federal 
government, have the power to implement this policy.2 
The exercise of this power is particularly important 
where racial discrimination has precluded or impaired

1 Bob Jones TJniv. v. United States, 461 U.S. 574, 595 (1983).

2 Regents of Univ. of California v. Bakke, 438 U.S. 265, 307 
(1978) (opinion of Powell, J . ) ; id. at 324-25 (opinion of Brennan, 
White, Marshall and Blackmun, J.J.).



2

minority access to commercial opportunities created by 
the government itself through its award of public 
contracts.

Appellee and its supporting amici would deny cities 
and states the power they need to remedy that racial 
discrimination. On the one hand, they would require leg­
islatures to sit as courts, obligated to make judicial-like 
findings of discrimination in order to justify their re­
medial actions. On the other hand, they would require 
courts to sit as legislatures, deciding whether affirmative 
action plans are desirable as policy and reviewing all the 
details of the plans to determine whether they agree with 
the legislature about their potential effectiveness. This 
reflects a fundamental misunderstanding of the appro­
priate roles of the legislature and the courts in our sys­
tem of government and demands from state and local 
legislatures far more than is necessary to ensure the re­
sponsible use of affirmative action to remedy past dis­
crimination. Under any defensible level of scrutiny, and 
under any fair reading of this Court’s precedents, the 
Richmond ordinance is constitutional.

In this reply, appellant City of Richmond responds to 
the primary points made by appellee and its amici. First, 
they argue that Fullilove v. KlutznicJc, 448 U.S. 448 
(1980), does not apply to this case. Their attempts to 
distinguish Fullilove are unpersuasive; the principles 
established there are fully applicable to this case. Second, 
they characterize the factual predicate for the Richmond 
ordinance as “ societal discrimination.” That is incorrect. 
The Richmond ordinance is predicated on local construc­
tion industry discrimination that, as in Fullilove, has 
been sufficiently identified to support remedial action. 
Third, they attack the evidence of construction industry 
discrimination. Those attacks reflect a misunderstanding 
of the evidentiary issues in this case. Fourth, they argue 
that the Richmond ordinance places a great burden on 
non-minority contractors. This argument is at odds with



3

Fullilove, which establishes that the burden is acceptable. 
Fifth, they contend that Richmond was required to ex­
haust alternatives before resorting to an affirmative ac­
tion plan. This requirement is unsupported by policy 
or precedent, and in any event Richmond did consider 
alternatives. Finally, they criticize the thirty percent 
minority subcontracting requirement as unreasonable and 
arbitrary. This criticism is unfounded. The thirty per­
cent figure was reasonable in light of the virtual absence 
of minority participation in city contracts, as well as the 
waiver provision in the ordinance and the limited dura­
tion of the remedy.3

ARGUMENT

L t h e  p r i n c i p l e s  e s t a b l i s h e d  i n  f u l l il o v e
v. KLUTZNICK ARE FULLY APPLICABLE TO 
THIS CASE

Fullilove v. Klutznick established that there is a com­
pelling governmental interest in creating for minority 
businesses opportunities in public contracting that had 
been impaired or foreclosed by the effects of past dis­
crimination.4 More particularly, Fullilove upheld the use 
of a race-conscious set-aside plan upon evidence that 
minority-owned businesses were receiving only a neglig­
ible portion of public construction contracts as a result 
of racial discrimination in the construction industry. The

8 Appellee also contends that the ordinance was inflexibly and 
unfairly applied to it. Brief of Appellee at 3. The district court 
decided this issue in the City’s favor after hearing testimony and 
taking other evidence. See J.S. Supp. App. 209-15. It explicitly 
found that a minority business enterprise, Continental, was available 
to perform on the contract and was not taking advantage of the 
ordinance to charge excessive prices. J.S. Supp. App. 231, n.20. The 
court concluded that the City’s decision to deny appellee’s waiver 
request and re-bid the contract “was not only reasonable, but ap­
pears to have been absolutely correct.”  Id.

4 448 U.S. at 475-78; id. at 508, 515 (Powell, J., concurring).



4

attempts of appellee and its amici to limit the clear prec­
edential value of Fullilove are strained and unpersuasive.

They contend that Fullilove concerned only the power 
of Congress and has no application to states or localities.® 
Although Chief Justice Burger did state that no organ of 
government has more comprehensive remedial powers 
than Congress, 448 U.S. at 483 (plurality opinion), noth­
ing in Fullilove indicates that only Congress may remedy 
the eifects of discrimination on public contracting. The 
focus on congressional power served two purposes, neither 
of which confines the principles established in Fullilove 
to federal affirmative action programs.

First, the discussion of congressional power was neces­
sary because the Court could not uphold the federal set- 
aside unless it found that Congress was exercising some 
authority granted to it under the Constitution. 448 U.S. 
at 473-80 (plurality opinion). A similar constitutional 
analysis is unnecessary here, because state and local 
governments have the authority to remedy discrimina­
tion pursuant to their police powers, subject to the re­
straints of state law and the Fourteenth Amendment.5 6 
The district court found that Richmond’s City Council 
had the authority under state law to enact its ordinance,7 
and the court of appeals did not disturb this finding.

5 See, e.g., Brief for the United States as Amicus Curiae Sup­
porting- Appellee at 27-28 (hereinafter “ Brief for the United 
States” ).

6 See, e.g., Southwest Washington Chapter, Nat’l Elec. Contrac­
tors Ass’n v. Pierce County, 100 Wash. 2d 109, 123, 667 P.2d 1092, 
1099 (1983) (en bane); Hutchinson Human Relations Comm’n v. 
Midland Credit Mgmt., Inc., 213 Kan. 308, 311-12, 517 P.2d 158, 162 
(1973). Indeed, remedying identified discrimination in local indus­
tries is a problem more amenable to solutions at the state and local 
level than at the federal level. See Brief of the National League of 
Cities et al. as Amici Curiae in Support of Appellant at 10-14,

7 J.S. Supp. App. 141-154,



5

The second reason for the discussion of congressional 
power in Fullilove was to emphasize that because Con­
gress is a legislative body, its remedial powers are 
broader than those of courts and other non-legislative 
bodies. Chief Justice Burger stated: “ Here we are not 
dealing with a remedial decree of a court but with the 
legislative authority of Congress.”  448 U.S. at 480 (plu­
rality opinion). Of course, a national legislature neces­
sarily has more comprehensive remedial powers than a 
local one, in the sense that only it may legislate on a 
national scale. But a local legislature is still a legisla­
ture; like Congress, its role is “ to make policy rather 
than to apply settled principles of law.”  8 Where, as here, 
a local legislature has acted to remedy the effects of local 
construction industry discrimination on its own public 
works program, Fullilove provides a highly relevant prec­
edent for such action.

The United States also suggests that Fullilove is in­
apposite here because there are greater equal protection 
constraints on state and local governments than on the 
federal government.9 This argument directly contradicts 
the well-established principle that the reach of the equal 
protection guarantee of the Fifth Amendment is co­

8 Fullilove, 448 U.S. at 502 (Powell, J., concurring). See also 
Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 
221 n.10 (1974) ( “ The legislative function is inherently general 
rather than particular” ).

9 See Brief for the United States at 27-28. The United States ar­
gues that overriding national interests” allow Congress to enact re­
medial race-preferential legislation that would be impermissible as 
state or local enactments, citing Hampton v. Mow Sun Wong, 426 
U.S. 88 (1976). Hampton is inapplicable here because it involved 
the authority to control immigration, which is “vested solely in the 
Federal Government, rather than the States.” Hampton, 426 U.S. 
at 101 n.21. In contrast, state and local governments have “a legiti­
mate and substantial interest in ameliorating, or eliminating where 
feasible, the disabling effects of identified discrimination.” Bakke, 
438 U.S. at 307 (opinion of Powell, J.). See also Roberts v. United 
States Jaycees, 468 U.S. 609, 624 (1984).



6

extensive with that of the Fourteenth.10 The Court has 
found no reason to hold the states to a higher constitu­
tional standard than the federal government.11 12

In fact, the Fvllilove plurality led by Chief Justice 
Burger held the federal government to a very high stand­
ard. It stressed that while reviewing an act of Congress 
is a “delicate duty,” 13 “ [a]ny preference based on racial 
or ethnic criteria must necessarily receive a most search­
ing examination to make sure that it does not conflict 
with constitutional guarantees.” 448 U.S. at 491. It 
explicitly stated that the federal plan survived even the 
strictest standard of judicial review articulated in Bakke. 
Id. at 492. Justice Powell wrote separately in Fvllilove 
to emphasize that the federal set-aside plan was constitu­
tional “under the most stringent level of review.” Id. at 
496 (Powell, J., concurring).113

Finally, the United States attempts to limit Fullilove 
on the ground that it involved only a facial challenge to 
the federal plan. It argues that Fullilove left open the 
question of whether an affirmative action plan may be 
applied to those who are not shown to be actual victims

10 See, e.g., San Francisco Arts & Athletics, Inc. v. United States 
Olympic Committee, 107 S. Ct. 2971, 2984 n.21 (1987); United 
States v. Paradise, 107 S. Ct. 1053, 1064 n.16 (1987) (plurality 
opinion); Buckley v. Valeo, 424 U.S. 1, 93 (1976); Weinberger v. 
Wiesenfeld, 420 U.S. 636, 638 n.2 (1975); Bolling v. Sharpe, 347 
U.S. 497, 499 (1954).

11 Bolling v. Sharpe, 347 U.S. at 500.

12 448 U.S. at 472 (plurality opinion) (quoting Blodgett v. Holden, 
275 U.S. 142,148 (1927)).

13 While the Minority Business Utilization Plan also survives 
strict scrutiny, appellant submits that an intermediate level of 
scrutiny is more appropriate for race-conscious remedial legislation. 
See Brief of Appellant at 17-18. See also Brief Amicus Curiae of 
the American Civil Liberties Union et al. in Support of Appellant 
at 6-17.



