Fullilove v. Kreps Brief for the Asian American Legal Defense Fund as Amicus Curiae

    In  t h e

Supreme (Emtri of thr Httttrii States
O c t o b e r  T e r m , 1979  

No. 78-1007

H. E a r l  F u l l il o v e , et al.,

v.
Petitioners,

J u a n it a  K r e p s , S e c r e t a r y  o f  C o m m e r c e  
OE THE UNITED' STATES OE AMERICA, et al.,

Respondents.

ON WRIT OE CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE ASIAN AMERICAN LEGAL 
DEFENSE AND EDUCATION FUND, INC. 

AS AMICUS CURIAE

K e n n e t h  C h u  
S t a n  lea '  M a r k  
L is a  S.J. Y e e

43 Canal Street
New York, New York 10002

B il l  L a n n  L e e  
Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Amicus Curiae



“ X-

INDEX

Page

Interest of Amicus ............. . 2

Summary of Argument ................ ..... 3

Argument:
I. The Purpose of the Set-Aside 

Provision is to Redress the 
Exclusion of Minority Busi­
nesses, Including Asian Amer­
ican Enterprises , from the 
Mainstream of American Eco­
nomic Life.  .... . 3

II. Asian Americans are Still 
Subject to the Vestiges of 
Prior Economic Discrimina­
tion Imposed by Law. ......----- 12

III. The Set-Aside Provision of 
the Public Work Employment 
Act of 1977 is a Necessary 
and Proper Means of Pro­
moting the Development of 
Minority Businesses.  ......  17

Conclusion 22



-Xi~

Table of Authorities

Cases;

T. Abe v. Fish and Gains Gamin,
9 Cal. App.2d 300, 49 P.2d 608
(1935) ® ........ .........a. 16

Cockrill v. California, 268 U.S. 258
(1924) ...................... ....... 15

Frick v. Webb, 263 U.S. 326 (1923) ...... 15

Fullilove v. Kreps, 584 F.2d 600
(2d Cir. 1978) ......... . 7,21

In re Hong Yen Chang, 84 Cal. 163
(1890) ................ ........----.... 14

Katzenbach v. Morgan, 384 U.S. 641
(1966) ••••••»••*••••••»••••••«••*••.•• 19

Lau v. Nichols, 414 U.S. 563 (1974) ..... 19

Oyarna v. State of California,
332 U.S. 633 (1948) ........... . 15

Slaughter House Cases, 83 U.S. 36
(1873) ___ .......................----- 20

Takahashi v. Fish and feme Ccnnin,
334 U.S. 410 (1948) .................  16

Terrance v. Thetipson, 263 U.S. 197
(1923) ................... .......... ... 15

The Chinese Exclusion Case,
130 U.S. 581 (1889) ..............   14

Page



- l i i -

Page
United States v. Operating Engineers,

4 F.E.P. Cases 1088 (N.D. Cal. 1972) .. 11

United States v. Wong Kim Ark,
169 U.S. 649 (1898) ..... ............  20

United Steelworkers of America v. Weber,
_U.S. , 99 S. Ct. 2721 (1979) ...10,20,21

University of California Regents 
v. Bakke, 438 U.S. 265 (1978) .....___ 17,20

Webb v. O'Brien, 263 U.S. 313
(1923) ........................    15

Yick Wo v. Hopkins, 118 U.S. 356
(1886) .......     12,13,14

Constitutions, Statutes and Regulations:

Chinese Exclusion Act, 22 Stat. 58
(1882) ........................    14

Public Works Act of 1976, 42 U.S.C.
§ 6709 .........      4

Public Works Employment Act of 1977,
42 U.S.C. §§ 6701 et seq. ...... ..3,4,18

Small Business Act of 1958, 15 U.S.C.
§ 637(a), as amended (1978) ...........  5

S. 1647, 96th Cong., 1st Sess. (1979) ... 16

California Const, of 1879, art. XIX,
§§ 2-3 14



Foreign Miners* License Tax, Act of 
Apr. 13, 1850, ch. 97,§§ 1 et seq.
1850 Cal. Stat. 221 ................. . 13

Idaho Const, of 1890, art. 13, § 5 .....  14

Municipal Reports, 1871-72 ........ —  ... 13

Other Authorities:

P. Chiu, Chinese Labor in California,
1850-1880 (1967) ...................... 13

F. Chuman, The Bamboo People: The Law
and Japanese Americans (1976) ......... 12,16

123 Cong. Rec. H 1436-40 (daily ed.
Feb. 24, 1977) ........................4,5,6,10

123 Cong. Rec. S 3910 (daily ed. Mar.
10, 1977) ...................  4,5,6,18,19

M. Coolidge, Chinese Irnmigratian (1909).. 12,13

R. Daniels, The Politics of Prejudice (1962) 15

S. Doctors and A. Huff, Minority Enter- 
prise and the President's Council
(1973) ...............................    6

Executive Order 9066 (1942), rescinded
Feb. 19, 1976 ......................... 16

Executive Order 11458 (1969), superseded
Oct. 13, 1 9 7 1 ......    5

Ferguson, The California Alien Land Law 
and the Fourteenth Amendment, 35 Cal.
L. Rev. 61 (1947)

-iv-
Page

15



~v~

Hearings Before the Subccrnm. on Economic 
DeveToptient of the House Ccarni. on 
Public Works and Transportation, 95th 
Cong., 1st Sess. (1977) ........... 4

House Subcesmi, on Small Business Admin.
Oversight and Minority Business 
Enterprise, Sumrrary of the Activities 
of the Cornu on Small Business, 94th 
Cong. (1976) ..................... . 7

Y. Ichihashi, Japanese in the United
States (1932) ...... ................ . 15

Page

H. Kitano, Japanese Americans; The
Evolution of a Subculture (1969) ....  15

M. Konvitz, The Alien and the Asiatic
in American Law (1946) ......... 15

I. Light, Ethnic Enterprise in America;
Business and Welfare Among Chinese,
Japanese and Blacks (1972) ..... . 13

S. Lyman, The Asian in the West (1970).. 13,14

S. Lyman, Chinese Americans (1974) ....  13

McGovney, The Anti-Japanese Land Laws 
of California and Ten Other States,
35 Cal. L. Pev. 7 (1947) ............  15

P. Murray, States' Laws on Race and
Color (1951) ... ............... ...... 12 -

New York State Advisory Cornea., U.S.
Ccrren'n on Civil Rights, The Forgotten.
Minority: Asian Americans in New
York City (1977) ................. . 11



-VI-

E. Sandmsyer, The Anti-Chinese Movenent
in California (1939) ................ 12,13,14

Page

U.S. Dept, of Ccranerce, Bureau of the 
Census, Minority-Owred Business:
1969 (1971) ..... ........... ........ 8

U.S. Dept, of Ccranerce, Bureau of the 
Census, 1972 Survey of Minority- 
Owned Business Enterprises, Minority- 
Owned Business, MB 72-4 (1975) ...... 8

U.S. Dept, of Commerce, Bureau of the 
Census, 1972 Survey of Minority- 
Owned Business Enterprises, Minority- 
Owned Businesses: Asian Americans,
American Indians, and Others, MB
72-3 (1975) ........... ........... . 8

U.S. Dept, of Commerce, Economic 
Development Admin., Guidelines for 
10% Minority Business Participation 
in Local Public Works Grants (1977).. 19

U.S. Dept, of Commerce, Office of 
Minority Business Enterprise,
.Report of the Task Force on Edu­
cation and Training for Minority 
Business Enterprise (1974) .......... 6,8,9

U.S. Dept, of Commerce, Office of 
Minority Business Enterprise, Amsun 
Associates, Socio-Economic Analysis 
of Asian American Business Patterns 
(1977) ............... ...............  8,10

U.S. Goran1 n on Civil Rights, Minorities 
and Women as 'Government Contractors 
(1975) ..... ............... ......... 6,10



-vil­

li. S. Dept, of Health, Education & 
Welfare, Urban Associates, Inc.,
A Study of Selected Socio-Economic 
Characteristics of Ethnic Minorities 
Based on the 1970 Census, Vol. II; 
Aslan Americans (1974) (HEW Publ.~
No. (OS) 75-121) ............... ......

U.S. Dept, of Labor, Manpower Admin., R. 
Glover, Minority Enterprise in 
Construction (1977) ..................

U.S. Dept, of Transportation, Federal 
Highway Admin., F. Wu, P. Chen, Y. 
Okano, P. Woo, Involvement of Asian 
Americans in Federal-Aid Highway 
Construction (1978) ..................

U.S. General Accounting Office, Minority 
Firms on Local Public Works Projects 
— Mixed Results (1979) ..............

Page

17

10

11

10,18



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1979 

No. 78-1007

H. EARL FULLILOVE, et al.,

Petitioners,

v.