7

of discrimination. Brief for the United States at 26. 
However, the Court since has answered this question in 
the affirmative. In the Sheet Metal Workers case, six 
members of the Court agreed that race-conscious relief 
may benefit individuals who are not the actual victims of 
discrimination.114 As Justice O’Connor observed in Wy- 
gant v. Jackson, Board of Education, the Court “ is agreed 
that a plan [for affirmative action] need not be limited to 
the remedying of specific instances of identified discrim­
ination . . .” 115

II. RICHMOND HAS A COMPELLING INTEREST IN  
ITS REMEDIAL ORDINANCE

A. Local Industry Discrimination Is Not “Societal Dis­
crimination” And Provides A Proper Predicate For 
Richmond’s Remedial Ordinance

As Richmond argued in its opening brief to this Court, 
the City was not required to present evidence of its own 
discrimination in order to justify its remedial ordinance. 
See Brief of Appellant at 33-38. Although appellee and 
some of its amici have disagreed with this position, they 
have offered no principled reason that a city may rem­
edy only its own discrimination. The United States has 
agreed with Richmond that “ it is permissible for a state 
or local government, in appropriate circumstances, to 
seek to remedy unlawful discrimination by others.” 14 * 16 * 18

14 Local 28 of Sheet Metal Workers’ Int’l Ass’n v. EEOC, 106 
S. Ct. 3019, 3034, 3054 (1986) (plurality opinion); id. at 3054
(Powell, J., concurring-) ; id. at 3062 (White, J., dissenting).

1,5 Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 287 (1986)
(O’Connor, J., concurring in part and concurring in the judgment).

18 Brief for the United States at 13. See also Brief of Amici 
Curiae Lawyers’ Committee for Civil Rights Under Law et al. in 
Support of the Appellant at 8-13 (arguing that limiting states and 
localities to remedying identified discrimination reflects a balance 
of competing interests, and that further limiting them to remedying 
only their own discrimination is unnecessary and upsets this 
balance).



8

The central issue is not whether the City perpetrated 
the discrimination supporting its remedial ordinance, but 
whether, as the United States argues, that discrimination 
is so amorphous as to constitute an inadequate basis for 
remedial action. In other words, assuming that “ societal 
discrimination” alone does not constitute an adequate 
predicate for a government’s affirmative action plan,1'7 
the question is whether the discrimination in Richmond’s 
local construction industry constitutes “ societal discrim­
ination.” Based on Fullilove and other precedents of this 
Court, the answer must be no.

While this Court has never actually defined the term 
“ societal discrimination,” its meaning is discernible. As 
the United States points out,118 the term has been fea­
tured most prominently in the opinions authored by Jus­
tice Powell. In Bakke, Justice Powell characterized “ so­
cietal discrimination” as “an amorphous concept of in­
jury that may be ageless in its reach into the past.” 
438 U.S. at 307. Permitting it to serve as a basis for 
remedial action, he stated, would turn the affirmative 
action remedy “ into a privilege that all institutions 
throughout the Nation could grant at their pleasure to 
whatever groups are perceived as victims of societal dis­
crimination.” Id. at 310. In Wygant, Justice Powell 
continued in this vein. He stated: “ No one doubts that 
there has been serious racial discrimination in this coun­
try. But as the basis for imposing discriminatory legal 
remedies that work against innocent people, societal dis­
crimination is insufficient and over-expansive.” 476 U.S. 
at 276 (plurality opinion) (emphasis in original).

Indeed, all discrimination that has occurred in our 
society could be said to be part of societal discrimination. 17 18

17 A plurality of this Court so stated in Wygant, 476 U.S. at 
276, but the question has not been decided by a majority of the 
Court.

18 See Brief for the United States at 15.



9

Only when it is “ identified” does it become something 
more. See Fullilove, 448 U.S. at 497 (Powell, J., con­
curring). In other words, societal discrimination simply 
means discrimination that has not been identified with 
any degree of particularity. As Fullilove makes clear, 
an identified pattern of discrimination in a particular 
industry does not constitute societal discrimination.11®

Like Congress, the Richmond City Council did not 
predicate its legislation on general discrimination within 
our society and leave it at that. It had ample evidence 
of actual discrimination in its local construction indus­
try. See infra at 10-14. The discrimination that the City 
identified was not a collection of “ discrete and isolated 
decisions,” 00 but a pattern of intentional behavior de­
signed to ensure whites a superior position in the indus­
try. There is nothing amorphous about the systematic 
exclusion of blacks from the construction trades,01 or the 19 20 21

19 Justice Powell did not consider the discrimination at issue in 
Fullilove to be “societal.” He explicitly upheld the federal plan as 
a remedy for “ the continuing effects of past discrimination identi­
fied by Congress.” 448 U.S. at 496 (footnote omitted). He also 
recognized that the discriminatory activities could not be expected 
to be “ identified with the exactitude expected in judicial or admin­
istrative adjudication.” Id. at 506. See also Note, The Non- 
Perpetuation of Discrimination in Public Contracting: A Justifica­
tion for State and Local Minority Business Set-Asides After 
Wygant, 101 Harv. L. Eev. 1797, 1805-06 (1988).

20 Brief for the United States at 17.

21 “Judicial findings of exclusion from crafts on racial grounds 
are so numerous as to make such exclusion a proper subject for 
judicial notice.”  United Steelworkers of Am. v. Weber, 443 
U.S. 193, 198 n.l (1979). Congress found that the exclusion of 
minorities from the construction trades had prevented them from 
gaining experience in the construction industry. See Fullilove, 448 
U.S. at 511-12 (Powell, J., concurring). See also Brief of the 
Minority Business Enterprise Legal Defense and Education Fund 
et al. as Amici Curiae in Support of Appellant at 10-12 (“ Pervasive 
employment discrimination in the construction trades has prevented 
minorities from following the traditional path from laborer to 
entrepreneur” ) .



10

purposeful maintenance of a “business system which has 
traditionally excluded measurable minority participa­
tion.” 22 23 The effects of this discrimination, the virtual 
absence of blacks from city contracting and from Rich­
mond’s major construction trade associations— the main­
stream of the construction industry— are also quite con­
crete, as is the City’s role in perpetuating those effects 
through its award of city contracts.

In short, the City was not trying to remedy discrimi­
nation in society generally, but was addressing the spe­
cific problem of discrimination in a local industry and 
its effects on the City’s own public works program. The 
discrimination that it sought to remedy was no less “ iden­
tified” than that supporting the federal plan in Fullilove. 
A city must be permitted to take remedial action in such 
circumstances.

B. Richmond Had Sufficient Evidence Of Local Con­
struction Industry Discrimination To Support Its 
Remedial Ordinance

Appellee and supporting amici spend a substantial por­
tion of their briefs attempting to pick apart the evidence 
of construction industry discrimination supporting the 
Richmond ordinance.08 In so doing, they reveal their mis­
understanding of the evidentiary issues in this case.

22 H.R. Rep. No. 1791, 94th Cong-., 2d Sess. 182 (1977) (quoted in 
Fullilove, 448 U.S. at 466 n.48 (plurality opinion) and at 505 
(Powell, J., concurring)).

23 Appellee suggests that the idea that the Richmond ordi­
nance was a remedy for construction industry discrimination is 
being raised now for the first time. See Brief of Appellee at 10 
n.3, 12. This is untrue. The district court explicitly upheld the 
ordinance as a remedy for the “present adverse effects of past 
discrimination in the construction industry.” J.S. Supp. App. 163. 
In addition, the City Attorney stated at the City Council hearing 
that the City was relying on a Supreme Court decision (Fullilove) 
that had permitted remedial legislation based on industry discrimi­
nation. J .A. 15. The City’s briefs in the lower courts also refer to 
industry discrimination. See, e.g., Defendant’s Brief in Support 
of Motion for Partial Summary Judgment at 32, 34.



11

The central evidentiary question is not whether there 
has been a factual finding of discrimination of the sort 
necessary to prevail on a discrimination claim, but 
whether the City had “ sufficient evidence to justify the 
conclusion that there has been prior discrimination.” 24 25 
This evidentiary requirement reflects the well-settled 
principle that legislatures, whether they be local, state or 
federal, are not expected to act like courts. In reviewing 
the sufficiency of the evidence of discrimination in Fulli- 
love, for example, this Court stressed that “ Congress, of 
course, may legislate without compiling the kind of ‘rec­
ord’ appropriate with respect to judicial or administra­
tive proceedings.” 215

The “ sufficient evidence” requirement should be ap­
plied in light of its purpose, which is to ensure that an 
affirmative action plan that purports to be remedial is in 
fact a response to discrimination, rather than an attempt 
to use racial classifications to achieve racial balance for 
its own sake or for some other impermissible purpose. 
Accordingly, a government need only have evidence of 
discrimination sufficient to ensure that its plan is truly 
remedial and need not prove specific acts of discrimina­
tion. The evidence supporting Richmond’s ordinance eas­
ily satisfies this test.

Appellant has never contended that any one fact con­
clusively proves that there has been discrimination in

24Wygant, 476 U.S. at 277 (plurality opinion). See also id. (“ a 
strong basis in evidence” is needed); id. at 286 (O’Connor, J., con­
curring in part and concurring in the judgment) (government needs 
“ firm basis to believe that remedial action is required” ).

25 448 U.S. at 478 (plurality opinion). See also id. at 502 
(Powell, J., concurring) (“ Congress is not expected to act as though 
it were duty bound to find facts and make conclusions of law” ). 
See also Brief of the States of New York et al. as Amici Curiae in 
Support of Appellant at 7; Brief of the Maryland Legislative 
Black Caucus as Amicus Curiae in Support of Appellant at 21-28.



12

Richmond’s local construction industry. Conceivably, the 
fact that a city half black had been awarding more than 
99 percent of its construction contracts to white-owned 
contractors could be due to other causes.26 27 Similarly, the 
fact that Richmond’s chapter of the Associated General 
Contractors counted no blacks among its 130 members, 
and the fact that other major trade associations also had 
very few or no black members, may not by themselves 
necessarily reflect industry discrimination. It is also 
theoretically possible that the well-known and well- 
documented history of discrimination in the nation’s con­
struction industry127 somehow has not infected Richmond.

When these facts are viewed as a whole, however, the 
conclusion that there has been racial discrimination in 
Richmond’s local construction industry is unavoidable. 
The City Council did not enact the Minority Business 
Utilization Plan based on speculation or assumptions 
about past discrimination. It -was familiar with the his­

26 This is not, however, because the statistic does not reflect the 
number of city contracting dollars reaching minority firms through 
subcontracts, as appellee suggests. See Brief of Appellee at 13. As 
the district court found, see J.S. Supp. App. 167-69, there is no 
reason to believe that minority firms were faring much better on 
subcontracts.

Appellee’s statement that white prime contractors in fact were 
making significant use of minority subcontractors is misleading. 
Brief of Appellee at 8. Richmond’s City Manager did state at the 
public hearing that overall minority participation in city contracts 
was 7 or 8 percent, but he was referring to all city contracts, not 
construction contracts, J.A. 16. Similarly, this Court should give 
no weight to appellee’s reference to unidentified documents not in 
the record of the case that it claims show that minority firms were 
awarded 10.5 percent of the City’s construction purchase orders 
(under $10,000) during an unspecified time period. Brief of Ap­
pellee at 10 n.3. Even if the represented fact were in the record, 
it is irrelevant since it would not change the fact that minority 
firms were receiving less than one percent of the more valuable 
city construction contracts,

27 See Brief of Appellant at 23-25 & n.38.



13

tory of race relations in Richmond generally and with the 
local construction industry in particular. The City Coun­
cil knew that discrimination in the local construction in­
dustry substantially had foreclosed minority access to 
city construction contracts. While the need for judicial 
review of race-conscious legislative action is clear, a 
legislature’s view of facts should be upheld if it is so 
obviously reasonable and supported by the record.38

Appellee also fails to recognize that the critical stage 
for establishing an affirmative action plan’s factual pred­
icate is when the plan is challenged in court;28 29 appellee 
erroneously treats the City Council’s hearing as though it 
were the entire record in the case.30 Moreover, appellee 
does not appreciate that it bears the burden of proof in 
challenging Richmond’s remedial plan. Although the gov­
ernment must present evidence of discrimination to sup­
port its plan, it does not bear the ultimate burden of per­
suasion: “ [I]t is incumbent upon the non-minority
[plaintiffs] to prove their case; they continue to bear the 
ultimate burden of persuading the court that the [gov­
ernment’s] evidence did not support an inference of prior 
discrimination and thus a remedial purpose.” 31

28 See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 470 
(1981) (courts should not “ substitute their evaluation of legislative 
facts for that of the legislature” ) .

29 Wygant, 476 U.S. at 277 (plurality opinion). See also id. at 286 
(O’Connor, J., concurring in part and concurring in the judgment).

30 Appellee ignores the fact that the City Council’s public hear­
ing was just the final step in the process by which the Minority 
Business Utilization Plan became law. For example, it incorrectly 
suggests that prior to the hearing the City Council members had 
no statistics on minority participation in city construction contracts. 
Brief of Appellee at 8. In fact, prior to the public hearing council 
members were well aware of the negligible number of contracts 
awarded to minority firms and were involved in developing the 
remedial plan with the City Attorney. J.A. 26-27.

31 Wygant, 476 U.S. at 293 (O’Connor, J., concurring in part and 
concurring in the judgment). See also id. at 277-78 (plurality



14

One amici group also would like to rewrite the facts of 
this case. The Washington Legal Foundation and the 
Lincoln Institute have questioned the previously undis­
puted fact that the number of minority contractors in 
Richmond is “quite small.” J.S. App. 7a. They have 
attempted to introduce into the record statistics of the 
United States Census Bureau indicating that in 1982 
there were 144 black-owned construction firms in Rich­
mond.* 32 They fail to mention, however, that the same 
statistical table from the Census Bureau survey indicates 
that only 30 of those 144 “ firms” had paid employees, and 
that the gross annual sales and receipts of the 144 firms 
totaled only $3.3 million, or less than $24,000 per “ firm.” 
Even the 30 firms with paid employees had only 77 em­
ployees among them and averaged gross receipts of only 
$70,000 annually.33 The Census Bureau information thus 
tends to confirm what the City has known all along: 
that there are minority-owned construction firms in Rich­
mond, but that most are small, struggling operations that 
are outside the mainstream of the local construction in­
dustry and have been precluded from competing with 
more established firms for city contracts.34

opinion) ; Johnson v. Transportation Agency, Santa Clara County, 
107 S. Ct. 1442, 1449 (1987).

32 Brief of Amici Curiae the Washington Legal Foundation and 
the Lincoln Institute for Research and Education at 9-10 (here­
inafter “ Brief of the Washington Legal Foundation” ).

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

34 The Washington Legal Foundation and the Lincoln Institute 
also suggest that the fact that minority businesses received only 
.67 percent of the value of city construction contracts is misleading 
because minority firms might have received a large number of 
small contracts, while white-owned firms received a few large con­
tracts that would skew the statistics. See Brief of the Washington 
Legal Foundation at 15. They are incorrect. Had they reviewed 
the list of the $124 million in construction contracts that Richmond 
awarded between 1978 and early 1983, which is part of the record



15

III. THE RICHMOND ORDINANCE IS NARROWLY 
TAILORED TO ACHIEVE ITS REMEDIAL PUR­
POSE

A. The Ordinance Does Not Unnecessarily Burden 
Third Parties

Appellee and its amici claim that the ordinance unduly 
burdens non-minority contractors. Their argument is in­
consistent with this Court’s precedents.35 36 White con­
tractors are not like the white teachers laid off in 
Wygant, or the white firefighters discharged in the Stotts 
case.88 They do not have a legitimate proprietary interest 
in receiving any particular public contract, or for that 
matter, in maintaining their existing market share of

in this case, they would have known that there were 215 contracts 
awarded, that 14 were for more than $1 million, and that these 14 
contracts accounted for approximately $65 million of the $124 
million total, or approximately half. See Def. Ex. D. This means 
that even if contracts over $1 million are not considered, minority 
firms still received well under two percent of the City’s construction 
contracts.

Amici Washington Legal Foundation and Lincoln Institute also 
state that it is their “understanding that the current experience 
under the Richmond plan is that in order to satisfy the 30 percent 
set-aside provision, there is extensive use of minority firms located 
in Atlanta and Philadelphia.” Brief of the Washington Legal Foun­
dation at 22. Not only is this not in the record, it is erroneous,

35 To support its argument that the ordinance “ imposefs] an 
unduly harsh competitive burden on non-minority contractors,” ap­
pellee states that it was denied the ability to perform the work on 
the public contract on which it had bid because of the City’s sub­
contracting requirement. Brief of Appellee at 28-29. This ignores 
the fact that appellee simply could have re-bid on the contract. See 
supra note 3. In addition, it conflicts with this Court’s recognition 
that “ [a]s part of this Nation’s dedication to eradicating racial 
discrimination . . . innocent persons may be called upon to bear 
some of the burden of [a race conscious] remedy.” Wygant, 476 
U.S. at 280-81 (plurality opinion).

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



16

public contracts. Thus, the ordinance “unsettle [s] no 
legitimate firmly rooted expectation[s].” 37

In addition, the ordinance does not single out any in­
dividual non-minority contractor. The impact of the or­
dinance is “ limited and so widely dispersed that its use 
is consistent with fundamental fairness.” Fullilove, 448 
U.S. at 515 (Powell, J., concurring). In fact, the Wy- 
gant plurality contrasted the indirect “ light burden” 
imposed on white contractors by the comparable minor­
ity set-aside requirement in Fullilove with the heavy bur­
den of the layoffs that fell directly on white teachers 
in Wygant. 476 U.S. at 282-83.®8

B. Richmond Selected A Reasonable Means Of Attain­
ing Its Remedial Goal

The United States contends that before resorting to the 
ordinance the City was required to show that “non-race- 
specific remedies ha[d] been or clearly would [have] been 
unavailing,”  and that such alternatives were in fact 
available to the City. Brief for the United States at 21. 
It is wrong on both counts.39

37 Johnson, 107 S. Ct. at 1455.

38 The United States’ argument that the ordinance “may require 
the layoff of innocent workers” is strained. Brief for the United 
States at 23. It offers no reason to believe that the ordinance will 
in fact have such a direct impact on non-minorities.

38 The United States’ suggestion that the availability of alterna­
tives is the “critical factor” in the “narrowly tailored” analysis also 
is unsupported. Brief for the United States at 21. If one factor 
has been the most telling, it is not the availability of alternatives, 
but the impact of race-conscious relief on third parties. Indeed, 
this proved to be the dispositive factor in the only two decisions of 
this Court during this decade striking down affirmative action 
plans. See Wygant, 476 U.S. at 278, 283-84 (plurality opinion); 
id. at 294 (White, J., concurring); Stotts, 467 U.S. at 574-76, 578- 
79. See also Paradise, 107 S. Ct. at 1076 (Powell, J., concurring) 
( “particularly important” that the race-conscious measure did not 
unduly burden innocent whites).



17

The United States’ proposed requirement would strip 
the City of any discretion in selecting an appropriate 
remedy for identified discrimination. Even under strict 
scrutiny, this Court has not “ in all situations ‘required 
remedial plans to be limited to the least restrictive means 
of implementation. . . .’ ”  Paradise, 107 S. Ct. at 1073 
(plurality opinion) (quoting Fullilove, 448 U.S. at 508 
(Powell, J., concurring)). Instead, the question of alter­
native remedies is viewed in conjunction with the other 
factors that comprise the narrowly tailored test. Further­
more, the availability of alternatives bears on the ques­
tion of whether the means actually employed were “neces­
sary.” See Paradise, 107 S. Ct. at 1067 (plurality 
opinion). Therefore, although “ less intrusive means might 
serve the ends, [the] choice of remedy should be upheld 
. . . if the means selected are equitable and reasonably 
necessary to the redress of identified discrimination.” 
Fullilove, 448 U.S. at 510 (Powell, J., concurring).

Richmond’s ordinance not only has a minimal impact 
on third parties, see supra at 15-16, but it is a reasonable 
means of remedying the identified problem. The problem 
the City faced was that minority contractors had been 
excluded from the mainstream of the construction indus­
try and were not participating in public contracting. 
The ordinance was designed to team up minority firms 
as subcontractors with established white-owned firms. 
This served to remove some of the practical obstacles that 
had kept minority firms out of public contracting, such as 
access to financing. It also was designed to give minority 
businesses experience in public contracting, which would 
familiarize them with the contracting system and provide 
them with an opportunity to develop a track record.40 
This approach was particularly appropriate because “ the 
subcontracting system offers entrepreneurs a training

40 See R. Glover, Minority Enterprise in Construction 73 (1977) 
( “a contractor can build his business through public work” ).