JUANITA KREPS, SECRETARY OF COMMERCE
OF THE UNITED STATES OF AMERICA, et al.,

Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Second Circuit

BRIEF FOR THE ASIAN AMERICAN LEGAL DEFENSE 
AND EDUCATION FUND, INC. AS 

AMICUS CURIAE



Interest of Amicus

The Asian American Legal Defense and Education 
Fund is a non-profit corporation established under 
the laws of the States of California and New York 
in 1974 in order to assist Asian Americans through­
out the nation in 'the protection of their civil 
rights through the prosecution of lawsuits and the 
dissemination of public information. Amicus has 
found that much of its work concerns discrimina­
tion on the basis of race and national origin in 
the job market and economic opportunity generally 
as a result of the historic exclusion of Asians 
from the mainstream of American business life and 
the legacy of overt economic discrimination sanc­
tioned by law. It is the experience of amicus 
that affirmative action programs such as the Con­
gressional minority business enterprise set-aside 
program upheld by the court below are necessary
to overcome burdens on equal opportunity for Asian 

*
Americans.

-2-

*The parties have consented to the filing of this 
brief amicus curiae, and letters of consent have 
been filed with the Clerk.



-3-

SUMMAKY OF ARGUMENT

The minority set-aside provision of the Public 
Works Employment Act of 1977 was enacted as a 
means of bringing minority businesses, including 
Asian American enterprises, into full and equal 
participation in the economic life of the nation. 
The legislation is one of a set of recent Congres­
sional programs specifically designed to redress 
documented discriminatory exclusion of minority 
firms from dominant business activity. This ex­
clusion of Asian Americans, as is true of other 
racial minority groups, is a vestige of prior le­
gal restraints which limited and relegated Asians 
to marginal areas of economic endeavor. It was 
therefore appropriate for Congress to take steps 
to overcame the continuing effects of prior dis­
crimination in an area of great national concern 
pursuant to the enforcement powers conferred by 
the Thirteenth and Fourteenth Amendments.

ARGUMENT

I. THE PURPOSE OF THE SET-ASIDE PROVISION 
IS TO REDRESS THE EXCLUSION OF MINORITY 
BUSINESSES, INCLUDING ASIAN AMERICAN 
ENTERPRISES, FROM THE MAINSTREAM OF 
AMERICAN ECONOMIC LIFE.

The Public Works Employment Act of 1977, 42 
U.S.C. §§ 6701 et seq., was passed by Congress as



-4-

an antirecession measure targeted for areas of 
high unenployment. Section 103(f)(2) of the Act,
42 U.S.C. § 6705(f)(2), provides, in pertinent 
part, that "no grant shall be made under this chap­
ter for any local public works project unless the 
applicant gives satisfactory assurance to the Sec­
retary that at least 10 per centum of the amount 
of each grant shall be expended for minority busi­
ness enterprises," i.e., enterprises owned in sub­
stantial part by "citizens of the United States 
who are Negroes, Spanish-speaking, Orientals, In­
dians, Eskimos, and Aleuts." The set-aside provi­
sion was proposed "to strengthen the nondiscrimi­
nation provision contained in the ...Act", section 
110 of the Public Works Act of 1976, 42 U.S.C. § 
6709, — ^in order (a) to provide minority business­
es "a fair share" of construction contracts and 
related business to be generated by the Act-/ and 
(b) to fight unenployment in minority areas.—/

1. Hearings Before the Subcoirm. on Economic De- 
velopment of the House Comm, on Public Works and 
ihransportation, 95th Cong., lst~Siis.V 939 
(1977)(Rep. Conyers).

2. 123 Cong. Rec. H 1436 (daily ed. Feb. 24, 1977) 
(Rep. Mitchell).

3. 123 Cong. Rec. S 3910 (daily ed. Mar. 10, 1977) 
(Sen. Brooke); 123 Cong. Rec. H 1440 (daily ed. Feb. 
24, 1977)(Rep. Biaggi).



-5-

The proponents of the legislation nade clear 
that the set-aside provision m s  part and parcel 
of a decade of substantial federal efforts to en­
courage minority business through direct grants, 
loans, loan guarantees, and procurement of goods 
and services.—^ On March 5, 1969, President Nixon 
issued Executive Order 11458 which established the 
Office of Minority Business Enterprise under the 
Department of Comerce to develop and coordinate 
expanded federal efforts. The agency with the 
greatest implementation responsibility was the 
Small Business Administration ("SBA"), which in 
1972 spent over one-half of federal funds allo­
cated for minority business assistance. Among the 
programs administered by the SBA is a set-aside 
program for minority federal procurement contracts 
pursuant to section 8 (a) of the Small Business Act, 
15 IJ.S.C. § 637(a), vhich was specifically cited
as precedent for the public works act set-aside 

5/provision.—  Other federal agencies with programs 
to assist minority businesses, including, in sore 
.instances, set-aside programs, were the Commerce

4. See, e.g,, 123 Cong. Pec. H 1437 (daily ed. 
Feb. 24, 1977)(Rep. Mitchell); 123 Cong. Rec. S 
3910 (daily ed. Mar. 10, 1977)(Sen. Brooke).

5. Id.



—6—

Department’s Economic Development Administration, 
the Department of Housing & Urban Development, the 
Department of Health, Education & Welfare, the 
Department of the Interior, the Department of 
Transportation, and the Federal Aviation Adminis­
tration, as well as state and local agencies.—^ 

Indeed, the public works set-aside provision 
was expressly intended to supplement and strength­
en existing federal minority business programs.—^ 
Representative Mitchell, the author of the provi­
sion, pointed out that only 1 percent of all govern­
ment contracts went to minority businesses and that 
existing federal programs had not yet been able to 
increase the amount.—^ Congress was well aware of

6. See, U.S. Dept, of Commerce, Office of Minor­
ity Business Enterprise, Report of the Task Force 
cn Education and Training for Minority Business 
Enterprise 47-75 (1974) (hereinafter "OMBE Task 
Force Report"); U.S. Comm'n on Civil Rights, Mi- 
norities and Wcroen as Government Contractors 102- 
104 (1975); see also, S. Doctors & A. Huff, Mi­
nority Enterprise and the President's Council 17- 30 (19?3)-

7. 123 Cong. Rec. H 1436-37 (Rep. Mitchell),
H 1440 (Rep. Biaggi) (daily ed. Feb. 24, 1977); 
123 Cong. Rec. S 3910 (daily ed. Mar. 10, 1977) 
(Sen. Brooke).

8. Id.



-7-

the need for the legislation because the problem 
of "a business system which has traditionally ex­
cluded measurable minority participation” was 
fully documented in reports of federal agencies
with responsibilities for promoting minority busi- 

■ 9/ness.—  Thus, while minority persons were 17 per-

9. See, e.g., House Subcoran. on Small Business 
Admin. Oversight and Minority Business Enterprise, 
Summary of Activities of the Comm, on Snail Busi­
ness, 94th Cong., 182-183 (1976):

"The very basic problem.. .is that, 
over the years, there has developed a 
business system which has traditionally 
excluded measurable minority partici­
pation. In the past mare than the pre­
sent, this system of conducting busi­
ness transactions overtly precluded mi­
nority input. Currently, we more often 
encounter a business system which is 
racially neutral on its face, but be­
cause of past overt social and economic 
discrimination is presently operating, 
in effect, to perpetuate these past in­
equities. Minorities, until recently 
have not participated to any measurable 
extent, in our total business system 
generally, or in the construction in­
dustry, in particular. However, in­
roads are now being made and minority 
contractors are attempting to 'break- 
into' a mode of doing things, a system, 
with which they are empirically unfamil­
iar and which is historically unfamil­
iar with them."

Cited by the court below, 584 F.2d 600, 606 (2d 
Cir. 1979).



-8-

cent of the nation’s population, they control only 
4 percent of the total number of business enter­
prises, Gross receipts of all minority-owned busi­
nesses in 1969 were less than 1 percent of the to­
tal receipts for all American businesses and 
roughly equal to the 1972 sales of the General 
Electric Company alone, .and the combined assets of 
minority-owned businesses equalled 0,3 percent of 
all business assets in 1971.— ^

The situation of Asian American business enter­
prises is comparable to that of other minority 
firms. Asian American businesses comprise 0.5 
percent of total businesses, and the typical Asian 
American business is a sole proprietorship without 
paid employees engaged in. retail trade or person­
al service with annual gross receipts of under 
$25,000.— ^ One-third of all Asian American firms

10. OMBE Task Force Report at 17-19; see general­
ly, U.S. Dept, of Commerce, Bureau of the Census, 
Minority-Owned Business: 1969 1-2 (1971); U.S. 
Dept, of Commerce, Bureau of the Census, 1972 Sur- 
vey of Minority-Owned Business Enterprises, Minor- 
ity-Qwned Business, MB 72-4 (1975) . ~~ ' ~ ~ ~

11. U.S. Department of Commerce, Office of Minor­
ity Business Enterprise, Amsun Associates, Socio- 
Economic Analysis of Asian American Business Pat­
terns 5-26 (1977) (hereinafter "OMBE Study")-*- see 
generally, U.S. Department of Commerce, Bureau of 
the Census, 1972 Survey of Minority-Owned Busi­
ness Enterprises, Minority-Owned Easinesses: Asian 
Americans, American Indians, and Others (1975).