18

ground in which to develop the skills necessary to become 
a successful contractor.”  41

The City did consider alternatives. Based on its past 
experience, however, the City determined that these meas­
ures either had not been or would not be efficacious. Prior 
to enacting the ordinance, the City had passed legislation 
banning discrimination in its public contracting.42 43 In ad­
dition, as the district court found, minority businesses 
had been receiving different kinds of federal, state and 
local assistance, but “ continued to participate in minis­
cule proportion as prime contractors in the City’s con­
struction contracts. . . .” J.S. Supp. App. 193. The dis­
trict court determined that the City was aware of “ other 
governmental efforts at various levels to promote minor­
ity business development,” but considered a minority sub­
contracting requirement to be the most appropriate means 
to address its problem. Id. at 194.

C. The Thirty Percent Minority Subcontracting Re­
quirement Is Flexible And Reasonable

Appellee and its amici criticize the thirty percent sub­
contracting requirement as arbitrary and unreasonable. 
Their criticism is unfounded. The thirty percent figure 
“necessarily involve [d] a degree of approximation and 
imprecision.” 413 However, it would not have been sensible 
for the City to tie the subcontracting requirement to the

41 U.S. Civil Rights Commission, Selected Affirmative Action 
Topics in Employment and Business Set-Asides, Vol. 1, at 90 (1985) 
(testimony of John W. Sroka, Executive Director, Occupational 
Divisions of the Associated General Contractors of America).

42 Human Rights, Richmond, Va. Code § 17.2. (1975) (attached 
as Appendix No. 2 to Brief of Amici Curiae Lawyers’ Committee 
for Civil Rights Under Law et al.). This ordinance banned both 
discrimination in the award of public contracts and employment 
discrimination by public contractors.

43 Paradise, 107 S. Ct. at 1072 (quoting International Brotherhood 
of Teamsters v. United States, 431 U.S. 324, 372 (1977)).



19

number of minority contractors in Richmond, as the 
United States argues,44 since that number was artificially 
low because of discrimination. J.S. Supp. App. 167. It 
was reasonable for the City to conclude that some greater 
number of minorities should and would have participated 
in public contracts but for industry discrimination.415 
The thirty percent figure represents a “ halfway” mark 
between the minority population of Richmond and the 
existing number of minority contractors doing business 
with the City, and thus parallels the approach adopted by 
Congress and upheld by this Court in Fullilove. 448 U.S. 
at 513-14 (Powell, J., concurring).

Furthermore, the thirty percent subcontracting re­
quirement is not rigid. The inclusion of a provision per­
mitting the requirement to be lowered or waived in­
dicates that the thirty percent figure “ contains signifi­
cant elements of flexibility . . . .”  Paradise, 107 S. Ct. 
at 1076 (Powell, J., concurring). In addition, the lim­
ited duration of the subcontracting requirement enhances 
its reasonableness.

44 Brief for the United States at 22.
46 The United States attacks the ordinance as overbroad because 

it includes groups such as Aleuts and Eskimos as eligible minori­
ties. Brief for the United States at 22. This point is irrelevant as 
a practical matter, however, since such groups are highly unlikely 
actually to benefit from the plan,



20

CONCLUSION

For the reasons stated herein and in appellant’s open­
ing brief, this Court should reverse the decision of the 
court of appeals and uphold the constitutionality of Rich­
mond’s Minority Business Utilization Plan.

Respectfully submitted,

Of Counsel:
John H. Pickering 
Wilmer, Cutler & Pickering 
2445 “ M” Street, N.W. 
Washington, D.C. 20037

July 8,1988

John Payton *
Mark S. Hersh
Michael C. Small 

W ilmer, Cutler & Pickering 
2445 “ M” Street, N.W. 
Washington, D.C. 20037 
(202) 663-6000

Drew St . J. Carneal 
City Attorney

Michael L. Sarahan 
Assistant City Attorney

Michael K. Jackson 
Assistant City Attorney 
Room 300, City Hall 
900 E. Broad Street 
Richmond, Virginia 23219 
(804) 780-7940

Attorneys for Appellant
* Counsel of Record



TABLE OF CONTENTS

PAGE
TABLE OF AUTHORITIES............. ii
INTEREST OF AMICI CURIAE ........  1
SUMMARY OF ARGUMENT ............... 3
ARGUMENT .........................  7
I. THE COURT OF AP­

PEALS DISREGARDED 
THE SIGNIFICANT 
AND COMPELLING 
GOVERNMENTAL PUR­
POSES SERVED BY 
MINORITY BUSINESS 
OPPORTUNITY PRO­
GRAMS SUCH AS THE 
MBU P L A N ................. 7
A. Readily Iden­

tifiable Pri­
vate and Pub­
lic Discrimi­
nation Has 
Impaired Mi­
nority Busi­
nesses' Access 
To Public 
Contracting
Opportunities ........  7

B. Minority Busi­
ness Opportu­
nity Programs 
Seek to Remedy 
Procurement 
Practices



PAGE

Which Perpetu­
ate the Ef­
fects of Dis­
crimination . . . . . .  13

II. RICHMOND'S MBU
PLAN IS CONSTITU­
TIONAL ...................  25
A. Richmond Had A

Compelling 
Interest In 
Remedying 
Discrimination 
In Construc­
tion Contract­
ing . . .  . ..........  26

B. The MBU Plan 
Is Narrowly 
Tailored to 
Remedy Dis­
crimination In 
Construct ion 
Contracting in
R i c h m o n d ............. 34

III . IF THIS COURT
AFFIRMS THE FOURTH 
CIRCUIT THE PRAC­
TICAL RESULT WILL 
BE TO RENDER MI­
NORITY BUSINESS 
OPPORTUNITY PRO­
GRAMS INEFFECTIVE........  3 9

CONCLUSION 43



1 X 1

TABLE OF AUTHORITIES

CASES PAGE(S)
Albemarle Paper Co. v.

Moody, 422 U.S. 405
(1975).......................  37

Anderson v. Bessemer City,
470 U.S. 564 (1985) . . . . . 30,31

Associated General Con­
tractors of California 
v. City and County of 
San Francisco, 813 F.2d
922 ( 9th Cir. 1 9 8 7 ) .......... 2

Bradley v. School Board of 
Richmond, Virqinia, 462 
F.2d 1058 (4th Cir.
1972) .......................  33

Dothard v. Rawlinson, 433
U.S. 321 (1977) 7 ..........  29

Fullilove v. Klutznick,
448 U.S. 448 ( 1 9 8 0 ) .......... passim

Hazelwood School District 
v. United States, 433 
U.S. 299 ( 1 9 7 7 ) ............. 27

Icicle Seafoods, Inc, v.
Worthinqton, 475 U.S.
709 ( 1986)................... 31

Int'l Brotherhood of Teamsters 
v. United States, 431 U.S.
324 ( 1977) . . .................  35



IV

CASES PAGE(S )
J .A. Croson Co. v. City of 

Richmond, 822 F.2d 1355 
(4th Cir. 1987) . . . . . . .  14,

32, 41
Johnson v. Transportation 

Agency, Santa Clara 
County, California, 107
S. Ct. 1442 (1987)..........  39, 41

Local 28 of Sheet Metal 
Workers' International 
Association v. E.E.O.C.,
478 U.S. 421 (1986) . . .  10

McDaniel v. Barresi, 402
U.S. 39 (1971)  ............. 28

Michigan Road Builders 
Association, Inc, v.
Mi 11iken, 571 F. Supp.
173 (E.D. Mich. 1983) . . . .  12

Pullman-Standard v. Swint,
456 U.S. 273 (1982) T". . . .  30

Regents of the University 
of California v. Bakke,
438 U.S. 265 (1978) T . . . .  26

Rogers v. Lodge, 458 U.S.
613 ( 1982)  ................. 30

South Florida Chapter of 
the Associated General 
Contractors of America,
Inc, v. Metropolitan 
Dade County, Florida,
723 F.2d 846 (11th Cir.) . . . 13



V

CASES PAGE(S)
Tennessee Asphalt Co. v. 

Farris, No. 87-5588 (6th 
Cir. argued Mar. 31, 
1988) ............. 2

Texas Dept, of Community 
Affairs v. Burdine, 450 
U.S. 248 (1981) 7 . . . . 35

Toney v. Block, 705 F.2d
1364 (D.C. Cir. 1983) . . . . 35

United Jewish Orqaniza- 
tions of Wi11iamsburqh, 
Inc. v. Carey, 430 U.S. 
144 (1977) .......... 28, 37

United Steelworkers v. 
Weber, 443 U.S. 193 
(1979) ................. 10, 39

Wyqant v. Jackson Board of 
Education, 476 U.S. 267 
(1986) ................. passim

STATUTES AND LEGISLATIVE, 
ADMINISTRATIVE AND EXECUTIVE 
MATERIALS
Exec. Order No. 11,625, 3

C.F.R. § 616 (1971) ........ 15
Fed. R. Civ. P. 52(a) . . . . 30
N.J. Stat. Ann. § 52-32 

(West 1986) . . . . 16



VI

STATUTES AND LEGISLATIVE, 
ADMINISTRATIVE AND EXECUTIVE 
MATERIALS * S
Wis. Stat. Ann.

SS 16.75(3)(3m)(a),
16.87(2), 84.075 (West
1957)   16

Md. State Fin. & Proc.
Code Ann. § 18-601
(1985).......................  13

Ohio Rev. Code Ann.
S§ 122.71-122.89 (Ander­
son 1984)    13

Public Works Employment 
Act of 1977,
S 103(f)(2), 91 Stat.
116, 42 U.S.C.
§ 6705(f)(2) (Supp. II
1976) .......................  26

Public Works Employment 
Act of 1977, Pub. L. 95- 
28, 91 Stat. 116, 42
U.S.C. § 6701   15, 20

S. Rep. No. 1070, 95th 
Cong., 2d Sess. 7 
(1978), reprinted in 
1978, U.S. Code Cong. &
Admin. News 3835 ............  15

Small Business Act of 
1953, as amended 15 
U.S.C. § 637 (1988)
Section 8(a) 15, 19



VI 1

STATUTES AND LEGISLATIVE, 
ADMINISTRATIVE AND EXECUTIVE 
MATERIALS
Surface Transportation 

Assistance Act of 1982,
Pub. L. 97-424, 96 Stat.
2098, 23 U.S.C. S 104
( 19 8 3 ) .......................  15,

16, 20
OTHER AUTHORITIES
Affirmative Action Report 

of Consolidated Rail 
Corporation Ethics Com­
mittee .......................  24

An Assessment of Program 
Impacts of the Disadvan­
taged Business Enter­
prise (DBE) Requirement 
in the Federal-Aid High­
way Construction Pro­
gram, (Draft Report,
U.S. Dep't of Transpor­
tation, Federal Highway 
Admin. March 1986) ..........  17, 21

Bates, Minority Business 
Set-Asides: Theory and
Practice, in Volume 1,
Selected Affirmative 
Action Topics in Employ­
ment and Business Set- 
Asides, United States 
Commission on Civil 
Rights (1985) 8, 9,

11, 14



VI 1 1

OTHER AUTHORITIES
Betts and Giles, Dole 

Advocates Greater Busi­
ness Opportunities, 
Foresees Minority Entre­
preneurs Becoming Inte­
gral Part of the Trans- 
portation Industry, 
Minority Business Today 
(July 1986) (Minority 
Business Development 
Agency, U.S. Department
of Commerce)............... . 21

Executive Summary: 1986
Office of Contract Com­
pliance Annual Report 
(March 31, 19 8 7 ) ............. 23

Minority Business Enter­
prises Legal Defense and 
Education Fund, Minority 
Business Enterprises:
Programs of State and 
Local Governments, Acad­
emy for State and Local 
Government (Jan. 1988) . . . .  3,8,

13
Minority Business Program 

FY87 Annual Report (Feb.
1, 19 8 8 )........ ............  22

G. Myrdal, An American
Dilemma (1944)  ̂  ̂ T ........  9

Senate Committee on Small 
Business, Survey of the 
Graduates of the Small 
Business Administration



IX

OTHER AUTHORITIES
Section 8(a) Minority 
Business Development 
Program (1987) ...............