-9~

had less than $5,000 in gross receipts in 1972, 
and a little over two-thirds had gross receipts 
of under $25,000. 63 percent of all Asian Amer­
ican firms are engaged in retail trade and person­
al service (which includes laundry, cleaning 
and garment services, barber shops, beauty shops, 
etc.) business. The nearly 90 percent of Asian 
American businesses that are sole proprietorships 
account for only about one-half of the receipts of 
all Asian American businesses. More than three- 
fourths of Asian American businesses operate with­
out paid employees. In 1972, 61 percent of all 
Asian American employer firms had less than five 
employees and 99 percent had less than fifty em­
ployees; the 0.5 percent of Asian American employ­
er firms which had more than 100 employees are 
still considered small businesses by the SBA.

In particular, Asian American construction con­
tractors are typical of minority contractors. 
Specific problems of minority construction con­
tractors were cited in the debate on the public 
works set-aside provision: Minority firms could 
not compete successfully against the older, 
larger, and more established non-minority firms, 
and minorities we re unfamiliar with bidding pro­
cedures and often needed assistance in handling 
the administrative work required under federal



-10-

contracts.— ^ Only 4 percent of Asian American 
businesses are engaged in construction work in 
contrast to 10 percent of all American businesses. 
Average receipts per Asian American firm were half 
of total American firms, and three-quarters of the 
Asain American construction businesses were sole 
proprietorships with no paid employees. Employer 
firms are small, averaging eight employees per
firm.— /

The degree of discrimination encountered by 
minorities in the construction industry is so 
great that it had "(j)udicial findings of exclu­
sion from crafts on racial grounds are so numerous 
as to make such exclusion a proper subject for 
judicial notice". United Steelworkers of America
v. Weber, __U.S.___, 99 S. Ct. 2721, 2725 n.l
(1979) . Asians, like other minorities, have been 
unable to enter skilled trades in the construction

12. 123 Cong. Rec. H 1437 (Rep. Mitchell), H 1439
(Rep. Karsha), H 1440 (Rep. Conyers) (daily ed.
Feb. 24, 1977); see generally, U.S. Conm'n on Civil 
Rights, Minorities and Women as Government Contract­
ors (1975); U.S. Dept, of Labor, Manpower Admin.,
R. Glover, Minority Enterprise in Construction 
(1977); U.S. Gen'1 Accounting Office, Minority 
Firms On Local Public Works Projects— Mixed Results 
(1979).

13. OMBE Study at 39, 52-53.



-11-

industry in any appreciable numbers in areas of 
substantial Asian population because of racially 
exclusionary policies of construction unions; 
indeed, they are practically invisible, see, e.g., 
United States v. Operating Engineers, 4 F.E.P.
Cases 1088 (N.D. Cal. 1972). One study found that 
Asian participants in the Federal Highway Adminis­
tration highway construction-related trades and 
apprenticeship training, who successfully completed 
their training, nevertheless ware unable to enter 
apprenticeship programs because of racial discrim­
ination against Asians within the construction 
industry in California.— ^ Another striking example 
is the recent protracted efforts of Asian American 
groups and government agencies to convince builders 
and contractors to employ Asians in trainee con­
struction jobs at Confucius Plaza, a federally-
supported residential and commercial complex in the

. 15/heart of New York City's Chinatown.—

14. U.S. Department of Transportation, Federal 
Highway Admin., F. Wu, P. Chen, Y. Okano, P. Woo, 
Involvement of Asian Americans in Federal-Aid High­
way Construction (1978).