R. Suggs, Recent Changes 
in Black-Owned Business,
Joint Center for Politi- 
cal Studies (1986) ..........

United States Commission 
on Civil Rights, Greater 
Baltimore Commitment; A 
Study of Urban Minori~ty~ 
Economic Development 
11983) . . . . . .  . ........

United States Commission 
on Civil Rights, Minor­
ities and Women as Gov­
ernment Contractors ( Mav  1975] T r T T T " T ~ .  . .

17, 20

20

10, 12

18



No. 87 -998

In The
SUPREME COURT OF THE UNITED STATES 

October Term, 1987

City of Richmond,

Appellant,

v.
J. A. Croson Company,

Appellee.

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

BRIEF OF THE MINORITY BUSINESS ENTERPRISE 
LEGAL DEFENSE AND EDUCATION FUND, INC. 

AND THE LOUISIANA ASSOCIATION OF MINORITY 
AND WOMEN OWNED BUSINESSES, INC. AS AMICI 

CURIAE IN SUPPORT OF APPELLANTi

Amici MBELDEF and LAMWOB file this brief 
pursuant to the letters of consent lodged 
with the Clerk of the Court.



INTEREST OF AMICI CURIAE
Amicus Minority Business Enter­

prise Legal Defense and Education Fund, 
Inc. ("MBELDEF"), a non-profit corpora­
tion, was founded in 1980 by former Mary­
land Congressman Parren J. Mitchell. The 
primary purpose of MBELDEF is to promote 
minority business opportunity programs. 
MBELDEF is comprised of over 800 minority 
businesses nationwide, many of which, in 
their efforts to become successful com­
mercial enterprises, have benefited from 
federal, state, and local minority busi­
ness opportunity programs. MBELDEF has 
provided numerous state and'local govern­
ments with legal guidance in the adoption 
of such programs and has participated in



2

significant litigation concerning these 
programs.2

Amicus Louisiana Association of 
Minority and Women Owned Businesses, Inc. 
("LAMWOB") is a not-for-profit corpora­
tion organized in 1988 to promote minor­
ity business opportunity programs within 
the State of Louisiana. LAMWOB's member­
ship consists of, but is not limited to, 
contractors that have been certified to 
participate in a federal program for 
socially and economically disadvantaged 
businesses and therefore derive their 
livelihood, at least in part, from minor-

Most recently, MBELDEF has appeared as in- 
tervenor-appellee before the United States 
Court of Appeals for the Sixth Circuit in 
Tennessee Asphalt Co. v. Farris, No. 87-5588 
(6th Cir. argued Mar. 31, 1988) and as ami­
cus curiae before the United States Court of 
Appeals for the Ninth Circuit in Associated 
General Contractors of California v. City 
and County of San Francisco, 813 F.2d 922 
(9th Cir. 1987) (petition for rehearing en 
banc pending).



3

ity business opportunity programs. LAM- 
WOB has supported minority business par­
ticipation programs in New Orleans.

Amici MBELDEF and LAMWOB there­
fore have a significant interest in this 
Court's determination concerning the 
constitutionality of the Richmond Minor­
ity Business Utilization ("MBU") Plan.3

SUMMARY OF ARGUMENT 
The remedial concept of minor­

ity business opportunity programs was 
born of the compelling interest of gov­
ernment to purge the final vestiges of

There are currently in excess of 160 state 
and local government minority business op­
portunity plans in effect nationwide that 
might be affected by the outcome of this 
case. See Minority Business Enterprise Le­
gal Defense and Education Fund, Minority 
Business Enterprises: Programs of State and
Local Governments, Academy for State and 
Local Government 2 (Jan. 1988) [hereinafter 
MBELDEF Report] (lodged with the Clerk of 
the Court and sent to the parties).



4

identified racial discrimination. Feder­
al, state, and local minority business 
opportunity programs are aimed at meeting 
that goal by taking affirmative steps to 
create a level playing field in the realm 
of public procurement. The Richmond MBU 
Plan represents just such an effort by a 
responsible municipality to address per­
vasive discrimination within its public 
sector marketplace.

The district court found that 
the evidence before the Richmond City 
Council was sufficient to establish a 
compelling interest in remedying dis­
crimination in public sector construction 
contracting. It also found that the MBU 
Plan was an appropriate means of address­
ing that interest. Finally, it found 
that plaintiff had failed to demonstrate 
that the plan would place an excessive 
burden on non-minority contractors in



5

contravention of their constitutional 
equal protection rights.

The Fourth Circuit committed 
legal error in reversing this well- 
reasoned district court opinion. First, 
it misinterpreted Wyqant v. Jackson Bd. 
of Educ., 476 U.S. 267 (1986) to require 
that the Richmond City Council should 
have found past discrimination by Rich­
mond against minority contractors in 
order to establish the City's compelling 
interest in remedying such discrimina- 
tion. Wyqant imposes no such condition. 
Rather, it requires only that Richmond 
had convincing evidence to support its 
conclusion that there was prior discrimi­
nation. The Fourth Circuit also failed 
to grant due deference to the district 
court's findings of facts and erroneously 
ascribed the burden of proof to Richmond 
notwithstanding plaintiff's failure to



6

introduce any evidence to rebut Rich­
mond's showing of past discrimination.

Second, the Fourth Circuit 
erroneously concluded that the MBU Plan 
was not tailored narrowly enough to avoid 
violating the equal protection rights of 
non-minority contractors. In reaching 
this conclusion, the Fourth Circuit in­
correctly applied scrutiny crafted for 
judicial review of layoff plans, with 
their direct and substantial harm to non­
minority individuals, rather than the 
test this Court has adopted for review of 
minority business opportunity programs.
In fact, as the district court properly 
concluded, the MBU Plan is narrowly tai­
lored to the remedial goal of addressing 
discrimination in construction contract­
ing. The limited burdens imposed on non­
minority contractors are not violative of



7

the Fourteenth Amendment to the Constitu­
tion.

ARGUMENT 
I .

THE COURT OF APPEALS DISREGARDED THE 
SIGNIFICANT AND COMPELLING GOVERNMENTAL 
PURPOSES SERVED BY MINORITY BUSINESS 

OPPORTUNITY PROGRAMS SUCH AS THE MBU PLAN
A. Readily Identifiable Private and 

Public Discrimination Has Impaired 
Minority Businesses' Access To 
Public Contracting Opportunities

It is uncontroverted that the 
combined effects of past and present, 
private and public discrimination have 
denied public contracting opportunities 
to minority-owned businesses. Although 
the discrimination at issue here may, at 
first glance, appear to be less direct 
than the more renowned Jim Crow segrega­
tion of public facilities —  it is not. 
The barriers to access resulting from 
private and public discrimination in the 
marketplace, and the accompanying fore­



8

closure of public contracting opportuni­
ties for minorities, are as real, and of 
the same invidious intent, as the notori­
ous "For Whites Only" signs once found in 
public bathrooms and waiting rooms.

At the national level, empiri­
cal tests consistently indicate that 
discrimination has continued to injure 
the minority business community.4 For 
example, although the nation's population 
is approximately fifteen percent minor­
ity, the most recent economic figures 
indicate that only five percent of the 
nation's businesses are minority-owned 
and that they receive only one-half per­
cent of all contracting gross receipts.5 
Minority entrepreneurs still earn signif-

See Bates, Minority Business Set-Asides: 
Theory and Practice, 1 United States Commis­
sion On Civil Rights, Selected Affirmative 
Action Topics in Employment and Business 
Set-Asides 142, 147 (1985).

See MBELDEF Report, supra note 2, at 2.



9

icantly less than non-minority entrepre­
neurs. Bates, supra note 4, at 149-150. 
Additionally, minority-owned businesses 
are less profitable, more highly lever­
aged and are much more likely to be un­
dercapitalized. 6 But for the effects of 
racial discrimination, a free competitive 
market would not produce such varying 
levels of market performance along racial 
1ines.

In 1944, Gunnar Myrdal observed:

The Negro businessman, furthermore 
encounters greater difficulties 
[than whites] in securing credit. 
This is particularly due to the 
marginal position of negro busi­
ness. It is also partly due to 
prejudiced opinions among whites 
concerning the business ability 
and personal reliability of Ne­
groes. In either case a vicious 
circle is in operation keeping 
Negro business down.

Gunnar Myrdal, An American Dilemma 309 
( 1944) .



10

Discriminatory barriers to 
minority-owned business participation 
have been particularly oppressive in the 
construction industry. Pervasive employ­
ment discrimination in the construction 
trades has prevented minorities from 
following the traditional path from la­
borer to entrepreneur.7 The construction 
industry is characterized by an "old-boy 
network" in which white male general 
contractors work with a closely knit 
group of white male subcontractors to the 
exclusion of others.» The result of this

"Judicial findings of exclusion from crafts 
on racial grounds are so numerous as to make 
such exclusion a proper subject for judicial 
notice." United Steelworkers v, Weber, 443 
U.S. 193, 198 n.l reh'q denied, 444 U.S. 889 
(1979). See also Local 28 of Sheet Metal 
Workers' Int'l Ass'n v. E.E.O.C., 478 U.S. 
421 (1986).

United States Commission on Civil Rights, 
Greater Baltimore Commitment: A Study of
Urban Minority Economic Development, 31 
(1983) (quoting from G. Douglas Pugh, "Bond­
ing Minority Contractors," in Black Economic 
Development 138-39 (W.F. Hoddard & G. D.

(Footnote continued)



11

exclusionary network is that, in the 
absence of governmental remedy, minority 
firms are precluded from significant 
participation in public contracting op­
portunities. Bates, supra note 4, at

(Footnote 8 continued from previous page) 
Pugh, eds. 1969)) (Black contractors have 
been the victims of exclusionary practices 
of the construction craft unions, which 
have, in the past, denied them entry into 
the construction trades. . . . These exclu­
sionary practices have made it almost impos­
sible for black workers to acquire construc­
tion skills and to enter the construction 
business through the normal channel of grad­
uating from skilled worker and foreman into 
small scale contracting and then, with the 
accumulation of experience and capital, into 
larger and more complex work. It has also 
made it impossible for black contractors to 
have available to them the quantities of 
skilled workers needed for larger enter­
prise. When to this pattern, is added lack 
of access to financing, the result is an 
almost total inability of black contractors 
to qualify for surety bonds needed for par­
ticipation in most . . . public construction
work. . . . Thus, black contractors find 
themselves in a kind of circular trap where 
their lack of experience in bonded work 
makes it virtually impossible to obtain 
surety bonds for construction work requiring 
such bonds and thereby gain experience on 
this type of work, even though they might 
otherwise have the ability to perform.).



12

148, 156.9 Since much of this discrimi­
nation is localized, city and state gov­
ernments have a particularly strong 
interest in structuring corrective pro­
grams .

The fact that "past impairment of minority- 
firm access to public contracting opportuni­
ties may have been an incidental consequence 
of 'business as usual' by public contracting 
agencies" is not sufficient to detract from 
a government's authority to take remedial 
action to remedy the impairment. Fullilove 
v. Klutznick, 448 U.S. 448, 484 (1980). 
Further, a 1974 Michigan sponsored study, 
"disclosed unfounded negative attitudes to­
wards minority contractors by those [state] 
departments charged with the responsibility 
of awarding an enormous variety of contacts" 
even though the officials "had not had any 
actual experience with minority vendors." 
Michigan Road Builders Ass'n, Inc, v. Milli- 
ken, 571 F.Supp. 173, 179 (E.D. Mich. 1983), 
rev'd, 834 F.2d 583 (6th Cir. 1987). Based 
on this finding, the study concluded that 
absent formal state action the "negative 
attitude of State purchasing authorities 
toward minority vendors would cripple any 
steps toward achieving equity in the State's 
purchasing policies." Id. at 181.



13

B. Minority Business Opportunity 
Programs Seek to Remedy 
Procurement Practices Which 
Perpetuate the Effects of 
Discrimination______________

Minority business opportunity 
programs are intended to redress dis­
criminatory barriers which have impaired 
opportunities for minorities in public 
procurement.10 These programs are sub­
stantially related to the achievement of 
this goal: first, by attempting to place * 2

Thirty-two states and 160 local governments 
have adopted minority business opportunity 
programs. MBELDEF Report, supra note 2, at
2. These programs can generally be divided 
into three categories. Some, such as Rich­
mond's, require contractors to attempt to 
meet a goal for utilization of minority- 
owned subcontractors. Others establish 
sheltered markets for minority-owned busi­
nesses under certain limited circumstances. 
See, e.g., South Florida Chapter of the As­
soc. Gen. Contractors of Am., Inc, v. Metro­
politan Dade County, Fla., 723 F.2d 846, 
848-49 (11th Cir.), cert. denied, 469 U.S. 
871 (1984). Still others award points or 
credits for minority participation in deter­
mining contract awards, or provide financial 
and technical assistance. See, e.g., Ohio 
Rev. Code Ann. §§ 122.71-122.89 (Anderson 
1984); Md. State Fin. & Proc. Code Ann.
§ 18-601 (1988).



14

minority-owned businesses on a more equi­
table footing with respect to public 
contracting opportunities, see, e .g .,
Fullilove, 448 U.S. at 485-86; and sec­
ond, by fostering viable minority-owned 
businesses which, in turn, spur economic 
growth. Bates, supra note 4, at 142.

Contrary to the notion implicit 
in the Fourth Circuit's majority opinion, 
state and local minority business oppor­
tunity programs, such as Richmond's MBU 
Plan, have not been adopted in a lacka­
daisical fashion and do not reflect "the 
most casual deployment of race in the 
dispensation of public benefits." J .A. 
Croson Co. v. City of Richmond, 822 F.2d 
1355, 1362 (4th Cir. 1987), jur. noted 
108 S.Ct. 1010 (1988) (No. 87-998). To 
the contrary, these programs are modeled 
after longstanding federal efforts, such 
as the Section 8(a) program of the Small



15

Business Act of 1953 ("SBA"), as amended, 
15 U.S.C. § 637 (1988);11 minority busi­
ness programs developed by federal de­
partments and agencies; 12 ancj federal 
legislation such as the Surface Transpor­
tation Assistance Act of 1982, Pub. L. 
97-424, 96 Stat. 2098, 23 U.S.C. § 104, 
(1983) ("STAA") and the Public Works 
Employment Act of 1977, Pub. L. 95-28, 91

Under the SBA Section 8(a) program, federal 
contracts are directed to small businesses 
owned and controlled by "socially or econom­
ically disadvantaged" persons in order to 
assist these persons in achieving a competi­
tive position in the economy. See Fulli- 
love, 448 U.S. at 463-64. See also S. Rep. 
No. 1070, 95th Cong., 2d Sess. 7 (1978), 
reprinted in 1978 U.S. Code Cong. & Admin. 
News 3835, 3842.

Although the federal programs differ from 
agency to agency, they have originated 
largely from a series of executive orders. 
See, e.q,, Exec. Order No. 11,625, 3 C.F.R.
§ 616 (1971) (adopted as part of President 
Nixon's attempt to foster "black capital­
ism" ) .



16

Stat. 116, 42 U.S.C. § 6701 
("PWEA").i3

As demonstrated by the STAA and 
PWEA, and the large number of state and 
local programs that they fostered,13 14 
public construction contracts have been a 
particular area of emphasis for minority 
business opportunity programs. The em­
phasis on construction is appropriate 
because: (1) a sufficient number of mi­
nority-owned firms are available to per­

13 Section 105(f) of the STAA required, subject 
to certain waivers, that at least 10 percent 
of the funds appropriated under the Act be 
expended with small business concerns owned 
and controlled by socially and economically 
disadvantaged individuals as defined by the 
Small Business Act.

See, e.q,, N.J. Stat. Ann. § 52.32-17, (West 
1986 & Supp. 1987); Wis. Stat. Ann.
§§ 16.75(3)(3m)(a), 16.87(2), 84.075 (West 
1957 ) .



17

form the required government contracts;15 
(2) the large volume and size of public 
construction contracts yields ample op­
portunity for minorities to obtain sig­
nificant subcontracts and prime contracts

See, e.q., Senate Committee on Small Busi­
ness, Survey of the Graduates of the Small 
Business Administration Section 8(a) Minor­
ity Business Development Program (1987) 
[hereinafter Senate Small Business Report] 
(40 percent of respondents to survey of Sec­
tion 8(a) graduate companies listed con­
struction and related fields as their prima­
ry service at initial certification and 
42 percent listed construction and related 
fields as their primary service after gradu­
ation from the program.) See also An As­
sessment of Program Impacts of the Disadvan­
taged Business Enterprise (DBE) Requirement 
in the Federal-Aid Highway Construction Pro­
gram, (Draft Report, U.S. Department of 
Transportation, Federal Highway Administra­
tion, March 1986) [hereinafter Draft Report 
to D.O.T.] at 72-73 (43 percent of state 
transportation officials surveyed indicated 
that in 1982, prior to enactment of STAA, 
there were sufficient minority firms in 
their states to meet the Act's 10 percent 
goal, and more than 75 percent indicated 
that availability of minority firms in­
creased after implementation of the STAA) (a 
copy is attached at tab A to the Compendium 
of Minority Business Opportunity Plan Re­
ports lodged with the Clerk of the Court and 
sent to the parties).



18

without inappropriate burdens on non­
minority-owned firms; and (3) minority 
business development efforts in the con­
struction industry have a great potential 
for success because non-discriminatory 
barriers to entry in the subcontracting 
business are relatively low.16

When measured in terms of the 
number of contracts awarded and jobs 
created, the benefits to program partici­
pants, and the overall growth in the 
number of minority-owned firms, minority 
business opportunity programs have proven

The use of subcontracting with its lesser 
demand on capital and expertise than prime 
contracting is an appropriate means of ef­
fectuating the goal of remedying the effects 
of discrimination. It is a particularly 
appropriate means where the objective, as 
well as the anticipated result, is that suc­
cessful minority-owned companies will emerge 
as effective competitors for prime con­
tracts. See also U.S. Commission on Civil 
Rights, Minorities and Women as Government 
Contractors 122 (1975).



19

effective. These programs have aided in 
the creation and expansion of thousands 
of minority enterprises in such fields as 
wholesaling, general construction, busi­
ness services and large scale manufactur­
ing.17 The positive effects of these 
remedial programs have been produced at 
all levels of government and, more re­
cently, have been duplicated in the pri­
vate sector.

For example, the SBA Section 
8(a) program has been highly successful.
A survey of Section 8(a) graduate compa­
nies revealed: (1) the majority of the
firms fell within the top quartile of the 
nation's minority-owned firms, see Senate

The success of minority business opportunity 
programs has been somewhat remarkable given 
the degree of resistance that the programs 
have engendered and the fact that the pro­
grams are new and still evolving. Conse­
quently, some types of programs have proven 
more successful than others.



20

Small Business Report, supra note 15, at 
15; and (2) more than one half of the 
firms continued to receive government and 
commercial contracts even when required 
to participate in competitive bidding, 
many from their previous Section 8(a) 
sources. Id. at 25, 33.