15. See, New York State Advisory Comm, to the U.S. 
Comm'n on Civil Rights, The Forgotten Minority: 
Asian Americans in New York City 28-29 (1977)T~~



-12-

II. ASIAN AMERICANS ARE STILL SUBJECT TO 
THE VESTIGES OF PRIOR 
CRIMINATION IMPOSED BY LAW,

Asian Americans have been subjected to state- 
imposed discrimination since their earliest arrival 
in the mid-1800!s. The early history of Asian 
American wage earners and businessmen reflects 
their participation in diverse occupations and 
industries. However, in each area in which Asian 
Americans became competitive in the pursuit of 
their livelihood with the white population, pro­
hibitive statutes and ordinances were enacted or 
discrirninatorily applied against Asians: indeed,
the history of Asian Americans in the western 
states, to which they first immigrated, is largely 
the history of legally-imposed exclusion from the 
mainstream of business life and restriction to 
separate and lesser economic pursuits Yick
Vfc> v . Hopkins, 118 U.S. 356 (1886), in which this 
Court struck down an ordinance regulating laundry 
buildings which San Francisco authorities adminis­
tered "with an evil eye and an unequal hand" to 
exclude Chinese from an entire occupation, and for

16. The history of legally-enforced discrimination 
and exclusion of Asians is set forth in M. Coolidge, 
Chinese Immigration (1909) (hereinafter "Coolidge"); 
E. Sandmeyer, The Anti-Chinese Movement in Califor­
nia (1939) (hereinafter "Sandmeyer1'); F. Churran, The 
Bamboo People: The Law and Japanese Americans (1976)
(hereinafter "Chuman"). See generally P. Murray, 
States' Laws on Race and Color (1951).



-13-

which "no reason for it exists except hostility to 
the race and nationality to which petitioners 
belong," id. at 374, was but one, and by no means 
the most invidious, part of the structure of racial 
discrimination and exclusion sanctioned by law.

The earliest Asian immigrants were the Chinese 
who began arriving in substantial numbers in 1847. 
The Chinese arrived as contract laborers to work 
in the mines and later on the railroads. In the 
1870's, following the completion of the railroads, 
Chinese entered a broad range of agricultural and 
manufacturing industries. They were also self-

17/
employed as laundrymen, darestics, and peddlers.—
However, Chinese miners were subject to a foreign
miner's tax enforced only on them,— 'and San Fran-

19/
cisco imposed a vehicle tax on Chinese laundrymen—

17. The history of the Chinese in the West is set 
forth in Coolidge, supra note 16; Sandmeyer, supra 
note 16; S. Lyman, The Asian in the West 9-26 
(1970); S. Lyman, Chinese Americans (1974); see 
also P. Chiu, Chinese Labor in California, 1850- 
1880 (1967); I. Light, Ethnic Enterprise in America: 
Business and Welfare Amtijg~QiInese, Japanese and 
Blacks (1972).
18. Foreign Miners' License Tax, Act of Apr. 13, 
1850, ch. 97, § 1 et seg., 1850 Cal. Stat. 221.
See Coolidge at 36.

19. Municipal Reports, 1871-72, 550; see Sand- 
ireyer at 52.



-14-
Chinese peddlers were prohibited from using poles 
and baskets, a traditional method of transporting 
goods and food.—  ̂ The California State Consti­
tution of 1879 expressly forbade the employment of
any Chinese, directly or indirectly, by any Cali-

21/fomia corporation or governmental entity.—
While that provision did not survive constitutional
challenge, other prohibitive statutes and ordinances

22/were widely enacted throughout the western states.—
What discriminatory laws and court rulings failed
to achieve, physical violence and anti-Chinese
sentiment completed. Finally in 1882 the first
Chinese Exclusion Act was passed prohibiting further
immigration and setting off a policy of curtailment

23/which continued into the middle of this century.—

20. S. Lyman, The Asian in the West 23 (1970).

21. California Constitution of 1879, art. XIX, §§ 
2-3. See Sandmeyer at 71-74.

22. See, e.g., Idaho Constitution of 1890, art.
13, § 5 (public works); Yick Wo v. Hopkins, 118 
U.S. 356 (1886) (San Francisco laundry building 
ordinance); In re Hong Yen Chang, 84 Cal. 163 (1890) 
(attorneys).

23. Chinese Exclusion Act, 22 Stat. 58 (1882).
See The Chinese Exclusion Case, 130 U.S. 581 (1889).



Japanese immigration began in the 1850 !s but did 
not reach significant numbers until 1891. Like the 
Chinese who came before them and in partial response 
to the labor shortage brought about by the prohibi­
tions against further Chinese inmigration, the 
Japanese also entered the agricultural, mining and 
railroad industries. In Colorado and Utah they 
branched out into the smelting and refining indus­
tries and in the Northwest, into the lumbering in­
dustries. The Japanese also engaged in the fishing

24/and canning industries.— - However, numerous
"alien land laws" were passed to prohibit the
Japanese from owning any legal interest in real 

25/property,—  and lav® were passed prohibiting 
Japanese from engaging in commercial fishing by

-15-

24. The history of the Japanese in California is
set forth in Y. Ichihashi, Japanese in the United 
States (1932) «- R. Daniels, The Politics of Pre­
judice (1952); H. Kitano, Japanese Americans: The
Evolution of a Subculture (1969) .

25. See, e.g., Terrace v. Thompson, 263 U.S. 197 
(1923) (Washington statute); Webb v. O'Brien, 263 
U.S. 313 (1923); Frick v. Webb, 263 U.S. 326 (1923); 
Cockrill v. California, 268 U.S. 258 (1924); Oyaira 
v. State of California, 332 U.S. 633 (1948) . See 
generally M. Konvitz, The Alien and the Asiatic in 
American Lav; 157-70 (1946); McGovney, The Anti- 
Japanese Land Laws of California and Ten Other 
States, 35 Cal. L. Rev. 7 (1947); Ferguson, The 
California Alien Land Law and the Fourteenth 
Amendment, 35 Cal. L. Rev. 61 (1947).



-16-
forbidding the issuance of fishing licenses or the 
sale of fish by Japanese.— ^ From 1923 to 1933 
bills aimed at the Japanese were proposed in vir­
tually every session of the California legislature
to prohibit the employment of aliens in government

27 /and by contractors for public work projects,— -
The uprooting of Japanese American families under
Executive Order 9066 wiped out their agricultural,
fishing and small business enterprises. Although
the economic and personal losses can never be fully
recompensed, bills proposing economic redress for
Japanese American internees are being considered 

28/by Congress.—  Koreans, Pilipinos, and later
Asian immigrants arriving after the Chinese and 
Japanese were subject to similar official treat­
ment.

While the express legal structure and sanction 
that "put the weight of government behind racial

26. Takahashi v. Fish and Game Coran'n, 334 U.S.
410 (1948); T. Abe v. Fish and Game Coirm'n, 9 Cal. 
App. 2d 300, 49 P.2d 608 (1935).

27. See Chuman at 111 n.10 (and bills cited there­
in) .

28. See, e.g., S. 1647, 96th Cong., 1st Sess. 
(1979) .



hatred and separatism"— ' has faded in the modem 
postwar era, its effects have not teen eliminated 
root and branch. Asian American business activity 
remains concentrated in the marginal areas to which 
they were relegated by state-imposed discrimination, 
small retail trade and personal service enterprises, 
see supra. Many of these enterprises operate in 
Chinatowns and Little Tokyos throughout the nation.— ^

III. THE SET-ASIDE PROVISION OF THE PUBLIC 
TORE EMPLOYMENT ACT 0FT977~IS~A ~
NECESSARY AND PROPER M A N S  OF PRO­
MOTING THE DEVELOPMENT OF MINORITY 
BUSINESSES.

“17-

Senator Brooke, the Senate sponsor, explained
why the set-aside provision is "entirely proper,
appropriate ate necessary."

It is necessary because minority businesses 
have received only 1 percent of the Federal 
contract dollar, despite repeated legisla­
tion,, Executive orders and regulations 
mandating affirmative efforts to include 
minority contractors in the Federal contracts 
pool.

29. University of California Regents v. Bakke,
438 U .S . 265,357-58 (19781 (Brennan, J.)

30. See generally U.S. Dept, of Health, Education 
& Welfare, Urban Associates, Inc., A Study of 
Selected Socio-Economic Characteristics of Ethnic 
Mnorities Based on the 1970 Census, Vo.i.'~l:i7 
Asian Americans (1974) (HEW Publ. No. (OS) 75-121).



-18-
It is a proper concept, recognized for 

example in this committee's bill which sets 
aside up to 2-1/2 percent for projects re­
quested. by Indians or Alaska Native villages. 
And, the Federal Government, for the last 
10 years in. programs like SBA's 8(a) set- 
asides, and the Railroad Revitalization Act’s 
minority resources centers, to name a few, 
has accepted the set-aside concept as a 
legitimate tool to insure participation by 
hitherto excluded or unrepresented groups.