The Disadvantaged Business 
Enterprise ("DBE") requirement of STAA 
has proven equally effective.18 From the 
three years immediately preceding STAA's 
passage to the three years immediately 
following, contract awards to disadvan­
taged business enterprises more than 
tripled from 9,450 to 32,500 with corre­

PWEA also was successful. Employment by 
black heavy construction contractors rose 
122.5 percent from 1977 to 1982. Among 
black highway and street construction firms, 
receipts increased during the same period by 
223.7 percent. These increases have been 
linked to PWEA. R. Suggs, Recent Changes in 
Black-Owned Business, Joint Center for Po­
litical Studies 12-13 (1986).



21

sponding values soaring from $1.03 bil­
lion to more than $3.26 billion.19 Most 
states reported a doubling or tripling of 
the number of DBE firms certified for 
highway construction work between 1983 
and 1984.2 0

In Massachusetts, an executive- 
ordered minority business opportunity 
plan containing set-aside provisions has 
produced spectacular results in only 
three years. From 1985 to 1987, procure­
ment from minority firms more than dou­

See Betts and Giles, Dole Advocates Greater 
Business Opportunities, Foresees Minority 
Entrepreneurs Becoming Integral Part of the 
Transportation Industry, Minority Business 
Today, July, 1986, at 17, 18. (Minority 
Business Development Agency, U.S. Department 
of Commerce).

See Draft Report of D.O.T., supra note 15, 
at 70 (including both existing firms which 
may not have previously been engaged in 
highway construction and new companies 
formed in response to the program).



22

bled.21 As of 1987, Massachusetts let 
$146.5 million worth of business to mi­
nority-owned firms constituting 10.4 
percent of all discretionary services 
purchased and 9.4 percent of all discre­
tionary construction work purchased. 
Mass. Report at 1. Massachusetts con­
tracting with minority-owned vendors 
increased from 368 firms in fiscal year 
1984 to 813 firms in fiscal year 1987. 
Id. at 6.

Atlanta's adoption of a minor­
ity business opportunity plan is viewed 
as a vehicle for all its citizens to 
participate fully in the economic devel­
opment of the Metropolitan Atlanta area.

See Minority Business Program FY87 Annual 
Report at 1 [hereinafter Mass. Report] (a 
copy is attached at tab B in the Compendium 
of Minority Business Opportunity Plan Re­
ports lodged with the Clerk of the Court and 
sent to the parties).



23

Prior to Atlanta's adoption of a 25 per­
cent minority-owned business participa­
tion goal in 1982, minority business 
participation in city contracting aver­
aged about two percent. In 1987, minor­
ity-owned business participation exceeded 
36 percent of all Atlanta city 
contracts.2 2

These programs have been emu­
lated by quasi-public and private sector 
entities. Conrail's voluntary minority- 
owned business opportunity program graph­
ically demonstrates the long-term compet­
itive benefits derived from such pro­
grams. For calendar years 1982, 1983,
1984 and the first nine months of 1985

See Executive Summary: 1986 Office of Con­
tract Compliance Annual Report (March 31, 
1987) (a copy is attached at tab C to the 
Compendium of Minority Business Opportunity 
Plan Reports lodged with the Clerk of the 
Court and sent to the parties).



24

Conrail obtained savings of $3,589,727 on 
purchases from minority—owned businesses 
totalling $127,747,765.23

Accordingly, minority business 
opportunity programs have a demonstrated 
record of success as an important tool in 
eliminating the remaining barriers to 
equality in the marketplace. They create 
a positive environment in which minority- 
owned businesses can flourish and grow 
into viable competitive enterprises. The 
Fourth Circuit's flawed analysis should 
not be permitted to eviscerate these 
necessary measures.

jjffirmative Action Report of Consolidat- 
ed-Rail Corporation Ethics Commift-PP (com­
paring similar purchasing from non-minority- 
owned business for a similar study period 
preceeding the affirmative action program)
(a copy is attached as tab D to the Compen­
dium of Minority Business Opportunity Plan 
Reports lodged with the Clerk of the Court 
and sent to the parties).



25

II.
RICHMOND'S MBU PLAN 
IS CONSTITUTIONAL

The Richmond Minority Business 
Utilization Plan represents a good faith 
effort by a responsible municipal govern­
ment to address pervasive discrimination 
within its jurisdiction. Richmond acted 
in a manner mindful of the constitutional 
rights of non-minority contractors, such 
as Appellee Croson, who would be required 
to share the light burdens imposed to 
effectuate the MBU Plan's affirmative 
action goals. After determining that it 
had the authority and a compelling inter­
est to enact a remedial program to ad­
dress discrimination in public sector 
construction contracting, the Richmond 
City Council carefully studied the per­
missible parameters of affirmative action



26

programs as defined in Fullilove2 4 and 
Bakke. 2 5 It then crafted a narrowly- 
tailored minority business opportunity 
program —  the MBU Plan. Contrary to the 
Fourth Circuit's opinion, that Plan is 
entirely consistent with the standards 
established by this Court governing the 
constitutionality of such programs.

A. Richmond Had A Compel­
ling Interest In Remedying 
Discrimination In Construc- 
tion Contracting___________

The first requirement of a 
state-sponsored minority preference pro­
gram is that it "must be justified by a

There, the Court found the Minority Business 
Enterprise provision, § 103(f)(2), of the 
Public Works Employment Act of 1977, 91 
Stat. 116, 42 U.S.C. § 6705(f)(2) (Supp. II 
1976) an appropriate balancing of the feder­
al government's competing obligations to 
remedy pervasive discrimination in the con­
struction industry nationwide and to treat 
non-minority contractors fairly. 448 U.S. 
at 480-89.

25 Regents of the Univ. of Cal, v. Bakke, 438 
U.S. 265 (1978).



27

compelling governmental interest." Wy- 
gant v. Jackson Bd. of Educ., 476 U.S. at 
274 (1986) (quoting Palmore v. Sidoti,
466 U.S. 429, 432 (1984)). Wygant re­
quires only that the state "ensure that, 
before it embarks on an affirmative- 
action program, it has convincing evi­
dence that remedial action is warranted. 
That is, it must have sufficient evidence 
to justify the conclusion that there has 
been prior discrimination." Id. at 277. 
Statistical disparities, among other 
indicia, may be sufficient to provide 
convincing evidence of prior discrimina­
tion. Id̂ _ at 292 (O'Connor, J., concur­
ring). See also Hazelwood School Dist. 
v. United States, 433 U.S. 299, 307-08 
(1977).26 26

26 Contrary to the Fourth Circuit's interpreta­
tion, Wygant does not require an express 
contemporaneous finding by the state that it 
previously had engaged in discrimination. 
Justice O'Connor, concurring, stated that "a 

(Footnote continued)



28

In this case, the district 
court found that the Richmond City Coun­
cil had "ample evidence" of discrimina­
tion in public sector construction con­
tracting to support its compelling inter­
est in enacting a minority business op­
portunity plan. Supplemental Appendices 
to Jurisdictional Statement [hereinafter 
Supp. App.] at 172. It made this finding 
after reviewing the evidence considered 
by the City Council, including: (1) a
statistical disparity between Richmond's

(Footnote 26 continued from previous page) 
contemporaneous or antecedent finding of 
past discrimination by a court or other com­
petent body is not a constitutional prereq­
uisite to a public employer's voluntary 
agreement to an affirmative action plan." 
Wygant, 476 U.S. at 289. See also United 
Jewish Orgs. of Williamsburgh, Inc, v.
Ca_rey, 430 U.S. 144, 165-166 (1977); McDan- 
iel v. Barresi. 402 U.S. 39, 41 ( 1971K Ac­
cordingly, the Fourth Circuit is wrong as a 
matter of law in finding the plan unconsti­
tutional on the basis that Richmond did not 
admit and document its culpability for past 
discrimination against minority contractors.



29

50 percent minority population and its 
award of only 0.67 percent of its con­
struction-contract dollars, over five 
years, to minority contractors;27 (2 ) 
representations by construction trade 
associations that there were very few 
minority-owned businesses in their indus­
try; (3) testimony by a city councillor 
and the city manager that there was dis­
crimination on the basis of race in Rich­
mond public sector construction contract­
ing; and (4) congressional findings of

A similar statistical comparison was ap­
proved by this Court in Fullilove. There, 
the percentage of blacks in the United 
States population was compared with the per­
centage of black-owned businesses obtaining 
government construction contracts. Fulli­
love, 448 U.S. at 478. Such statistics are 
indicative of an environment in which "oth­
erwise qualified" minority individuals and 
businesses are actively discouraged from 
participating as a result of a "self- 
recognized inability" to surmount the barri­
er of race. Dothard v. Rawlinson, 433 U.S. 
321, 330 (1977).



30

nationwide discrimination in the con­
struction industry. Supp. App. at 164- 
165. The district court also took judi­
cial notice of historical barriers to 
entry by minority-owned businesses into 
the construction industry:

The fact that very few minority 
construction businesses even 
exist is consistent with, not 
opposedto, a finding that 
minorities have suffered past 
discrimination in the [Rich­
mond] area's construction in­
dustry. It suggests, of 
course, that past discrimina­
tion has stymied minority entry 
into the construction industry 
in general, as well as partici­
pation in [Richmond] government 
construction contracting in 
particular.

Supp. App. at 167.
Such findings may not be dis­

turbed by an appellate court unless 
clearly erroneous. 28 In the instant

See Wygant, 476 U.S. at 277; Anderson v. 
Bessemer City, 470 U.S. 564, 573 (1985); 
Rogers v. Lodge, 458 U.S. 613, 623 (1982); 
Pullman-Standard v. Swint. 456 U.S. 273, 
287-88 (1982); Fed. R. Civ. P. 52(a).



31

case, however, the Fourth Circuit failed 
to accord any deference to the district 
court's findings. Instead, it revisited 
the City Council's deliberations and 
substituted its own reactions to that 
record.29 It did not, however, cite any 
evidence in the record —  and there is 
none —  establishing that the district 
court's findings were clearly erroneous.

For example, the district court 
found the statistical comparison between 
Richmond's minority population and minor­
ity participation in City construction

"If the district court's account of the evi­
dence is plausible in light of the record 
viewed in its entirety, the court of appeals 
may not reverse it even though convinced 
that had it been sitting as trier of fact, 
it would have weighed the evidence differ­
ently." Anderson v, Bessemer City, 470 U.S. 
at 573-74 (1985). Moreover, if factual 
findings of a district court are inadequate 
a court of appeals should not find fact on 
its own, but rather should remand for fur­
ther fact finding. Icicle Seafoods, Inc, v. 
Worthington, 475 U.S. 709, 714 (1986).



32

contracts to be persuasive evidence of 
discrimination. 30 strikingly, the Fourth 
Circuit declared the same statistical 
evidence "spurious." Croson, 822 F.2d at 
1359. Additionally, the district court 
found that the testimony before the City 
Council supported the conclusion that 
"there was discrimination and exclusion 
on the basis of race in the construction 
industry, in both Richmond and the 
state." Supp. App. at 164-65. The 
Fourth Circuit found the same testimony 
"nearly weightless." Croson, 822 F.2d at 
1359. Finally, the Fourth Circuit im­
properly disregarded the district court’s 
judicial notice of barriers to entry and

3 0 Supp. App. at 168-69 ("dismally low level of 
minority business participation in City's 
prime contracts").



33

historical discrimination in Richmond. 
Supp. App. at 166.31

Accordingly, the district 
court's holding that there was ample 
evidence to establish that Richmond had a 
compelling interest in enacting the MBU 
Plan meets applicable legal standards and 
is supported by the record. The Fourth 
Circuit's contrary conclusion was based 
on an erroneous reading of Wygant and its 
own improper findings of fact.

There can be no doubt that Richmond commit­
ted such discrimination. For example, in 
Richmond "there has been state (also feder­
al) action tending to perpetuate apartheid 
of the races. . . . "  Bradley v. School 
Board of Richmond, 462 F.2d 1058, 1065 (4th 
Cir. 1972), aff'd, 412 U.S. 92 (by an equal­
ly divided court; Powell took no part in the 
consideration or decision), reh'g denied,
414 U.S. 884 (1973). After a "sordid histo­
ry" of attempts to "circumvent, defeat, and 
nullify the holding of Brown I," Richmond 
did not take even "feeble steps" to imple­
ment school desegregation until 1963. Id. 
at 1074-75.



34

B. The MBU Plan Is Narrowly
Tailored to Remedy Discrimina­
tion In Construction Contract- 
inq in Richmond ______

The second requirement of a 
state-sponsored affirmative action plan 
is that it "be 'narrowly tailored to the 
achievement of that goal.'" Wyqant, 476 
U.S. at 274; Fullilove, 448 U.S. at 480. 
When the state has demonstrated a compel­
ling interest in remedying such discrimi­
nation, it is entitled to a presumption 
that the remedial action chosen is a 
proper method to address the discrimina- 
tion. Wyqant, 476 U.S. at 293 (O’Connor, 
J., concurring). Thus, "[t]he ultimate 
burden remains with the [plaintiff] to 
demonstrate the unconstitutionality of an 
affirmative-action program." Wyqant, 476



35

U.S. at 277-78.3 2 That presumption may­
be overcome only when the trial court, in 
its sound discretion, finds that the 
remedies selected "impose disproportion­
ate harm on the interests, or unnecessar­
ily trammel the rights, of innocent indi­
viduals directly and adversely affected." 
Id. at 287.

In the instant case, the dis­
trict court concluded that "[p]laintiffs 
have not shown in any way how the burdens 
that the Plan may place on innocent third 
parties would be excessive as a constitu-

As this Court and others have recognized, it 
is of crucial importance to place the bur­
dens of proof on the appropriate parties.
See e. g., Texas Dept, of Community Affairs 
v. Burdine, 450 U.S. 248 (1981) (reversing 
on wrong burden); Int'l Brotherhood of Team­
sters v. United States, 431 U.S. 324, 358
(1977); Toney v. Block, 705 F.2d 1364, 1367 
(D.C. Cir. 1983).



36

tional matter." Supp. App. at 197.33 
The district court's analysis is well 
reasoned and reflected a proper exercise 
of its abundant discretion. It also is 
fully consistent with this Court's rea­
soning in Fullilove that

by its objective of remedying 
the historical impairment of 
access, the [minority business 
opportunity program] can have 
the effect of awarding some 
contracts to [minority-owned 
businesses] which otherwise 
might be awarded to other busi­
nesses . . . .  It is not a 
constitutional defect in [the

In reaching this conclusion the court bal­
anced the reasonableness of a 30 percent 
set-aside in light of a 50 percent minority 
population, Supp. App. 173-80; the flexibil­
ity of the Plan given its "meaningful waiver 
provision," Supp. App. 181-93; the City 
Council's consideration of "the efficacy of 
alternative responses," Supp. App. 193-95; 
and the temporary nature of the Plan, Supp. 
App. 195; against "the burden on non-MBE 
prime contractors of seeking out MBE's to 
participate as subcontractors on City con­
struction projects; and the burden on non- 
MBE subcontractors who would have received 
some of the City's construction contracting 
business but for the City’s Plan." Supp. 
App. at 196-98.



37

program] that it may disappoint 
the expectations of nonminority 
firms . . . such "a sharing of 
the burden" by innocent parties 
is not impermissible.

448 U.S. at 484 (quoting Franks v. Bowman
Transp. Co., 424 U.S. 747, 777 (1976)).
See also United Jewish Orqs. of Williams-
burgh, Inc, v. Carey, 430 U.S. 144
(1977); Albemarle Paper Co. v. Moody, 422
U.S. 405 (1975).

The Fourth Circuit disregarded 
this line of authority and mistakenly 
patterned its analysis of the MBU Plan's 
constitutionality on this Court's holding 
in Wygant that the Jackson Board of Edu­
cations's layoff plan violated the Four­
teenth Amendment.34 State-sponsored

3 3 4 The Fourth Circuit also misplaced the burden 
of proof regarding the constitutionality of 
the MBU Plan on Richmond. Once the state 
demonstrates a compelling interest, the 
plaintiff must prove the government's

evidence did not support an infer­
ence of prior discrimination and 
thus a remedial purpose, or that 

(Footnote continued)



38

layoff plans present special circum­
stances in which the State must "meet a 
heavy burden of justification." Wyqant, 
476 U.S. at 282 n.10. Accordingly, the 
scrutiny applied to layoff plans which 
"impose the entire burden of achieving 
racial equality on particular individ- 
uais," Wyqant, 476 U.S. at 282-283, is 
very different from that applied to mi­
nority business opportunity plans where 
the "actual burden shouldered by nonmi­
nority firms is relatively light." Wy-

(Footnote 34 continued from previous page) 
the plan instituted on the basis 
of this evidence was not suffi­
ciently "narrowly tailored." Only 
by meeting this burden could the 
plaintiff's establish a violation 
of their constitutional rights, 
and thereby defeat the presumption 
that the [state's] assertedly re­
medial action based on the statis­
tical evidence was justified.

Wygant, 476 U.S. at 293 (O'Connor, J., 
cur ring).

con-



39

gant, 476 U.S. at 282 (quoting Fullilove, 
448 U.S. at 484); see also Johnson v. 
Transp. Agency, 107 S.Ct. 1442, 1451 
(1987); Weber, 443 U.S. at 208.

As a result of its failure to 
recognize this distinction, the Fourth 
Circuit applied the wrong standard in 
analyzing the constitutionality of the 
MBU Plan. Its conclusion that the bur­
dens imposed by the Plan on non-minority 
contractors deprives those contractors of 
equal protection under the law directly 
conflicts with well established author­
ity. The Fourth Circuit's decision 
therefore should be reversed.

Ill
IF THIS COURT AFFIRMS THE FOURTH 
CIRCUIT THE PRACTICAL RESULT WILL 
BE TO RENDER MINORITY BUSINESS 

OPPORTUNITY PROGRAMS INEFFECTIVE
As demonstrated above, minority 

business opportunity programs are an



40

effective tool in state and local efforts 
to eradicate discrimination-based barri­
ers which have impaired the access of 
minority-owned firms to public contracts. 
An affirmance of the court of appeal's 
decision will have a chilling impact on 
the continuing effectiveness of these 
necessary programs.

The Fourth Circuit's majority 
opinion would effectively preclude state 
and local governments from adopting any 
minority business opportunity program 
absent an admission of prior discrimina­
tion. Such a requirement is likely to 
thwart governmental efforts to remedy 
past discrimination. As Justice O'Connor 
explained: "[T]he imposition of a re­
quirement that public employers make 
findings that they have engaged in ille­
gal discrimination before they engage in 
affirmative action programs would severe­



41

ly undermine public employers' incentive 
to meet voluntarily their civil rights 
obligations." Wygant, 476 U.S. at 290 
(O'Connor, J., concurring). See, e.q ., 
Johnson, 107 S.Ct. at 1451 n.8.

In addition, if the Court up­
holds the notion that set-aside provi­
sions in minority business opportunity 
programs must be based on the small per­
centage of existing minority-owned firms, 
such programs will perpetuate, rather 
than remedy, discrimination. As Judge 
Sprouse argued in dissent below, under 
such a limited scope for minority oppor­
tunity programs, "truly pernicious dis­
crimination could have the compound ef­
fect of blocking remedial action." Cro- 
son, 822 F.2d at 1365 n.ll (Sprouse, J., 
dissenting).

Finally, if the same "heavy 
burden for justification" is placed on



42

minority business opportunity programs as 
is placed on layoff plans, it will be 
virtually impossible to draft a minority 
business opportunity plan which can both 
remedy discrimination effectively and 
withstand constitutional scrutiny.

Accordingly, a decision by this 
Court to affirm the Fourth Circuit will, 
as a practical matter, deprive state and 
local government of effective use of 
minority business opportunity plans to 
remedy economic discrimination within 
their jurisdictions.



43

CONCLUSION
For the foregoing reasons, the 

judgment of the United States Court of 
Appeals for the Fourth Circuit should be 
reversed.

Respectfully submitted,

Anthony Robinson 
Franklin M. Lee
MBELDEF, Inc.
Suite 200
300 "I" Street, N.E. 
Washington, D.C. 20002 
(202) 543-0040

H. Russell Frisby, Jg.
Melnicove, Kaufman, Weiner, 

Smouse & Garbis 
36 South Charles Street 
Baltimore, Maryland 21201

^A'AsJa±LUAndrew L Sandler
1440 New York Avenue, N.W. 
Washington, D.C. 20005



44

919 Third Avenue 
45th Floor
New York, New York 10022

Marc H. Morial
LAMWOB, Inc.
One Pydras Plaza
Suite 1610
639 Loyola Avenue
New Orleans, Louisiana 70113

Counsel wish to acknowledge Gabriel J. Chin, a law student 
at the University of Michigan Law School for his assistance in 
the writing of this brief.



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