It is an appropriate concept, because 
minority businesses’ work forces are prin­
cipally drawn from residents of communities 
with severe and chronic unemployment. With 
more business, these firms can hire even 
more minority citizens. Only with a healthy, 
vital minority business sector can we hope 
to make dramatic strides in our fight 
against the massive and chronic unemploy­
ment which plagues minority communities 
throughout this country.31/

Experience to date in implementing the Public 
Works Employment Act set-aside provision has shown 
that it has enabled new minority firms to develop 
and existing ones to survive, it has provided 
minority firms with valuable technical and manager­
ial assistance and experience, and it has exposed 
non-minority prime contractors to a wider range of
bidders,

, 32/ work.— -
including moinority firms,for subcontract

31. 123 Cong. Rec. S 3910 (daily ed. Mar. 10, 
1977) .

32. U.S. Gen'l Accounting Office, Minority Firmns 
on Local Public Works Projects— Mixed Results 13- 
15 (1979) . Although not without administrative 
problems, the set-aside program has resulted in 
benefits to minority firms.



The effects of the set-aside provision will be felt 
by minority businesses outside of the construction 
industry as well. Public works grants include 
contracts for engineering, landscaping, accounting, 
guard services, other professional or supervising 
services, and supplies. Just as minority con­
struction firms can be expected to stimulate the 
hiring and employment of minority construction 
workers, they can be also expected to stimulate
minority businesses engaged in other secondary and

33/related industries.— -
Amicus respectfully submits that the set-aside 

provision is a constitutionally permissible exer­
cise of Congressional power to enforce the guaran­
tees of the Thirteenth and Fourteenth Amendments 
and a proper exercise of the spending power. Con­
gress has broad powers both to determine the means 
by which the intent of the post-Civil War amend­
ments are enforced, Katzenbach v. Morgan, 384 U.S. 
641, 650-51 (1966), and to set the terms upon 
which its monetary allotments are conditioned.
Lau v. Nichols, 414 U.S. 563, 569 (1974). Certainly, 
the post-Civil War amendments were not intended to

33. See 123 Cong. Rec. S 3910 (daily ed. Mar. 10, 
1977) (Senator Brooke); Economic Development Admin., 
Guidelines for 10% Minority Business Participation 
in Local Public Vforks Grants (1977).

-19-



-20-
prohibit measures designed to remedy the effect of 
the nation's past treatment of racial minorities.
The Congress that passed the Thirteenth and Four­
teenth Amendments and early civil rights acts is 
the same Congress that passed the 1866 Freedmen!s 
Bureau Act, which provided many of its benefits 
and protections only to black freedmen then subject 
to the Black Codes, University of California Re­
gents v. Bakke, supra, 438 U.S. at 396-98 (Marshall, 
J.) .

The Congressional set-aside provision, like the 
affirmative action plan in United Steelworkers of 
America v. Weber, supra, 99 S. Ct. at 2730, was 
"designed to break down old patterns of racial 
segregation and hierarchy." The purposes of the 
set-aside provision mirror those of the Thirteenth 
and Fourteenth Amendments. The specific inclusion 
of Asian American business enterprises in the set- 
aside program was appropriate because the protect­
ions of the post-Civil War amendments and -the civil 
rights acts we re specifically intended to protect 
the rights of "Chinese coolie labor" as well as 
black freedmen, Slaughter House Cases, 83 U.S. 36 
(1873) , and that "the application of the Amend­
ment to the Chinese race was considered and not 
overlooked." United States v. Wong Kim Ark, 169 
U.S. 649, 697-99 (1898). Again like the affirma­
tive action program permitted in Weber, supra, the



the set-aside provision "does not unnecessarily 
trammel the interests of the white employees" and 
contractors, 99 S. Ct. at 2730, since the set-aside 
was for only 0.25 percent of federal funds expended 
yearly on construction work in the United States 
and the burden of being dispreferred was thinly 
spread among nonminority businesses, conprising 
96 percent of the construction industry. Fulli- 
love v. Kreps, 584 F.2d at 607-608. Last, the 
public works employment set-aside program is "a 
temporary measure; it is not intended to itaintain 
racial balance, but simply to eliminate a manifest 
racial imbalance." Weber, supra, 99 S. Ct. at 
2730.



-22-

con c l u s i o n

For the reasons above, the opinion and judgment 
of the Second Circuit should be affirmed.

Respectfully submitted,

KENNETH CHU 
STANLEY MARK 
LISA S.J. YEE 

43 Canal Street 
New York, New York 10002

BILL LANN LEE 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Amicus Curiae



MEILEN PRESS IN C —  N. Y. C.